Opinion
Index No. 609827/2023
10-30-2023
Cold Spring Country Club, Inc. and COLD SPRING DEVELOPMENT PARTNERS, LLC, Petitioners/Plaintiffs, v. Town of Huntingon, TOWN BOARD OF THE TOWN OF HUNTINGTON, and KAHN PROPERTY OWNER, LLC, Respondents/Defendants, and JEFFREY KOLESSAR, VICE PRESIDENT OF DEVELOPMENT AT GF MANAGEMENT LLC as RECEIVER, and DAVID L. ROSENBERG, ESQ., as REFEREE, Additional Respondents/Defendants, Joined as Necessary Parties Under CPLR 100 (a).
FARRELL FRITZ, P.C., Attorney for Plaintiff Cold Spring Country Club AVRUTINE & ASSOCIATES, PLLC, Attorneys for Plaintiff Cold Spring Country Club DANIEL LOGAN MILLMAN, ESQ., Attorney for Plaintiff Cold Spring Country Club HERRICK FEINSTEIN LLP, Attorneys for Plaintiffs Cold Spring Development Partners, LLC JASPAN SCHLESINGER LLP, Attorneys for Defendants Kahn Property
Unpublished Opinion
FARRELL FRITZ, P.C., Attorney for Plaintiff Cold Spring Country Club
AVRUTINE & ASSOCIATES, PLLC, Attorneys for Plaintiff Cold Spring Country Club
DANIEL LOGAN MILLMAN, ESQ., Attorney for Plaintiff Cold Spring Country Club
HERRICK FEINSTEIN LLP, Attorneys for Plaintiffs Cold Spring Development Partners, LLC
JASPAN SCHLESINGER LLP, Attorneys for Defendants Kahn Property
James Hudson, J.
The case at Bar is a hybrid Article 78 proceeding, declaratory judgment/injunctive relief action, challenging the Town's adoption of Resolution 2023-140 ("Local Law"). Petitioners/Plaintiffs Cold Spring County Club, Inc. (hereinafter referred to as "CSCC") and Cold Spring Development Partners LLC (hereinafter referred to as "CSDP") allege that by adopting the Local Law, which altered the zoning provisions governing the Town's Historic Building Overlay District (hereinafter referred to as "HBOD"), the Town impermissibly authorized defendant Kahn Property Owner, LLC (hereinafter referred to as "Kahn") to construct a 95-unit condominium complex.
Following the commencement of this action, Petitioners/Plaintiffs CSCC moved by Order to Show Cause seeking the issuance of a preliminary injunction and temporary restraining order (hereinafter referred to as "TRO") pursuant to CPLR §§ 6301 & 7805:
(i) Staying and enjoining the enforcement and enactment of the Local Law and Resolution, as defined in the Petition, pending the final determination of this hybrid proceeding;
(ii) Enjoying Respondent Kahn Property Owner, LLC from taking any steps to advance the approval process for the Kahn Condo Complex, as defined in the Petition, including by obtaining any permits, approvals or commencing construction based on any rights obtained through the Local Law and Resolution.
The Court (Garguilo, J.) on May 11th, 2023 pursuant CPLR §7805, issued a TRO stating that "... the respondents/defendants, Town of Huntington and the Town Board of the Town of Huntington are stayed from any proceedings or the enforcement and enactment of the Local Law and Resolution, as defined in the Petition, including all adjourned dates hereof." (NYSCEF Doc. 58).
The specifications in the petition consist of the following:
(a) On the First Cause of Action, invalidating, rescinding and annulling the Resolution and Local Law as arbitrary and capricious, illegal and unlawful, and/or an abuse of discretion;
(b) On the Second Cause of Action, pursuant to New York State Town Law §274-b and CPLR Article 78, invalidating, rescinding and annulling the Resolution and Local Law;
(c) On the Third Cause of Action, pursuant to New York State Town Law §274-b and CPLR Article 78, invalidating, rescinding and annulling the Resolution and Local Law;
(d) On the Fourth Cause of Action, pursuant to SEQRA and CPLR Article 78, invalidating, rescinding and annulling the Resolution and Local Law;
(e) On the Fifth Cause of Action, pursuant to CPLR Article 78, invalidating, rescinding and annulling the Resolution and Local Law;
(f) On the Sixth Cause of Action, declaring that the Resolution and Local Law are null and void as violative of the Town Code HBOD, New York Town Law §274-b and New York Town Law §278;
(g) On the Seventh Cause of Action, declaring that the Resolution and Local Law are null and void as violative of the SCAC; and
(h) On the Eighth Cause of Action, a preliminary injunction, emergency stay, and temporary restraining order pursuant to CPLR §§7805, 6301 and 6313, (i) enjoining the enforcement and enactment of the Amended Local Law and Resolution pending the final determination of this proceeding, and (ii) enjoining Kahn from taking any further steps to advance the approval process, including by obtaining any permits, approvals or commencing construction based on any rights obtained by or through the Amended Local Law and Resolution.
The gravamen of the Petitioners'/Plaintiffs' position is that the respondent/defendant Town's actions in approving the defendant Kahn's proposed use of its property were in violation of law and will result in irreparable harm to them.
The current dispute is the culmination of a business dispute between the private entities in this case, Kahn and CSCC. The parties were not always at cross-purposes.
A little over a decade ago, these adjoining landowners attempted to pool their resources, combine a portion of each's realty, and build 190 luxury condominium units to be called "The Residences at Oheka Castle." (NYSCEF Doc No. 116). This project was met with approbation by the Town subject to certain covenants and restrictions. (NYSCEF Doc No. 82). Despite what appeared to be the successful resolution of their efforts, Kahn and CSCC fell into disagreement and the project was not realized.
Kahn, however, did not give up on pursuing its objective of developing condominiums at the locus in quo.
In 2021 Kahn entered into a contract to sell a 4.19-acre parcel of Oheka Castle's land to a non-party, Oheka Development LLC. The Contract was subject to a condition precedent namely: the purchase an additional 13.74 acres of property (hereinafter referred to as the "Club Land") from the CSCC on or before March 20th, 2021. This event, however, did not occur.
