Summary
reviewing a "hybrid CPLR article 78 proceeding and action under, inter alia, 42 USC § 1983"
Summary of this case from Whitfield v. City of New YorkOpinion
212 CA 21-00064
07-08-2022
In the Matter of 1640 STATE ROUTE 104, LLC, and Aaron Preston, Petitioners-Plaintiffs-Appellants, v. TOWN OF ONTARIO PLANNING BOARD, Brian Smith, as Code Enforcement Officer of the Town of Ontario, and Town of Ontario Zoning Board, Respondents-Defendants-Respondents.
BOYLAN CODE, LLP, ROCHESTER (ROBERT J. MARKS OF COUNSEL), FOR PETITIONERS-PLAINTIFFS-APPELLANTS. ANTHONY J. VILLANI, P.C., LYONS (ANTHONY J. VILLANI OF COUNSEL), FOR RESPONDENTS-DEFENDANTS-RESPONDENTS.
BOYLAN CODE, LLP, ROCHESTER (ROBERT J. MARKS OF COUNSEL), FOR PETITIONERS-PLAINTIFFS-APPELLANTS.
ANTHONY J. VILLANI, P.C., LYONS (ANTHONY J. VILLANI OF COUNSEL), FOR RESPONDENTS-DEFENDANTS-RESPONDENTS.
PRESENT: PERADOTTO, J.P., LINDLEY, CURRAN, WINSLOW, AND BANNISTER, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously modified on the law by reinstating and granting the amended petition-complaint insofar as it sought to annul the determination of respondent-defendant Town of Ontario Planning Board to repeal and delete condition No. 2 of the November 14, 2018 Town of Ontario Planning Board resolution and as modified the judgment is affirmed without costs.
Memorandum: Petitioner-plaintiff Aaron Preston owns petitioner-plaintiff 1640 State Route 104, LLC, which operates a nursery and landscaping business. In 2017, Preston submitted a site plan application with respect to the business to respondent-defendant Town of Ontario Planning Board (Planning Board). In 2018, the Planning Board, by resolution, approved that application, with certain conditions, including that, as relevant here, "[t]he applicant may store wood stumps, limbs and clippings, to be regularly processed for landscape mulch," on a certain part of the parcel in question (condition No. 2). Subsequently, Preston submitted a new site plan application seeking to reconfigure the property in an effort to grow the business. Following a determination that the mulching operation required a special permit pursuant to the Code of the Town of Ontario (Town Code), Preston submitted an application for a special permit to the Planning Board and, in 2020, the Planning Board denied that application and repealed and deleted condition No. 2 of the 2018 resolution.
In this hybrid CPLR article 78 proceeding and action under, inter alia, 42 USC § 1983, petitioners-plaintiffs (petitioners) seek in effect to annul the 2020 determinations of the Planning Board denying the application for a special permit to conduct mulching operations on the property and repealing and deleting condition No. 2 of the 2018 resolution. After petitioners filed an amended petition-complaint, respondents-defendants (respondents) answered the amended petition-complaint and cross-petitioned for an injunction enjoining petitioners from conducting mulching operations on the property.
In its oral decision, Supreme Court determined that the Planning Board's determination to deny the application for a special permit was "neither arbitrary nor capricious," but also determined that the Planning Board could not "modify the 2018 plan approval" by repealing and deleting condition No. 2 of that resolution. The court thus concluded that the Planning Board's determination to "repeal[ ] and delete[ ]" condition No. 2 of the 2018 resolution was "invalid." Petitioners now appeal from a judgment that, inter alia, incorporated therein the court's oral decision, but thereafter "denied and dismissed" petitioners’ "[amended] [p]etition and [c]omplaint" in its entirety, and enjoined petitioners from using their property for wood mulching.
Preliminarily, to the extent that respondents contend that the appeal should be dismissed because the notice of appeal is defective, we reject that contention. Although the notice of appeal inaccurately refers to the operative pleading of petitioners that was denied and dismissed by the court as the "[p]etition and [c]omplaint," instead of the amended petition-complaint (see generally Basile v. Riley , 188 A.D.3d 1607, 1608, 136 N.Y.S.3d 595 [4th Dept. 2020] ), we conclude that, absent prejudice to respondents, that defect should be disregarded (see CPLR 2001 ; Caudill v. Rochester Inst. of Tech. , 125 A.D.3d 1392, 1393, 4 N.Y.S.3d 408 [4th Dept. 2015] ; Green v. Associated Med. Professionals of NY, PLLC , 111 A.D.3d 1430, 1432, 975 N.Y.S.2d 319 [4th Dept. 2013] ).
As a further preliminary matter, although we agree with the court, for the reasons discussed below, that the Planning Board's determination to deny the special use permit was not arbitrary or capricious and that respondents are entitled to a permanent injunction prohibiting petitioners from conducting wood mulching operations on their property, we nevertheless conclude that there is an inconsistency between the court's oral decision and its judgment insofar as it concerns the Planning Board's determination to repeal and delete condition No. 2 of the 2018 resolution. It is axiomatic that, where a decision and an order or judgment conflict, the decision controls (see Matter of Benderson Dev. Co., LLC v. Zoning Bd. of Appeals of City of Utica , 68 A.D.3d 1814, 1815, 891 N.Y.S.2d 792 [4th Dept. 2009] ; see also Austin Harvard LLC v. City of Canandaigua , 141 A.D.3d 1158, 1159, 36 N.Y.S.3d 335 [4th Dept. 2016] ). Here, the court determined in its oral decision that the Planning Board's determination to repeal and delete condition No. 2 of the 2018 resolution should be annulled. In its judgment, however, the court "denied and dismissed" the "[amended] [p]etition and [c]omplaint" in its entirety. We therefore modify the judgment accordingly.
