Opinion
402004
Decided May 13, 2005.
Facts
In this proceeding, the City seeks to acquire a 14.5 acre site for use as the Jones Woods addition to the Skyline Playground to provide additional recreational facilities for the community. The subject property is bounded by Brighton Avenue, Butler Terrace and Van Tuyl Street in Staten Island, immediately adjacent to Skyline Playground, and is comprised of a wooded hillside and a large, flat meadow. Skyline Playground was constructed in 1994 as a neighborhood playground; the Jones Woods Park addition was mapped as parkland in June 2002 at the specific request of the local community board.
Claimants Lloyd Putter, Bernard Putter and Marvin Putter (collectively referred to as the Putters or the claimants) own Block 84, Lots 280, 318, 324, 339, 342, 343, 356, 361, 363 and 371, which lots comprise approximately six acres. In their answer, claimants oppose the taking of their property, asserting that the City Planning Commission (CPC) Resolution of June 12, 2002 that approved the project (the Resolution) did not refer to or contemplate the acquisition of private property through eminent domain; that no public notice was given prior to the public hearing and consideration of the Resolution, so that the City is not in compliance with article 2 of the Eminent Domain Procedure Law (EDPL), more particularly, EDPL § 206 (C); and that the property is not required for a public use.
Claimants' Contentions
This dispute arises from claimants' assertion that the City wrongfully delayed the approval of their proposal to build approximately 50 affordable townhouses, allegedly because of its desire to keep "working class housing for people of color" out of the area. More specifically, claimants allege that on October 30, 2002, they commenced an action against the City in New York County Supreme Court (Index no. 123553/02) (the 2002 Action). Therein, claimants alleged that the family owned the subject property for more than 30 years and that as early as 1996, they began to explore the possibility of developing townhouses on the site. Thereafter, on May 19, 1999, they received a letter from the City Department of Parks and Recreation (the Parks Department) advising them that an application had been filed with the Department of City Planning (DCP) pursuant to the Uniform Land Use Review Procedure Act (ULURP) to map the area as a new park. By letter dated June 6, 1999, Bernard Putter informed Jane P. Cleaver, Chief of the Parks Department, of his intention to develop the property and inquired as to what the City's intentions were with regard to creating a park. When no response was received, claimants filed a Land Use Review Application with DPC on November 23, 1999. Site plans were thereafter reviewed by Kirsti Jutila, Deputy Director of the Staten Island Office of DCP, who requested modifications to the project, which were addressed in plans dated February 5, 2002. Thereafter, in response to the City's demand, an Environmental Assessment Statement (EAS), as required pursuant to the City Environmental Quality Review Act (CEQR), was prepared and filed on May 7, 2002; a filing fee of $6,000 was paid.
During the same period of time, the Parks Department had been pursuing their interest in developing the site as a park, apparently without any input from DCP. A Negative Declaration was issued in the CEQR process and on March 4, 2002, DCP certified the Parks Department's application to map the site and adjacent land as a park as complete and sent the application to Community Board 1 and to the Staten Island Borough President for review. On April 9, 2002, the Community Board held a public hearing; claimants assert that they did not receive notice of the hearing by mail until the day after it was held, but that Bernard Putter nonetheless attended, having been advised by his engineer that the hearing would take place. The Community Board recommended approval of the application for the proposed park, as did the Borough President. On May 15, 2002, CPC held a hearing on the application; no one appeared in opposition. By letter dated June 10, 2002, claimants advised CPC of their pending application to build townhouses on the site.
Nonetheless, at its meeting on June 12, 2002, CPC adopted the Resolution approving the application, effective the day after the amendment of the City Map was filed with the appropriate agencies pursuant to City Charter § 198-c. The Resolution was subsequently filed with the City Council on June 17, 2002. The City Council failed to "call up" the Resolution for review within the 20 day period provided by New York City Charter § 198-d and the map was filed on September 22, 2002. Claimants therefore assert that the establishment of the Jones Wood Park became final on September 23, 2002.
Claimants conclude that by amending the map so as to designate the site as a public park, the City effected a taking of their property without providing compensation in violation of their rights under the Federal constitution, the State constitution, 28 USC § 1983 and the EDPL. Claimants accordingly sought a judgment declaring that portion of the map as designated their property as part of the park to be void; compensation for the property pursuant to the EDPL; money damages; a judgment declaring that they have the right to develop the site in accordance with the site plan that they filed in February 2002, subject to reasonable modification as may be imposed after completion of the EAS; and declaring the Resolution to be invalid pursuant to CPLR article 78 on the grounds that its approval was procedurally defective in that the notice of the Community Board hearing was inadequate.
