Opinion
1610-2010.
Decided November 17, 2010.
Orseck Law Offices PLLC, Attorneys for plaintiff, Liberty, New York.
By: Gerald Orseck, Esq., Drake, Loeb, Heller, Kennedy, Gogerty, Gaba Rodd PLLC, Attorneys for defendants New Windsor, New York, By: Ralph L. Puglielle, Jr.
In this action for a declaratory judgment, preliminary injunction, permanent injunction, order of mandamus and attorneys' fees and costs pursuant to 42 USC 1988(b), plaintiff moves for an order granting a preliminary injunction enjoining defendants from interfering with plaintiff's use of 33 Cottage Street, Village of Monticello, New York (the premises) and the vacant lot across the street therefrom (the proposed parking lot) as and for a mosque and related religious and cultural activities. Defendants oppose the motion and cross-move to dismiss the complaint. Plaintiff opposes the cross-motion.
By Order to Show Cause dated May 18, 2010, this Court imposed a temporary restraining order pending resolution of the plaintiff's motion, restraining defendants from interfering with plaintiff's use of the premises as a mosque. At a court appearance on June 2, 2010, the temporary restraining order directive enjoining interference with the further improvements to the proposed parking lot was vacated on consent, without prejudice.
It is uncontested that in 2004 plaintiff bought the premises located at 33 Cottage Street, in the R-M zoning district of the Village of Monticello. The record shows that plaintiff's application dated July 20, 2006 for a building permit and change of use for a pre-existing single-family residence was denied because a special use permit is required for religious uses in the R-M district. On or about April 18, 2007, plaintiff applied to the Village of Monticello Planning Board (Planning Board) for a special use permit in conjunction with its application for a building permit to renovate and expand the residence for use as a mosque and to provide for parking for people using the mosque; a site plan was filed on May 4, 2007. New site plans were filed on or about October 11, 2007 and February 11, 2008. A special use permit was granted on August 26, 2008, and again on February 24, 2009, and a conditional Certificate of Occupancy (CO) for the mosque premises, expanded pursuant to amended and revised plans and specifications, was issued to plaintiff on February 26, 2009.
In determining the applicable statute of limitations, the Court ascertains the substance of the action, the relationship out of which the claim arises and the relief sought ( see Save the Pine Bush, Inc. v Albany, 70 NY2d 193, 202). If "the underlying dispute can be or could have been resolved through a form of action or proceeding for which a specific limitation period is statutorily provided, that limitation period governs the declaratory judgment action" ( Ibid.; see also Powell v Town of Coeymans, 238 AD2d 788, 789).
Here, the plaintiff is challenging the decision of defendants and the procedures used in their review of its application. Village Law 7-740 provides for review of a village planning board decision by Article 78 proceeding and establishes a 30-day statute of limitations for commencing the proceeding; the limitations period begins to run on the filing of the decision in the village clerk's office. Defendant Barbarite avers that the August 26, 2008 decision of the Planning Board to grant a special use permit and conditionally approve the site plan was filed in the Village Clerk's office on August 26, 2008. This action was commenced by filing the summons and complaint in the Sullivan County Clerk's office on May 14, 2010, more than one year and eight months later. Even calculating the limitations period from the February 24, 2009 decision of the Planning Board, which re-affirmed the approval of the special use permit and conditionally approved the site plan with the additional condition of a bond, or the February 26, 2009 issuance of the conditional CO, the action was not commenced for more than one year and two months thereafter. Therefore, the Court is in agreement with defendants that plaintiff's claims with regard to the issuance of the special use permit and the conditional CO are timed barred ( see Village Law 7-740; Save the Pine Bush, Inc. v Albany, supra; Powell v Town of Coeymans, supra).
