Plaintiffs were resident taxpayers of the Town of Southampton. In 2005, they commenced an action to enjoin Defendant, Sand Land Corporation, pursuant to Town Law § 268(2), from using its property, located in a residential district, for the annual receipt of “thousands of tons” of clearing debris, including trees, brush, stumps, and leaves; the processing of such clearing debris into topsoil and mulch; the storage, sale, and delivery of mulch, topsoil, and wood chips; and the receipt, processing, and/or disposal of concrete, demolition debris, asphalt pavement, brick, rock, and metals. Plaintiffs claimed this violated the Town’s zoning laws.  In 2012, the Zoning Board of Appeals (“ZBA”) separately ruled in that Defendant’s use was not a pre-existing nonconforming use.  The lower court dismissed the instant action, and Plaintiffs appealed while Defendant’s CPLR Article 78 challenge to the ZBA's determination was pending. During the pendency of this appeal, the lower court granted Defendant’s petition, finding that the processing of brush, trees, stumps, leaves, and other clearing debris, and the sale of topsoil, mulch, and wood were not legal preexisting nonconforming uses.

Subsequent to that holding, Plaintiffs acknowledge that with respect to these specific uses, because the local officials found no zoning violation, there was no “official lassitude or nonfeasance in the enforcement of zoning laws which citizen taxpayers may overcome” and no action pursuant to Town Law § 268(2) could be maintained. However, the ZBA made no such “legal pre-existing nonconforming use” finding with regard to the use of the property for the processing of trees, brush, stumps, leaves, and other land-clearing debris into topsoil or mulch. Since there was no finding by the zoning officials that these uses were legal, the court found that there was no reason why either the Town or the citizen taxpayers could not seek to enforce compliance with the zoning code in an action brought pursuant to Town Law § 268(2). As to the second cause of action, since Defendant made no claim that Plaintiffs could not prove special damages, and Defendant offered no other ground for dismissing the common-law claim in its entirety. Accordingly, the dismissal of these two causes of action was reversed.

The case was Phair v. Sand Land Corporation, 137 A.D.3d 1237 (2d Dep’t 2016).