Opinion
No. 63591.
08-25-2016
David CLEERE, Mary Cleere, W. Scott Collins and Betsy Collins, Plaintiffs, v. FROST RIDGE CAMPGROUND, LLC, et al., Defendants.
A complaint was initially brought by David Cleere, Mary Cleere, W. Scott Collins and Betsy Collins (hereinafter "plaintiffs") on May 2, 2014 against Frost Ridge Campground, LLC (hereinafter "defendants" or "Frost Ridge") and the Town of LeRoy (hereinafter "Town") for violation of the Town's zoning ordinance in relation to defendant's campground complex, which includes an open air concert venue and full-service bar/restaurant. The Town also filed a petition against Frost Ridge on May 8, 2014 alleging several zoning ordinance violations. Both proceedings, first commenced in 2014, have sought relief under Article 78 of the Civil Practice Law and Rules. The plaintiffs now seek a permanent injunction (1) directing defendants to remedy existing town zoning codes, (2) prohibiting defendants from having recreational vehicles occupy the property year-round, and (3) prohibiting defendants from conducting concerts and/or violating the Noise Law at the property. Plaintiffs also seek declaratory judgment (1) declaring illegal the Zoning Board of Appeals' (hereinafter "ZBA") determination made on September 25, 2013 and (2) declaring illegal the ZBA's decision made February 17, 2016. Further, plaintiffs seek to annul and vacate the February 17, 2016 decision pursuant to CPLR Article 78 as arbitrary and capricious. Plaintiffs also seek costs and attorney's fees.
The initial action filed styled the moving party as "Plaintiffs". The amended action subsequently filed styled the moving party as "Petitioners–Plaintiffs". The Court will refer to the moving party in this decision as "plaintiffs".
FACTS & PROCEDURAL HISTORY
Frost Ridge is a campground facility located in the Town of Leroy in Genesee County, New York. Frost Ridge has evolved over the years. In the 1950's, it began as a ski and recreation area. In the 1960's, it expanded to allow camping. According to Harold Gage, who worked at Frost Ridge in the 1960's and 1970's, Frost Ridge broadcast music over a public address system, illuminated ski slopes for night-time skiing, provided food and beverages to customers, and featured musical bands and artists who played live music for campers and other patrons. (See Affidavit of Harold Gage, dated November 5, 2013; Exhibit C(I) of Attorney Affirmation of David M. Roach, Esq., dated May 11, 2016).
In 2002, Frost Ridge Inc., having previously applied for and been granted a non-conforming use status under the Town Code, conveyed the property to Lei–Ti Too, LLC (hereinafter "Lei–Ti). Lei–Ti expanded the facility to rebuild an existing storage facility and constructed an in-ground swimming pool. Thereafter, Lei–Ti deeded the property to its current owners. The current owners, Frost Ridge, made additional improvements to the property. These included increasing the number of campsites, increasing the number of camp site hook-ups, constructing three (3) additional buildings, adding a sound-reproducing system, and installing a concrete pad for the new concert stage with overhead lighting trusses and an "outdoor amphitheater". Plaintiffs allege these improvements violated § 165–39 of the Town's Zoning Code. The gravamen of the actions before the Court are that the defendants hosted musical acts and concerts that were amplified, which violated the local town code. Each season, the defendants scheduled and hosted more than thirty (30) different musical bands that played usually over a two (2) week period. Plaintiffs argue that the camping and attendant recreational activities, including live and recorded amplified music and limited food service, violated § 165–13 of the Town's Zoning Code and the Town's Noise Law, Local Law § 02 of 2013. Plaintiffs also contend that the recreational dwellings on the campground site violated § 165 of the Town Law.
On September 25, 2013, Frost Ridge asked the ZBA for a determination that the Campground was a pre-existing non-conforming use. David Luetticke–Archbell, one of the owners of Frost Ridge, outlined the evolution of the campground at the meeting. The minutes of the ZBA indicated that the history that was outlined "was established before zoning in the Town of LeRoy." (See Minutes, Zoning Board of Appeals, September 25, 2013. Exhibit F of Plaintiff's Complaint). After the presentation, the ZBA discussed the matter and determined that the campground was "grandfathered in" and therefore no special action was needed. The ZBA found and held that a special use permit for the campground was not necessary. The minutes reflect that the "board is vehement in their position."
