Opinion
No. 14–19351.
10-29-2014
In the Matter of the Application of Thompson DEAN, Caroline Dean and Linda Hackett, Petitioners, v. BOARD OF ARCHITECTURAL REVIEW AND HISTORIC PRESERVATION OF THE INCORPORATED VILLAGE OF SOUTHAMPTON, Jonathan B. Foster, in his official capacity as Building Inspector of the Incorporated Village of Southampton and EAM 40 Meadow Lane, LLC, Respondents.
Farrell Fritz, PC, Hauppauge, Attorneys for Petitioner. Elbert W. Robinson, Jr., Esq., Assistant Southampton Village Attorney, Southampton, Attorney for Respondents, Board of Architectural Review and Historic Preservation & Jonathan B. Foster. Bennett & Read, Esqs., Southampton, Michael G. Walsh, Esq. Water Mill, Attorney for Respondent, EAM 40 Meadow Lane, LLC.
Farrell Fritz, PC, Hauppauge, Attorneys for Petitioner.
Elbert W. Robinson, Jr., Esq., Assistant Southampton Village Attorney, Southampton, Attorney for Respondents, Board of Architectural Review and Historic Preservation & Jonathan B. Foster.
Bennett & Read, Esqs., Southampton, Michael G. Walsh, Esq. Water Mill, Attorney for Respondent, EAM 40 Meadow Lane, LLC.
Opinion
JOSEPH A. SANTORELLI, J.
Upon the following papers numbered 1 to 48 read on this motion for a preliminary injunction; Notice of Motion/ Order to Show Cause and supporting papers 1–33; Notice of Cross Motion and supporting papers; Answering Affidavits and supporting papers 34–63 & 64–69; Replying Affidavits and supporting papers 70–90; Other 91–100 (further aff. Of John Bennett); (and after hearing counsel in support and opposed to the motion) it is,
In this CPLR Article 78 proceeding, petitioners seek a preliminary injunction (1) restraining the respondent, Jonathan B. Foster, from issuing any building or other permits authorizing construction on any portion of the proposed residence or the subject property, and (2) restraining the respondent, EAM 40 Meadow Lane, LLC, from engaging in any excavation or construction work at 40 Meadow Lane, Southampton, New York, in furtherance of its proposal to construct a new residence on the subject property. All respondents have filed opposition to this application.
Petitioners Thompson Dean and Caroline Dean are the owners of a parcel of property located at 20 Meadow Lane, adjacent to the subject property. Petitioner Linda Hackett is the owner of a parcel of property located at 62 Meadow Lane, adjacent to the subject property. They commenced this proceeding pursuant to CPLR Article 78 seeking an order: (1) aning the September 22, 2014 decision of the Board of Architectural Review and Historic Preservation, hereinafter referred to as “ARB”, granting the application of respondent EAM 40 Meadow Lane, LLC, hereinafter referred to as “EAM”, for a Certificate of Appropriateness for the construction of a new residence at 40 Meadow Lane, (2) directing that a building permit cannot issue because the proposed height of the dwelling exceeds the applicable maximum allowable height limitation set forth in the Village Code, (3) enjoining the Respondent Building Inspector Jonathan B. Foster, hereinafter referred to as “Foster”, from issuing any building permits or other permits authorizing construction on any portion of the proposed residence or the subject property, (4) enjoining EAM and its agents, employees, contractors, sub-contractors or anyone acting on its behalf, from engaging in any excavation or construction work at 40 Meadow Lane, Southampton, New York, in furtherance of the proposal to construct a new residence on the property, and (5) awarding Petitioners reasonable attorneys' fees, and the costs and disbursements of this action. Petitioners contend that the proposed construction violates the Village's Historic Landmark Preservation Law and the Village Code's maximum height limitations.
The respondent EAM is the owner of a parcel of real property located at 40 Meadow Lane, Southampton, New York. The property is located within the Village's R–120 Residential Zone, and within the Southampton Village Historic District. In October 2013, EAM was issued a certificate of appropriateness for the demolition of the existing residence on the subject property. On January 22, 2014, EAM filed applications for variance to construct a two and a half story dwelling on the subject property. On March 27, 2014, a public hearing was held. On April 24, 2014, the Zoning Board issued a decision granting the variances. On June 11, 2014, a public hearing was held before the ARB. At that time no one appeared in person or by representative to offer comment or objection. Thereafter a request was made by respondents and other property owners for the ARB to reopen the hearing. On August 11, 2014, a second public hearing was held before the ARB. On August 18, 2014, EAM submitted revised architectural plans to the ARB. The ARB rendered its decision, dated September 22, 2014, granting a certificate of appropriateness to construct the dwelling. On September 26, 2014 building permit # 11482 was issued. On September 29, 2014, petitioners filed an application with the Zoning Board of Appeals appealing Foster's interpretation of height letter to the ARB. This matter has not yet come before the Zoning Board of Appeals.
