There is a lot of information required to obtain a variance in the Town of Brookhaven. Thankfully, the staff at the Town of Brookhaven can be really helpful in giving you the necessary documentation and information in order to do so.

If one is trying to obtain a variance for a structure in or on their property that is a violation of the local zoning ordinances, there are several steps one might want to take.

The Town of Brookhaven has several documents listing the requirements needed in each situation (for a setback situation, fences, garages, animals, etc.). The instructions are clear and they provide forms.

But, as an example, here are general steps to take. First, it might be a good idea to FOIL property around yours to find out if your neighbors have applied for and received (or been denied for) a variance that may or may not be similar to the one that you are trying to obtain. In order to do that, you need a FOIL application that can be found in the law department on the third floor of the Town of Brookhaven, or on the Town of Brookhaven’s website. In order for the Town to search for these records (only the past 10 years are on their computers, and more specific information is needed if you are searching for records from before then), you must give them the address, name, and section block and lot of the property. First, one might drive around the neighborhood and write down their neighbors addresses. Then, a call can be made to the Town of Brookhaven’s Tax Assessor’s office in order to obtain section, block, and lot numbers, as well as names for those properties. Beware because they will only allow you to ask for two addresses per day, and beyond that you must either call back on a later day, or go to the Town of Brookhaven’s tax assessor’s office to use their computers and search the database. This cannot be done from your home computer. You can send the FOIL request in online or by mail, and will receive a response in about 30 days (no promises), and will be charged .25 cents per page. Another helpful hint is to ask for documents, not information, because they can only give documents, not information, pursuant to a FOIL request.

After getting the appropriate information from your FOIL request, the next step is to fill out an application for a building permit, which will be denied, but is a necessary step in obtaining a variance. Of course, it is by some miracle not denied, then you are in an even better position and will not need to proceed. The building permit department is on the first floor in the Town of Brookhaven, and the clerk at the front desk in the back can furnish you with those. If you need to speak with a representative, you must take a number and a seat to be helped, similar to the system at the DMV. The application and paperwork call for the required information to be submitted with such.

Once an application has been denied, one can apply for a variance. This requires several steps and a lot of information is needed, depending on specifically which type. Again, the Town of Brookhaven’s land use department (on the right when you walk in) is very helpful and will give you the necessary forms and paperwork, and even explain to you what you will need in each situation.

After applying for the variance, and taking all of the necessary steps, the zoning board will have a hearing. Part of the process is giving notice to your neighbors so they can present themselves at the hearing to give their input (ie if they are adamant about you not having roosters on your property). The hearing is where it might be helpful to have your FOIL’ed information on your neighbors as evidence.

All in all, the process may take time and be tedious, because of the several steps, but because of the Town of Brookhaven’s amazing staff and explanatory paperwork, it may not end up being as bad as it seemed.

Tax Grievance Day for many Suffolk county municipalities is coming up. The Town of Brookhaven’s Tax Grievance Day will be on Tuesday, May 17^th, 2011 (always on the third Tuesday in May). Here is some important information concerning Commercial Properties for those of you choosing to file a grievance on such.

Note that villages sometimes use different dates and if you do live in a village that law governs, so check their website or call to find out.

Nassau County Grievances are filed with the Assessment Review Commission and can be filed during January 3^rd to April 23^rd by mail or on the website.

New York State Tax Certiorari proceedings are governed by the Real Property Tax Law (RPTL) Article 7. However, these are also in the purview of CPLR 408 discovery rules.

Disclosure is generally only allowed by leave of the Court. The only two devices that are allowed without leave of court under CPLR 408 are CPLR 3123 Notice to Admit facts, and the admission of ratio under RPTL 716. This allows petitioner to serve upon the respondent a demand to admit the ratio at which other real property in the assessing unit is assessed. This is also referred to as the equalization rate or the level of assessment. Standard rules apply to this Notice to Admit, so if the respondent does not deny that the ratio is correct within 15 days, it is deemed admitted for trial, as long as it is not in excess of 95%, in which case it is not allowed.

Information not normally subject to disclosure in tax certiorari cases is business information and related financial information because it is generally not directly related to the value of the realty. Also excluded is information relating to the petitioner’s business plans and production figures for factories, as well as studies prepared in connection with past, current, or future development, alteration, and demolition. This information has been denied as immaterial, because the courts decided it was not relevant to the present valuation. “Valuation of property is determined by its condition as of a valuation status date pursuant to local and state law---not a future contemplated use.” NYS Bar Journal, Discovery, and its Absence, in Tax Certiorari Proceedings, May 2010 (David C. Wilkes and Nicholas J. Connolly).

