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Commercial Leasing Law & StrategyFeaturesCommercial LitigationLandlord Tenant Law

Why Community Groups Can Never Win Against Developers

By John R. Low-Beer

Under current New York law, even the most meritorious legal challenge to property development faces insurmountable barriers once construction starts, because absent the most egregious wrongdoing, the courts will not order demolition of completed buildings, and current law makes it virtually impossible to obtain a preliminary injunction to halt construction.

How Did We Get Here?

One barrier to meaningful enforcement of zoning regulations is the New York Court of Appeals' unfortunate paradoxical decision in Dreikausen v. Zoning Board of Appeals, 98 N.Y.2d 165 (2002), which requires that petitioners waste time and resources seeking a preliminary injunction that it is logically impossible for them to get. In Dreikausen, neighbors of a condominium development promptly challenged the granting of a variance, but they did not seek a preliminary injunction until the owner had begun to pour the foundations and the local government was about to issue building permits. The Court of Appeals criticized the petitioners for not having sought an injunction sooner. Characterizing their motion for injunctive relief as "half-hearted," the court held that once a building has reached "substantial completion," such claims will be moot — unless the petitioners move for a preliminary injunction at the earliest possible opportunity. Id. at 173-74. By doing so, the court stated, they prove their seriousness and put the developer on notice that it proceeds with construction at its own risk.

Subsequent cases have made the rule of Dreikausen ever more draconian. In Citineighbors Coalition v. Landmarks Preservation Commission, 2 N.Y.3d 727 (2004), petitioners neglected to ask for preliminary relief although there was already "highly visible construction work." The Court of Appeals dismissed their case as moot, faulting them for "simply assum[ing] that Supreme Court would not grant them injunctive relief or, in the alternative, would require an undertaking in an amount more than they could or wanted to give." In Weeks Woodlands Assn. v. Dormitory Auth. Of the State of New York, 95 A.D.3d 747 (1st Dept. 2012), aff'd on op. below, 20 N.Y.3d 919 (2012), the petitioners brought suit before even appealing to the Board of Standards and Appeals. They sought an injunction from the Supreme Court three times, and were denied each time. "[T]he petitioners acknowledge[d] that the requirement to provide a bond for delaying construction of a multi-million dollar project ha[d] deterred them from seeking a stay in the Appellate Division." Id. At 767 (Catterson, J., dissenting). The Appellate Division held the case to be moot because the petitioners had not renewed their request for an injunction in that court. There are at least 10 Appellate Division cases that reach the same result.

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