Development

Neighbors May Not Enforce Zoning Code Without Making Requisite Demand to Local Officials

Smith v. Stephens Media Group-Watertown, LLC

2015 WL 496796

AppDiv, 4th Department

(memorandum opinion)

In an action by neighbors to enforce a provision of the town zoning code, landowner appealed from Supreme Court's denial of its motion for summary judgment. The Appellate Division modified to grant the motion, holding that neighbors had not made the requisite demand of the town before bringing their private action.

Landowner built a 370-foot radio transmission tower on its land, in alleged violation of the town code, which requires that the minimum setback distance of a communications tower from all property lines shall be equal to 100% of the height of the tower. Neighbors brought this action to enjoin the violation, contending that the size of landowner's parcel is inadequate to meet the minimum setback. Supreme Court denied landowner's motion for summary judgment dismissing the complaint, holding that neighbors, as owners of the adjacent property, had standing to bring the action even without proving special damages, and also holding that Town Law section 268(2) did not mandate dismissal of neighbors' claim.

In modifying, the Appellate Division agreed with Supreme Court that neighbors had standing because they were in the zone of interest protected by the ordinance, but held that landowner was entitled to summary judgment because neighbors had failed to show that they had requested, in writing, that the town take action enjoin the alleged violation. Without that request, neighbors had failed to satisfy a condition precedent to making a claim under Town Law section 268.

COMMENT

Despite Section 268(2) of the Town Law, the Court of Appeals has held that a landowner who has suffered special damages has standing to enjoin violation of a zoning ordinance even if the landowner does not send a written request, signed by three taxpayers, to the proper local officer, board, or body of the town. In Little Joseph Realty, Inc. v. Town of Babylon, 41 N.Y.2d 738, 741-42, the court held that landowner had standing to seek an injunction against the operation of an asphalt plant, which was constructed in violation of a zoning ordinance, because the plant caused great quantities of dust and soot to invade the taxpayer's property. Because of these special damages, the landowner had standing, despite noncompliance with Section 268(2). However, if the complaining landowner cannot provide “specific, detailed, evidence of a diminution in the value of [the landowner's] property as result of [the zoning violation,]” the landowner does not have standing to bring a private right of action. In Marlowe v. Elmwood, Inc., 12 A.D.3d 742, 745, the court granted summary judgment for the neighbor because the landowner's only evidence of special damages was a conclusory affidavit from a certified real estate appraiser who had not conducted an appraisal, but had merely opined that noise associated with the zoning violation detract[ed] from the value of nearby properties.

The Second Department has held that even if landowner cannot prove special damages, landowner has standing to enjoin a zoning violation if the landowner's property is in close proximity to the offending property and the landowner's interest is within the “zone of interest” protected by the zoning laws. In Zupa v. Paradise Point Ass'n, Inc., 2 2 A.D.3d 843, the Second Department, without ever addressing section 282.2, held that the landowners had standing to enjoin the neighbor's zoning violation because of the landowner's proximity to the violation. On its face, Smith appears inconsistent with Zupa and the court in Smith implicitly rejected the Second Department's position .

'

Neighbors May Not Enforce Zoning Code Without Making Requisite Demand to Local Officials

Smith v. Stephens Media Group-Watertown, LLC

2015 WL 496796

AppDiv, 4th Department

(memorandum opinion)

In an action by neighbors to enforce a provision of the town zoning code, landowner appealed from Supreme Court's denial of its motion for summary judgment. The Appellate Division modified to grant the motion, holding that neighbors had not made the requisite demand of the town before bringing their private action.

Landowner built a 370-foot radio transmission tower on its land, in alleged violation of the town code, which requires that the minimum setback distance of a communications tower from all property lines shall be equal to 100% of the height of the tower. Neighbors brought this action to enjoin the violation, contending that the size of landowner's parcel is inadequate to meet the minimum setback. Supreme Court denied landowner's motion for summary judgment dismissing the complaint, holding that neighbors, as owners of the adjacent property, had standing to bring the action even without proving special damages, and also holding that Town Law section 268(2) did not mandate dismissal of neighbors' claim.

In modifying, the Appellate Division agreed with Supreme Court that neighbors had standing because they were in the zone of interest protected by the ordinance, but held that landowner was entitled to summary judgment because neighbors had failed to show that they had requested, in writing, that the town take action enjoin the alleged violation. Without that request, neighbors had failed to satisfy a condition precedent to making a claim under Town Law section 268.

COMMENT

Despite Section 268(2) of the Town Law, the Court of Appeals has held that a landowner who has suffered special damages has standing to enjoin violation of a zoning ordinance even if the landowner does not send a written request, signed by three taxpayers, to the proper local officer, board, or body of the town. In Little Joseph Realty, Inc. v. Town of Babylon, 41 N.Y.2d 738, 741-42, the court held that landowner had standing to seek an injunction against the operation of an asphalt plant, which was constructed in violation of a zoning ordinance, because the plant caused great quantities of dust and soot to invade the taxpayer's property. Because of these special damages, the landowner had standing, despite noncompliance with Section 268(2). However, if the complaining landowner cannot provide “specific, detailed, evidence of a diminution in the value of [the landowner's] property as result of [the zoning violation,]” the landowner does not have standing to bring a private right of action. In Marlowe v. Elmwood, Inc., 12 A.D.3d 742, 745, the court granted summary judgment for the neighbor because the landowner's only evidence of special damages was a conclusory affidavit from a certified real estate appraiser who had not conducted an appraisal, but had merely opined that noise associated with the zoning violation detract[ed] from the value of nearby properties.

The Second Department has held that even if landowner cannot prove special damages, landowner has standing to enjoin a zoning violation if the landowner's property is in close proximity to the offending property and the landowner's interest is within the “zone of interest” protected by the zoning laws. In Zupa v. Paradise Point Ass'n, Inc., 2 2 A.D.3d 843, the Second Department, without ever addressing section 282.2, held that the landowners had standing to enjoin the neighbor's zoning violation because of the landowner's proximity to the violation. On its face, Smith appears inconsistent with Zupa and the court in Smith implicitly rejected the Second Department's position .

'