ELR Citation: ELR 20763
No(s). 73 (N.Y. Jun 6, 2002)

The court holds that residents' challenge to a local zoning board's grant of a use variance to a developer for the construction of 20 condominiums and boat slips on waterfront property is moot. The site was formerly used as a marina, but ultimately went into bankruptcy. The residents challenged the board's decision in state court, but did not seek a preliminary injunction until after the trial court denied their petition. The appellate court affirmed the denial. By the time the instant court granted leave to appeal, the construction was nearly complete. The court first holds that under the circumstances present in this case, the residents' appeal is moot. The nature of the challenge does not extend beyond these parties and the proposed use. The petitioners did not contest the issuance of building permits or a residential use, but protested that the proposed use was too intensive. Acting in accordance with the use variance and unchallenged building permits, the developer proceeded to demolish the marina and repair the bulkhead—to the benefit of the residents—and make other improvements to and arrangements for the property. Thus, there has been substantial completion of the project. Further, the residents failed to seek a temporary restraining order or preliminary injunctive relief at any time during which the matter was pending before the trial court. Their half-hearted request for injunctive relief was made only after the trial court's decision upholding the variance.

The full text of this decision is available from ELR (10 pp., ELR Order No. L-528).

Counsel for Appellants
Charles S. Kovit
Law Offices of Charles S. Kovit
1267 Sturlane Pl., Hewlett NY 11431
unlisted

Counsel for Respondents
Corey E. Klein
Gaims, Weil, West & Epstein
1875 Century Park E., 12th Fl., Los Angeles CA 90067
(310) 407-4500