Despite this setback, Kahn has persisted in attempting to develop the property. To that end it commenced an action (Index No.: 622421/2021) against its former coventurer Oheka Development LLC, an associated entity FBE LLC, and the petitioner/plaintiff CSCC.
The other action sounds in breach of contract and tortious interference with prospective economic advantage. In that case Kahn Property Owner LLC seek monetary damages in addition to a declaratory judgment. Specifically, Kahn seeks:
a declaration as to its easement over (a) East Gate Drive and (b) those portions of property owned by the Club which abut (i) the westerly side of East Gate Drive, and (ii) the easterly side of East Gate Drive, for the purposes of widening East Gate Drive as may be required by the municipal authorities and thereafter for the purposes of ingress, egress, and installation and maintenance of utilities.
On or about June 17th, 2022, Kahn filed an application, for a rezoning of its Property pursuant to Town Law §198-42.1(B). The application sought as an "additional use" under the HBOD, permission to build a structure containing 95 condominiums with parking for 240 vehicles and a sewage treatment plant on a 5.17-acre portion of the Kahn Property located in an underlying Residence-Open Space Cluster District. ("R-OSC").
Petitioners/plaintiffs ask the Court to vacate and annul the aforementioned resolution and local law because it is contended that the Town Board acted in excess of its legal authority and was otherwise arbitrary and capricious.
The respondents/defendants oppose the petition. Having filed their answer, the respondents/defendants have filed an objection in point of law. They also oppose the motion for injunctive relief.
The Town has supplied the Court with a copy of its findings and attendant exhibits. A perusal of same shows that they are detailed enough to permit intelligent judicial review. (Collins v. Behan, 285 NY 187, ___ NYS ___, 33 N.E.2d 86 [1941]; Matter of Farrell v. Board of Zoning Appeals, 77 A.D.2d 875, 431 N.Y.S.2d 52 [2d Dept 1980]).
As a general rule, the petitioner in CPLR article proceeding has the burden of proving the allegations of their petition (Stanton v. Town of Islip Dep't of Plan. & Dev., 37 A.D.3d 473, 474, 829 N.Y.S.2d 596, 597 (2d Dep. 2007) citing Poster v. Strough, 299 A.D.2d 127, 138, 752 N.Y.S.2d 326, 335 (2d Dept 2002); see Matter of Bergstein v. Board of Educ. 34 N.Y.2d 318, 357 N.Y.S.2d 465 [1974]; Matter of Abbondandolo v. Edwards, 174 A.D.2d 737, 571 N.Y.S.2d 955 [2d Dept1991]; Matter of Gramercy N. Assocs. v. Biderman, 169 A.D.2d 345, 573 N.Y.S.2d 491 [1st Dept 1991]), There is varying case law on the subject of whether the petitioners/plaintiffs must substantiate their claims by a fair preponderance of the evidence or by clear and convincing evidence (Hoffay v. Tifft, 164 A.D.2d 94, 98, 562 N.Y.S.2d 995, 998 [3rd Dept1990] preponderance; Beverly Hills Cemetery Corp. v. Town of Putnam Valley, 136 A.D.2d 669, 670, 524 N.Y.S.2d 47, 48-49 (2d Dept 1988) constitutional challenge to zoning ordinance must be proven beyond a reasonable doubt; Plain-Pike Realty Co. v. Sanford, 10 A.D.2d 644, 644, 197 N.Y.S.2d 398, 399 (2d Dept 1960); both preponderance and beyond a reasonable doubt discussed citing cf. McKeon v. Van Slyck, 223 NY 392, 397, ___ NYS ___, 119 NE 851 [1918 Crane J.], and cf. Wiggins v. Town of Somers, 4 N.Y.2d 215, 218, 173 N.Y.S.2d 579, 581)."
Regardless of whether the Court were to use the higher or lesser standard of proof, the evidence presented demonstrates that the petitioners/plaintiffs have failed to sustain it.
The petitioners'/plaintiffs' arguments will be considered ad seriatim.
In the Court's review of the evidence and discussion of applicable law, it must pause to thank moving and responding counsel for the quality and eloquence of their respective briefs. Their clients are well served by such advocates.
The Court must first decide if petitioners'/plaintiffs' claims are ripe for review.
The respondents/defendants assert that the Petition is, at best, premature. The Town points out that the local law being challenged (Resolution 2023-140) is subject to a number of conditions precedent before it would, or ever could, become effective. (NYSCEF Doc No. 120, Town Opposition to Art 78 Petition).
Certain facts in this matter are undisputed. It is not controverted by the petitioners/plaintiffs that the Town Board's approval of Kahn's proposal contained the following language:
... HEREBY APPROVES the change of zone as set forth below, except that this Local Law shall not be filed with the Secretary of State by the Huntington Town Clerk or be deemed effective against the subject property until the Covenants and Restrictions identified in this Resolution are approved by the Town Attorney as to form and content, and the applicant provides proper proof of filing with the Suffolk County Clerk to the Department of Planning and Environment, Town Attorney, and Town Clerk; and FURTHER RESOLVES that no subdivision or site plan shall be approved by the Planning Board or signed by the Director of Planning unless the plan is in full compliance with the requirements of this Resolution, the Covenants and Restrictions, and any applicable condition, restriction, or limitation established by the Planning Board during subdivision or site plan review... (NYSCEF Doc No. 178, Town Board Resolution).
Respondents posit that the petitioners/plaintiffs failed to follow the provisions of Town Law § 267-a which gives the Town's Zoning Board of Appeals the obligation of "4.... hearing and deciding appeals from and reviewing any order, requirement, decision, interpretation, or determination made by the administrative official charged with the enforcement of any ordinance or local law adopted pursuant to this article." This statute must be read in conjunction with Huntington Town Code § 198-109 which vests the Town ZBA with the power:
[t]o decide any question involving the interpretation of a provision of the zoning regulations and to determine and establish the true location of district boundaries in a disputed case. (Town Code § 198-109 (B)... To permit additions or structural alterations to special uses approved by the Town Board or to uses in special districts approved by the Planning Board where such additions or structural alterations do not require variance or modification of the conditions originally set forth. (Town Code § 198-109 (E)... The Zoning Board of Appeals shall have continuing jurisdiction over expansions, alterations or modifications to properties where special use permits have previously been granted by the Board. (Town Code § 198-109(I).
