Failure to Seek Preliminary Injunctive Relief Supports Motion to Dismiss and Renders Appeal Academic

December 27, 2016

On December 21, 2016, the Appellate Division, Second Department, rendered yet another decision whereby an appeal was dismissed “as academic” on the grounds that during the pendency of the appeal, the land use development project that was the subject of the lawsuit/appeal was completed.

In Bruenn v. Town Board of the Town of Kent, 2014-07666 (2d Dept., December 21, 2016), petitioners/appellants Bruenn commenced a hybrid proceeding pursuant to CPLR Article 78 seeking a declaration that two (2) 2013 resolutions adopted by the Kent Town Board authorizing construction and operation of a 150-foot monopole wireless communications tower were null and void.    The trial court dismissed the hybrid proceeding holding that the resolutions were not null and void.  Bruenn appealed.

During the pendency of the appeal, construction of the monopole was completed by defendant, Homeland Towers, LLC (“Homeland”).  As a result thereof, in or around September 2015, Homeland made a motion to dismiss the appeal on the grounds that Bruenn’s claims were rendered moot by construction and completion of the monopole.   Although the Appellate Division initially held the motion in abeyance and referred it to the three panel of justices charged with determining the underlying appeal, the panel ultimately determined that a decision on the merits of Bruenn’s claims was academic, as Bruenn failed to seek preliminary injunctive relief, and as a result, Homeland’s motion to dismiss the appeal on mootness grounds was granted.

This decision reminds practitioners of the important role that preliminary injunctions play in land use development disputes.  Failure to seek injunctive relief at the outset will, in most cases, preclude review of the merits of the appeal.   In Bruenn, the Court stated that Bruenn’s explanation that monetary constraints precluded Bruenn from moving for injunctive relief was unavailing.  It is well established law that failure to seek an injunction stopping a project at its earliest stages will result in a mootness defense so long as the continued construction is not performed in bad faith or without authority.  Id.   Moreover, it was established that the work performed by Homeland could not readily be undone without substantial hardship.  Since construction of the monopole was an isolated event, not subject to “recurring novel or substantial issues that are sufficiently evanescent to evade review otherwise,” the Appellate Division granted Homeland’s motion to dismiss and as a result, rendered any determination on the merits “academic.”  Id.