Claimants further assert that the 2002 action was voluntarily discontinued
"solely upon the express representation of the City that the Resolution had no effect on the ability of the Putters to pursue their then pending application for approval of plans to construct a set of townhouses on the Parcel, and the express representation by the City that the City was 'not proceeding to condemn.'"
Claimants' contention is premised upon a letter dated May 15, 2003 and countersigned by an assistant corporation counsel on behalf of the City; claimants also rely upon the handwritten notes dated September 10, 2003 of a meeting between Lloyd Putter, claimants' architect and three representatives of the Department of City Planning, which notes were taken by Jutila, who allegedly wrote "not proceeding to condemn" therein.
On August 5, 2004, after claimants' plans for development had been further delayed, the Putters commenced a second action in New York County Supreme Court (Index no. 602522/04) (the 2004 Action). In that action, the Putters incorporate the complaint filed in the 2002 Action and seek damages premised upon what they characterize as the City's frustration of their effort to build housing within the reach of working class people of color in Staten Island. In support of this claim, they contend that the City delayed review of their proposal, negligently or in bad faith, since at least 1999, by various means including requiring project modifications, the filing of an EAS and modifications of their application so that the City could adopt a zoning resolution creating a "Lower Density Growth Management Area" (LDGMA) before their plans were approved. Claimants further asset that this zoning change would have the effect of reducing the number of housing units that can be built in Staten Island by increasing the size of each unit and the amount of the land appurtenant thereto, and would accordingly preclude their proposed construction. Claimants argue that since approval of the LDGMA was approved on July 28, 2004 and the hearing on their plans was not scheduled until August 23, 2004, they were deprived of the right to build the townhouses. Hence, in the 2004 Action, claimants seek an injunction requiring the City to allow them to proceed with construction in accordance with their February 2002 plan, as modified, along with damages in the amount of $7,250,000, predicated upon the City's actions in fraudulently inducing them to discontinue the 2002 Action and allowing them to proceed with their application to build townhouses on the subject site.
Because neither party provided the court with a copy of the complaint in the 2004 Action, a copy of the pleading was requested and further oral argument was scheduled for April 1, 2004.
During oral argument had on April 1, 2005, the court expressed concern with the degree to which the 2004 Action and the instant condemnation proceeding are related. The matter was accordingly adjourned for the purpose of permitting the parties to submit further papers addressing the issue of whether the two matters could proceed simultaneously, without the risk of inconsistent decisions, or whether any of the issues raised in either could be resolved as between them so that inconsistent decisions could be avoided by, for example, seeking consolidation of the two matters or severing some of the causes of action. When no agreement was forthcoming, the parties requested the court to issue its decision.
Claimants thus conclude that based upon the above facts, the instant petition should be dismissed or stayed pursuant to CPLR 3211 pending resolution of the 2004 Action or, in the alternative, the issue of the City's compliance with the requirements of the EDPL should be tried pursuant to CPLR 410.
The City's Contentions
In opposition to claimants' position, the City asserts that the Resolution properly indicated that acquisition of the property necessary to create the park would be by eminent domain. In so arguing, the City relies upon the language of the Resolution, which states in three separate paragraphs that the proposed project contemplates "any acquisition or disposition of real property related thereto," along with the assertions therein that "the proposed park will comprise thirteen privately owned lots within blocks 84, 89 and 96" and that "the proposed map change and acquisition of the subject property by the city will help preserve this site for open space purposes." Hence, the City concludes that by adopting the Resolution, CPC authorized the City to acquire the necessary property.
The City further alleges that public notice of the May 15, 2002 CPC hearing was published in ten consecutive issues of the City Record, from May 2, 1002 to May 15, 2002, and that notice was sent to the owners of the property by certified mail — return receipt requested, on May 8, 2002 ( see ULURP § 2-06 [d]); the City attaches a copy of the return receipt that indicates that the Putters received the notice on May 13, 2002. The City further argues that pursuant to EDPL § 206 (A), it is exempt from the hearing requirements of article 2 of the statute if it complies with its local law, since the ULURP considers factors similar to those enumerated in EDPL § 204 (B) ( see New York City Charters §§ 197-[c] and [d]).
Further, the City asserts that use of the property as a park will serve a valid public purpose. To support this assertion, it submits an affidavit from Cleaver, in which she alleges that the Jones Woods Park addition was mapped in June 2002, after the community board made specific requests to create additional recreational facilities. The City also relies upon a letter dated October 15, 2004 from Michael McMahon, who is the City Council representative for the 49th district in Staten Island, in which he states that the Putters' claim that the City's attempt to acquire the property is intended to limit development of affordable housing in Staten Island is untrue and is not supported by any evidence; he further avers that there is no sponsor for this housing and that the units are expected to sell in the range of $300,000 to $400,000, which is not "affordable." Councilmember McMahon also submits an affidavit in which he states that the park would be a vital resource for the 160,000 residents in the 49th district, as well as the 300,000 residents of Staten Island, and that plans for this project were initiated by his predecessor, Jerome O'Donovan, in 1996. In another affidavit, Henry J. Kennedy, a resident of the area, asserts that acquisition of the subject property for a park is essential to the well being of the community and that the community has been urging the City to take title to the property since 1996.