Petitioners rely on Vill. of Kiryas Joel v. Cnty. of Orange, 181 A.D.3d 681, 121 N.Y.S.3d 102 (2d Dept 2020) for its argument that the Town's action can be considered final and the ZBA appeals process is not a precondition to this action. The court disagrees. Vill. of Kiryas Joel held that:
An administrative determination becomes "final and binding" when two requirements are met: completeness (finality) of the determination and exhaustion of administrative remedies. (Walton v New York State Dept of Correctional Servs., 8 N.Y.3d 186, 194 [2007]). First, the agency must have reached a definitive position on the issue that inflicts actual, concrete injury and second, the injury inflicted may not be... significantly ameliorated by further administrative action or by steps available to the complaining party. (Matter of Best Payphones, Inc. v Department of Info. Tech. & Telecom. of City of NY, 5 N.Y.3d 30, 34 [2005]). (Id. at 685).
In Kiryas Joel, the Court reviewed the actions of a County which had passed a Local Law re-zoning 60 acres from "Office Park" to "Industrial" which would allow far more employment of the property with the exception of residential uses (which was forbidden) (Id. at 684). There were no other qualifications to the approval process. This is distinguishable from the matter sub judice, in which Kahn's permission was burdened with the obligation to obtain the right to an easement over the petitioners/plaintiffs' property.
In further support of their claim of ripeness, petitioners/plaintiffs draw the Court's attention to the case of Brunjes v. Nocella, 40 A.D.3d 1088, 837 N.Y.S.2d 226 (2d Dept 2007). This case actually appears to favor the respondents/defendants. The Brunjes Court stated:
It is hornbook law that one who objects to the act of an administrative agency must exhaust available administrative remedies before being permitted to litigate in a court of law (citations omitted). Here, the record demonstrates that the petitioner failed to seek review of the building permit revocation by the Town of Hempstead Board of Appeals (hereinafter the Board of Appeals) (see Town Law § 267-b [1]). (Id. at 1088-1089).
The facts herein seem to fall within the preclusion discussed in Brunjes.
An exception to the "exhaustion of remedies" rule is articulated in another case cited by the petitioners/plaintiffs, Watergate II Apartments v. Buffalo Sewer Auth., 46 N.Y.2d 52, 57, 412 N.Y.S.2d 821 [1978]; Watergate recognized that the exhaustion rule is inapplicable "...when an agency's action is challenged as either unconstitutional or wholly beyond its grant of power...or when resort to an administrative remedy would be futile... or when its pursuit would cause irreparable injury [citations omitted]" (Id. at 57). Petitioners/plaintiffs have submitted other cases to support their position on this preliminary issue: Atlas Henrietta, LLC v. Town of Henrietta ZBA, 46 Misc.3d 334, 995 N.Y.S.2d 659 (Sup Ct, Monroe County, 2013), affd, 120 A.D.3d 1606, 992 N.Y.S.2d 667 [4th Dept 2014]; In re City of NY, 6 N.Y.3d 540, 814 N.Y.S.2d 592 (2006); Commco, Inc. v. Amelkin, 62 N.Y.2d 260, 476 N.Y.S.2d 775 (1984); Dodson v. Town Bd. of Rotterdam, 182 A.D.3d 109, 119 N.Y.S.3d 590 (3d Dept 2020); Fusco v. NYProp. Underwriters Assocs., 70 A.D.2d 895, 417 N.Y.S.2d 310 (2d Dept 1979); Goldberg v. Village of Roslyn Estates,61 A.D.3d 756, 877 N.Y.S.2d 199 (2d Dept 2009); Podolsky v. Daniels, 21 A.D.3d 559, 799 N.Y.S.2d 917 (2d Dept 2005); Red Wing Props., Inc. v. Town of Milan, 71 A.D.3d 1109, 898 N.Y.S.2d 593 (2d Dept 2010); Radano v. Town of Huntington, 281 AD 682, 117 N.Y.S.2d 94 (2d Dept 1952), affd, 305 NY 911, ___ NYS ___, 114 N.E.2d 470 (1953); Rosenbush v. Keller, 271 NY 282, ___ NYS ___, 2 N.E.2d 659 (1936); Scarsdale Supply Co. v. Vil. of Scarsdale, 8 N.Y.2d 325, 206 N.Y.S.2d 773 (1960); Smith v. Town of Plattekill, 13 A.D.3d 695, 787 N.Y.S.2d 406 (3d Dept 2004); Towers Mgmt. Corp. v. Thatcher, 271 NY 94, ___ NYS ___, 2 N.E.2d 273 (1936 Crane J.); Matter of Jackson v New York State Urban Dev. Corp., 67 N.Y.2d 400, 415, 503 N.Y.S.2d 298 (1986); Epstein v. Board of Appeals of the Village of Kensington, 222 A.D.2d 396, 634 N.Y.S.2d 725 (2d Dept 1995).
The Court finds these cases to be of limited utility in deciding the issue of exhaustion of administrative remedies. Red Wing Properties, Inc. v. Town of Milan, 71 A.D.3d 1109, 898 N.Y.S.2d 593 (2d Dept 2010) is one example. In Red Wing, the respondent municipality adopted a plan which "... recommended amending the Town Code to eliminate a Light Industrial District" while at the same time enacting a Law implementing the plan (Id. at 1110). Unlike the petitioners/plaintiffs in the case before this Court, the aggrieved party in Red Wing had "... an application pending to re-zone a parcel of its property for industrial use, which application would be directly affected by the elimination of the District." (Id. at 1111).
