Published on:

Completion of Construction Precludes Challenge When No Preliminary Injunction Sought

The Appellate Division restated the rule that when challenging a land use approval the challenger must seek a preliminary injunction in order to maintain the status quo. In Matter of Papert v. Zoning Board of Appeals of the Incorporated Village of Quogue, the Court upheld dismissal of the petition challenging the zoning board’s issuance of a coastal zone erosion permit to reconstruct an existing house as academic. The motion to dismiss was made claiming substantial completion of the project and the lower court granted the motion after construction was completed and a certificate of occupancy was issued.

Holding that “the petitioner failed to move in the Supreme Court for a preliminary injunction to preserve the status quo during the pendency of this litigation, he did not timely do all he could have done to safeguard his interests, and thus, he failed to preserve his rights pending judicial review,” the Court noted that as a result the property owner “would suffer substantial prejudice if the petitioner prevailed….”

However, the Court also indicated that this rule is not without exception when, in upholding the dismissal, it also found that the property owner “did not proceed with the construction in bad faith or without authority” and further, “this proceeding did not present ‘novel issues or public interests such as environmental concerns’ that warranted retention of jurisdiction (Matter of Dreikausen v Zoning Bd. of Appeals of City of Long Beach, 98 NY2d at 173).”

-Steven M. Silverberg