In order to prevail on a motion for 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 the equities favors the movant's position (see, generally, Blinds and Carpet Gallery, Inc. v. E.E.M. Realty, Inc., 82 AD3d 691, 917 N.Y.S.2d 680 [2d Dept 2011] ). The purpose of a preliminary injunction is to maintain the status quo and prevent the dissipation of property that could render a judgment ineffectual (see Dixon v. Malouf, 61 AD3d 630, 875 N.Y.S.2d 918 [2d Dept 2009] ; Ruiz v. Meloney, 26 AD3d 485 [2d Dept 2006] ; Ying Fung Moy v. Hohi Umeki, 10 AD3d 604 [2d Dept 2004] ). The decision to grant or deny a preliminary injunction rests in the sound discretion of the Court (see Dixon v. Malouf, supra; Ruiz v. Meloney, supra). Further, preliminary injunctive relief is a drastic remedy that will not be granted unless the movant establishes a clear right to such relief which is plain from the undisputed facts (Blueberries Gourmet v. Aris Realty Corp., 255 A.D.2d 348 [2d Dept 1998] ; see Hoeffner v. John F. Frank, Inc., 302 A.D.2d 428 [2d Dept 2000] ; Peterson v. Corbin, 275 A.D.2d 35 [2d Dept 2000] ; Nalitt v. City of New York, 138 A.D.2d 580 [2d Dept 1988] ).
The subject property is located in a FEMA “VE 16” zone which sets the base flood elevation at sixteen (16) feet. Village Code Section 62–18(A), [Amended 7–9–2009 by L.L. No. 2–2009], states “Elevation: New construction and substantial improvements shall be elevated on pilings, columns or shear walls such that the bottom of the lowest horizontal structural member supporting the lowest elevated floor (excluding columns, piles, diagonal bracing attached to the piles or columns, grade beams, pile caps and other members designed to either withstand storm action or break away without imparting damaging loads to the structure) is elevated to or above two feet above the base flood elevation so as not to impede the flow of water.” These two requirements taken together require the lowest elevated floor of the subject property to begin at eighteen (18) feet above sea level or “FEMA +2”.
Village Code Section 116–2(B) defines the height of structure or building as “the vertical distance measured from the average elevation of the finished grade along the side of the structure fronting on the nearest street to the highest point of the highest roof or, in the case of a structure, to the highest point.”
Village Code Section 116–12(D), [Added 4–22–1986 by L.L. No. 2–1986], measurement from natural grade, states that “(1) the height of a structure shall not exceed the limitations provided for elsewhere in this chapter and shall be measured from the natural grade of the parcel, which shall not be changed on any part of a parcel more than two feet vertically, except as permitted under the terms and conditions of a building permit” and “(2) no person shall change the natural grade of any land within the Village, except as permitted under the terms and conditions of a building permit.”
The Village's opposition to this application for a preliminary injunction indicates that “the decision of the Building Inspector regarding measurement of height is consistent with the interpretation made by that office for many years and it had the approval of the Board of Appeals ... the Building Inspector did not more than fulfill his ministerial duties in granting a permit upon an application that complied with all stated requirements of the Village Code, the New York State Building Code and applicable parts thereof.”
Respondent Foster states in his affidavit that
It has been the practice of the Village Building Department, since even prior to my appointment as Building Inspector, that the starting point for the height of houses in FEMA created flood zones is taken from the FEMA base flood elevation requirement, and more recently, with the addition of a two feet freeboard requirement, from the base flood elevation plus two feet. I have reviewed well over 60 applications for construction of houses in flood zones in the Village of Southampton, and I have consistently utilized such practice in connection with issuance of building permits. Such practice was utilized in connection with issuance of the building permit involved in the case at bar. Such practice was also in connection with issuance of building permits for the houses of petitioners Dean and Hackett, which building permits were issued during my term as Building Inspector. In other words, petitioners benefitted from the same practice now attacked by petitioners. Petitioners' houses, like the approved house of respondent EAM 40 Meadows Lane LLC, have a height of more than 35 feet from the original natural grade.
