Development

Mandatory Injunction to Remove Building Held Premature

Matter of Angiolillo v. Town of Greenburgh

NYLJ 10/3/05, p.35, col. 2

AppDiv, Second Dept

(memorandum opinion)

In a hybrid action/article 78 proceeding brought by neighbors challenging issuance of building permits and seeking an injunction requiring restoration of the land to its natural condition, landowner appealed from a Supreme Court order directing demolition of five partially-constructed houses and restoration of the land to its natural state. The Appellate Division reversed and held that the motion for injunctive relief was premature.

After building permits were issued and landowner began construction of five single-family homes on the subject property, neighbors brought this action/proceeding, initially contending that the property was inalienable parkland. The Supreme Court rejected the parkland argument, but nevertheless held that the building permits were void because the lots for which the permits were issued did not appear on the existing approved subdivision plat. Apparently, the landowner had combined existing parcels to create larger ones to form lots conforming with the stricter zoning ordinance enacted after filing of the original subdivision map. In any event, the Supreme Court required subdivision approval from the town planning board, but denied the neighbors' request for injunctive relief. Supreme Court indicated, however, that if the developers did not apply for planning board approval, or if the application was not approved by the planning board on or before Jan. 8, 2001, neighbors could move for reargument.

The planning board took no action pending appeal of the Supreme Court's determination, which was affirmed by the Appellate Division. By that time, the deadline set by the Supreme Court had expired. Shortly after the Appellate Division determination, however, one of the neighbors — a member of the Westchester County Legislature — took the position that the subject parcel was in a critical environmental area, and that the planning board was therefore required to declare the development a Type I action for purposes of the State Environmental Quality Review Act (SEQRA). The planning board then rescinded a previously issued negative declaration under SEQRA. In 2004, before the planning board took any action on the application for subdivision approval, neighbors moved for renewal and reargument of their previous request for injunctive relief. The Supreme Court granted an injunction requiring removal of the partially-constructed houses, calling the Jan. 8, 2001 date an “unconditional and firm deadline.” The landowner appealed.

In reversing, the Appellate Division first rejected the contention that neighbors' motion was for renewal or reargument, and concluded that because the motion was based on new facts that had developed over 4 years, the motion was a new and independent motion for injunctive relief. The court then observed that a mandatory injunction to remove or destroy a building is a drastic remedy granted only when the harm to the movant if the injunction were not granted substantially outweighs the harm to the landowner if the injunction were granted. The court concluded that in this case, neighbors had not established grounds for the requested injunction. Moreover, the court concluded that the injunction would be premature in any event, because the original Supreme Court order had granted leave to make an additional motion if subdivision approval had been denied by Jan. 8, 2001. In this case, there has never been any denial of subdivision approval. Instead, the planning board has not acted. By participating in the subdivision review process, neighbors waived their right to further action until after a determination by the planning board.

Mandatory Injunction to Remove Building Held Premature

Matter of Angiolillo v. Town of Greenburgh

NYLJ 10/3/05, p.35, col. 2

AppDiv, Second Dept

(memorandum opinion)

In a hybrid action/article 78 proceeding brought by neighbors challenging issuance of building permits and seeking an injunction requiring restoration of the land to its natural condition, landowner appealed from a Supreme Court order directing demolition of five partially-constructed houses and restoration of the land to its natural state. The Appellate Division reversed and held that the motion for injunctive relief was premature.

After building permits were issued and landowner began construction of five single-family homes on the subject property, neighbors brought this action/proceeding, initially contending that the property was inalienable parkland. The Supreme Court rejected the parkland argument, but nevertheless held that the building permits were void because the lots for which the permits were issued did not appear on the existing approved subdivision plat. Apparently, the landowner had combined existing parcels to create larger ones to form lots conforming with the stricter zoning ordinance enacted after filing of the original subdivision map. In any event, the Supreme Court required subdivision approval from the town planning board, but denied the neighbors' request for injunctive relief. Supreme Court indicated, however, that if the developers did not apply for planning board approval, or if the application was not approved by the planning board on or before Jan. 8, 2001, neighbors could move for reargument.

The planning board took no action pending appeal of the Supreme Court's determination, which was affirmed by the Appellate Division. By that time, the deadline set by the Supreme Court had expired. Shortly after the Appellate Division determination, however, one of the neighbors — a member of the Westchester County Legislature — took the position that the subject parcel was in a critical environmental area, and that the planning board was therefore required to declare the development a Type I action for purposes of the State Environmental Quality Review Act (SEQRA). The planning board then rescinded a previously issued negative declaration under SEQRA. In 2004, before the planning board took any action on the application for subdivision approval, neighbors moved for renewal and reargument of their previous request for injunctive relief. The Supreme Court granted an injunction requiring removal of the partially-constructed houses, calling the Jan. 8, 2001 date an “unconditional and firm deadline.” The landowner appealed.

In reversing, the Appellate Division first rejected the contention that neighbors' motion was for renewal or reargument, and concluded that because the motion was based on new facts that had developed over 4 years, the motion was a new and independent motion for injunctive relief. The court then observed that a mandatory injunction to remove or destroy a building is a drastic remedy granted only when the harm to the movant if the injunction were not granted substantially outweighs the harm to the landowner if the injunction were granted. The court concluded that in this case, neighbors had not established grounds for the requested injunction. Moreover, the court concluded that the injunction would be premature in any event, because the original Supreme Court order had granted leave to make an additional motion if subdivision approval had been denied by Jan. 8, 2001. In this case, there has never been any denial of subdivision approval. Instead, the planning board has not acted. By participating in the subdivision review process, neighbors waived their right to further action until after a determination by the planning board.