A recent decision applying the rule in Kiryas Joel, can be found in the case of Rosado-Ciriello v. Bd. of Educ. of Yonkers City Sch. Dist., 219 A.D.3d 839, 840, 195 N.Y.S.3d 269 (2d Dept 2023). The Court held that the rationale for the exhaustion of administrative remedies was "to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties." (Matter of Village of Kiryas Joel v County of Orange, 181 A.D.3d at 685 [internal quotation marks omitted]). (Id. at 840). The Rosado-Ciriello Court further opined, however, that:
For a challenge to administrative action to be ripe, the administrative action sought to be reviewed must be final, and the anticipated harm caused by the action must be direct and immediate. (Id. at 840 citing Matter of Boyajian v Village of Ardsley, Zoning Bd. of Appeals, 210 A.D.3d 1079, 1081 [2022]).
This Court finds guidance in the case of Svatovic v. Town of Southold, 156 A.D.3d 893, 893-94, 65 N.Y.S.3d 754 (2d Dept 2017). In Svatovic, the petitioner brought an action against the respondent town over the latter's issuance of a building permit. The lower Court dismissed the Petition (CPLR 3211(a) and 7804(f)). In affirming the Order of Dismissal, the Appellate Court held that a challenge brought before the Town's Zoning Board of Appeals must precede an Article 78 petition. (Id. at 893).
The ruling in Henderson v. Zoning Bd. of Appeals, 72 A.D.3d 684, 685-86, 897 N.Y.S.2d 518, 520 (2d Dept 2010) also stands squarely against the petitioners'/plaintiffs' position. In Henderson, the petitioners were challenging the issuance of a building permit to neighbors who were attempting to begin construction of a building. The petition was dismissed because petitioners had "failed to pursue an available administrative remedy," namely an appeal to the Village ZBA. (Id. at 685).
In the instant controversy, the respondent Kahn has not received a building permit. As per the action of the Town, this right does not come into being unless and until it secures and establishes its right to use East Gate Drive to access the site of the proposed condominium project. (See NYSCEF Doc. 120).
Petitioners put forward the case of Loskot-D'Souza v. Town of Babylon, 137 A.D.3d 751, 26 N.Y.S.3d 577 (2d Dept 2016) in support of their position that they are not required to wait for the Local law to be filed. This reliance is misplaced. Loskot-D'Souza, involved a claim pursuant to 42 USC § 1983 for alleged violations of the Constitutional rights of due process and equal protection, not CPLR Article 78.
Instead, the Court draws the parties' attention to the holding in Maor v. Town of Ramapo Plan. Bd., 44 A.D.3d 665, 843 N.Y.S.2d 163 (2d Dept 2007) which is more analogous to the case before us. In affirming the dismissal of the Article 78 petition, it was noted that "[t]he challenged determinations were preliminary steps in the approval process... and, as such, were not final determinations subject to judicial review see Town Law § 278 [other citations omitted]." (Id. at 666).
Nothing underscores lack of finality in the respondents/defendants' actions more than the wording in the final Town Resolution concerning the Kahn project: "the Primary access to and from the Residences at Oheka II must emanate from East Drive, and if the applicant is precluded from using East Gate Drive, the applicant shall apply to the Town Board for any modification to the plan, including an alternate access point." (Town Resolution 2023-125 at page 6).
Accordingly, since the petitioners/plaintiffs have failed to exhaust available administrative remedies, the petition must be dismissed.
Assuming arguendo that the Court found the matter was suitable for review, it would still be obliged to find that the petitioners/plaintiffs had failed to sustain their burden.
The respondents/defendants contend that the petitioners/plaintiffs herein lack standing under State Environmental Quality Review Act (SEQRA) to commence this action.
In Society of Plastics Indus., Inc. v. County. of Suffolk, 77 N.Y.2d 761, 769, 570 N.Y.S.2d 778 (1991), cited by the respondents, the court held:
Whether a person seeking relief is a proper party to request an adjudication is an aspect of justiciability which, when challenged, must be considered at the outset of any litigation (Matter of Dairylea Coop. v Walkley, 38 N.Y.2d 6, 9). Standing is a threshold determination, resting in part on policy considerations, that a person should be allowed access to the courts to adjudicate the merits of a particular dispute that satisfies the other justiciability criteria... That an issue may be one of "vital public concern" does not entitle a party to standing. Courts surely do provide a forum for airing issues of vital public concern, but so do public hearings and publicly elected legislatures, both of which have functioned here. By contrast to those forums, a litigant must establish its standing in order to seek judicial review. [other citations omitted].
Respondents also refer to the case of Shapiro v. Torres, 153 A.D.3d 835, 60 N.Y.S.3d 366 (2d Dept 2017), where it was stated that:
[t]o establish standing under SEQRA, a petitioner must show (1) an environmental injury that is in some way different from that of the public at large, and (2) that the alleged injury falls within the zone of interests sought to be protected or promoted by SEQRA. (Id. at 836 Matter of Brummel v Town of N. Hempstead Town Bd., 145 A.D.3d 880, 881-882 [2016]).
Petitioners assert that both their status as adjoining fee holders and their own intended future development plans provide the element of standing. (NYSCEF Doc Nos. 52 and 107). In Lo Lordo v. Bd. of Trustees of Inc. Vill. of Munsey Park, 202 A.D.2d 506, 609 N.Y.S.2d 22 (2d Dept 1994), cited by the petitioners/plaintiffs, it was stated that the owners of property "... near the site of a proposed project, coupled with an allegation of actual or potential noneconomic harm, leads to an inference of potential injury." (Id. at 506). What distinguishes the holding in Lo Lordo, however, is that the allegations of potential injury in that case were "... supported by the record and... the petitioners... have demonstrated that they [were] within the zone of interest protected by SEQRA." (Id. at 507).
Under these circumstances, the petitioners/plaintiffs are claiming a potential economic rather than an environmental injury. This is beyond the ambit of a proper SEQRA challenge. "To qualify for standing to raise a SEQRA challenge, a party must demonstrate that it will suffer an injury that is environmental and not solely economic in nature."(Mobil Oil Corp. v. Syracuse Indus. Dev. Agency, 76 N.Y.2d 428, 559 N.Y.S.2d 947 (1990).
