Opinion
Index No. 20230022
09-08-2023
Rumseyfall LLC, Petitioner, v. Peter Porcelli, TOWN ZONING OFFICER, WILLIAM ROBERT BAILEY, DANIEL EMMO, CHAIRMAN OF THE ZONING BOARD OF APPEALS OF THE TOWN OF SENECA FALLS, AND CHARLES GENCO AS CHAIRMAN OF THE TOWN HERITAGE PRESERVATION COMMISSION, Respondents.
Emil J. Bove, Esq. of Midey, Mirras & Ricci, LLP for Petitioner Brody D. Smith, Esq., Nolan T. Kokkoris, Esq. of Bond, Schoeneck & King, PLLC for Respondents Peter Porcelli and Daniel Emmo Gerald R. Forcier, Esq. of Law Office of Gerald R. Forcier for Respondent William Robert Bailey Marc A. Romanowski, Esq. of Rupp Pfalzgraf LLC for Respondent Charles Genco
Unpublished Opinion
Emil J. Bove, Esq. of Midey, Mirras & Ricci, LLP for Petitioner
Brody D. Smith, Esq., Nolan T. Kokkoris, Esq. of Bond, Schoeneck & King, PLLC for Respondents Peter Porcelli and Daniel Emmo
Gerald R. Forcier, Esq. of Law Office of Gerald R. Forcier for Respondent William Robert Bailey
Marc A. Romanowski, Esq. of Rupp Pfalzgraf LLC for Respondent Charles Genco
HON. CRAIG J. DORAN JUSTICE OF THE SUPREME COURT
This CPLR Article 78 proceeding was commenced by the filing of a Petition on January 23, 2023 and Order to Show Cause dated January 27, 2023. Petitioner Rumseyfall LLC ("Petitioner"), the owner of property located at 208 Fall Street in the Town of Seneca Falls, NY, brought this proceeding to challenge the determination of Respondent Town of Seneca Zoning Board of Appeals ("the ZBA") which granted a Certificate of Appropriateness to Respondent William Robert Bailey ("Bailey") allowing Bailey to replace certain windows in his home. The Order to Show Cause granted Petitioner's request for a temporary restraining order directing that Bailey shall take no steps to alter the subject windows pending a determination in this proceeding. An Amended Petition was filed on February 8, 2023 ("Petition").
After obtaining leave of court to assert cross-claims, Respondents Charles Genco and the Town Heritage Preservation Commission (collectively referred to herein as "the HPC Respondents") filed a Verified Answer, dated June 30, 2023, asserting five cross-claims. Respondents Peter Porcelli as Town Zoning Officer and Daniel Emmo as Chairman of the Town of Seneca Falls Zoning Board of Appeals (collectively referred to herein as "the ZBA Respondents") filed a Verified Answer on June 30, 2023, along with a Verified Reply to Cross-Claims, also dated June 30, 2023. The ZBA and HPC Respondents also filed certified transcripts of the proceedings held before each of those bodies ("the record"). Respondent Bailey has not responded to the Petition, although he has appeared by his attorney at all proceedings previously held before the Court in this matter.
Petitioner has also moved, by Order to Show Cause dated February 17, 2023, to hold Respondent Bailey in contempt for allegedly violating the January 27, 2023 temporary restraining order by replacing the subject windows after that order was entered. Respondent Bailey has opposed that motion.
Having heard oral argument on July 20, 2023, the Petition and contempt application, along with the HPC Respondents' cross-claims, are now before the Court for determination.
SUMMARY OF RECORD AND PROCEDURAL HISTORY
Respondent Bailey is the owner of property located at 216 Fall Street in the Town of Seneca Falls, NY. This property is located within the Town's Historic District. The residence on the property was built around 1873 and retains many of the original features, including four, floor-length second story windows that are the subject of this proceeding.
In accordance with Town of Seneca Falls Town Code ("Town Code") § 173-5, on September 2, 2022, Respondent Bailey submitted an application to the Town Heritage Preservation Commission ("the HPC") for a Certificate of Appropriateness seeking, among other things, for the HPC to approve the replacement of four second-story windows. Bailey's application states that the windows are currently 14 inches from the floor and he wants to raise them to 17 inches from the floor for safety reasons.