We reject petitioners’ contention that the determination denying the application for a special permit was arbitrary and capricious. As noted above, condition No. 2 of the Planning Board's 2018 resolution provided that petitioners could "store wood stumps, limbs and clippings" on a certain section of their property, "to be regularly processed for landscape mulch." Believing that the provision entitled them to conduct mulching operations, petitioners began conducting commercial mulching operations on their property. When Preston thereafter filed a new site plan application, the Town of Ontario Planning Review Committee determined that the mulching operation constituted a " ‘[l]ight [m]anufacturing’ use, ... requiring a [s]pecial [p]ermit" in accordance with the Town Code. Petitioners did not challenge that determination; instead, Preston filed a special permit application seeking "a special permit to operate a mulch service." The Planning Board, in denying that application, found that the application did not comply with the relevant general and specific requirements of the Town Code.
Initially, we conclude that the Planning Board's interpretation of its 2018 resolution, which the Planning Board was charged to enforce, is entitled to " ‘great weight and judicial deference’ " inasmuch as it is " ‘neither irrational, unreasonable nor inconsistent with the governing statute’ " ( Matter of Parkway Vil. Equities Corp. v. Board of Stds. & Appeals of City of N.Y. , 279 A.D.2d 299, 299, 720 N.Y.S.2d 6 [1st Dept. 2001], lv denied 96 N.Y.2d 711, 727 N.Y.S.2d 696, 751 N.E.2d 944 [2001], quoting Matter of Trump-Equitable Fifth Ave. Co. v. Gliedman , 62 N.Y.2d 539, 545, 478 N.Y.S.2d 846, 467 N.E.2d 510 [1984] ; see generally Matter of Peckham v. Calogero , 12 N.Y.3d 424, 431, 883 N.Y.S.2d 751, 911 N.E.2d 813 [2009] ). As a result, we conclude that the Planning Board's interpretation that the 2018 resolution did not permit petitioners to conduct a mulching operation on their property should be upheld.
Furthermore, we note that, although "[t]he inclusion of the permitted use in the ordinance is tantamount to a legislative finding that the permitted use is in harmony with the general zoning plan and will not adversely affect the neighborhood" ( Matter of North Shore Steak House, Inc. v. Board of Appeals of Inc. Vil. of Thomaston , 30 N.Y.2d 238, 243, 331 N.Y.S.2d 645, 282 N.E.2d 606 [1972] ; see Matter of George Eastman House, Inc. v. Morgan Mgt., LLC , 130 A.D.3d 1552, 1554, 14 N.Y.S.3d 264 [4th Dept. 2015], lv denied 26 N.Y.3d 910, 2015 WL 6457246 [2015] ), "there is no automatic entitlement to a special use permit" ( Matter of Monro Muffler/Brake, Inc. v. Town Bd. of Town of Perinton , 222 A.D.2d 1069, 1069, 635 N.Y.S.2d 882 [4th Dept. 1995] ). Rather, petitioners were required to establish that the contemplated use conformed to the conditions or standards imposed by the Town Code (see George Eastman House, Inc. , 130 A.D.3d at 1554, 14 N.Y.S.3d 264 ; Monro Muffler/Brake , 222 A.D.2d at 1069, 635 N.Y.S.2d 882 ). The " ‘[f]ailure to meet any one of the conditions set forth in the ordinance’ provides a rational basis for denying an application for a special use permit" ( Matter of Rex v. Zoning Bd. of Appeals of Town of Sennett , 195 A.D.3d 1398, 1399, 145 N.Y.S.3d 492 [4th Dept. 2021], quoting Matter of Wegmans Enters., Inc. v. Lansing , 72 N.Y.2d 1000, 1001, 534 N.Y.S.2d 372, 530 N.E.2d 1292 [1988] ; see Matter of Frittita v. Pax , 251 A.D.2d 1077, 1077, 675 N.Y.S.2d 577 [4th Dept. 1998] ). Here, we conclude that, contrary to petitioners’ contention, the Planning Board rationally determined that the special permit application failed to comply with the specific and general conditions imposed by the Town Code.
In light of our determination, we further conclude that the court did not err in granting respondents’ cross petition insofar as it sought to enjoin petitioners from conducting mulching operations on their property. "The law is by now well settled that an injunction is an appropriate remedy to prevent continuing violations of zoning laws" ( Town of Solon v. Clark , 97 A.D.2d 602, 602, 468 N.Y.S.2d 201 [3d Dept. 1983] ). "Where a town seeks to enforce its building and zoning laws, it is entitled to a permanent injunction upon demonstrating that the party sought to be enjoined is acting in violation of the applicable provisions of local law" ( Town of N. E. v. Vitiello , 159 A.D.3d 766, 766, 72 N.Y.S.3d 134 [2d Dept. 2018] ; see Incorporated Vil. of Sea Cliff v. Larrea , 106 A.D.3d 876, 877, 965 N.Y.S.2d 552 [2d Dept. 2013] ). Inasmuch as the 2018 resolution did not permit mulching operations and petitioners were properly denied a special use permit, their mulching operation was in violation of the Town Code (cf. Village of Fayetteville v. Shaheen , 38 A.D.3d 1251, 1251, 834 N.Y.S.2d 893 [4th Dept. 2007] ; Town of Mentz v. Crandall , 288 A.D.2d 841, 842, 732 N.Y.S.2d 778 [4th Dept. 2001] ; Town Bd. of Town of Ellicott v. Lee , 241 A.D.2d 958, 958-959, 661 N.Y.S.2d 384 [4th Dept. 1997] ).