Residents Sought to Halt Demolition of a Home by Having It Declared a Landmark

GARDEN CITY, NEW YORK — Attorney Christian Browne of McLaughlin & Stern has announced that a federal judge denied the Town of Hempstead’s attempt to dismiss a case in which his client, a local residential developer, has sued the Town for violations of its constitutional rights.

In March 2020, Mr. Browne’s client, South Nassau Building Corp., bought property located at 3171 Elm Place in Wantagh. On July 30, 2020, South Nassau filed an application with the Nassau County Planning Commission to subdivide the property into two lots and build two new homes where one older home existed. The application was granted. The developer’s plans for two new homes on the site fully complied with the Town’s zoning regulations, meaning that the developer did not need to secure any zoning variances or special approvals to subdivide the property and to construct two new homes.

At the behest of a group of residents, however, the Hempstead Town Board voted to designate the existing home on the property as a landmark. The landmark designation prohibits the developer from demolishing the existing home, and, therefore, effectively destroys his ability to subdivide the property and construct two new houses.

The developer commenced an action against the Town in Federal District Court, alleging that the landmarking of the house constitutes a taking of the developer’s property without just compensation in violation of the Fifth Amendment. The developer had two legal building lots on which it could build two new legal homes for sale. But, due to the landmarking, the developer effectively lost the entire value of the subdivided properties since it is now unable to develop either lot as planned.

The developer also asserted a claim against the Town for violating his right to “substantive due process,” alleging that the Town used the landmarks process to prevent the development simply to appease angry neighbors and not for any legitimate historical reasons. The developer’s third claim against the Town asks the Court to strike down the Town’s landmark ordinance as an illegally vague law that lacks appropriate objective guidelines and criteria. The vagueness of the ordinance allows the Town Board unfettered latitude to name any structure it wishes a “landmark.”   

On August 17, 2022, U.S. District Judge Edward R. Korman denied the town’s motion to dismiss. The Court has allowed all the developer’s claims to move forward towards a trial, holding that “Plaintiff has thus plausibly alleged that the Town Board exercised its power under the Landmarks Preservation Ordinance in an ‘arbitrary or irrational manner’ when it landmarked the House.”

“I look forward to arguing the case on its merits,” Mr. Browne said. “This case is part of a growing trend in which local neighbors and community groups use the landmark ordinance to stop the perfectly legal development of private land. My client’s subdivision was approved and the plans for the two new homes complied entirely with the zoning regulations. Yet, using the landmark process to designate a common, private home as a historic structure, the Town has managed to trample on the developer’s property rights and to prevent the construction of new housing. The Town has allowed the Landmarks Commission to become a kind of ‘development control authority’ that can abuse its important mission of historic preservation in the service of stopping unpopular development plans.”

For more information about McLaughlin & Stern’s real estate practice group, call (516) 829-6900 or visit https://www.mclaughlinstern.com/practices/real-estate/.

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About McLaughlin & Stern

Established in 1898, McLaughlin & Stern is one of New York’s most distinguished law firms. The firm provides a diverse range of sophisticated legal services to businesses and individuals and has particular expertise in corporate, securities, mergers and acquisitions, hedge funds, corporate finance, litigation and alternative dispute resolution, employment law, trusts and estates, real estate, intellectual property, bankruptcy and reorganization, tax, family and matrimonial law, health care law, art law, environmental law, maritime law, international law and other private client matters. McLaughlin & Stern has a roster of over 100 attorneys and offices in New York, New York; Millbrook, New York; Garden City, New York; West Palm Beach, Florida; Naples, Florida; and Westport, Connecticut. For more information, call (212) 448-1100 or visit www.mclaughlinstern.com.

CLARK, NEW JERSEY — Mollie Hartman Lustig, Partner, McLaughlin & Stern, and Chair of the Firm’s Cannabis Practice Group, is available to comment on President Joe Biden’s decision to grant pardons to those convicted of minor violations of federal marijuana laws.

On October 6, President Biden announced he made good on his campaign promise to expunge thousands of federal convictions for simple marijuana possession and that he would take steps to decriminalize cannabis use. “While I agree that this is the most extensive White House action to date as it relates to U.S. cannabis policy on the federal level, President Biden’s call for pardons of all those convicted at the national level of simple possession of marijuana will actually affect very few people because of the extremely low number of people incarcerated at the federal level for only possession,” Ms. Lustig says.

The president is also looking to reclassify marijuana, which is considered a Schedule I drug under the 1970 Controlled Substances Act. Schedule I drugs are considered the most dangerous, having “no currently accepted medical use and a high potential for abuse,” according to the Act. Currently, marijuana is classified in the same category as heroin and Ecstasy and, according to the president, considered to be more dangerous than methamphetamines and fentanyl.

“The directive of the Department of Health and Human Services and the Attorney General’s office to ‘expeditiously’ review the classification of marijuana as a Schedule I drug is equally important, albeit ripe with administrative hurdles and rule-making obstacles,” Ms. Lustig says.

As part of this strategy, President Biden is calling on all governors to pardon those convicted of low-level possession offenses in their respective states. According to NORML (National Organization for the Reform of Marijuana Laws), 27 states have decriminalized most or all marijuana possession offenses. On April 1, 2022, the House of Representatives passed a bill that would decriminalize marijuana, but the bill was not taken up in the U.S. Senate.

“The president’s call to governors across the country to follow his administration’s lead is promising, but will require further legislation from each state,” Ms. Lustig says. “There remain an unconscionable number of people incarcerated at the state level for activity that is now legal in their states, and a disproportionate number of those people belong to minority groups — unquestionably the largest group affected by the failed ‘war on drugs.’”

For more information about McLaughlin & Stern’s cannabis practice group, call (212) 448-1100 or visit https://www.mclaughlinstern.com/practices/cannabis-practice/.

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About McLaughlin & Stern

Established in 1898, McLaughlin & Stern is one of New York’s most distinguished law firms. The firm provides a diverse range of sophisticated legal services to businesses and individuals and has particular expertise in corporate, securities, mergers and acquisitions, hedge funds, corporate finance, litigation and alternative dispute resolution, employment law, trusts and estates, real estate, intellectual property, bankruptcy and reorganization, tax, family and matrimonial law, health care law, art law, environmental law, maritime law, international law and other private client matters. McLaughlin & Stern has a roster of over 100 attorneys and offices in New York, New York; Millbrook, New York; Garden City, New York; West Palm Beach, Florida; Naples, Florida; and Westport, Connecticut. For more information, call (212) 448-1100 or visit www.mclaughlinstern.com.