Private Actions to Enforce Zoning Violations

When does a neighboring landowner have standing to bring a private action to enjoin a zoning violation? That question reaches the New York courts with some frequency, and although the recent trend is to liberalize standing requirements, the answer is not entirely free from uncertainty. The Second Department was faced with one aspect of the issue most recently in Greens at Half Hollow Home Owners Association, Inc. v. Greens Golf Club LLC, where the court upheld neighbor standing.

Town Law Section 268(2)

In Greens at Half Hollow, the Second Department relied on Town Law section 268(2) to hold that a neighboring homeowner association had standing to enforce a zoning restriction that required a developer to maintain community facility buildings for the exclusive use of residents of the district and their guests. Section 268(2) explicitly authorizes any three taxpayers “who are jointly or severally aggrieved by” a zoning violation to bring an action to enjoin the violation if a resident taxpayer asks municipal officials to take action and those officials fail or refuse to take appropriate action for a period of 10 days. Section 268 is not, however, a panacea for landowners seeking to enjoin a perceived zoning violation.

First, because the legislature enacted the statute as part of the Town Law, the statute is inapplicable to zoning violations that occur in cities, or to violations of ordinances promulgated by villages. Thus, in Allen Avionics, Inc. v. Universal Broadcasting Corp. , 118 A.D.2d 527, the Second Department held that a neighbor had no standing to brig an action to enjoin a radio broadcast tower operated on adjacent land in violation of the local zoning ordinance because the ordinance had been enacted by the local village, and village law has no parallel to Town Law section 268. Similarly, in Romano v. Damiano, 242 A.D.2d 267, the Second Department dismissed a private enforcement claim against a landowner who alleged a violation of the City of Yonkers zoning ordinance because Yonkers is governed by the General City Law, not the Town Law.

Second, in at least one case, the Third Department has held that section 268 is unavailable to neighbors when the town has already concluded that the challenged use does not violate the zoning ordinance. In Marlowe v. Elmwood, Inc., 12 A.D.3d 742, the court held that neighbors lacked standing to challenge landowner's use of its parcel as a summer camp because the town's officials had already found that the summer camp had complied with the zoning ordinance, and no neighbors had challenged the determination in a timely article 78 proceeding. In the court's view, section 268(2) is limited to cases of “official lassitude or nonfeasance,” not cases where the town has made a substantive decision with which the neighbors disagree.

Claims Outside the Statutory Framework

New York courts have held that section 268(2) does not provide the exclusive remedy for a neighbor seeking to challenge a landowner's violation of a zoning ordinance. In Little Joseph Realty, Inc. v. Town of Babylon, 41 N.Y.2d 738, the Court of Appeals held that a single neighbor had standing to enjoin construction and operation of an asphalt plant in violation of the town's zoning ordinance. The court acknowledged that section 268 created an avenue for direct action by taxpayers to overcome “official lassitude or nonfeasance,” but indicated that the statute was “hardly to be construed as a diminution of the right of one who suffers damage beyond general inconvenience to the public at large to take legal action on his own.”

Little Joseph indicated that to have standing to bring a private right of action, a neighbor must show inconvenience beyond that suffered by the public at large. Courts have enforced that requirement when the plaintiff neighbor does not own property that abuts the offending premises. See, e.g., Zupa v. Paradise Point Association, Inc., 22 A.D.3d 843 (dismissing claim by neighbor whose property was more than one-half mile distant from offending premises for failure to establish special damages). What remains unclear in those cases is what proof suffices to satisfy the special damages requirement.

Over time, courts have struggled with whether an abutting neighbor has standing to challenge a zoning violation even without proving “special damages.” Cases from the 1980s and 1990s, especially in the Second Department, insisted that an abutting neighbor's claim must be dismissed in the absence of proof of special damages. Thus, in Allen Avionics, supra, the court went beyond holding that no statutory claim was available for violation of a village's ordinance (see discussion, supra), and held that the neighbor had no standing to seek injunctive relief outside the statutory framework because landowner had failed to show any special damages from construction of the radio broadcast tower on neighboring land. Similarly, in Santulli v. Drybka, 196 A.D.2d 862, the court dismissed neighbor's complaint seeking to enjoin landowner from completing a building in violation of the zoning ordinance, noting that neighbor had failed to produce specific, detailed evidence that they had suffered a diminution in the value of their home.

