By Kyle Gruder on June 10, 2019
POSTED IN BUILDING PERMITS, LAND USE REGULATIONS, PROPERTY RIGHTS, TOWN LAW, TOWN OF SOUTHAMPTON, UNCATEGORIZED, ZONING BOARD
A recent Second Department decision applying the doctrine of laches highlights the importance of taking prompt action against a property owner who may be acting in violation of a zoning or building code.
The dispute in Kverel v. Silverman arose when the defendant contracted to purchase an undeveloped parcel of land (the “Premises”) in the Town of Southampton (the “Town”) from a non-party seller. The plaintiffs owned the residence adjacent to the Premises. After the defendant was issued a building permit for the construction of a single-family residence on the Premises, one of the plaintiffs filed an appeal with the Town’s Zoning Board of Appeals (the “ZBA”), alleging that the building plans violated the 32-foot and 2-story height limitations of Section 330-11 of the Town zoning code and that the proposed structure would interfere with his waterfront view. The plaintiff later withdrew that appeal after the defendant amended his building permit and submitted revised building plans. Nonetheless, it was evident that the plaintiffs still opposed the construction, despite the withdrawal of their appeal.
After the defendant purchased the property, but prior to the commencement of construction, he amended the building permit twice more, and then again about six months after construction began. Thereafter, the plaintiffs sought to enjoin the defendant from proceeding with the construction on the grounds that the plans violated the Town zoning code. The defendant cross-moved to dismiss. The lower court granted the plaintiffs’ requested injunctive relief and denied the defendant’s cross-motion to dismiss. The lower court also denied the defendant’s subsequent motion “to increase the amount of the undertaking posted by the plaintiffs” and his motion “for leave to renew his opposition to the plaintiffs’ motion for a preliminary injunction.” The defendant appealed the lower court’s orders.
The well-established doctrine of laches is appropriate when a party demonstrates:
“‘(1) conduct by an offending party giving rise to the situation complained of, (2) delay by the complainant in asserting his or her claim for relief despite the opportunity to do so, (3) lack of knowledge or notice on the part of the offending party that the complainant would assert his or her claim for relief, and (4) injury or prejudice to the offending party in the event that accorded the complainant’ (Stein v Doukas, 98 AD3d 1026, 1028, quoting Cohen v Krantz, 227 AD2d 581, 582; see Deutsche Bank Natl. Trust Co. v Joseph, 117 AD3d 982, 983).”
In reversing the lower court, the Second Department notes that in applying laches, courts must look to the effect of the delay and not only at the length of the delay.
In this case, construction had commenced and the defendant planned to sell the home that was to be built several months before the plaintiffs brought this action. Instead of promptly pursuing an administrative appeal or taking other immediate legal action, the plaintiffs waited nearly three years after the defendant was initially issued the building permit, and more than six months after construction on the Premises began. Furthermore, the Court points out that because the plaintiffs were aware of the potential Town code violations when they initially filed their ZBA appeal in July 2012—prior to the defendant’s purchase and at which time the Premises was still undeveloped—the subsequent amendments to the building permit were of little consequence.
Despite their opposition to the defendant’s proposed development from the very outset, the plaintiffs failed to fully pursue their administrative remedies or seek any injunctive relief until March 2015, when they commenced this action. Because the defendant demonstrated that he would be significantly prejudiced by the plaintiffs’ unreasonable delay, for which they could offer no justification, the Second Department reversed the lower court’s rulings and held that the doctrine of laches barred the plaintiffs’ action.
It is important to act promptly when considering a challenge to development. He who hesitates, loses.