Under current law, even the most meritorious legal challenge to property development faces insurmountable barriers once construction starts, because absent the most egregious wrongdoing, the courts will not order demolition of completed buildings, and current law makes it virtually impossible to obtain a preliminary injunction to halt construction.
One barrier is the Court of Appeals’ unfortunate paradoxical decision in Dreikausen v. Zoning Board of Appeals, 98 N.Y.2d 165 (2002), which requires that petitioners waste time and resources seeking a preliminary injunction that it is logically impossible for them to get. In Dreikausen, neighbors of a condominium development promptly challenged the granting of a variance, but they did not seek a preliminary injunction until the owner had begun to pour the foundations and the local government was about to issue building permits. The Court of Appeals criticized the petitioners for not having sought an injunction sooner. Characterizing their motion for injunctive relief as “half-hearted,” the court held that once a building has reached “substantial completion,” such claims will be moot—unless the petitioners move for a preliminary injunction at the earliest possible opportunity. Id. at 173-74. By doing so, the court stated, they prove their seriousness and put the developer on notice that it proceeds with construction at its own risk.
