Town of Huntington v. Beechwood Carmen Bldg. Corp..

• Decision Date: 29 March 2011
• Citation: 2011 N.Y. Slip Op. 02651,82 A.D.3d 1203,920 N.Y.S.2d 198
• Parties: TOWN OF HUNTINGTON, appellant,v.BEECHWOOD CARMEN BUILDING CORP., et al., respondents.
• Court: New York Supreme Court — Appellate Division

82 A.D.3d 1203

920 N.Y.S.2d 198

2011 N.Y. Slip Op. 02651

TOWN OF HUNTINGTON, appellant,

v.BEECHWOOD CARMEN BUILDING CORP., et al., respondents.

Supreme Court, Appellate Division, Second Department, New York.

March 29, 2011.

John J. Leo, Town Attorney, Huntington, N.Y. (Johanna Stewart–Suchow of counsel), for appellant.Rosenberg Calica & Birney LLP, Garden City, N.Y. (Robert M. Calica and Judah Serfaty of counsel), for respondents Beechwood Carmen Building Corp., Mile Development Corp., doing business as The Beechwood Organization and Beechwood Carmen Building Corp., and Oriska Insurance Company.Harras Bloom & Archer LLP, Melville, N.Y. (John A. Harras and Kenneth A. Brown of counsel), for respondent S.B.J. Associates, LLC.

DANIEL D. ANGIOLILLO, J.P., ANITA R. FLORIO, ARIEL E. BELEN, ROBERT J. MILLER, JJ.

In an action, inter alia, to compel the defendants to construct a pool and community center on a parcel of real property designated as Lot 73 at a development known as Country Pointe at Dix Hills, the plaintiff appeals, as limited by its brief, from so much of an order of the Supreme Court, Suffolk County (Baisley, Jr., J.), entered January 8, 2010, as granted that branch of the motion of the defendant S.B.J. Associates, LLC, which was pursuant to CPLR 3211(a)(5) to dismiss the complaint insofar as asserted against it and granted that branch of the separate motion of the defendants Beechwood Carmen Building Corp., Mile Development Corp., doing business as The Beechwood Organization and Beechwood Carmen Building Corp., and Oriska Insurance Company which was for summary judgment dismissing the complaint insofar as asserted against them.

ORDERED that the order is affirmed insofar as appealed from, with one bill of costs payable to the defendants appearing separately and filing separate briefs.

This appeal involves the zoning of one portion of a 382–acre parcel of real property, located in the Town of Huntington, formerly occupied by a State of New York facility. During the 1990s, the property was zoned “R–80,” which, with certain exceptions not relevant here, permits only single-family dwellings. In October 1999 the State of New York sold the entire parcel of real property to the defendant S.B.J. Associates, LLC (hereinafter SBJ). Thereafter, SBJ proposed a project on one portion of the property, to consist of a senior residential community, known as The Greens at Half Hollow, and a community of single-family homes, known as Country Pointe at Dix Hills (hereinafter Country Pointe). Accordingly, SBJ applied to amend the Zoning Chapter of the Town Code of the Town of Huntington (hereinafter the Town Code) to create a Residential Planned Unit Development and to change the zoning of the subject property from R–80 to “R–PUD.”

In September 2000 the Town passed a resolution approving the enactment of Town Code § 198–21.2, which created the “R–PUD The Greens at Half Hollow Planned Unit Development District.” Town Code § 198–21.2 provides, inter alia, that buildings within the single-family portion of that district, in which Country Pointe is situated, were to be used only for detached single-family dwellings, accessory uses and activities, and a community building not to exceed 5,000 square feet ( see Town Code § 198–21.2[E][1] ). Town Code § 198–21.2(E)(2)(c) specifically permits the construction of swimming pools in the single-family dwelling portion of the district. Also by resolution, the Town Board adopted the Final Generic Environmental Impact Statement (hereinafter the FGEIS) prepared in connection with the master development plan, which indicates, in relevant part, that SBJ proposed a recreation area including a community center and swimming pool for inclusion in the single-family dwelling portion of the district.

As discussions and plans surrounding Country Pointe progressed, SBJ proposed that a lot within the development site, designated as Lot 73, would instead be used as a recreational facility, including such amenities as tennis courts and a children's playground. The final subdivision map, approved by the Town of Huntington Planning Board in March 2002, contains the following notation on Lot 73: “Future Community Recreation Facility, Common Area.” Ultimately, the defendant Beechwood Carmen Building Corp. purchased the vacant land from SBJ and developed a community recreation area on Lot 73, consisting of a playground, a tennis court, and a gazebo.

In June 2006 the Town commenced an action against, among others, SBJ, Beechwood Carmen Building Corp., and Oriska Insurance Company, alleging causes of action arising from the Country Pointe development, including allegations that Town Code § 198–21.2 required the construction of the subject swimming pool and community center ( Town of Huntington v. SBJ Assocciates, LLC, Sup. Ct., Suffolk County, Index No. 06/14517). In June 2008 the Town stipulated to discontinue the action with prejudice against SBJ, while certain causes of action, including those related to the community center, were severed and continued with respect to Beechwood Carmen Building Corp. and Oriska Insurance Company.

In November 2008 the Town commenced the instant action against Beechwood Carmen Building Corp., Mile Development Corp., doing business as The Beechwood Organization and Beechwood Carmen Building Corp., and Oriska Insurance Company (hereinafter the Beechwood defendants), and SBJ, inter alia, to compel them to construct a swimming pool and community center on Lot 73. SBJ moved to dismiss the complaint insofar as asserted against it, and the Beechwood defe...