Bailey appeared before the HPC on September 27, 2023 but the application was tabled because Bailey left the meeting. Another application was filed on October 5, 2022 again asking to raise the four windows "for the safety of children and pets." The HPC met on October 25, 2022 and, after discussion, denied the Certificate of Appropriateness to the extent that it applied to the four second-floor windows on the basis that the proposed change violated the HPC Guidelines and Standards Manual ("HPC Guidelines"). The HPC Guidelines require that replacement windows must fit the current opening. The HPC recommended that Bailey cover the bottom of the windows with bars or shutters in the interior. The HPC also noted that no similar applications for reduction of window size had been approved for other historic properties in the past. The HPC's decision was communicated to Bailey in a letter dated October 27, 2022.
By letter dated November 14, 2021, Bailey appealed the HPC's determination to the ZBA pursuant to Town Code § 173-10. The appeal was heard by the ZBA on December 22, 2022. The ZBA minutes reflect that the ZBA members discussed the HPC Guidelines and the reasons for the HPC's denial of the Certificate. Then, for reasons that do not appear in the meeting minutes or elsewhere in the record, the ZBA then voted 3 to 1 to reverse the HPC's decision and grant Bailey the Certificate of Appropriateness.
Petitioner then timely commenced this Article 78 proceeding.
DISCUSSION - PETITION
The Petition seeks annulment of the ZBA's determination on the following bases: (1) Bailey's appeal to the ZBA was untimely under Town Code § 173-10; (2) the ZBA failed to hold a public hearing as required by Town Code § 300-118(C); (3) the ZBA failed to provide notice of the December 22, 2022 meeting to neighboring property owners as required by Town Code § 300-119(A); (4) the Town denied legal counsel to the HPC in violation of its duty to enforce provisions of the Town Historic Preservation Ordinance, while the Town provides counsel to the ZBA ; and (5) the ZBA's determination was arbitrary and capricious because it ignored controlling HPC criteria and lacked a rational basis.
Petitioner's papers in support of the Petition do not offer any argument on its claim that the Town failed to provide counsel to the HPC and, in fact, the HPC is represented by its own counsel in this proceeding. To the extent that this claim is not moot, the Court dismisses the claim inasmuch as the Town Board is not a Respondent and this claim does not provide any conceivable basis for the principal relief requested by Petitioner - annulment of the ZBA's December 22, 2022 determination.
The HPC Respondents, in lock step with Petitioner, support the annulment of the ZBA's determination. The HPC Respondents' Verified Answer asserts the following cross-claims: (1) against Bailey for failure to exhaust administrative remedies; (2) against Bailey for failure to file a timely appeal with the ZBA; (3) against the ZBA for failure to make findings; (4) against the ZBA for failure to hold a public hearing; and (5) against the ZBA for rendering an arbitrary and capricious determination.
In response to the Petition, the ZBA Respondents argue that Bailey's untimely appeal was not a jurisdictional defect; the ZBA was not required to hold a public hearing or serve notice upon neighboring property owners for an appeal from an HPC determination; Bailey did not fail to exhaust his administrative remedies; the HPC's cross-claims are time-barred under Town Law § 267-c; and the ZBA's determination should be confirmed because it was rational and supported by the record.
Timeliness of the HPC Respondents' Cross-Claims
As an initial matter, the Court rejects the ZBA Respondents' argument that the HPC Respondents' cross-claims are time barred under Town Law § 267-c because the HPC Respondents did not move for leave to file cross-claims within 30 days of when the ZBA's decision was filed with the Town Clerk.
