A Drastic But Recognized Zoning Remedy: Removing Unlawful Structures

March 25, 2020

A decision last month by the Supreme Court, New York County, in Committee for Environmentally Sound Development v. Amsterdam Avenue Redevelopment Associates LLC, No. 157273/2019 (Sup. Ct. N.Y. Co. Feb. 13, 2020), garnered significant attention as it could result in the developer of a condominium tower on the Upper West Side of Manhattan being forced to remove 20 or more floors from the high-rise building.

Appeals already have been filed in the case, but the potentially striking impact of the court’s decision obscures the fact that although courts rarely require structures or parts of structures to be removed when zoning rules are violated, they can – and they do – so order.

Perhaps the most well-known instance of a court enforcing such a drastic remedy – at least before the Amsterdam Avenue decision – occurred in 1988 when the New York Court of Appeals decided Matter of Parkview Associates v. City of New York, 71 N.Y.2d 274 (1988), and rejected a challenge to what the Court itself characterized as a “harsh” result.

This column discusses a number of recent decisions that have reached the same result, highlighting the broad variety of these situations, the objections that property owners typically raise, and the reasoning and analysis that courts rely on to decide these cases.

Anthony S. Guardino, a partner with the law firm of Farrell Fritz, P.C., practices in the areas of land use, zoning, and environmental law. Resident in the firm’s office in Hauppauge, Long Island, he can be reached at aguardino@farrellfritz.com.

Reprinted with permission from New York Law Journal, Wednesday, March 25, 2020, Vol 263 – No. 57.

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