A Nassau County Supreme Court judge last Tuesday lifted a temporary restraining order he recently issued against work to remove nine trees from an East Hills residence in preparation for the construction of a new home.
Justice Arthur A. Diamond determined that Richard Brummel’s temporary restraining order against the removal of trees at 90 Fir Drive lacked standing and was likely a case of collateral estoppel, which limits a party’s ability to litigate an issue against the same defendant on multiple occasions.
The decision comes two weeks after Diamond ruled in favor of Brummel’s emergency application, filed just before construction was set to begin on the property.
“I don’t find that the allegation here comes close to meeting the appropriate standard to continue the [temporary restraining order],” said Diamond, according to the hearing’s official transcript.
Brummel said in a statement that he was disappointed in the outcome, but planned to submit documents refuting the “misstatement of facts and ugly innuendo that seem now to be the standard fare of the Village and its allied lawyers.”
“I think the judge responded partially to the theatrical pleas of the resident-to-be that they could not wait beyond next April for the house to be ready, and they needed to break ground immediately,” Brummel said. “But this case is a text-book example of where a rogue government agency needs to be reined in by judicial oversight, and I hope the technical legal issues will not prevent that outcome.”
Brummel had previously argued that the East Hills architectural review board’s Aug. 5 decision to allow the demolition and reconstruction of the house at 90 Fir Drive ignored the village’s tree protection law, which requires applicants to obtain a permit to remove trees more than 5 inches in diameter except in emergency situations.
Village law states that the village’s tree warden and architectural review board are supposed to determine whether a tree should be removed, according to the suit.
Brummel argued that architectural review board decisions approving tree removal permits have been issued without public notice and are accessible only with Freedom of Information Law requests, which he said violates village law and the state’s open meetings law as being “arbitrary and capricious and an abuse of discretion.”
Included in the lawsuit was the written testimony to the architectural review board from certified arborist Richard Oberlander, who told the board he reviewed photos of the trees and found them to be “extremely valuable.”
In addition, East Hills resident Elaine Berger, who lives across the street from the Fir Drive property, testified that she was concerned about the loss of trees at the property, though other residents testified they were not opposed to the removal of nearby trees, according to the suit.
But Michael Sahn, who in addition to Joseph Bjarnson represented the Marks family set to move into the forthcoming Fir Drive home, said the ongoing litigation has jeopardized the construction’s prospective completion before the start of winter as well as the Marks’ plans to move before the start of spring kindergarten sessions for their daughter.
“It appears to me, your honor, that the only people hurt in this proceeding are Mr. and Mrs. Marks,” said Sahn, of Sahn Ward Coschignano & Baker.
According to the transcript, the defense also argued that Brummel’s temporary restraining order request was an issue of collateral estoppel, as Brummel earlier this year unsuccessfully challenged eight decisions made by the village’s architectural review board to grant tree removal permits.
In that lawsuit, Nassau County Supreme Court Judge Anthony L. Parga ruled Brummel did not have standing in bringing about litigation because he was not the owner of any of the properties for which the board issued a decision.