Plaintiffs commenced an Article 78 proceeding thereafter by way of an Order to Show Cause against Frost Ridge, the individual owners, Gregory Luetticke–Archbell and David Luetticke–Archbell, the Town of LeRoy, and the Town of LeRoy Zoning Board of Appeals, bearing index number 63591 on May 2, 2014. Plaintiff's sought a permanent injunction directing the defendant and its owners to remedy violations of the Zoning Code, a permanent injunction prohibiting the defendants from conducting concerts at the property, a permanent injunction prohibiting recreational vehicles from occupying the property year-round, declaratory judgment that the purported "interpretation" made by the ZBA on September 25, 2013 was illegal, and Judgment pursuant to New York Town Law § 268(2). Although plaintiffs requested a temporary restraining order, essentially enjoining the defendants from operating, this request was initially denied. Thereafter, the Town commenced its own proceeding against the defendants under index number 63601. The Town requested an Order enjoining the defendants from conducting concerts and enjoining the defendants from building, opening or operating a restaurant on the premises. On May 20, 2014, Hon. Robert C. Noonan (A.J.S.C.) rendered a decision on the application made by the plaintiffs. While Judge Noonan indicated that plaintiffs demonstrated a significant likelihood of success on the merits, it was unclear whether plaintiffs demonstrated irreparable harm. However, noting Town Law § 268, Judge Noonan observed that to obtain injunctive relief based on a violation of its zoning ordinances, the Town needed only to show that it had a likelihood of ultimate success on the merits and that the equities were balanced in its favor. Judge Noonan found that the concert venue and restaurant were in violation of the zoning ordinances. Further, Judge Noonan held that "the existence of safety hazards, public order and noise concerns creates a balance of the equities in favor of the Town." (See Decision, Hon. Robert C. Noonan, A.J.S.C., dated May 20, 2014). Though Judge Noonan intimated that the Town might have misled the defendants to believe it was "grandfathered in" as it related to the current use of the property, the Court denied the plaintiffs' motion for a preliminary injunction, but granted the Town's motion for a preliminary injunction restraining defendants from holding any amplified outdoor concerts and/or serving alcohol. An Order, bearing index numbers 63591 and 63601, incorporating the decision was granted and filed May 23, 2014.
The defendants subsequently moved to dismiss all zoning violation claims contained in the plaintiffs' respective complaints and sought an Order vacating the preliminary injunction previously entered on the Town's motion. Interestingly, at odds with the Town, the ZBA joined with the defendants seeking dismissal of the zoning violation claims and supported the vacatur of the preliminary injunction. In particular, the defendants and the ZBA claimed that the actions filed by the plaintiffs and the Town were not timely brought in order to challenge the ZBA's determination of September 25, 2013. The ZBA also contended that the Town's action was defective as it did not name it as party. In its decision, the Court denied the motion to dismiss the action commenced by the Town bearing index number 63601 for failure to join the ZBA. The Court held that while the ZBA "may wish to intervene in this case, it is not a necessary party to the Town's action to enforce its zoning law." The Court found the record unclear as to when the minutes of the ZBA were filed. As such, it was difficult to determine whether the actions were timely commenced.The Court scheduled a hearing on the issue concerning the statute of limitations. (See Decision, Hon. Robert C. Noonan, A.J.S.C., dated July 11, 2014).
Thereafter, Frost Ridge moved to renew and reargue the Court's decision dismissing the zoning violations. The defendants argued that the Court overlooked its argument that the ZBA's purported interpretation was void ab initio and therefore could not be challenged in an Article 78 proceeding. The Court denied the motion to renew and reargue and scheduled a fact finding hearing for August 21, 2014. (See Decision, Hon. Robert C. Noonan, A.J.S.C., dated August 4, 2014). However, in a conference following argument, an Order was granted that modified the preliminary injunction.The defendants were permitted to host a music band playing amplified music on August 9, 2014. The music level was not to exceed 100 decibels. The Genesee County Sheriff's Department was to monitor the music sound level at the corner of Oakta Trail and Conlon Road. In addition, in the event that the decibel level "disturb[ed] the reasonable sensibilities of the average person", the decibel level of the music was to be reduced to a level "the deputy determin[ed] reasonable." (See Order, Hon. Robert C. Noonan, A.J.S.C., granted August 4, 2014).