Mobil Oil Corp.'s predecessor case Matter of Har Enterprises v. Town of Brookhaven, 74 N.Y.2d 524, 549 N.Y.S.2d 638, 548 N.E.2d 1289 (1989), recognized standing for a property owner with a close nexus to the subject property. A close reading of Har, however, reveals that it cannot provide solace to the petitioners/plaintiffs before us. The petitioner in Har, although they could not show special damages, was the owner of realty which was being targeted for rezoning. (Id. at 529). Accordingly, the petitioners'/plaintiffs' claims sounding in the Town's purported violation of SEQRA will be dismissed on the basis of lack of standing.
Once again, if the Court were to find that the petitioners/plaintiffs showed their standing under SEQRA, the comprehensive record submitted by the respondent Town demonstrates that this statute has been complied with.
SEQRA is designed to promote "efforts which will prevent or eliminate damage to the environment and enhance human and community resources" (ECL 8-0101) by injecting "environmental considerations directly into governmental decision making; thus, the statute mandates that '[s]ocial, economic, and environmental factors shall be considered together in reaching decisions on proposed activities.' " (Har Enterprises v. Town of Brookhaven, supra at 528, citing (ECL 8-0103 [7]; see, Matter of Jackson v New York State Urban Dev. Corp., 67 N.Y.2d 400, 415; Governor's Mem, 1975 NY Legis Ann, at 438).
SEQRA requires a municipality (or lead agency) to:
... initially determine whether a proposed action may have a significant effect on the environment (ECL 8-0109 [2], [4]; 6 NYCRR 617.2 [v]). If no significant effect is found, the lead agency may issue a "negative declaration," identifying areas of environmental concern, and providing a reasoned elaboration explaining why the proposed action will not significantly affect the environment (6 NYCRR 617.6 [g])."(Har Enterprises, supra at 528).
SEQRA requires that an environmental impact statement (EIS) be prepared for government-sponsored or government-approved projects or activities "which may have a significant effect on the environment" Pickerell v. Town of Huntington, 45 Misc.3d 1208 (A), 3 N.Y.S.3d 286 (NY Sup. Ct. Suffolk Cty 2014) citing ECL 8-0109[2]; see Matter of Long Is. Pine Barrens Soc. v. Planning Bd. of Town of Brookhaven, 80 N.Y.2d 500, 591 N.Y.S.2d 982 [1992])
The EIS must contain:
a description of the proposed action and its environmental setting; the environmental impacts of the proposed action, including both long-term and short-term effects; any adverse environmental impacts which cannot be avoided if the action is implemented; alternatives to the proposed action; and mitigation measures proposed to minimize the environmental impact. (Pickerell supra at 4;ECL 8-0109[2]; 6 NYCRR 617.9[b]).
In determining if the Municipality has satisfied its requirements under SEQRA, the Court has two essential tasks:
first, review the agency procedures to determine whether they were lawful. Second, we may review the record to determine whether the agency identified the relevant areas of environmental concern, took a "hard look" at them, and made a "reasoned elaboration" of the basis for its determination [citations omitted]." Jackson v. New York State Urb. Dev. Corp., supra at 417.
Petitioners/Plaintiffs contend that the Town failed to take the requisite "hard look" at the environmental impacts of the Kahn 2002 application. To support this contention, they ask the Court to come to the same conclusion reached in the case of Munash v. Town Bd. of Town of E. Hampton, 297 A.D.2d 345, 748 N.Y.S.2d 160 (2d Dept 2002). The facts in Munash involved a proposed construction project in the Town of East Hampton. "[T]he Town Board had received a report in early January of 2001 that a significant impact on the ecosystem of the Pine Barrens area, which encompasses rare, endangered, and threatened animal and plant species" could result from the project. A hydrogeologist, also "... expressed concern that the project might have a harmful impact on the quality of groundwater in wells". The Town's retained hydrogeologist "... did not perform an on-site study, and indicated that she would further evaluate this issue upon receipt of additional groundwater quality information from the Suffolk County Department of Health Services". Despite this, the "Town Board issued its negative declaration on the same day it received its hydrogeologist's report and the final EAF, without waiting for its hydrogeologist to complete her evaluation." (Id. at 347)
Petitioners'/Plaintiffs' earnest protestations to the contrary, the records submitted by the respondents demonstrate compliance with SEQRA. Pursuant to Town Code § 52A-5(B)(2), the Huntington Town Planning Department performed the environmental review required, (NYSCEF Doc Nos 96, 97, Exhibits "U" and "V"). A final Environmental Assessment Form was prepared which contained a certification that the proposed use was an Unlisted Action under SEQRA.
The rationale for this decision is found in the Planning Board Hearing Transcript wherein Commissioner Aloisio stated:
The reason why we [Town Planning Department] believe this is an "Unlisted Action" [is because]... Reading from the list of Type I, in a town having a population of 150,000, but less than 1 million persons, 500 [condominium] units to be constructed at the commencement of habitation to an existing community of public water and sewerage systems, including sewerage treatment works.... So they set the benchmark [for a Type I] at 500, and it goes down to 25% if it's a historic property, which in our calculations was 125 units, and this is under that [500 benchmark] so we considered it an Unlisted Action. That was our logic... that's why we believe it is an Unlisted Action. (Planning Board Hearing Transcript at 1:49:22-1:51).
The Planning Department then issued a negative declaration determination and an addendum containing an environmental impact evaluation and analysis, pursuant to 6 NYCRR Parts 617.4 (b) (5) (ii) and (9) (NYSCEF Doc No. 97, Exhibit "V"). Respondents/Defendants correctly classified the Kahn Project as an Unlisted Action.