Finally, the City argues that the fact that the Putters commenced and discontinued the 2002 Action is irrelevant to this proceeding. In this regard, the City further asserts that it did not represent to the Putters that the City would not condemn the subject property. In so arguing, the City points to the May 15, 2002 letter, which does not set forth such a representation. The City also contends that Jutila never made a representation to the Putters that the City would not condemn the property and more importantly, that she has no authority to do so, since the right to condemn property cannot be surrendered; this assertion is further supported in an affidavit from Jutila in which she so states. In addition, the City contends that since its determination to acquire the subject property became final on June 12, 2002, the date of the Resolution, claimants had four months thereafter in which to commence an article 78 proceeding challenging the Resolution, so that any challenge thereto raised in this proceeding is time barred.
The City thus concludes that there is no basis for dismissing the instant petition or staying the instant proceeding pending resolution of the 2004 Action, since the City properly followed the ULURP; it is exempt from the requirements of article 2 of the EDPL because it complied with the ULURP; and use of the land for a park is an accepted public purpose.
Discussion
As the above discussion establishes, the issues raised in the 2002 Action, the 2004 Action and this proceeding are inextricably intertwined, since claimants argue that the City's action in seeking to take title to their property must be denied on the grounds that the City failed to comply with article 2 of the EDPL; the City seeks to counter this argument by asserting that since it complied with the procedure set forth in the ULURP, it is exempt from the hearing requires set forth in the EDPL. From this it follows that as a threshold issue, this court must determine if the City did, in fact, comply with the ULURP before it can it can issue an order vesting title in the City in reliance upon that administrative review proceeding.
In this regard, the City has made a prima facie showing that its administrative review proceeding complied with the ULURP. Further, it has been held that pursuant to EDPL § 206 (A), the City's reliance upon the approval procedure set forth in the ULURP exempts it from compliance with the notice and hearing provisions in the EDPL ( see Sanitation Garage Brooklyn Dist. 3 3a, 5 Misc 3d 1014A [2004]; Matter of City of New York [Lemon Creek/Sandy Brook and Waringin Ltd.], Kings County Index No. 2760/95 [1995]; see generally Rockland County Sewer Dist. No. 1 v. J J Dodge, 213 AD2d 409).
EDPL 206 (A) provides that: "pursuant to other state, federal, or local law or regulation it considers and submits factors similar to those enumerated in subdivision (B) of section two hundred four, to a state, federal or local governmental agency, board or commission before proceeding with the acquisition and obtains a license, a permit, a certificate of public convenience or necessity or other similar approval from such agency, board, or commission."
Similarly, it is beyond dispute that any challenge to the underlying ULURP review in this proceeding is time barred, since the answer in which the challenge is interposed was served on November 19, 2004, long after the expiration of the four month Statute of Limitations in which to commence an article 78 proceeding seeking review of the determination. This court, however, is not persuaded by the conclusory assertion made by the City in their papers and by their attorney during oral argument that "[n]o judge is going to find a valid ULURP issue still open in the Manhattan action," which statement is presumably premised upon its assertion that the City complied with the underlying administrative review procedure and that any challenge to that proceeding is now time barred. Most significantly, this court is not convinced that the conclusion that the claims raised in the 2002 Action are not viable is inescapable in the 2004 Action.
In the first instance, claimants made a prima facie showing that the 2002 Action, which was commenced on October 31, 2002, was a timely challenge to the ULURP procedure. In this regard, claimants assert that at the earliest, the determination became final on July 31, 2002, at the termination of the 50-day call-up period during which the City Council could hold a public hearing on the Resolution that was passed on June 12, 2002, pursuant to § 197-d (c) of the City Charter, or at the latest, on September 23, 2002, the day after the amended City map was filed in accordance with § 198 (c) of the Charter, as provided by the terms of the Resolution itself. In either event, commencement of the action on October 31, 2002 was well within four months of either of these dates ( see generally Throggs Neck Resident Council v. Cahill, 290 AD2d 324 [findings pursuant to review under ULURP §§ 197-c and 197-d became final upon the expiration of the 20-day period for "call-up" to the City Council 20 days after the completion of the December 22, 1999 public hearings]; Roistacher v. Council of New York, 199 AD2d 68, appeal denied 83 NY2d 754 [where petitioner challenged the June 24, 1992 actions by the CPC, the determinations became final within 20 days of when the City Council declined to review these determinations pursuant to Administrative Code of City of New York § 197-d [b] [3]).