A hearing was held on August 21, 2014 and August 26, 2014 that dealt with the defendant's statute of limitations defense as well as the motion to dismiss all zoning violation causes of action. The hearing also addressed procedural defects in the underlying ZBA proceeding. The Court denied the motion to dismiss the zoning law causes of action based upon the statute of limitations defense. The Court found that the ZBA's lack of compliance with the notice requirements was "so grievous that no statute of limitations" barred the action.(See Decision and Order, Hon. Robert C. Noonan, J.S.C., granted November 28, 2014.
While the hearing was pending and before the November 28, 2014 decision, the August 4, 2014 Order was again amended so as to permit the defendants to host music bands playing amplified music. The provisions of the August 4, 2014 Order and the May 20, 2014 preliminary injunction remained in effect, except where modified by the new Order. (See Second Amended Order, Hon. Robert C. Noonan, A.J.S.C., granted September 17, 2014). While the first amended Order applied to a specific date where a particular concert might be held, the second amended Order generally allowed Frost Ridge to host music bands during their normal season.
Subsequently, the Court issued two separate decisions on the substantive matters included in the two initial petitions. First, in the Town's petition against Frost Ridge bearing index number 63601, the Court, having previously held the September 25, 2013 determination was defective for want of public notice, remanded the matter back to the ZBA for a hearing in accordance with the Town Zoning Ordinance. Frost Ridge's first, second, fifth and twelfth affirmative defenses were dismissed on the merits and judgment was deferred on its third, fourth, and sixth through eleventh affirmative defenses. Judgement was similarly deferred on the plaintiffs' first and third causes of action. Pending the action of the ZBA, the proceeding commenced by the Town was stayed on the condition that defendants abide by the Second Amended Order granted September 17, 2014. (See Decision and Order, Hon. Robert C. Noonan, A.J.S.C., granted April 15, 2015).
With respect to the plaintiffs' proceeding against Frost Ridge bearing index number 63591, the Court converted the plaintiffs' first cause of action from declaratory judgment to Article 78 proceeding. The Court stated it was "disinclined to weigh in on the merits of the respective contentions as there is no basis upon which a proper review of the ZBA's decision could be made." (See Decision and Order, Hon. Robert C. Noonan, A.J.S.C., granted April 15, 2015). The matter was remanded to the ZBA for a hearing to determine whether the campground was a prior, non-conforming use. With respect to the Town Noise Ordinance, the Court held that Chapter 105 of the Town of LeRoy code did not authorize a taxpayer's suit under § 268(2) of the Town Law. Thus, the plaintiffs could not proceed with a taxpayer's action against Frost Ridge on the issue of having recreational vehicles occupy the property year-round. Plaintiffs' motion for summary judgment on their second cause of action was denied except as to the issue of outdoor concerts, which was deferred until the ZBA made its decision upon remand. The Court, again, stayed the proceeding pending the ZBA determination and found that plaintiffs were entitled to a preliminary injunction "coextensive with that previously granted the Town". However, plaintiffs would have to post a bond, which was fixed at $225,536.
In accordance with Judge Noonan's decision, Frost Ridge made application to the ZBA for an interpretation of Town Zoning Code §§ 165–13 and 165–39(B) on August 28, 2015. Specifically, Frost Ridge sought an interpretation as to whether the Zoning Code allowed for camping and recreational activities, including live and recorded music and limited food service, at the property as a prior, non-conforming use under § 165–13 and/or as an exempt campground under § 165–13.
On December 4, 2015, the Court again heard argument concerning the matters and held that the ZBA was to conduct a public hearing, which was to be held on or before December 18, 2015. The ZBA was to publish the public notice in accordance with Judge Noonan's decision dated April 15, 2015. Further, the public notice should reference the "prior non-conforming use" language as stated in the defendant's application. In addition, Judge Grisanti ordered that any interference by the Town Board, its agents or its officers would be subject to contempt. (See Order, Hon. Mark J. Grisanti, A.J.S.C., granted December 18, 2015).
