Posted On: April 2, 2011

Town May Not Use Zoning To Mandate Construction of Specific Use

The Appellate Division upheld dismissal of an action by a Town seeking to mandate construction of a pool as part of a private community recreation facility. In Matter of Town of Huntington v. Beechwoord Carmen Bidg. Corp,the Court reviewed the history of the development, which included a zoning amendment to permit construction of a senior residential community and a number of single family homes.The final approval of the subdivision included a lot reserved for community recreation facilities, which was developed.

However, the Town brought an action claiming that the recreation facility was mandated to include a pool. After reviewing a number of procedural issues, the Court dismissed the case, holding:

"While the enabling statutes in Town Law article 16 confer authority upon a town to enact a zoning ordinance setting forth permitted uses, nothing in the enabling legislation authorizes the Town to enact a zoning ordinance which mandates the construction of a specific kind of building or amenity (see BLF Assoc., LLC v Town of Hempstead, 59 AD3d at 55; Blitz v Town of New Castle, 94 AD2d 92, 99)."

-Steven Silverberg