By contrast, several more recent cases have held that an immediate neighbor has standing to enjoin a zoning violation without proof of special damages. In Zupa v. Paradise Point Association, Inc., 22 A.D.3d 843, the Second Department held that abutting neighbors had standing to challenge an alleged zoning violation by a privately owned marina because they had established that their interest was within the zone of interest to be protected by the zoning ordinance. The court stressed that the ordinance was designed to prohibit excess noise, light, pollution and smoke in residential areas, and that the abutting landowners owned properties that would be subject to those evils. By contrast, the court held that other neighbors who lived more than a half mile away lacked standing because they could not establish special damages.

The Third and Fourth Departments have similarly held that an abutting owner has standing to challenge a zoning violation without proof of special damages. Earlier this year, in Smith v. Stephens Media Group-Watertown, LLC, 125 A.D.3d 1370, the Fourth Department held that abutting residential neighbors had standing to challenge a 370-foot radio transmission tower erected in alleged violation of a zoning ordinance even though they had not proved special damages. At the same time, the court held that the trial court had properly dismissed the same neighbors' claim under Town Law section 268(2) because the neighbors had not made a written request that the town enforce the ordinance. And even more recently, the Third Department, in Town of North Elba v. Grimditch, 131 A.D.3d 150, held that immediate neighbors had standing to enjoin boathouses constructed in alleged violation of the local zoning ordinance. Citing Zupa, the court held that where a plaintiff's land is immediately adjacent to the offending premises, loss in value may be presumed. See also Nemeth v. K-Tooling, 100 A.D.3d 1271 (special damages presumptively satisfied by proof of close proximity).

Stewart E. Sterk, Mack Professor of Law at Benjamin Cardozo School of Law, is the Editor-in-Chief of this newsletter.

When does a neighboring landowner have standing to bring a private action to enjoin a zoning violation? That question reaches the New York courts with some frequency, and although the recent trend is to liberalize standing requirements, the answer is not entirely free from uncertainty. The Second Department was faced with one aspect of the issue most recently in Greens at Half Hollow Home Owners Association, Inc. v. Greens Golf Club LLC, where the court upheld neighbor standing.

Town Law Section 268(2)

In Greens at Half Hollow, the Second Department relied on Town Law section 268(2) to hold that a neighboring homeowner association had standing to enforce a zoning restriction that required a developer to maintain community facility buildings for the exclusive use of residents of the district and their guests. Section 268(2) explicitly authorizes any three taxpayers “who are jointly or severally aggrieved by” a zoning violation to bring an action to enjoin the violation if a resident taxpayer asks municipal officials to take action and those officials fail or refuse to take appropriate action for a period of 10 days. Section 268 is not, however, a panacea for landowners seeking to enjoin a perceived zoning violation.

First, because the legislature enacted the statute as part of the Town Law, the statute is inapplicable to zoning violations that occur in cities, or to violations of ordinances promulgated by villages. Thus, in Allen Avionics, Inc. v. Universal Broadcasting Corp. , 118 A.D.2d 527, the Second Department held that a neighbor had no standing to brig an action to enjoin a radio broadcast tower operated on adjacent land in violation of the local zoning ordinance because the ordinance had been enacted by the local village, and village law has no parallel to Town Law section 268. Similarly, in Romano v. Damiano , 242 A.D.2d 267, the Second Department dismissed a private enforcement claim against a landowner who alleged a violation of the City of Yonkers zoning ordinance because Yonkers is governed by the General City Law, not the Town Law.

