Lance R. Pomerantz
Attorney at Law

Land     Title     Law

“Constructive Notice”  The  Newsletter

Excerpted from the January 14, 2014 mailing of "Constructive Notice":

No Way Around Article 78

An attempt to short-circuit the normal zoning appeals process by way of a RPAPL Article 15 action has been rejected by the Fourth Department. Ellison Heights Homeowners Assn., Inc. v Ellison Heights LLC, 2013 NY Slip Op 08685, (App. Div., 4th Dept., December 27, 2013).

Two adjoining parcels were originally owned by the LLC. The LLC received Planning Board approval for site plan conditions covering both parcels. The site plan was filed. Parcel 1 was developed and sold to the HOA. Parcel 2 was retained by the LLC. Years later, the LLC applied for an amendment to the conditions regarding Parcel 2. The amendment could also restrict future development on Parcel 1. The HOA brought an action pursuant to RPAPL Article 15, essentially claiming that the amended conditions would be restrictive covenants burdening Parcel 1.

By merely using the density and open space restrictions on the HOA's property to support its amendment application, the LLC did not claim an estate or interest in [the HOAs] real property, adverse to that of the [HOA] and [the HOA] thus may not challenge those zoning restrictions pursuant to an RPAPL article 15 cause of action. The Court noted that the HOA could apply for its own amendment and appeal any adverse determination through the normal procedure.


The Court relies on the Court of Appeals decision in OMara v. Town of Wappinger, 9 NY3d 303 (2007). OMara concerned a filed site plan that contained a vague reference to a zoning condition. The reference was adequate to afford constructive notice to subsequent purchasers. The instant decision does not indicate whether the challenged zoning conditions are shown on the filed site plan.