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A recent Second Department decision, Matter of Reddock v New York State Dept. of Envtl. Conservation, highlights a unique procedural quirk involving Article 78 proceedings where the challenge is based upon “substantial evidence”.

The petitioners in Reddock own a 2.07-acre parcel of property in the Town of Smithtown adjacent to the Nissequogue River (the “Property”) and within the Nissequogue…
Continue Reading Unique Procedural Rule Requires Transfer of Article 78 Proceeding to Appellate Division

Several prior blog posts discussed standing requirements under the State Environmental Quality Review Act (SEQRA) and the timeliness of challenging a SEQRA determination. A decision from the Appellate Division, Third Department, Schulz v Town Board of the Town of Queensbury, issued on October 24, 2019, involved both of these elements and was a one-two punch that knocked out…
Continue Reading SEQRA Challenge Rejected by Appellate Court Because of Lack of Standing and Untimeliness of the Challenge

A recent Fourth Department decision upheld a determination by the Town of Westmoreland Zoning Board of Appeals (the “Westmoreland ZBA” or the “Board”) finding that a dog training business is not a “customary home occupation” within the meaning of the local zoning code.

Matter of McFadden v Town of Westmoreland Zoning Bd. presents a strikingly similar issue to that in…
Continue Reading Dog Training Business is Not a “Customary Home Occupation” According to Upstate NY Town

In July, the Appellate Division, Third Department issued a decision that dealt with lake bottoms and adverse possession. In LS Marina, LLC v ACME of Saranac, LLC, the appellate court found in favor of the marina operator and granted it summary judgment on its adverse possession claim. Here are the facts and analysis that led to that decision.

In…
Continue Reading Appellate Court Upholds Adverse Possession Claim of Lake Bottom

By decision dated December 17, 2015, the Town of Southampton Zoning Board of Appeals granted relief from Town Code §330-82 to allow a zero foot road frontage (where 40 feet is required) for two landlocked parcels located at 86 and 138 Old Sag Harbor Road in North Sea to allow for the construction of a single family residence. The…
Continue Reading Appellate Division Affirms Supreme Court Determination Upholding Southampton Town ZBA Decision

Historic Brownstone Houses in Residential Neighborhood of Fort Greene in Brooklyn

A recent Supreme Court decision, In the Matter of Preserve Our Brooklyn Neighborhoods v. City of New York, demonstrates the difficulty a litigant faces when challenging a zoning determination on constitutional grounds.  The petitioners are “an incorporated association of community members” from the Fort Greene area of Brooklyn (the “Petitioners”), who oppose proposed development in their community in the…
Continue Reading Constitutional Challenges to Zoning Subject to Very High Standard

While the Town of Halfmoon (“Town”) in Saratoga County, New York,  may be far from any given reader, the issues in Micklas v. Town of Halfmoon Planning Board, 170 A.D.3d 1483 (3d Dep’t 2019), are close to the heart: whether a golf course may brew beer on-site for its patrons, and does such a brewery constitute…
Continue Reading The Appellate Division, Third Department, Holds a Brewpub May Be an Accessory Use to a Golf Course

A recent Second Department decision applying the doctrine of laches highlights the importance of taking prompt action against a property owner who may be acting in violation of a zoning or building code.

The dispute in Kverel v. Silverman arose when the defendant contracted to purchase an undeveloped parcel of land (the “Premises”) in the Town of Southampton (the “Town”) …
Continue Reading Doctrine of Laches Bars Neighbor’s Challenge to Development

In Abbatiello v Town of North Hempstead, 164 A.D.3d 785 [2d Dept. 2018], the Second Department recently reversed Supreme Court, Nassau County and granted the petitioner’s CPLR Article 78 challenge to the Town of North Hempstead Board of Zoning Appeals (“Board”) denial of a use variance.  In finding that the house was a “legal nonconforming” 2-family residence, the Appellate…
Continue Reading Appellate Division Reverses North Hempstead Denial of Pre-Existing Nonconforming Two-Family Home In Business District

In Matter of HV Donuts, LLC v. Town of LaGrange Zoning Board of Appeals, the Second Department recently held that a property owner’s nonconforming use rights continue despite a temporary business interruption caused by a fuel truck accident and gasoline spill.

The property owner, Leemilt’s Petroleum, Inc. (the “Owner”), leased the subject property (the “Premises”) to a tenant who…
Continue Reading Remediation of Petroleum Spills Amount to Continuation of Nonconforming Use