Second, in at least one case, the Third Department has held that section 268 is unavailable to neighbors when the town has already concluded that the challenged use does not violate the zoning ordinance. In Marlowe v. Elmwood, Inc. , 12 A.D.3d 742, the court held that neighbors lacked standing to challenge landowner's use of its parcel as a summer camp because the town's officials had already found that the summer camp had complied with the zoning ordinance, and no neighbors had challenged the determination in a timely article 78 proceeding. In the court's view, section 268(2) is limited to cases of “official lassitude or nonfeasance,” not cases where the town has made a substantive decision with which the neighbors disagree.

Claims Outside the Statutory Framework

New York courts have held that section 268(2) does not provide the exclusive remedy for a neighbor seeking to challenge a landowner's violation of a zoning ordinance. In Little Joseph Realty, Inc. v. Town of Babylon , 41 N.Y.2d 738, the Court of Appeals held that a single neighbor had standing to enjoin construction and operation of an asphalt plant in violation of the town's zoning ordinance. The court acknowledged that section 268 created an avenue for direct action by taxpayers to overcome “official lassitude or nonfeasance,” but indicated that the statute was “hardly to be construed as a diminution of the right of one who suffers damage beyond general inconvenience to the public at large to take legal action on his own.”

Little Joseph indicated that to have standing to bring a private right of action, a neighbor must show inconvenience beyond that suffered by the public at large. Courts have enforced that requirement when the plaintiff neighbor does not own property that abuts the offending premises. See, e.g., Zupa v. Paradise Point Association, Inc. , 22 A.D.3d 843 (dismissing claim by neighbor whose property was more than one-half mile distant from offending premises for failure to establish special damages). What remains unclear in those cases is what proof suffices to satisfy the special damages requirement.

Over time, courts have struggled with whether an abutting neighbor has standing to challenge a zoning violation even without proving “special damages.” Cases from the 1980s and 1990s, especially in the Second Department, insisted that an abutting neighbor's claim must be dismissed in the absence of proof of special damages. Thus, in Allen Avionics, supra, the court went beyond holding that no statutory claim was available for violation of a village's ordinance (see discussion, supra), and held that the neighbor had no standing to seek injunctive relief outside the statutory framework because landowner had failed to show any special damages from construction of the radio broadcast tower on neighboring land. Similarly, in Santulli v. Drybka , 196 A.D.2d 862, the court dismissed neighbor's complaint seeking to enjoin landowner from completing a building in violation of the zoning ordinance, noting that neighbor had failed to produce specific, detailed evidence that they had suffered a diminution in the value of their home.

By contrast, several more recent cases have held that an immediate neighbor has standing to enjoin a zoning violation without proof of special damages. In Zupa v. Paradise Point Association, Inc. , 22 A.D.3d 843, the Second Department held that abutting neighbors had standing to challenge an alleged zoning violation by a privately owned marina because they had established that their interest was within the zone of interest to be protected by the zoning ordinance. The court stressed that the ordinance was designed to prohibit excess noise, light, pollution and smoke in residential areas, and that the abutting landowners owned properties that would be subject to those evils. By contrast, the court held that other neighbors who lived more than a half mile away lacked standing because they could not establish special damages.

The Third and Fourth Departments have similarly held that an abutting owner has standing to challenge a zoning violation without proof of special damages. Earlier this year, in Smith v. Stephens Media Group-Watertown, LLC , 125 A.D.3d 1370, the Fourth Department held that abutting residential neighbors had standing to challenge a 370-foot radio transmission tower erected in alleged violation of a zoning ordinance even though they had not proved special damages. At the same time, the court held that the trial court had properly dismissed the same neighbors' claim under Town Law section 268(2) because the neighbors had not made a written request that the town enforce the ordinance. And even more recently, the Third Department, in Town of North Elba v. Grimditch , 131 A.D.3d 150, held that immediate neighbors had standing to enjoin boathouses constructed in alleged violation of the local zoning ordinance. Citing Zupa, the court held that where a plaintiff's land is immediately adjacent to the offending premises, loss in value may be presumed. See also Nemeth v. K-Tooling , 100 A.D.3d 1271 (special damages presumptively satisfied by proof of close proximity).

Stewart E. Sterk, Mack Professor of Law at Benjamin Cardozo School of Law, is the Editor-in-Chief of this newsletter.