Notice was subsequently published on December 11, 2015 in the Batavia Daily News for a public hearing to take place on December 17, 2015. The hearing occurred on December 17, 2015 at the LeRoy Town Hall. The attorneys for the plaintiffs and defendant were given an opportunity to address the Zoning Board, as was the attorney for the Town. The ZBA permitted questions from any audience member, provided they signed a sign-in sheet that was made available. Attorneys for the plaintiffs, defendant and the Town testified. A transcript of the entire hearing was generated and made available to the Court for review. (See Transcript, ZBA Public Hearing dated December 17, 2015; Exhibit R of Amended Petition, Index Number 63591).
Gene Sinclair, the former Code Enforcement Officer for the Town and Village of LeRoy from 1997 until 2012, testified and was examined by ZBA board member Tom Spadaro. Mr. Sinclair testified at length about his involvement with the Frost Ridge property. He was familiar with the property and stated that he had spoken with then-Town Attorney Paul Boylan, who opined that "it was a pre-existing, nonconforming use that could continue" in the manner the current owner had been operating. (See Transcript, pp. 29). He further testified that in the 1970's, when he was a member of the Jaycees, bands played at the site and amplified their music. (See Transcript, pp. 30). He also noted,
I do know from living in the area that when the ski slope was operating, there was amplified music on the ski slope and lit up at night. And I don't know what the hours were, but it was after dark. I think some of the speakers are still on the poles down there. I am not positive.
(See Transcript, pp. 30). Mr. Sinclair concluded that the current owner should be permitted to operate in the same manner as did the prior owners. He testified that he had spoken to the current owners while he was Code Enforcement Officer and saw no problem with either the temporary staging area or having concerts. He testified that he saw these activities consistent with the pre-existing, nonconforming use. (See Transcript, pp. 32–33).
Several residents also spoke at the meeting. Barbara Buchanan, a LeRoy resident, testified that Frost Ridge had a history of providing amplified music and concerts. (See Transcript, pp. 38). She testified that while she often hears the music, for more than forty (40) years, it never bothered her. Deanna Shoemaker testified that she frequently camped on the campsite. She also noted that the facility offers events for every age group. She also offered no complaints about the noise or the effect it had on the community. Joshua Pfendler and David Pullyblank also offered no objections about the manner in which Frost Ridge operated.Eileen Sherman appeared and submitted a letter from her husband, who was not able to be present. In his letter, Mr. Sherman indicated he lived on Valance Road across from the campground. He reflected that the facility always had recreation and entertainment, including live and amplified music. (See Transcript. pp. 44). He further noted music had always been amplified, "because [a prior owner] had a band every weekend practically during the summer during the '70s and '80s." (See Transcript, pp. 44–45). The current owners also testified before the ZBA.
Nancy Palmer, who lived near Frost Ridge, testified that she never heard music played at the decibel level as it was amplified by Frost Ridge. Ms. Palmer, who appeared to testify more about the noise as opposed to the history of the property, also indicated that the noise disturbed her horse. (See Transcript, pp. 50). Andy Olenick, a local resident, testified more about the noise level than he did the history. However, he did indicate that the music amplified in the '70s and '80s "was done through a smaller amplification system." (See Transcript, pp. 52). Mr. Olenick took exception to the vague zoning regulations. Matt Gilligan also testified that while music had been amplified in the past, it was never as loud as it was now.
David Offen, a resident who can see the campground from his residence, testified "I don't hear the music at all [at Frost Ridge]." (See Transcript, pp. 55). He also testified that he used to camp at Frost Ridge in the '70s and "they did have music there. And the boundaries are the same as they were. The place hasn't changed." (See Transcript, pp. 55). Michael Green, also a LeRoy resident, offered praise about the facility and indicated how much he and his family enjoyed going to the property to enjoy concerts and summer events. Finally, board members Tom Spadaro, Ken Mattingly, Charles VanBuskirk also noted that they had been camping there in the '70s and '80s and there was always music amplified and beverages served.
