Opinion
Index No. 2022-70463
06-30-2023
In the Matter of Russell THOMAS and Tammy Thomas, Petitioners, v. TOWN OF QUEENSBURY PLANNING BOARD, Stephen Traver, Michael Dixon, Sr., John Molloy, Warren Longacker, and Jackson LaSarso, as Members of the Town of Queensbury Planning Board, the Town of Queensbury, New York, Craig Brown and Bruce Frank, Respondent, For a Judgment Under Article 78 of the Civil Practice Law and Rules.
In 1998, petitioner Russell Thomas and his wife, petitioner Tammy Thomas, purchased Lot 10 in the Round Pond Subdivision in the Town of Queensbury, Warren County, and built a home there. While Lot 10 has significant road frontage on Highpointe Drive, Lot 9 apparently has none. As a result, the original Subdivision map—filed in 1995—provided for "common access drives for Lots 9 & 10." Further, when conveying Lot 10 to petitioners, Guido Passarelli—the developer of the Subdivision—reserved an easement in favor of Lot 9. Specifically, the deed states as follows: "EXCEPTING and RESERVING to the party of the first part an easement and right of way for all lawful purposes for the benefit of the owners of Lot 9 in the ... Round Pond Subdivision, which easement and right of way shall run with the ownership in fee of said Lot 9." The deed also includes a metes and bounds description of the easement location.
After conveying Lot 10 to petitioners, Passarelli deeded the remaining Lots in the Subdivision to Terre Majestic Holdings, LLC (hereinafter Terre Majestic), which allegedly has two members—Passarelli and his wife. In 2021, Terre Majestic hired Foothills Builders, LLC—with Passarelli's son-in-law allegedly being the sole member—to build a home on Lot 9. Foothill Builders thereafter commenced construction on the home and submitted an application to respondent Town of Queensbury Planning Board (hereinafter the Planning Board) on behalf of Terre Majestic, seeking to install a driveway in the deeded easement area of Lot 10. Specifically, the application stated as follows:
"The applicant owner of [L]ot 9 ... proposes to install a 3,527 sq ft driveway within the deeded easement area on [L]ot 10. The driveway to be 10% plus grade. There will be two driveways located at [L]ot 10, the proposed driveway to be adjacent to the existing driveway. Lot 9 is currently under construction for a single-family home. The project includes stormwater management along the new driveway area."
The Planning Board held a public hearing relative to the application at its meetings on March 22, 2022 and March 29, 2022, with petitioners appearing in opposition to the proposal and arguing, inter alia , that while the original Subdivision map "call[s] for a common driveway (singular)," the site plan calls for "two separate driveways, one completely on [petitioners’] property ... and one almost completely on [petitioners’] property," with the driveways "cross[ing and] mak[ing] an ‘x’ on [petitioners’] property." Petitioners argued that their current driveway should instead be "used as a shared driveway up to a point at which an extension would be built leading to the new home on Lot 9." At the conclusion of the hearing, the Planning Board advised that a resolution relative to the application would be read into the record and voted on at its meeting on April 19, 2022. That meeting was subsequently rescheduled to April 26, 2022, at which time a resolution approving the application was read into the record and all members of the Planning Board voted in favor of it.
On August 22, 2022, petitioners commenced this CPLR article 78 proceeding to challenge that resolution, contending that approval of the application was arbitrary, capricious, and an abuse of discretion. According to petitioners, the Planning Board erred in approving two separate driveways on Lot 10, which approval is in violation of "the current law with regards [sic] to easements." Petitioners further contend that correspondence dated May 2, 2022 from Thomas R. Center, Jr., P.E.—the engineer who prepared the site plan and supervised the project—to respondent Bruce Frank—Code Compliance Officer for the Town of Queensbury—demonstrates that "construction of the new driveway was performed in direct contravention of [the] approved plans," and that Frank and respondent Craig Brown—Zoning Administrator for the Town of Queensbury—were negligent in failing to enforce the site plan as approved. Presently before the Court is respondents’ motion seeking to dismiss the proceeding in its entirety.
Respondents first contend that petitioners’ challenge to the resolution is time-barred under Town Law § 274-a (11), which provides that proceedings to challenge the approval of a site plan "shall be instituted within thirty days after the filing of a decision by [the Planning Board] in the office of the town clerk." In support of this contention, respondents have submitted a copy of the resolution, which resolution bears a time stamp reflecting filing with the Town Clerk on April 29, 2022. To the extent that this proceeding was not commenced until August 22, 2022, the Court agrees that petitioners’ challenge to the resolution must be dismissed as time barred (see Town Law § 274-a (11) ; Matter of City of Saratoga Springs v Zoning Bd. of Appeals of Town of Wilton , 279 AD2d 756 [3d Dept 2001] ; Matter of Haggerty v Planning Bd. of Town of Sand Lake , 166 AD2d 791, 792 [3d Dept 1990], affd 79 NY2d 784 [1991] ; see also Matter of Metzger v City of Buffalo , 214 AD3d 1434, 1435 [4th Dept 2023] ).