Since the 2002 Action was commenced on October 30, 2002, it would be timely as within the four month Statute of Limitations even if the 20-day call up period were applicable, as was originally argued by claimants in the 2002 complaint.
Further, claimants have made a prima facie showing that the court may determine that the City is estopped from asserting that they are time barred from seeking to challenge the underlying administrative review procedure in the 2004 Action. In reaching this conclusion, the court notes that it is well established that "[a] municipality may be estopped from asserting that a claim was untimely filed when its improper conduct induced reliance by a plaintiff who changed his or her position to his or her detriment" ( Yassin v. Sarabu, 284 AD2d 531, citing Matter of Griffith v. Staten Is. Rapid Transp. Operating Auth., 269 AD2d 596, 597; Bender v. New York City Health Hosps., 38 NY2d 662; see generally Conquest Cleaning v. New York City Sch. Constr. Auth., 279 AD2d 546, 546-547 [although the doctrine of estoppel is not generally applicable to municipalities acting in a governmental capacity, a municipality may be estopped from asserting that a claim was untimely filed when its improper conduct induced reliance by a party who changed his or her position to his or her detriment or prejudice]; Rubino v. New York, 145 AD2d 285, 289 [a municipal defendant may be estopped by its conduct from pleading the Statute of Limitations]; Robinson v. New York, 24 AD2d 260, 263 [principles of fair dealing apply to a municipal corporation so that estoppel is available to bar a city or other municipality from pleading a Statute of Limitations where an agreement, representations or conduct of a defendant have caused a plaintiff to delay suit on a known cause of action until the Statute of Limitations has run]). Herein, claimants have established an issue of fact as to whether estoppel should apply by alleging that they withdrew the 2002 Action in reliance upon the City's agreement to permit them to proceed to obtain the requisite permits to construct townhouses on their property. The fact that the May 15, 2003 letter does not specifically state that the City did not intend to take title to the subject property by eminent domain is not fatal to this claim, since it is self evident that if the City intended to move forward and condemn the property for a park, no purpose would be served by the City's consideration of claimants' Land Use Review Application and EAS.
In addition, the City has not demonstrated that the ULURP was complied with in the underlying administrative review proceedings. For example, the court notes that herein, the City did not provide proof of publication as required thereunder. Hence, it is not clear that the court in New York County will find, in the event that it determines that claimants' challenge of the ULURP process is not time-barred, that the City is exempt from compliance with article 2 of the EDPL because it complied with the mandates of the ULURP.
Claimants' Demand that this Proceeding be Stayed or Dismissed
As the above discussion makes clear, the issue of whether the City complied with the mandates of its ULURP must be determined before title to the subject property can be conveyed to the City; this issue is before the court in the 2004 Action, which was commenced approximately one month before the City brought the instant proceeding. Further, despite having been given the opportunity to move to consolidate the two proceedings or to otherwise limit the issues raised so as to protect against the possibility of inconsistent judgments, neither party elected to do so. Accordingly, the court must determine if it is appropriate to dismiss or to stay this proceeding pending resolution of the 2004 Action, as requested by claimants.
Pursuant to CPLR 3211 (a) (4), an action may be dismissed on the ground that "there is another action pending between the same parties for the same cause of action." There is no dispute herein that the 2004 Action and the instant proceeding involve the same parties. Under the circumstances presented here, however, the court declines to dismiss the instant petition, since inasmuch as the City is not seeking to acquire title to the property in the 2004 Action, it cannot be afforded full relief if dismissal is granted ( see generally McEvily Plumbing Heating Contractor v. Rochester, 50 AD2d 1083 [absent complete relief in the prior action, the two actions may not be construed as the "same action" so as to sustain appellant's CPLR 3211 [a] [4] motion for dismissal]).
CPLR 3211 (a) (4) further provides, however, that "the court need not dismiss upon this ground but may make such other order as justice requires." In view of the extent to which the issues raised in the 2004 Action and in the instant proceeding are interrelated, and because the 2004 Action was the first to be commenced and discovery is proceeding therein, the court finds that it is appropriate to stay this proceeding pending determination of whether claimants' challenge to the underlying ULURP review is timely and, if so, whether the City complied with its mandates, as is raised by claimants in the 2004 Action ( see generally Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR 3211:20).
Conclusion
For the above reasons, this proceeding is stayed, as provided above. All further relief requested is accordingly held in abeyance. This constitutes the Decision and Order of the Court.