Attorney Brian Stolar and recently won a land use case on behalf of the Town of Smithtown on Long Island — the second case Harris Beach recently won on behalf of the Town.
A developer, Mills Pond Group LLC, sought to develop a residential property into an assisted living facility and submitted a special exception application to the Town. The Town amended its Zoning Code to clarify that assisted living facilities were only permitted in certain zoning districts, with residentially zoned areas prohibited. The developer challenged the law and sought to enjoin the Town’s enforcement and application of the law, as well as judgment that would force the Town to issue the governmental approvals necessary for the construction of the proposed facility.
The developer claimed the Town’s amendments of the Town Code was specifically intended to bar the developer’s project. The developer argued the Town violated the U.S. Constitution because the Town did not grant a public hearing on the developer’s request; the developer also alleged the Town discriminated against people with disabilities, in violation of the Fair Housing Act and Americans with Disabilities Act.
Brian, a member of the firm’s Municipalities and Local Agencies Industry Team, moved to dismiss. The Court not only agreed, but further issued an opinion critical of the developer’s arguments. U.S. District Court Judge Gary R. Brown, Eastern District of New York, penned the following before dismissing the case in its entirety:
“[M]uch of the complaint here is fictitious, indeed, overtly so, One proposed plaintiff….is not an entity, but a concept….The complaint provides for another 86 invented plaintiffs that are nothing more than wishful thinking….Again, counsel proffers litigants that exist only in the imagination of the complaint’s drafters: a group of unnamed, fictitious persons who….might, one day, if they truly exist, reside in a facility that has yet to be built….The real, living plaintiffs named in the complaint fare only slightly better than their fictional counterparts. The six identified individual [] [plaintiffs] do have the advantage of being actual people.…but their reason for being here mirrors that of [the other invented plaintiffs]….So the [complaint rationale] is this: these individuals subjectively intend to reside, at some unknown time in the future, at a facility that does not yet exist…. Much can happen between now and then, including the possibility that the facility may never be completed…. or, if completed and licensed, won’t be to their liking based on the cost, the paint color, or one of a thousand other reasons.”