On February 13, 2016, the ZBA published a notice indicating it would issue its decision on February 17, 2016. In its written decision dated February 17, 2016, the ZBA determined that ambiguity existed between §§ 165–13 and 165–39(B) of the Town Law. As such, the ZBA found that the Zoning Code allowed camping and attendant recreational activities, which included live amplification of music, concerts, and limited food service. The ZBA noted the evidence demonstrated that the property had been used for recreational activities since the 1950's. Those activities included skiing, camping, swimming, and both amplified recorded and live music. The ZBA also noted that none of the activities at Frost Ridge were done in secrecy. The ZBA found that in the past decade, the actions of the current owners were consistent with the essential character of the property as a prior, non-conforming use. The ZBA also found that the defendants did not erect any new permanent structure or stage for live or recorded amplified music. Instead, the ZBA held that the evidence showed that the defendants erected a temporary stage for the purpose of playing and amplifying live music. Because the ZBA found ambiguity within § 165–13, it found in favor of Frost Ridge in all respects. Further, it held that the defendant's use of the campground was consistent with § 165–39. The ZBA also determined it did not have jurisdiction over issues concerning noise and deferred the matter to other municipal authorities. (See Town of LeRoy Joint Zoning Board of Appeals Decision, dated February 17, 2016). The plaintiffs subsequently alleged that the decision was invalid as the ZBA failed to vote on adopting its decision.
On March 15, 2016, the plaintiffs filed an amended petition under index number 63591. However, plaintiffs did not ask the Court for leave to amend their prior petition as required by CPLR § 3025. In their amended petition, plaintiffs re-pled the relief they originally requested. In addition, plaintiffs sought to annul and vacate the February 17, 2016 ZBA decision. Plaintiffs also filed a new proceeding, pursuant to CPLR Article 78, including almost identical causes of action. However, the new action, bearing index number 64592, did not include the cause of action seeking to declare the September 2013 ZBA decision null and void.
Oral argument was heard on May 20, 2016. Counsel for the parties were given until June 10, 2016 to submit additional written argument, which they did. The matter was accordingly deemed submitted.
DECISION
At the outset, it should be noted this matter has been pending for some time, considerably longer than a conventional Article 78 proceeding. Notwithstanding the complex nature of this proceeding and its procedural history, the Court must determine whether the decision of the ZBA was arbitrary and capricious. The questions that remain are (1) did the ZBA violate the Open Meetings Law when issuing its February 17, 2016 determination, (2) are the Plaintiffs entitled to injunctive relief, and (3) was the February 17, 2016 ZBA determination arbitrary and capricious. The Court finds in the negative to each question and, accordingly, denies the relief requested in the petitions for the reasons set forth herein.
Article 78 Proceeding & Standard of Review
Article 78 of the CPLR is the main procedural vehicle to review and challenge administrative action in New York. It is well settled law in the State of New York that a Court may not substitute its own judgment for that of a reviewing board. JBS Props. Inc. vs. Zoning Bd. of Appeals Town of Shelter, 2012 N.Y. Misc. LEXIS 3944; 2012 N.Y. Slip Op 32154(U) (Supreme Court, Suffolk County, 2012) ; See Janiak vs. Planning Board of the Town of Greenville, 159 A.D.2d 574 (2nd Dept.1990)appeal denied 76 N.Y.2d 707 (1990) ; Mascony Transport and Ferry Service vs. Richmond, 71 A.D.2d 896 (2nd Dept.1979)aff'd 49 N.Y.2d 969 (1980). Therefore, if the decision rendered by a reviewing board is within the scope of the authority delegated to it, a Court may not interfere and annul it, unless said decision is arbitrary, capricious, or unlawful. Castle Properties Co. v. Ackerson, 163 A.D.2d 785 (3rd Dept.1990).
On judicial review of an administrative action under CPLR Article 78, courts must uphold the administrative exercise of discretion unless it has "no rational basis" or the action is "arbitrary and capricious." Pell v. Board of Ed. Union Free School District, 34 N.Y.2d 222 (1974). "The arbitrary and capricious test chiefly relates to whether a particular action should have been taken or is justified ... and whether the administrative action is without foundation in fact. Arbitrary action is without sound basis in reason and is generally taken without regard to the facts." Id. at 231 ; See also Jackson v. New York State Urban Dev Corp ., 67 N.Y.2d 400 (1986). Rationality is the key in determining whether an action is arbitrary and capricious or an abuse of discretion. Matter of Pell v. Board of Education, 34 N.Y.2d at 231. The court's function is completed on finding that a rational basis supports the administrative determination. See Howard v. Wyman, 28 N.Y.2d 434 (1971). Where the administrative interpretation is founded on a rational basis, that interpretation should be affirmed even if the court might have come to a different conclusion. Mid–State Management Corp. v. New York City Conciliation and Appeals Board, 112 A.D.2d 72 (1st Dept.1985)aff'd 66 N.Y.2d 1032 (1985) ; Matter of Savetsky v. Zoning Bd. of Appeals of Southampton, 5 AD3d 779 (2d Dept.2004).