A building permit which is issued in contravention of the zoning laws is never valid (see Village of Wappingers Falls v. Tomlins, 87 AD3d 630, 631, 928 N.Y.S.2d 353, 354 [NY App. Div.2d Dep't 2011] ; citing Matter of Parkview Assoc. v. City of New York, 71 N.Y.2d 274, 281, 519 N.E.2d 1372, 525 N.Y.S.2d 176 [1988], cert. denied 488 U.S. 801, 109 S Ct 30, 102 L.Ed.2d 9 [1988] ). Thus, where a building permit is issued either due to a misrepresentation by the applicant or due to an error by the municipality, it can be revoked, even though the consequences to the property owner may appear to be harsh (see Village of Wappingers Falls v. Tomlins, supra; citing Matter of Parkview Assoc. v. City of New York, 71 N.Y.2d 274, 282, 519 N.E.2d 1372, 525 N.Y.S.2d 176 [1988] ; McGannon v. Board of Trustees for Vil. of Pamona, 239 A.D.2d 392, 393, 657 N.Y.S.2d 745 [1997] ). In this case, the Village Board could have voted to revoke the building permit if it felt that the granting of the subject permit was in contravention to the Village Code. The Board did not revoke the permit but rather voted on a moratorium stopping the issuance of new permits while it examines the height regulations.
Southampton Village Local Law 4 of 2014, which was adopted on October 9, 2014, established a moratorium with respect to the issuance of building permits and other approvals for one-family dwellings which exceed certain height limitations and states:
(a) The Board of Trustees hereby finds that the existing maximum height regulations contained in the Village Zoning Code (Chapter 116 of the Village Code) do not adequately control the height of one-family dwellings, particularly under circumstances where a one-family dwelling must be elevated in order to comply with flood damage prevention regulations contained in Chapter 62 of the Village Code (such regulations being commonly referred to as Federal Emergency Management Agency requirements). The Board of Trustees hereby finds that amendments to such maximum height regulations are necessary in order to adequately control the height of one-family dwellings and adequately balance the rights and interests of property owners, the neighborhood and the community under such circumstances. The Village Planning Commission (hereinafter referred to as the Planning Commission) is in the process of performing planning work with respect to studying the foregoing and then recommending changes to such existing maximum height regulations. The purpose of this local law is to establish a moratorium with respect to issuance of building permits and other approvals for one-family dwellings which exceed certain height limitations pending a opportunity for the Planning Commission to complete said planning work and for the Board of Trustees to consider said planning work. (Emphasis added).
Based upon a review of the papers before this Court the petitioners have failed to establish the likelihood of ultimate success on the merits. Significant to this conclusion the Court notes that the petitioners claim that the subject house will have a height of 53 feet above sea level or a height of 35 feet, as set by the Village Code's height restrictions, above the FEMA +2 requirement. The height of petitioners' own homes were measured utilizing the same FEMA required starting points as in effect on the date their building permits were issued. Further, the Village Board, in drafting and passing the moratorium, acknowledge that the zoning code as it currently exists does “not adequately control the height of one-family dwellings, particularly under circumstances where a one-family dwelling must be elevated in order to comply with flood damage prevention regulations contained in Chapter 62 of the Village Code.” (Emphasis added) This language shows that the base elevation point of FEMA +2, under Village Code, allows for houses to be built at the height of the proposed dwelling by EAM under the current code. Furthermore Local Law 4 of 2014 states that “amendments to such maximum height regulations” are being examined by the Village Board showing that an amendment is needed if the board wants to no longer allow for a dwelling with a height of 53 feet above sea level or 35 feet above the FEMA +2 elevation. This acknowledgment by the board as well as the same FEMA required starting point for height calculations being used for the petitioners own building permits, indicates that the petitioners do not have a high likelihood of success on the merits.
Further, the petitioners have failed to establish irreparable injury absent the granting of the preliminary injunction. The Court notes that the petitioners have failed to sufficiently show any irreparable injury if EAM is allowed to continue construction of this approved dwelling.
Finally, the petitioners has failed to establish that a balancing of the equities favors their position. The height of both petitioners homes are 44 feet above sea level. At the time of their construction, prior to the amendment to Village Code Section 62–18(A) on July 9, 2009, the maximum height was 35 feet above the finished grade with a base level elevation under FEMA that was lower than the 18 feet now required. Respondent Foster issued the building permits for both of those houses and utilized the same FEMA requirements when determining whether the height of those houses was within the Village Code. The moratorium that the petitioners heavily rely upon in their reply papers actually shows that a balancing of equities requires the temporary restraining order to be lifted. The Board, as stated above, acknowledged that the current code requirements “do not adequately control the height of one-family dwellings, particularly under circumstances where a one-family dwelling must be elevated in order to comply with flood damage prevention regulations.” Therefore the motion for a preliminary injunction is denied.
The foregoing shall constitute the decision and Order of this Court.