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Development
Town Lacks Power to Compel Construction of Pool
Town of Huntington v. Beechwood Carmen Building Corp.
NYLJ 4/5/11, p. 31, col. 3
AppDiv, Second Dept.
(memorandum opinion)
In the town's action to compel construction of a pool and community center, the town appealed from Supreme Court's grant of summary judgment to landowner. The Appellate Division affirmed, holding that the town lacked power to compel construction of a pool.
Developer owned a 382-acre parcel previously zoned for single-family homes. Developer obtained a zoning amendment placing the property in a planned unit development (PUD) zone. When the town placed the property in a PUD zone, the town adopted a final generic environmental impact statement (FGEIS) indicating that developer had proposed a recreation area, including a community center and swimming pool, within the single-family dwelling portion of the district. The final subdivision map, approved by the town planning board, designated lot 73 for a “Future Common Recreation Facility, Common Area.” Developer then sold lot 73 to current landowner, who built a playground, tennis court, and a gazebo. The town then brought this action to compel landowner to build a swimming pool and community center on the lot. Supreme Court granted landowner's motion for summary judgment dismissing the complaint, and the town appealed.
In affirming, the Appellate Division first held that neither the zoning resolution nor the FGEIS compelled construction of a swimming pool and community center. Instead, the FGEIS merely permitted construction of those facilities. The court went on to hold that even if the town code did require construction of the swimming pool, that requirement would exceed the power the state legislature has conferred on the town. The court indicated that nothing in Town Law article 16 authorizes a town to mandate construction of a specific building or amenity. The court declined to consider the town's contention that the swimming pool requirement was authorized as an incentive zoning provision pursuant to Town Law section 261-b, noting that the town raised that contention for the first time on appeal.
Town Lacks Power to Compel Construction of Pool
Town of Huntington v. Beechwood Carmen Building Corp.
NYLJ 4/5/11, p. 31, col. 3
AppDiv, Second Dept.
(memorandum opinion)
In the town's action to compel construction of a pool and community center, the town appealed from Supreme Court's grant of summary judgment to landowner. The Appellate Division affirmed, holding that the town lacked power to compel construction of a pool.
Developer owned a 382-acre parcel previously zoned for single-family homes. Developer obtained a zoning amendment placing the property in a planned unit development (PUD) zone. When the town placed the property in a PUD zone, the town adopted a final generic environmental impact statement (FGEIS) indicating that developer had proposed a recreation area, including a community center and swimming pool, within the single-family dwelling portion of the district. The final subdivision map, approved by the town planning board, designated lot 73 for a “Future Common Recreation Facility, Common Area.” Developer then sold lot 73 to current landowner, who built a playground, tennis court, and a gazebo. The town then brought this action to compel landowner to build a swimming pool and community center on the lot. Supreme Court granted landowner's motion for summary judgment dismissing the complaint, and the town appealed.
In affirming, the Appellate Division first held that neither the zoning resolution nor the FGEIS compelled construction of a swimming pool and community center. Instead, the FGEIS merely permitted construction of those facilities. The court went on to hold that even if the town code did require construction of the swimming pool, that requirement would exceed the power the state legislature has conferred on the town. The court indicated that nothing in Town Law article 16 authorizes a town to mandate construction of a specific building or amenity. The court declined to consider the town's contention that the swimming pool requirement was authorized as an incentive zoning provision pursuant to Town Law section 261-b, noting that the town raised that contention for the first time on appeal.
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