The scope of judicial review of a zoning board determination is limited to an examination of whether the determination has a rational basis and is supported by substantial evidence. Matter of Calvi v. Zoning Bd. of Appeals of the City of Yonkers, 238 A.D.2d 417 (2d Dept.1997). It is not for the reviewing court to weigh the evidence or reject the choice made by the zoning board where the evidence conflicts and room for choice exists. Matter of Calvi v. Zoning Bd. of Appeals of the City of Yonkers; supra, citing Matter of Toys "R" Us v. Silva, 89 N.Y.2d 411 (1996). In essence, great deference is given to local officials and therefore the court will sustain a zoning board's decision if it has a rational basis and is supported by substantial evidence. See Ifrah v. Utschig, 98 N.Y.2d 304 (2002) ; Halperin v. City of New Rochelle, 24 AD3d 768 (2nd Dept.2005) ; Mejias v. Town of Shelter Is. Zoning Bd. of Appeals, 298 A.D.2d 458 (2nd Dept.2002). To overturn a zoning board's interpretation of its zoning ordinance, the court must find it unreasonable or irrational. Id.
One of the main points raised by plaintiffs in the instant case is that the ZBA erred in concluding that there existed a prior, nonconforming use. A nonconforming use is a use of land which lawfully existed before a zoning ordinance was enacted and which is maintained after the effective date of the ordinance even though it does not comply with use restrictions which apply to the area where it exists. See City of New York v. Bilynn Realty Corp., 118 A.D.2d 511 (1st Dept.1986). Nonconforming uses, which are in existence when a zoning ordinance is enacted, will be permitted to continue, notwithstanding the contrary provisions of the new ordinance. See Matter of Keller v. Haller, 226 A.D.2d 639 (2nd Dept.1996)citing People v. Miller, 304 N.Y. 105 (1952) ; Spilka v. Town of Inlet, 8 AD3d 812 (3rd Dept.2004). The burden is on the property owner to establish that the allegedly pre-existing use was legal prior to the enactment of the prohibitive zoning ordinance which purportedly rendered it nonconforming. See Matter of McQuade v. Zoning Bd. of Appeals of the Town of Huntington, 248 A.D.2d 386 (2nd Dept.1998) ; Incorporated Village of Old Westbury v. Alljay Farms, Inc., 100 A.D.2d 574 (2nd Dept.1984).
Thus, "the determination of a zoning board regarding the continuation of a preexisting, nonconforming use must be sustained if it is rational and supported by substantial evidence, even if the reviewing court would have reached a different result." Matter of Jacobsen v. Town of Bedford Zoning Bd. of Appeals, 59 AD3d 622 (2nd Dept.2009) ; Matter of RJA Holding Inc. v. Town of Wappingers Zoning Bd. of Appeals, 37 AD3d 724 (2nd Dept.2007).
Here, the ZBA issued a very thorough decision on the issue of the non-conforming use application made by Frost Ridge. In it, the ZBA considered not only the testimony offered at its December 17, 2015 hearing, but the submissions of the attorneys, the testimony of the former Code Enforcement Officer Gene Sinclair, and several residents who testified that the property had been used, in the '70s and '80s or even earlier, for recreational activities that included amplification of live or recorded music, camping, and limited food and beverage service. The ZBA, citing §§ 165–13 and 165–39(B) of the Town of LeRoy Zoning Code, found ambiguity and interpreted the code to allow camping and attendant recreational activities, which it found to include live and recorded amplified concerts/music and limited food service at the property. The ZBA painstakingly detailed the history of the park and the activities that have been permitted. The ZBA held that these activities occurred to varying degrees prior to the adoption of the Town Zoning Code. The ZBA referenced Mr. Sinclairs' testimony, which established that the defendant's actions were "consistent with the essential character of the property as a prior, non-conforming use." (See Town of LeRoy Joint Zoning Board of Appeals Decision). Accordingly, the ZBA, after exhausting its reasons for its determination, found that the use of the property as a campground, which permitted live and recorded music, limited food service, and allowed the use of recreational vehicles, was a prior, non-conforming use as permitted by the Town of LeRoy Zoning Code.
