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Continental
Building Co. v. Town of North Salem
On Thursday, April
27, 1995, the Supreme Court, Appellate Division, Third Judicial Department,
upheld the invalidation of the Town of North Salem’s Zoning Ordinance
in Continental Building Company, Inc. v. The Town of North Salem, finding
the ordinance unconstitutionally excluded affordable and multi-family
housing.
In a unanimous, strongly
worded, eight page Opinion and Order, the Appellate Division affirmed
the Westchester County Supreme Court’s determination that North Salem’s
Zoning Ordinance was unconstitutional under the mandates set forth by
the Court of Appeals of the State of New York in the case of Berenson
v. The town of New Castle. In a detailed and careful review of the testimony
and evidence introduced during the trial, the Appellate Court held that
North Salem’s Zoning Ordinance failed both prongs of the Berenson
test. It failed to meet the housing needs emanating from the Town of North
Salem itself and also failed to meet the housing needs of the region in
which North Salem is located.
Citing decisions of New York’s highest court, the Appellate Court
stated: “Defendant’s contention that Berenson and its progeny
eschew any requirement of affordability is simply wrong. The Court of
Appeals held that exclusionary zoning is a form of racial or socioeconomic
discrimination which we have repeatedly condemned.”
On Continental Building Company’s cross-appeal from the Trial Court’s
award of legal fees to it under Federal Civil Rights Law the Appellate
Court held that the Plaintiff was the prevailing party in the litigation
and that there was “no justification for the reduction in the fees
by the Supreme Court.” The Appellate court reinstated $107,000 in
counsel fees which had been sought by Plaintiff, but not awarded, bringing
the total legal fee award to Plaintiff’s counsel to $426,782.18.
Continental Building Company intends to apply promptly for an award of
additional costs and legal fees incurred during the course of the appeal.
(See: 211 A.D.2nd 88 (3rdDept1995))