A fair reading of the full environmental assessment form (NYSCEF DOC. 97, Exhibit "V") shows that the Town, through its Planning Department, evaluated 18 different environmental assessment factors. Step by step, the EAF carefully identified and analyzed relevant areas of environmental concern and potential impacts. It explained the reasons for its findings that certain concerns were not significant and listed possible mitigation measures and recommendations for future unknown projects.
Moreover, the Town Board Hearing record reflects that the respondent Town considered relevant information in the form of (1) A Traffic Engineering Report, prepared by Mulryan Engineering and (2) An Environmental and Planning Report, prepared by P.W. Grosser Consulting (NYSCEF Doc Nos. 90 and 91, respondents/defendants Exhibit "O" and "P").
The respondent Town consulted with the Suffolk County Planning Commission in 2020 concerning the preceding application of Kahn (General Municipal Law § 239-m. The SCPC issued a report, (Sept. 8th, 2020) which recommended approval. Thereafter, the Planning Department made a second referral to the SCPC (February 10th, 2023) regarding Kahn's 2022 Application for review. On or about April 4th, 2023, the SCPC issued a "Supplement to the 9/8/2020 Suffolk County Planning Commission Staff report" which, again, recommended Project approval..."
At this point in the Court's discussion, it must be underlined that petitioners/plaintiffs assertion of the respondents/defendants failing to adhere to Suffolk County Administrative Code § A14-22 [A] [6]; § A14-24 [A] [6] is belied by the aforementioned actions of the Town. Contrary to the petitioners'/plaintiffs' argument, the rule stated in Eastport All. v. Lofaro, 13 A.D.3d 527, 528, 787 N.Y.S.2d 346 (2d Dept 2004) has not been offended by the Town's procedure.
After reviewing the substantial record presented, the Court concludes "that the Board took a hard look at the areas of environmental concern and made a reasoned elaboration of the basis for its conclusion." (Riverkeeper, Inc. v. Plan. Bd. of Town of Southeast., 9 N.Y.3d 219, 233, 851 N.Y.S.2d 76 [2007]).
Petitioners'/plaintiffs' contend that the respondent municipality segmented its review of the Kahn application in derogation of SEQRA's prohibition (6 NYCRR 617.2 [gg]). Once again, a case proffered by the petitioners/plaintiffs favors the Town's cause. In the case of Farrington Close Condo. Bd. of Managers v. Inc. Vill. of Southampton, 205 A.D.2d 623, 626, 613 N.Y.S.2d 257 (2d 1994), cited by both sides in this case, the respondent Village approved the building of a park containing a ballfield, parking lot and access roads. The Court granted the Article 78 petition because this clearly constituted a segmented review. As the learned Court noted:
"...the ultimate development plans for the park anticipated much more. For the purpose of determining whether an action will cause a significant effect on the environment, the reviewing agency must consider reasonably related long-term, short-term and cumulative effects, including other simultaneous or subsequent actions which are included in any long-range plan of which the action under consideration is a part (6 NYCRR 617.11 [b] [1]). The Village failed to comply with this requirement." (Id. at 626).
The facts in Farrington Close differ significantly from the instant case.
This Court agrees with the respondents/defendants' position that the abandoned prior joint-venture of the petitioners/plaintiffs and Kahn does not constitute a link nor does the filing of petitioners'/plaintiffs' own development plan transform the Kahn proposal into a cumulative action. As such, petitioners'/plaintiffs' reliance on Stewart Park & Rsrv. Coal. v. New York State Dep't of Transp., 157 A.D.2d 1, 555 N.Y.S.2d 481 [3d Dept1990], aff'd, 77 N.Y.2d 970, 575 N.E.2d 391 (1991) is inapposite.
Instead, the Court turns to the discussion found in Vill. of Tarrytown v. Plan. Bd. of Vill. of Sleepy Hollow, 292 A.D.2d 617, 620-21, 741 N.Y.S.2d 44 (2d Dept 2002) where the Court set forth a survey of caselaw delineating when a SEQRA review could be considered as impermissibly segmented. Applying the Tarrytown criteria, the paucity of the petitioners'/plaintiffs' argument is revealed. As in Tarrytown, the Kahn proposal is not "...the first phase of a larger, unified project" (Id. at 620 citing Buerger v. Town of Grafton, 235 A.D.2d 984, 652 N.Y.S.2d 880 (3rd 1997). Instead, the status of the Cold Spring Country Club and Cold Spring Development Partners can best be described as uncertain and tentative (Tarrytown, supra at 620 citing Long Island Pine Barrens Soc., Inc. v. Plan. Bd. of Town of Brookhaven, 204 A.D.2d 548, 611 N.Y.S.2d 917 [2d Dept 1994]. Since the Kahn application was not part of a larger "overall proposal", the claim that the Town segmented the proceeding is without merit. (Tarrytown, supra citing Citizens Concerned for Harlem Valley Env't v. Town Bd. of Town of Amenia, 264 A.D.2d 394, 694 N.Y.S.2d 108 [2d Dept 1999]).
We have considered the petitioners'/plaintiffs' remaining contentions which concern the alleged failure to conduct a proper SEQRA review and find them to be unpersuasive.
The Court now turns to the remaining arguments of the petitioners/plaintiffs regarding the propriety of the Town's actions.
It is beyond cavil that a Court may not disturb a governmental determination unless the offending agency acted arbitrary, irrationally or contrary to law. (Epstein v. Board of Appeals of the Village of Kensington, 222 A.D.2d 396 [2d Dept, 1995]).
Petitioners/Plaintiffs maintain that they have adequately met their burden in this regard. It is specifically averred that the respondents/defendants ignored the procedures required by the R-20 Residence Zoning District and Historic Building Overlay District ("HBOD") Code. (Town Code § 198-42.1). This argument, however, does not bear up under scrutiny.
Paris v. Eisenberg, 35 Misc.2d 934, 936, 231 N.Y.S.2d 189 (Sup Ct, Nassau County 1962), cited by the petitioners as persuasive authority, is inapplicable to this case. In Paris, the Court found that the actions of the offending municipality:
... had the effect of granting a variance or changing and enlarging the use permitted on the premises under the Zoning Ordinance, which clearly seems not to authorize the use sought. Only the Board of Zoning Appeals may grant a variance; and if a Zoning Ordinance is to be amended, that must be done in the manner provided by the Village Law. (Id. at 936).