The Court notes that § 179-16-090 of the Queensbury Town Code likewise provides that "[a]n action, decision or ruling of the Planning Board ... may be reviewed at the instance of any aggrieved person in accordance with [CPLR article 78], but application for such review must be made not later than 30 days from the effective date of the decision or ruling ...."
Briefly, petitioners contend that—because the resolution includes statements relative to the location of the easement—the four-month statute of limitations under CPLR article 78 applies (see CPLR 217 [1] ), as opposed to the 30-day statute of limitations under Town Law § 274-a (11). The Court, however, is not persuaded. Any statements relative to the easement were made in the context of the Planning Board's decision to approve the site plan. Town Law § 274-a (11) therefore applies (see Matter of Haggerty v Planning Bd. of Town of Sand Lake , 166 AD2d at 792 ).
Respondents next contend that petitioners’ claims of negligence relative to enforcement of the site plan as approved must be dismissed because "mandamus does not lie to enforce the performance of a duty that is discretionary, as opposed to ministerial" ( New York Civ. Liberties Union v State of New York , 4 NY3d 175, 184 [2005] ). Indeed, it is by now well established that a discretionary determination by a town enforcement officer is not subject to judicial review (see Matter of Cooney v Town of Wilmington Zoning Bd. of Appeals , 140 AD3d 1350, 1351 [3d Dept 2016] ; Matter of Loparco v Napierala , 96 AD3d 1213, 1214 [3d Dept 2012] ; Matter of Mayes v Cooper , 283 AD2d 760, 761 [2001] ; Matter of Dyno v Village of Johnson City , 261 AD2d 783, 784 [1999], appeal dismissed 93 NY2d 1033 [1999], lv denied 94 NY2d 818 [1999] ). As such, the Court finds that petitioners’ claims of negligence relative to enforcement of the site plan as approved must also be dismissed.
Finally, to the extent the petition may be construed as challenging the location of the easement itself, respondents contend that any such claims are barred by collateral estoppel. More specifically, respondents contend that petitioners had a full and fair opportunity to litigate these issues in an action commenced by Terre Majestic against petitioners in 2021. There, Terre Majestic alleged that petitioners were blocking the easement and sought, inter alia , a declaratory judgment relative to the existence and location of the easement, as well as a permanent injunction preventing petitioners from interfering with the easement.
Inasmuch as this prior action was discontinued without prejudice by stipulation of the parties, the Court is not convinced that collateral estoppel applies (see Matter of Brenda M. v Timothy N. , 199 AD3d 926, 926 [3d Dept 1993]; see also Bacon & Seiler Constructors, Inc. v Solvay Iron Works, Inc. , 185 AD3d 1390, 1391 [4th Dept 2020] ; Travelers Prop. Cas. Co. of Am. v Sanco Mech., Inc. , 126 AD3d 527, 527-528 [1st Dept 2015] ). This notwithstanding, any claims that the Planning Board made erroneous findings relative to the location of the easement are time-barred.
Under the circumstances, respondents’ motion is granted in its entirety and the petition is dismissed.
While not grounds for dismissal (see CPLR 1001 [b] ), the Court must also note that petitioners have failed to name Terre Majestic and Foothill Builders as respondents in this proceeding—and both are clearly necessary parties (see CPLR 1001 [a] ).
Therefore, having considered the Petition with exhibits attached thereto, verified August 19, 2022; the Affirmation of Mary Elizabeth Kissane, Esq. with exhibit attached thereto, dated September 21, 2022, submitted in support of the motion; the Memorandum of Law of Mary Elizabeth Kissane, Esq., dated September 21, 2022, submitted in support of the motion; the Affirmation of John L. Shea, Esq. with exhibit attached thereto, dated October 13, 2022, submitted in opposition to the motion; and the Reply Memorandum of Law of Mary Elizabeth Kissane, Esq., dated October 19, 2022, submitted in further support of the motion, and oral argument having been heard on June 30, 2023 with John L. Shea, Esq. appearing on behalf of petitioners and Mary Elizabeth Kissane, Esq. appearing on behalf of respondents, it is hereby
ORDERED AND ADJUDGED that the motion is granted and the petition is dismissed in its entirety.
The original of this Decision, Order and Judgment has been filed by the Court together with the Notice of Petition dated August 22, 2022 and the Notice of Motion dated September 21, 2022. Counsel for respondents is hereby directed to serve a copy of the same with notice of entry thereon.