As the party asserting the statute of limitations defense, the ZBA Respondents have the burden of establishing when the limitations period began to run, i.e., the date that the ZBA's decision was filed with the Town Clerk (see Matter of Covington v Fischer, 125 A.D.3d 1320, 1320 [4th Dept 2015]). Here, the ZBA Respondents rely upon the affidavit of Deputy Town Clerk Linda Wolcott, which states that "the ZBA approved the draft minutes, with revisions, at the February 23, 2023 ZBA meeting. Shortly thereafter, I prepared and filed the final certified minutes." As it is unclear what "shortly thereafter" means, the ZBA Respondents have failed to satisfy their burden of establishing the date on which the limitations period began to run. The ZBA Respondents' request for dismissal of the cross-claims is therefore denied.
Timeliness of Bailey's Appeal to the ZBA
Although the ZBA Respondents' opposition papers appear to concede that Bailey's appeal to the ZBA was not timely, the Court finds that the appeal was, in fact, timely.
Town Code § 173-10 provides that "[a]ny person aggrieved by a decision of the [HPC] relating to... a certificate of appropriateness may, within 15 days of the decision, file a written appeal to the Zoning Board of Appeals for review of the decision."
The HPC's decision on Bailey's application was issued on October 27, 2022 by correspondence from the Deputy Town Clerk to Bailey which stated, "[t]he Commission approved the enclosed Certificate of Appropriateness for only the work listed on it. The raising and replacing the 4 windows has been denied." The October 27, 2022 correspondence also enclosed the limited Certificate of Appropriateness that was granted to Bailey. Bailey appealed that determination by correspondence from his attorney to the ZBA dated November 14, 2022 .
The appeal letter from Bailey's counsel to the ZBA contains a typographical error and is actually dated November 14, "2021." The Petition itself and the parties' papers acknowledge that the appeal was filed on November 14, 2022.
Computing the fifteen-day limitations period from October 27, 2022, Bailey's deadline for filing the appeal with the ZBA was Friday, November 11, 2022, the public holiday of Veterans' Day (see General Construction Law § 24). Pursuant to General Obligations Law § 25-a, when the last day of a limitations period ends on a public holiday, "such act may be done on the next succeeding business day," which, in this case, was Monday, November 14, 2022. Bailey's November 14, 2022 appeal was therefore timely and the Court does not reach the issue of whether an untimely appeal to the ZBA was a jurisdictional defect.
Based on the foregoing, the Petition is denied to the extent it seeks annulment for failure to timely file the appeal with the ZBA, and, for the same reasons, the HPC Respondents' second cross-claim is dismissed.
Notice and Public Hearing
Contrary to the position of Petitioner and the HPC Respondents, the Town Code does not require a public hearing or notice to neighboring property owners for a meeting of the ZBA to review an appeal of the denial of a Certificate of Appropriateness.
Town Code § 173-10 governs the specific procedure for appeals of HPC decisions. That provision, contained in Town Code Chapter 173 entitled "Historic Preservation," states:
Any person aggrieved by a decision of the Seneca Falls Heritage Preservation Commission relating to... a certificate of appropriateness may, within 15 days of the decision, file a written appeal to the Zoning Board of Appeals for review of the decision. Appellate review shall be based on the same record that was before the Commission and using the same criteria in this chapter. Appeals of decisions of the Zoning Board of Appeals as aforesaid will be made pursuant to Article 78 of the Civil Practice Law and Rules.
(Town Code § 173-10).
When interpreting a local municipal code, the Court must "show a healthy respect for the plain language employed, and the law must be construed in favor of the property owner and against the municipality which adopted and seeks to enforce it" (Matter of Gilbert v Planning Bd. of Town of Irondequoit, 148 A.D.3d 1587 [4th Dept 2017]). Here, Section 173-10 contains no provision for a public hearing or notice to neighboring property owners, and the Court cannot read those nonexistent requirements into the Code.
