Development

In a condominium association's article 78 proceeding to compel the town and the town's building inspector to render a formal determination of allegations that a neighboring nursery was out of compliance with the town zoning code, the association appealed from Supreme Court's dismissal of the proceeding. The Appellate Division affirmed, holding that the association had not adequately alleged that the town had violated a clear legal right.

The condominium association had sent a letter to the town building inspector alleging that a nearby nursery was illegally manufacturing topsoil and mulch on the premises. The building inspector sent a notice of violation to the nursery, demanding generally that it comply with the local zoning ordinance. The association was not satisfied with this response, and filed an application with the Zoning Board of Appeals (ZBA), seeking review of the building inspector's failure to issue a formal determination of their complaint. When the ZBA declined to consider their application, the association brought this article 78 proceeding in the nature of mandamus to compel the building inspector to render a formal determination of the association's allegation, and to compel the ZBA to hear the challenge to the building inspector's action. Supreme Court dismissed the petition.