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new york map magnifiedSouthampton Day Camp Realty, LLC v. Gormon, 2014 WL 2871806 (App. Div., NY) involved the appeal of a decision by the Chief Building Inspector of the Town of Southampton that a nonconforming tennis and racquet club could be converted into a children’s day camp without a variance.  Defendants were neighbors who opposed that conversion without a variance and appealed the Chief Inspector’s decision to the Board of Zoning appeals.  Defendants also distributed a flyer which suggested that Plaintiffs did not care about the environmental effects of the conversion and had lied to town officials.  Plaintiffs then sued Defendants for defamation.  Defendants moved to dismiss the suit, contending that the action constituted a Strategic Lawsuit Against Public Participation (“SLAPP”) suit and sought dismissal, attorneys’ fees and punitive damages.  Before discovery, Defendants moved for summary judgment on their complaint and the counterclaim.  The Trial Court dismissed the complaint and awarded attorneys’ fees, but denied Defendant’s request for punitive damages.  Both parties appealed.

The Appellate Division noted that New York’s SLAPP Suit litigation entitles a qualified defendant to dismissal, as well as attorneys’ fees and costs.  A plaintiff must demonstrate that the lawsuit has a “substantial basis in fact and law or is supported by a substantial argument for an extension, modification or reversal of existing law.”  Defendants demonstrated that Plaintiffs were permit applicants and their communication was “materially related” to their efforts to report or comment upon, or oppose, this application and the communication was part of an effort to garner support for their opposition.

The Appellate Division ag

new york map magnifiedTuccio v. Central Pine Barrens Joint Planning & Policy Commission, 113 A.D.3d 693, 978 N.Y.S.2d 350 (2014) involved a declaratory judgment proceeding in which the Petitioner contested an award of 18.46 Pine Barrens Credits to his property, instead seeking 50.42 Pine Barrens Credits and appealing from the dismissal of the proceedings in the lower court.  The Pine Barrens Credits program allocates transferable development rights to owners of property located within the “core preservation area” of the Central Pine Barrens in Long Island under the Long Island Pine Barrens Protection Act (the “Act”).

Initially, the Pine Barrens Commission denied Petitioners’ request for any Pine Barrens Credits, finding that there was no justification for any credits under the Act.  Petitioners then brought a declaratory judgment proceeding seeking the 50.42 Pine Barrens Credits asserted to be owed under the Act.  In the first iteration of this case, the Appellate Court determined there was no clear legal right to the 50.42 Pine Barrens Credits but there were other factors in the allocation formula so that some credits were available.  On remand, the Commission determined that only 20% of the property could have been developed under the local zoning code and, acting as the clearinghouse, the Commission determined that 18.46 Pine Barrens Credits should be allocated.  Petitioner again sought declaratory relief but the trial court denied relief and petitioner again appealed from the dismissal of their declaratory judgment petition.

The Court determined that the law of the case doctrine precluded a request for the 50.42 Pine Barrens Credits and that the Commission acted consistently with the appellate court directive and thus affirmed the Commission’s decision.  Implicitly, the appellate court agreed that the amount of the credits was related to the intensity of allowable development.

This case presents another aspect of the “law of the case” doctrine and also appears to limit transferrable development rights solely to compensate a land owner for actual, rather than speculative, lost development opportunities.

Tuccio v. Central Pine Barrens Joint Planning & Policy Commission, 113 A.D.3d 693, 978 N.Y.S.2d 350 (2014).

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