Petitioner and the HPC Respondents rely on provisions in Chapter 300 of the Town Code, entitled "Zoning," to argue that a public hearing and notice were required. However, those provisions plainly do not apply to an appeal of an HPC determination denying a Certificate of Appropriateness. Section 300-118, "Appeals procedure" governs "[a]n appeal from any ruling or decision of the Zoning Officer" (Town Code § 300-118 [A]) concerning "matters of ordinance interpretation and variance requests" (Town Code § 300-118 [B] [1] [a]) or "a special use permit or to appeal a Planning Board decision on site review" (Town Code § 300-118 [B] [1] [b]). Section 300-118 (B) (1) requires that any appeals under this provision must be submitted to the Town Clerk within 30 days of the decision of the Zoning Officer. Section 300-118 (C) then states that the ZBA "shall hold a public hearing on all matters transmitted to it within 30 days after receipt of such matter from the Town Clerk" and Section 300-119 (A) directs the Town Clerk to "mail notice... to the applicant and to the owners of all property adjacent to and directly opposite the property for which the variance is sought."
The procedure for appealing an HPC determination cannot be governed by the provisions in Sections 300-118 and 300-119 as these sections are in direct conflict with the specific procedure set forth in Section 173-10. For example, Section 173-10 requires that the appeal of an HPC determination be filed directly with the ZBA, not with the Town Clerk as contemplated by Sections 300-118 and 300-119. The timelines for holding a public hearing and providing notice to neighboring property owners are both tied to filing with the Town Clerk, and there is no language in Section 300 addressing the timeline for taking these steps for appeals filed directly with the ZBA.
Further, it is evident that Town Board could have required a public hearing and notice for HPC appeals if it wished to do so, inasmuch as other provisions in Chapter 173 - such as those applying to the designation of an historic landmark or historic district (see Town Code § 173-4 [C]) - do require notice to property owners and a public hearing.
The Petition is therefore denied to the extent it is based on these alleged procedural errors, and the Court similarly dismisses the HPC Respondents' fourth cross-claim against the ZBA seeking annulment for failure to hold a public hearing.
Exhaustion of Administrative Remedies
The HPC Respondents assert that Bailey's appeal to the ZBA was defective because he failed to exhaust his administrative remedies. The HPC Respondents argue that, before filing an appeal with the ZBA, Bailey was first required to appeal the denial of the Certificate of Appropriateness to the HPC through its "hardship application procedure" as set forth in Town Code § 173-7.
As relevant, Town Code § 173-7 (A) provides that "[a]n applicant whose certificate of appropriateness for a proposed demolition or alteration has been denied may apply for relief on the grounds of hardship, as defined previously in this chapter, provided a hardship exists based on these grounds" (id. [emphasis added]). Section 173-7 (B) states that "[a]fter receiving written notification from the Commission of the denial of a certificate of appropriateness, an applicant may commence the hardship process..." (id. [emphasis added]).
The plain language of Town Code § 173-7 reveals that it is permissive and not mandatory, as the HPC Respondents argue. Where, as here, a local code provides that an appeal of a determination "may" be filed with a certain agency, the procedure is "is permissive rather than mandatory," and failure to file that appeal is not a failure to exhaust administrative remedies (see Matter of Custom Topsoil, Inc. v City of Buffalo, 81 A.D.3d 1363, 1365 [4th Dept 2011], rearg and lv denied 83 A.D.3d 1603 [4th Dept 2011], lv denied 17 N.Y.3d 709 [2011]).
Based on the foregoing, the Court finds that Bailey did not fail to exhaust his administrative remedies before filing the appeal to the ZBA, and the HPC Respondents' first cross-claim against Bailey is therefore dismissed.
Review of the ZBA's Determination
Petitioner and the HPC Respondents argue that the ZBA's December 22, 2022 determination was arbitrary and capricious because the ZBA failed to make findings in support of, or state the bases for, its determination. In response, the ZBA Respondents seemingly acknowledge that no findings appear in the minutes of the ZBA's December 22, 2022 meeting, but ask the Court to confirm the determination based upon a rational basis that can be found in the record as a whole. The ZBA Respondents submit the lengthy affidavit of Respondent Daniel Emmo, the Chairman of the ZBA, in support of their arguments.
