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August 2017

Gordon & Rees Partner Donald Derrico Obtains Dismissal of Article 78 Land Use Action

Gordon & Rees Westchester Partner Donald Derrico obtained dismissal of an Article 78 action commenced by Iona College against the City of New Rochelle. The firm was retained by the City of New Rochelle to defend the City in an Article 78 proceeding filed by Iona College which involved an alleged deprivation of property rights.

In 2008, Iona College purchased several properties in a residential neighborhood from the Christian Brothers, which were adjacent to the College. In November of 2016, Iona filed an application to merge tax lots to expand the campus utilizing the property purchased from the Christian Brothers. In December of 2016 the City denied the application and advised Iona that because the property had not been owned by Iona or used for “College related purposes” prior to 2001 when the law requiring Special Permits was enacted, Iona would have to apply for a Special Permit. Rather than apply for the Special Permit, which would require building department review and approval, Iona commenced the Article 78 proceeding against the City and alleged that the City illegally and unconstitutionally deprived them of their property rights by mandating that they apply for a Special Permit to expand their campus.

Iona contended that because the Christian Brothers founded and taught at the school the properties were being used for “College related purposes” and, as such a Special Permit was not required. Derrico argued that the Christian Brothers was a separate and distinct entity and that the controversy was not ripe because Iona failed to exhaust all available administrative remedies prior to commencing the Article 78 proceeding. Specifically, after the City notified Iona that a Special Permit was necessary they should have appealed to the Zoning Board. The case received widespread media coverage. Three months after the motion papers were fully submitted the court rendered its decision and dismissed the Article 78 action against the City.

Donald G. Derrico