Based on the foregoing, the Court finds that the determination of the ZBA is based upon substantial evidence that was made part of an extensive record. As such, because the ZBA had a rational basis to reach its decision, this Court will not disturb it. Bounds v. Village of Clifton Springs Zoning Board of Appeals, 137 AD3d 1759 (4th Dept.2016). Mere disagreement with the determination of the ZBA does not render it arbitrary and capricious. In fact, nothing in the record demonstrates that the ZBA reached its determination haphazardly. Indeed, the ZBA reached a rational determination consistent with the history of the property and with its own prior determinations. Accordingly, the Court is without authority to annul or invalidate it.
Open Meetings Law
Plaintiffs raise two issues in their petition that delve into several applications of the New York State Open Meetings Law. The issues raised concern the concept of the adequacy of public notice and what is permissible in an executive session of a ZBA. Plaintiffs argue that by violating the Open Meetings Law, the ZBA's decision rendered February 17, 2016 is invalid.
Public Notice
"Public notice of the time and place of a meeting scheduled at least one week prior thereto shall be given to the news media and shall be conspicuously posted in one or more designated public locations at least seventy-two hours before such meeting." Public Officers Law § 104(1).
According to plaintiffs, "[the] ZBA published notice of public hearing for the 2015 Frost Ridge Appeal to the ZBA in the Batavia Daily News on December 11, 2015" for the hearing taking place on December 17, 2015 at 7:30 p.m. Plaintiffs' Memorandum of Law, p. 6.Thereafter, on February 13, 2016, the ZBA published another notice in the Batavia Daily News that the ZBA would be meeting on February 17, 2016 at 7:30 p.m. See Plaintiffs' Memorandum of Law, p. 6–7. Courts have routinely held that for "meetings scheduled less than a week in advance, the [ZBA] must publish notice at a ‘reasonable time prior’ to the meeting." Matter of the Application of Windsor Owners Corporation vs. City Council of New York et al., 23 Misc.3d 490, 495 (Sup.Ct. New York County, 2009).
The Court does not find either the initial notice of the December 17, 2015 public meeting or the February 17, 2016 notice of the ZBA decision violated the Open Meetings Law. Based on both notices, anyone wishing to attend the February hearing would have had ample time to plan accordingly. This Court is of the opinion that each notice was of a reasonable time period for the public to be aware of their opportunity to participate in the process.
Executive Session
Plaintiffs also contend that the ZBA determination is invalid because it failed to deliberate in public and, as such, its ultimate decision rendered February 17, 2016 is null and void. Generally, "the thrust of the Open Meetings Law is ‘the performance of public business in an open and public manner, with the public able to attend and listen to the deliberations and decisions that go into the making of public policy (citation omitted).’ " Matter of Garnett Asphalt Products, Inc. v. Town of Sardinia et al., 208 A.D.2d 139, 147 (4th Dept.1995).
It should be noted that the Courts have consistently held that the "balance of a [ZBA's] proceedings in which the vote of the individual members is taken officially and their decision rendered, must be open to the public." Matter of Orange County Publications Division of Ottaway Newspapers, Inc. v. Council of the City of Newburgh et al., 89 Misc.2d 847, 853 (Sup.Ct. Orange County, 1977).
Prior to 1983, Zoning Boards of Appeal could deliberate in private. However, in 1983, the Open Meetings Law was amended so that ZBAs could no longer deliberate in private unless the ZBA went into executive session to discuss one of the specified grounds for entry into executive session. See OML–AO–o2977. However, § 105(1)(d) of the Open Meetings Law does allow a ZBA to enter executive session to discuss "proposed, pending or current litigation."
Here, it should be noted that but for the want of notice which resulted in a prior Order directing it to hold another public meeting, the ZBA has been quite "vehement" that defendant's use of the property was a valid prior, non-conforming use. While the ZBA did hold a second meeting in December 2015, plaintiffs take issue that any deliberations, assuming there were deliberations, should have been done in public. Nevertheless, questions remain whether "technical violations" of the Open Meetings Law should invalidate the ZBA's determination.