"Judicial review of an administrative determination is limited to whether the administrative action is arbitrary and capricious or lacks a rational basis" (Concetta T. Cerame Irrevocable Family Tr. v Town of Perinton Zoning Bd. of Appeals, 6 A.D.3d 1091, 1092 [4th Dept 2004], citing Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, 34 N.Y.2d 222, 231 [1974]; see also Matter of Devogelaere v Webster Zoning Bd. of Appeals, 87 A.D.3d 1407, 1407 [4th Dept 2011] ["judicial review is generally limited to ascertaining whether [the zoning board's] action was illegal, arbitrary and capricious, or an abuse of discretion"]).
The Court's "[r]eview is limited to a consideration of the statement of the factual basis for the determination and whether, in light of the agency's own standards, the findings, supported by substantial evidence, sustained the conclusions... Failure of the agency to set forth an adequate statement of the factual basis for the determination forecloses the possibility of fair judicial review and deprives the petitioner of his statutory right to such review" (Montauk Imp., Inc. v Proccacino, 41 N.Y.2d 913, 914 [1977]).
Therefore, "[i]n order to permit intelligent review, administrative boards are generally required to make findings" (Foxluger v Gossin, 75 A.D.2d 1014 [4th Dept 1980]). Stating the bases for the board's determination is crucial, as "[a] court cannot surmise or speculate as to how or why an agency reached a particular conclusion" (Montauk Imp., 41 N.Y.2d at 914). "Failure of the agency to set forth an adequate statement of the factual basis for the determination forecloses the possibility of fair judicial review and deprives the petitioner of his statutory right to such review" (id.; see also Matter of Paloma Homes, Inc. v Petrone, 10 A.D.3d 612, 613 [2d Dept 2004] ["findings of fact which show the actual grounds of a decision are necessary for an intelligent judicial review of a quasi-judicial or administrative determination" [internal quotation marks omitted]).
Here, the ZBA failed to make any findings in support of its determination. Town Code § 173-10 provides the scope of the ZBA's review of an HPC determination, and states that the ZBA's "[a]ppellate review shall be based on the same record that was before the [HPC] and using the same criteria in this chapter." The criteria are set forth in Town Code § 173-6 (A), and include "the historical and architectural value and significance, architectural style, general design, arrangement, texture, material and color of the exterior feature involved and the relationship thereof to the exterior features involved and the relationship thereof to the exterior features of other properties in the immediate neighborhood." Further, "all decisions... are to be based on the provision [ sic ] contained in the Guidelines and Standards Manual adopted... by resolution of the Town Board" (Town Code § 173-6 [B]).
The December 22, 2022 ZBA meeting minutes reflect statements by ZBA members that seemingly support the HPC's determination to deny the Certificate of Appropriateness. ZBA members commented that Bailey failed to show hardship; changing the architecture of an historic home undermines the historic district; Bailey knew when he bought the house that it was in the historic district and making repairs could be more costly to comply with standards; and alterations to the exterior of a structure are a "big deal" in the historic district. One ZBA member also read the relevant portion of the Guidelines and Standards Manual regarding alterations to windows. Then, without explanation in the minutes, the ZBA members voted 3-1 to reverse the HPC's decision and issue the Certificate of Appropriateness.
The ZBA's failure to make findings or state the basis for its decision in relation to the criteria set forth in Town Code § 173-6 requires annulment of the ZBA's determination and remand to the ZBA to make the required findings.
Notably, the ZBA's attempt to supply a rationale for its determination at this stage - by submitting the affidavit of Mr. Emmo in response to the Petition - is improper. Those submissions cannot be considered by the Court inasmuch as "the [c]ourt's review [in a CPLR Article 78 proceeding] is limited to the arguments and record adduced before the agency" (Matter of Kahn v Planning Bd. of City of Buffalo, 60 A.D.3d 1451, 1452 [4th Dept 2009] [internal quotation marks omitted], rearg and lv denied 64 A.D.3d 1200 [4th Dept 2009], lv denied 13 N.Y.3d 711 [2009]).