In the case at bar it is the petitioners' interpretation of the Town Code which proves to be unreasonable. The record submitted show that the Town treated the Kahn proposal, not as an application to change the Town code, but simply to obtain an additional use permit (NYSCEF Doc Nos. 122 through 137). Town Code § 198.42(A)(1) expressly provides a method to allow historic properties to be used for purposes other than those usually permitted in a particular zoning district.
The Petitioner/Plaintiffs propose that the Court adopt their narrow interpretation of the Town's HBOD law. In answer to this suggestion, the Court recalls the words of one of the great sages of the Bench, Judge Frederick Crane, from the case of Adirondacks v. MacDonald (253 NY 234, ___ NYS ___ 170 NE 902 [1930]). Although that decision involved the application of the State Constitution, its precepts govern statutes as well. Writing for a unanimous Court (which included such luminaries as Judges Cardozo, Pound and Lehman) he opined that the words of a statute
... must receive a reasonable interpretation, considering the purpose and the object in view. Words are but symbols indicating ideas, and are subject to contraction and expansion to meet the idea sought to be expressed; they register frequently according to association, or like the thermometer, by the atmosphere surrounding them. (Id. at 238).
As discussed infra, the Respondents/Defendants interpretation of the HBOD law is eminently reasonable.
Petitioners citation to Duane Reade, Inc. v. Cardtronics, LP, 54 A.D.3d 137, 863 N.Y.S.2d 14 (1st Dept 2008) is of little assistance to the Court since it entailed the interpretation of a contract, not the review of a Statute.
This Court considers the controlling standard to have been stated in Sternberg v. New York State Off. for People with Developmental Disabilities, 204 A.D.3d 680, 682, 165 N.Y.S.3d 598, 600 (2d Dept 2022). The Sternberg Court declared that:
An agency's interpretation of the statutes and regulations that it administers is entitled to deference, and must be upheld if reasonable. (Matter of 96 Wythe Acquisition, LLC v. Jiha, 165 A.D.3d 1100, 1101, 87 N.Y.S.3d 55 [2d Dept 2018], quoting Matter of ATM One, LLC v. New York State Div. of Hous. & Community Renewal, 37 A.D.3d 714, 714, 831 N.Y.S.2d 436 [2d Dept 2007]). If the court finds that the determination is supported by a rational basis, it must sustain the determination even if the court concludes that it would have reached a different result than the one reached by the agency. (Id. at 682).
In this light, the Town's interpretation and application of the Town Code § 198.42 (A) (1) will be upheld.
The Kahn project application was governed by Town Law §274-b. This statute provides in relevant part
(2)...The town board may, as part of a zoning ordinance or local law adopted pursuant to this article or other enabling law, authorize the planning board or such other administrative body that it shall designate to grant special use permits as set forth in such zoning ordinance or local law."
The statute further relates:
4. Conditions attached to the issuance of special use permits. The authorized board shall have the authority to impose such reasonable conditions and restrictions as are directly related to and incidental to the proposed special use permit. Upon its granting of said special use permit, any such conditions must be met in connection with the issuance of permits by applicable enforcement agents or officers of the town.
The Statute allows for a waiver of requirements under certain circumstances:
5.... The town board may further empower the authorized board to, when reasonable, waive any requirements for the approval, approval with modifications or disapproval of special use permits submitted for approval. Any such waiver, which shall be subject to appropriate conditions set forth in the ordinance or local law adopted pursuant to this section, may be exercised in the event any such requirements are found not to be requisite in the interest of the public health, safety or general welfare or inappropriate to a particular special use permit.
The law gives differing treatment to applicants for special permits as opposed to variances. As Justice Martin eloquently observed in his decision of Serota Smithtown LLC v. Town of Smithtown Bd. of Zoning Appeals 43 Misc.3d 1206 (A), 990 N.Y.S.2d 440 [Supreme Suffolk Co.2014]
... Unlike a use variance, a special exception allows a property owner to put his property to a use expressly permitted by the ordinance subject only to conditions attached to it to minimize the impact on the surrounding area. The significance of this distinction is that the 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 (see Matter of Retail Prop. Trust v. Board of Zoning Appeals of Town of Hempstead, 98 N.Y.2d 190, 195, 746 N.Y.S.2d 662 [2002]; Matter of North Shore Steak House v. Board of Appeals of Inc. Vil. of Thomaston, 30 N.Y.2d 238, 243, 331 N.Y.S.2d 645 [1972]; Matter of G & P Investing Co. v. Foley, 61 A.D.3d 684, 684, 877 N.Y.S.2d 143 [2d Dept 2009]; see also Matter of Navaretta v. Town of Oyster Bay, 72 A.D.3d 823, 825, 898 N.Y.S.2d 237 [2d Dept 2010]). The burden of proof is lighter than that on an owner seeking a variance, and an owner seeking a special exception permit is only required to show compliance with any legislatively imposed conditions on an otherwise permitted use. (Kabro Associates, LLC v. Town of Islip Zoning Board of Appeals, 95 A.D.3d 1118, 944 N.Y.S.2d 277 [2d Dept 2102]; see also Matter of North Shore Steak House v. Board of Appeals of Inc. Vil. of Thomaston, supra).
It is well accepted law that:
[j]udicial review of a determination granting an application for a special use permit is limited to ascertaining whether the challenged action was illegal, arbitrary and capricious, or an abuse of discretion. Marcus v. Plan. Bd. of Vill. of Wesley Hills, 199 A.D.3d 1007,1008, 154 N.Y.S.3d 822, (Mem)-823 (2d Dept 2021), leave to appeal denied, 39 N.Y.3d 908, 203 N.E.3d 1202 (2023) citing Matter of Yorktown Smart Growth v. Town of Yorktown, 168 A.D.3d 957, 958, 92 N.Y.S.3d 344; Matter of Carnelian Farms, LLC v. Leventhal, 151 A.D.3d 844, 845, 56 N.Y.S.3d 552).