Although rules governing administrative proceedings pursuant to the Open Meetings Law are strict, "[it is] abundantly clear that not every breach of the ‘Open Meetings Law’ automatically triggers its enforcement sanctions." Matter of New York University et al. v. Whalen, 46 N.Y.2d 734, 735 (1978). This holding has been relied on when weighing "technical and nonprejudicial infractions (citation omitted) or wholly unintentional violations [of the Open Meetings Law]." Matter of Victor W. Gordon et al. v. Village of Monticello, Inc. et al., 87 N.Y.2d 124, 127 (1995).
Plaintiffs contend that the ZBA violated the Open Meetings Law by failing to deliberate in public or vote on the decision rendered. However, the record is bereft of any reference that the ZBA actually deliberated at all. This was not a novel issue to the ZBA. The record demonstrates that the ZBA had ample time to consider this, having already concluded that it was "vehement" that there existed a prior, nonconforming use. But for Judge Noonan's decision which essentially required it to repeat the process as a result of a lack of adequate public notice, the record is quite clear that the ZBA knew of the issue, was aware of the considerations and implications of the matter, and made its decision accordingly.
Assuming, arguendo that the ZBA did not deliberate publicly or vote on its decision, given the protracted history of the case before this Court, which includes the 2013 and 2015 hearings, as well as two sets of court proceedings, it can hardly be said that plaintiffs have been prejudiced by what amounts to a technical violation of the Open Meetings Law. The ZBA already determined this matter once and reached the same conclusion. The ZBA was directed to hold another meeting on the same issue for want of public notice. It did so and ultimately rendered the same decision. There is no basis in this exhaustive record to direct the ZBA again, for a third time, to determine this matter simply by recording its vote in the minutes. Specht v. Town of Cornwall, 138 AD3d 380 (2nd Dept.2004). Sending this matter back to the ZBA for the correction of an alleged technical violation hardly rises to the level of "good cause" courts have used as the standard to declare void the actions of otherwise sound decisions of administrative bodies. See also Matter of Cunney v. Board of Trustees of the Vil. of Grand View, New York, 72 AD3d 960 (2nd Dept.2010).
Further, the record wants of any discernible aggravating factors that would give the Court a valid basis to disturb the ZBA's determination. In the absence of aggravating factors, New York courts "do not routinely award injunctive relief and impose sanctions for non-prejudicial violations of the Open Meetings Law." Warren v. Giambra, 12 Misc.3d 650 (Sup.Ct. Erie County 2006). In Warren, the plaintiff took issue with members of the county legislature meeting to discuss increasing the local sales tax. The trial court, while noting the purpose of the Open Meetings Law was to prevent municipal governments from debating and deciding in private what they are required to debate and decide in public (see Matter of Gernatt Asphalt Prods. v. Town of Sardinia, 87 N.Y.2d 668 (1996), nonetheless held in the absence of evidence that defendants attempted to mislead the court in describing what happened at the challenged meetings and a lack of prejudice to the public or a "persistent pattern of deliberate violation of the letter and spirit of the Open Meetings Law" by a public body (see Matter of Goetschius v. Board of Educ. of Greenburgh Eleven Union Free School Dist., 281 A.D.2d 416 (2001), a sanction generally is not warranted (see Matter of Griswald v. Village of Penn Yan, 244 A.D.2d 950 (4th Dept.1997). Although the ZBA here previously ran afoul of notice requirements as it pertained to the initial application made by the defendants, it later complied with the requirements of the Town Code. Nothing in the record presented demonstrates a pattern that would trigger the injunctive relief plaintiffs seek.
As such, the Court finds that the alleged failure to vote on its decision in public is a de minimis technical violation that, in light of the exhaustive record and consistency of the ZBA's determination that there exists a prior, nonconforming use, injunctive relief is not warranted. Similarly, while the record lacks any evidence that the ZBA deliberated, such deliberation under the circumstances would constitute a similar technical violation that would not trigger the relief requested. In light of the technical nature of the violations and the absence of any aggravating factors, the Court finds the ZBA did not violate the Open Meetings Law.
Accordingly, the plaintiffs' remaining causes of action are hereby DENIED. In addition, the Town's remaining causes of action are hereby DENIED. The plaintiffs' petition/complaint and amended petitions/complaints are hereby DISMISSED. In addition, the Town's complaint is similarly DISMISSED.
Plaintiff shall submit judgment accordingly.