Further, the Court rejects the ZBA's argument that, notwithstanding the lack of findings, its determination can be confirmed based on a review of the record as a whole. While annulment of an agency's determination is not required where "the record as a whole addresses the applicable considerations or otherwise provides a basis for concluding that there was a rational basis for the... determination" (Matter of Dietrich v Planning Bd. of Town of W. Seneca, 118 A.D.3d 1419, 1421 [4th Dept 2014]), no such record was created in this case and the "court is without power and indeed disinclined to sift through the [record] and make its own findings to support the decision of the [ZBA]" (Foxluger, 75 A.D.2d at 1015).
Based on the foregoing, the Petition is granted on the basis that the ZBA failed to make any findings in support of its determination, and the December 22, 2022 determination of the ZBA is annulled and the matter is remanded to the ZBA to make findings consistent with this decision. Additionally, the HPC Respondents' third and fifth cross-claims against the ZBA are granted to the extent they seek annulment of the determination based on the ZBA's failure to make findings.
DISCUSSION - MOTION FOR CONTEMPT
Petitioner moved, by Order to Show Cause dated February 17, 2023, to hold Respondent Bailey in contempt for allegedly violating the January 27, 2023 temporary restraining order, which directed that Bailey take no steps to alter the subject windows pending a determination in this proceeding.
In support of its application, Petitioner submits the affirmation of its attorney, Emil J. Bove, Jr., who is also a member of Petitioner Rumseyfall LLC. Mr. Bove avers that, on January 27, 2023, he served the Order to Show Cause containing the temporary restraining order upon Respondent Bailey and, at 3:45 p.m. on that day, Bove personally observed that the subject windows were unchanged. Mr. Bove further states that on January 28, 2023 at 3:20 p.m., he observed that the four subject windows had been raised and replaced by smaller windows, in violation of the order. Petitioner asks that Bailey be held in contempt and ordered to pay a fine of $3,500 and to restore the windows to their original condition.
In response to Petitioner's motion, Bailey submits his own affidavit stating that upon receiving the ZBA's determination in December 2022, he immediately replaced the two side windows. On January 23, 2023, before he was served with the temporary restraining order, he replaced the two front windows. Bailey adds that he does his own work on the house and it would have been impossible to replace all four windows between 3:45 on January 27, 2023 and 3:20 p.m. on January 28, 2023, as Mr. Bove alleges.
An application for civil contempt requires that the movant establish the following elements: (1) "a lawful order of the court, clearly expressing an unequivocal mandate, was in effect"; (2) "[i]t must appear, with reasonable certainty, that the order has been disobeyed"; (3) "the party to be held in contempt must have had knowledge of the court's order"; and (4) "prejudice to the right of a party to the litigation must be demonstrated" (see El-Dehdan v El-Dehdan, 26 N.Y.3d 19, 29 [2015] [internal quotation marks and citations omitted]). Civil contempt must be established by clear and convincing evidence (id.).
Here, the conflicting affidavits of the parties create issues of fact that cannot be summarily determined by the Court. As such, a hearing is required to determine whether Bailey violated the January 27, 2023 temporary restraining order (see Automated Waste Disposal v. Mid-Hudson Waste, Inc., 50 A.D.3d 1073, 1074 [2d Dept 2008] ["A hearing is not mandated in every instance where contempt is sought; it need only be conducted if a factual dispute exists which cannot be resolved on the papers alone" [internal quotation marks omitted]). The Court will conference with the parties as soon as possible regarding scheduling an evidentiary hearing on Petitioner's contempt application.
Accordingly, it is hereby
ORDERED that the Petition is granted insofar as it is based on the ZBA's failure to make findings, and the ZBA's December 22, 2022 determination is hereby annulled and the matter is remanded to the ZBA to make findings consistent with this decision; and it is further
ORDERED that the Petition is denied as to all other grounds raised by Petitioner; and it is further
ORDERED that the HPC Respondents' third and fifth cross-claims against the ZBA are granted to the extent they seek annulment of the ZBA's December 22, 2022 determination based on the ZBA's failure to make findings; and it is further
ORDERED that the HPC Respondents' remaining cross-claims are dismissed; and it is further
ORDERED that an evidentiary hearing shall be held on Petitioner's motion for civil contempt against Respondent Bailey.
This shall constitute the Decision and Order of the Court.