In this case, the record submitted is replete with instances showing the deliberate and careful pace of the Town's decision-making process. Community residents gave testimony at hearings before the Planning and Town Boards. This information included materials in opposition submitted on behalf of the petitioners/plaintiffs herein. The municipality took in the concerns expressed by the petitioners/plaintiffs opposing the project as well as those sentiments expressed in favor (both lay and expert).
Indeed, residents testified at both the Planning Board Hearing and Town respondents'/defendants' hearings about concerns relating to general road access and traffic congestion, as well as their concern that they would be able to continue their use of East Gate Drive as a pass-through to the adjacent residential homes and golf course (See NYSCEF Doc. 23, Exhibit 20). It was the province of the municipality, and not the Court, to sift through differing arguments and assign levels of weight and credibility to the competing proof presented (Kogan v. Popolizio, 141 A.D.2d 339, 529 N.Y.S.2d 755 [1st Dept 1988]; Underhill Washington Equities, LLC v. Div. of Hous. & Cmty. Renewal, 47 Misc.3d 1215(A), 16 N.Y.S.3d 795 [Sup Ct, Kings County 2015], affd, 157 A.D.3d 705, 69 N.Y.S.3d 81 [2018]).
Petitioners/plaintiffs also contend that the Respondent Town acted improperly by issuing an approval of the Kahn project prior to the resolution of the private lawsuit (Index No. 622421/2021) to determine its right (or lack thereof) to an easement over the petitioner/plaintiff CSCC's property. This argument is less than cogent because the respondents emphasized that the approval of the Kahn project was conditioned on the easement being obtained. Thus, no injury can be claimed by this action nor can it be deemed arbitrary.
Accordingly, based on a review of the submitted record and attendant exhibits, the Court finds that the petitioners/plaintiffs have failed to prove the actions of the respondent Town were illegal, arbitrary and capricious, or an abuse of discretion. The Petition is denied, the objection in point of law is sustained and the Petition shall be dismissed.
Finally, the Court turns to petitioners'/plaintiffs' motion for a preliminary injunction.
As stated in the case of EdCia Corp. v. McCormack, 44 A.D.3d 991, 993, 845 N.Y.S.2d 104 (2d Dept 2007):
To be entitled to a preliminary injunction, the movant must demonstrate by clear and convincing evidence "(1) a likelihood of ultimate success on the merits, (2) irreparable injury absent the granting of the preliminary injunction, and (3) that a balancing of equities favors the movant's position" (Id. at 993 citing Apa Sec., Inc. v Apa, 37 A.D.3d 502, 503, 831 N.Y.S.2d 201 [2d Dept 2007] [internal quotation marks omitted]; see W.T. Grant Co. v Srogi, 52 N.Y.2d 496, 517, 438 N.Y.S.2d 761[1981]; Ruiz v Meloney, 26 A.D.3d 485, 810 N.Y.S.2d 216 [2d Dept 2006]).
It is also well settled law "...that the Supreme Court has the power, as a court of equity, to grant an injunction mandating conduct by municipal agencies"(Doe v. Dinkins, 192 A.D.2d 270, 275, 600 N.Y.S.2d 939, 942 [1st Dept 1993] citing McCain v. Koch, 70 N.Y.2d 109 [1987]).
In the case at bar the Court has found that the petitioners/plaintiffs have failed to prove their entitlement to relief under Article 78. Consequently, the requisite element of likelihood of success on the merits is answered in the negative (19 Patchen, LLC v. Rodriguez, 153 A.D.3d 1382, 1383, 61 N.Y.S.3d 616, 617 (2d Dept 2017). Indeed, since the issues of fact have been resolved in favor of the respondents/defendants, the petitioners'/plaintiffs' motion for injunctive relief has been rendered moot (see CPLR 6312[c]).
In conclusion, it is important to add that Article 78 proceedings are governed by a larger, guiding principle than the expressions of public will contained in statute or administrative regulation. That principle states that the right of property is a cornerstone of the common law and must be zealously defended by the Court, indeed all branches of government, if we are to remain a free society. (Chicago B & Q. R. Co. v. City of Chicago, 166 U.S. 226, 235, 17 Sup Ct 581[1897]; W.J.F. Realty Corp. v. State et al, 176 Misc.2d 763, 672 N.Y.S.2d 1007[Sup Ct, Suffolk County 1998]). It follows that restrictions of that right are to be narrowly construed with any ambiguous factors being decided in favor of the property owner (Lee v. Walsh, 37 N.Y.2d 408, 373 N.Y.S.2d 49 [1975]). The matter at hand is an instance where the municipality exercised such deference.
The Court has considered the remaining contentions and arguments by petitioners'/plaintiffs' counsel. Although they have been put forth with eloquence, they have been found to be contrary to controlling law and what was determined to be the relevant facts. We remind petitioners/plaintiffs that in rebuffing their claims, the Court is safeguarding their right to enjoy their property without unnecessary interference from neighbor or government. Therefore, it is
ORDERED that the Petition (Seq No. 001) asking the Court to invalidate, rescind and annul the Resolution and Amended Local Law which is the subject of this action is denied in its entirety. Respondents'/defendants' objections in point of law are sustained; and it is further
ORDERED that the motion (Seq No. 002) by petitioners/plaintiffs for a preliminary injunction enjoining the enforcement and enactment of the Amended Local Law and Resolution pending the final determination of this proceeding, and (ii) enjoining Kahn from taking any further steps to advance the approval process is denied; and it is further
ORDERED that the Temporary Restraining Order issued by the Court in its Order to Show Cause on May 11th, 2023 is hereby vacated and set aside; and it is further
ORDERED that the petitioners'/plaintiffs' causes of Action designated "First" through "Eighth" are dismissed; and it is further
ORDERED that this Petition brought pursuant to Article 78 of the Civil Practice Law and Rules is dismissed.
This memorandum also constitutes the Order of the Court.