MHC Greenwood Village NY, L.L.C. v. County of Suffolk

18 Misc. 3d 312, 852 N.Y.S.2d 599, 2007 NY Slip Op 27376, 2007 N.Y. Misc. LEXIS 6405
CourtNew York Supreme Court
DecidedAugust 10, 2007
StatusPublished

This text of 18 Misc. 3d 312 (MHC Greenwood Village NY, L.L.C. v. County of Suffolk) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
MHC Greenwood Village NY, L.L.C. v. County of Suffolk, 18 Misc. 3d 312, 852 N.Y.S.2d 599, 2007 NY Slip Op 27376, 2007 N.Y. Misc. LEXIS 6405 (N.Y. Super. Ct. 2007).

Opinion

OPINION OF THE COURT

Karen V. Murphy, J.

The CPLR article 78 petition is dismissed to the extent that it challenges Local Law 1534 (enacted as Local Law No. 1 [2007] of County of Suffolk, codified at Administrative Local Laws of County of Suffolk ch 383) on the ground of insufficient notice of public hearing. To the extent that the petition challenges Local Law 1534 on substantive grounds, the article 78 proceeding is converted to a declaratory judgment action and judgment is granted declaring the local law valid in all respects.

This is an article 78 proceeding seeking to annul Local Law 1534, which was enacted by the Suffolk County legislature to extend to residents of “planned retirement communities” protections similar to those enjoyed by mobile homeowners and multiple dwelling tenants. Petitioner also requests an order permanently enjoining the law’s enforcement. The local law was enacted on December 19, 2006 and approved by the County Executive on January 19, 2007.

Local Law 1534

Local Law 1534 defines the term “planned retirement community” as a contiguous parcel of privately owned real property on which 200 or more lots are leased to owners of year round [314]*314homes erected thereon and affixed thereto wherein the permanent occupation is restricted to tenants 55 years of age or older (Administrative Local Laws of County of Suffolk § 383-2). The law requires the owner or operator of a planned retirement community to offer every homeowner or tenant the opportunity to sign a 99-year ground lease and to grant the homeowner or tenant the option of cancelling the lease on 90 days’ written notice. Administrative Local Laws § 383-3, entitled “Leases,” provides that the community’s rules and regulations shall be attached to and become a part of the lease, and a copy of the lease must be provided to the homeowner or tenant when the first deposit toward the purchase price is made. The lease section further provides that a copy of the rules and regulations must be posted in a conspicuous public place on the grounds of the community. The section provides that the rules and regulations may not be modified without the written consent of three fourths of the homeowners. Section 383-4, entitled “Rules and Regulations,” provides that no regulation may be added or amended without the written consent of all of the homeowners or tenants then residing in the community. In determining whether the legislature was authorized to enact Local Law 1534, the court is not required to interpret its provisions. Accordingly, the court expresses no opinion as to whether unanimous consent of the homeowners is required to amend the rules and regulations of the retirement community.

The local law further provides that no homeowner or tenant may be charged a fee or assessment, except for rent and utilities, unless the fee or assessment has been approved by three fourths of the homeowners. All such charges for rent and utilities must be reasonably related to “the value of the facility available or the services actually rendered” (Administrative Local Laws § 383-5 [B]). The charges for rent and utilities must be fully disclosed at the time of the first deposit and may not be increased except as set forth in the lease.

The local law further provides that the owner or operator may not require the homeowner or tenant to purchase any goods or services, including fixtures or appliances, from any designated vendor. The owner or operator may not restrict the furnishing or improvement of the home, provided the furnishing or improvement is in compliance with applicable building codes and other legal provisions.

The local law provides that the owner or operator may not place any restrictions upon the homeowner’s right to sell his [315]*315home or assign the ground lease. The owner or operator may not charge any commission or fee with respect to the sale, unless it has acted as the owner’s agent pursuant to a written contract.

The local law provides that any owner or operator who violates its provisions shall be guilty of a misdemeanor punishable by a fíne not to exceed $500 and up to six months’ imprisonment. In addition, any homeowner or tenant who is injured as a result of the violation may bring an action for treble damages.

Local Law 1534 applies to “sales, actions, or leases involving planned retirement community homes occurring or entered into after” its effective date (Administrative Local Laws § 383-13). The law provides that it is to take effect on the 90th day following its filing with the Secretary of State, which occurred on February 5, 2007. The effective date has been stayed by order to show cause dated May 3, 2007 signed by the Honorable Daniel D. Angiolillo.

MHC Greenwood

Petitioner MHC Greenwood Village NY, L.L.C. is the owner and operator of Greenwood Village, a senior residential community located in Manorville, a community in Suffolk County. Greenwood is a Delaware limited liability company and is authorized to conduct business in New York. The community is comprised of approximately 525 single-family residences, as well as a clubhouse and recreational facilities. Pursuant to “residency agreements” between Greenwood and prospective purchasers, the purchaser agrees to erect and maintain a single-family dwelling on a specific lot within the community. The home must be occupied as a private dwelling by two persons who are 55 years of age or older and by no other persons. The term of the residency agreement is 99 years.

The resident’s “financial obligations” include a “base residency charge” of $740 per month. Each resident is responsible for the real estate taxes and utility charges applicable to his specific unit. There are also water and sewer charges that are payable to the community. Water is purchased from the Suffolk County Water Authority, and there is one meter for the entire community. The community owns and maintains its own sewage treatment facility. The residents are responsible for their percentage shares of capital improvements and “uninsured losses,” which are to be amortized over a five-year period. Residents are also charged a “reasonable flat rate” for snow removal and a “reasonable hourly rate” for lawn care.

[316]*316The base residency charge may be adjusted based upon the “resident’s percentage share” for increases in real estate taxes, property insurance, utilities, as well as “services required by government agencies” and “increased costs and expenses” of the community. Since each resident is responsible for his own real estate taxes, the adjustment is presumably based upon the tax increases pertaining to the common areas of the community. Services required by government agencies are defined broadly as including “permits, fire protection, and paramedic services” provided by governmental and “quasi-governmental agencies or private contractors.” The base residency charge is also subject to an inflationary adjustment based upon the consumer price index with a minimum annual increase of 4.5%. Finally, the residency charge is subject to “one-time adjustments,” which may take place every 10 years. A one-time adjustment may not exceed 50% of the aggregate increases in the consumer price index for the preceding nine years. The adjusted base residency charge may not exceed the “current market rate for rent” on vacant properties.

Residents are not permitted to assign their residency agreements or sublease the premises without the prior written consent of the community.

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Bluebook (online)
18 Misc. 3d 312, 852 N.Y.S.2d 599, 2007 NY Slip Op 27376, 2007 N.Y. Misc. LEXIS 6405, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mhc-greenwood-village-ny-llc-v-county-of-suffolk-nysupct-2007.