Depositions are subject to the same rules under RPTL Article 7 and are therefore not allowed without a court order. Rarely are they allowed in order to ensure there was a competent valuation. In fact, it has been held that to subject these assessors to EBTs would severely impede the proper performance of their statutory duties. Id. EBTs have been allowed for the limited purpose of deposing the State Board of Equalization and Assessment (SBEA), but only for the limited purpose of information concerning the allegedly voluminous and complex facts forming the basis of the agency’s assessments so as to simplify the issues for trial in the interests of judicial economy. Id. Not discoverable are the mental processes and formulas used in arriving at their determinations. Id.

Also undiscoverable are the formulas, policies, and mental processes by the assessors that were used by either the petition or the respondent. On that same note, discovery is not allowed for computation sheets, guidelines, or reports showing fractional assessment rates used by assessors.

One thing that is allowed, even required, pursuant to Court Rule 202.59(g) is an appraisal by both parties. The appraiser’s reports must include a statement in which they give information regarding the method of appraisal relied on as well as the conclusions reached, “together with the facts, figures, and calculations by which the conclusions were reached.” This report also needs to include photographs of the properties and photographs of the comparable property that is relied on in making the report.

In conclusion, most discovery in tax certiorari cases is not permitted without leave of court, and is not encouraged. The most important piece of information, that is allowed, and even required, is appraisal reports.

A highly contested question in the transactional area of law. Does “on or about” mean on that date, around that date, within thirty days of that date?

Unless a contract of sale specifically states that “time is of the essence”, then either party may adjourn the closing date by requesting a reasonable adjournment. Zev v. Merman, 134 A.D.2d 555, 521 N.Y.S.2d 455 (2d Dept. 1987), aff’d 73 N.Y.2d 781 (1988). Whether the adjournment is reasonable or not is for the courts to decide.

In cases where there is no “time of the essence” or “law date” are explicitly stated, once the date passes, a seller may not retain the contract deposit and the buyer cannot immediately sue for specific performance. Once that occurs, that party must make a good faith effort to attempt to schedule a second closing date, and if this does not occur, they may set a closing date.

If the contract specifically states that time is of the essence or has a “law date”, then the closing must happen on that date, and either party is in breach for non-compliance.

Contracts commonly read “on or about”, “on”, or “on or before” which essentially mean the same thing: on or about. These only become “time of the essence” contracts if a letter is subsequently sent, from either party’s attorney, declaring that time is of the essence, and setting a date for the closing.

1. Recording discharge of mortgage - Real Property Law Section 321


2. Bankruptcy Court MERS decision - In re Ferrel L. Agard, 2011 WL 499959 (ED NY, 2011)


3. Foreclosure Settlement Conferences: (1) Uniform Civil Rules of the Supreme Court & County Court Section 202.12-a; (2) CPLR Section 3408; (3) Indymac v. Yano-Horoski, 890 NYS 2d 313 (Sup Ct, Suf. Cty., 2009); & (4) Indymac v. Yano-Horoski, 912 NYS 2d 239 (2nd Dept, 2010).


4. MERSCORP, INC. Rules of Membership - http://www.mersinc.org/files/filedownload.aspx?id=172&table=ProductFile


5. First MERS Case - MERSCORP v. Romaine, 861 NE 2d 81 (2006).


6. Ways Home - http://www.knowyouroptions.com


7. The State of the Judiciary 2011 - www.courts.state.ny.us/ctapps/news/SOJ-2011.pdf


8. Robosigning Admitted in Testimony - Indeymac v. Machado, Florida, Case No. 50 2008 CA 037322XXXX MB AW


9. Justice Winslow's Congressional Testimony - http://www.propublica.org/documents/item/ny-state-supreme-court-justice-dana-winslows-testimony-on-foreclosure-probl


10. Certificate of Conformity - CPLR Section 2309(c)


11. Deceptive Practices Act - GBL Section 349


12. National Association of Attorneys General - http://www.naag.org/joint-statement-of-the-mortgage-foreclosure-multistate-group.php


13. Attorney Affirmation Requirement - Adiministrative Order 548, 2010


14. Affirmation Template - http://www.courts.state.ny.us/attorneys/foreclosures/Affirmation-Foreclosure.pdf


15. Qualified Written Requests (RESPA) - http://www.hud.gov/offices/hsg/ramh/res/reslettr.cfm


16. Affirmation Requirement Precedent - Citibank v. Murillo, 2011 NY Slip Op 21004, (Sup Ct Kings Cty., 2011)


17. Standing issues - Wells Fargo v. Mastropaolo, 837 NYS 2d 247, (2d Dept, 2007)


18. MERS Authority: (1) LaSalle v. Lamy, 824 NYS 2d 769 (Sup Ct Suf Cty., 2006); (2) US Bank v. Flynn, 897 NYS 2d 855 (Sup Ct Suf Cty., 2010)


19. Standing Explained - US Bank v. Collymore, 890 NYS 2d 578 (2d Dept, 2009).


20. 2010 Report of the Chief Administrator of the Courts - www.courts.state.ny.us/publications/pdfs/foreclosurereportnov2010.pdf