It is well-established that a motion to dismiss under CPLR 3211 (a) (7) for failure to state a cause of action requires the court to "afford the pleadings a liberal construction, take the allegations of the complaint as true and provide plaintiff the benefit of every possible inference" ( Brooks v Key Trust Co. Natl. Assn ., 26 AD3d 628 , 629-630 [3rd Dept 2006], quoting EBC I, Inc. v Goldman, Sachs Co. , 5 NY3d 11 , 19). Nevertheless, there can be no cause of action when plaintiff is not aggrieved. In this case, plaintiff requested and was granted a special use permit to use the premises as a mosque with site plan approval conditioned upon the completion of the project within Village Code standards and in conformance with the Village engineer's comments and concerns regarding drainage. All claims with regard to the granting of the special use permit and conditional site plan approval, as requested by plaintiff, fail to state a cause of action. Additionally, plaintiff cannot complain about the necessity to adhere to site plans which it submitted.
A reviewing court may not substitute its judgment for that of the planning board ( see M M Partnership v Sweenor, 210 AD2d 575 [3rd Dept 1994]); Sheer Pleasure Lingerie, Inc. v Town of Colonie Planning Board, 251 AD2d 859 [3rd Dept 1998]); therefore, judicial review of a planning board's decision is limited to determining whether the decision is rational and supported by substantial evidence ( Ibid.; see also Matter of Monroe County v Kaladjian, 83 NY2d 185, 189).
"[I]t is well settled that, in general, a municipality may not be estopped from enforcing its zoning ordinances ( see, Matter of Parkview Assocs. v City of New York, 71 NY2d 274, cert denied 488 US 801; 6 Warren's Weed, New York Real Property, Zoning: Enforcement, § 4.02 [4])" ( Baris Shoe Co. v Town of Oyster Bay, 234 AD2d 245, 246 [2nd Dept 1996]) Moreover, where the interpretation of a statute or its application involves an evaluation of factual data and inferences to be drawn therefrom, the courts defer to the agency charged with the responsibility for administration of the statute ( Kurcsics v Merchant Mutual Insurance Co., 49 NY2d 451; Matter of Teachers Ins. and Annuity Assn. of Am. v City of New York, 82 NY2d 35, 41-42). "Local officials, generally, possess the familiarity with local conditions necessary to make the often sensitive planning decisions which affect the development of their community" ( Cowan v Kern, 41 NY2d 591, 599).
While plaintiff is entitled to some accommodation as a religious organization ( see Matter of Genesis Assembly of God v Davies, 208 AD2d 627, 628 [2nd Dept 1994]), a religious institution is not exempt from local zoning laws and the zoning application process ( see Town of Mount Pleasant v Legion of Christ, Inc., 21 AD3d 368, 369 [2d Dept 2005]). Further, plaintiff must conform to the zoning requirements related to the public's health, safety or welfare ( see Cornell University v Bagnardi , 68 NY2d 583 , 595-597). Upon review of the administrative record, the Court finds that the conditions imposed by the February 26, 2009 conditional CO were rationally based and reasonably related to the public's health, safety and welfare. The Court notes that plaintiff does not specifically challenge the landscaping requirement, which is arguably an aesthetic issue rather than one of public health or safety.
Instead of complying with the conditions to obtain a final CO, on February 9, 2010, almost one year after issuance of the conditional CO, plaintiff again amended its plans and specifications, which amendments were considered substantial by defendants and were designated as a new application ( see Village Code 265-16). In this February 9, 2010 filing, plaintiff seeks Planning Board approval for parking in the lot across the street and for a playground behind the mosque (in lieu of the previously approved parking area). This application was pending and unresolved at the time of commencement of this action.
Generally, an aggrieved party must exhaust its administrative remedies prior to seeking judicial review ( see Matter of East Lake George House Mar. v Lake George Park Comm ., 69 AD3d 1069 , 1070; Matter of Hays v Walrath, 271 AD2d 744, 744-745). In this instance, the parties are in the midst of a new application before the Planning Board. Plaintiff's claims with regard to its February 9, 2010 filing, on which there is no final Planning Board decision, are not ripe for judicial review and, therefore, fail to state a cause of action.
Plaintiff's attempt to conform to Village Code 280-23(F) applying by on or about November 17, 2009 to the Sullivan County Tax Services Department for the mosque lot and the lot across the street to be combined for tax map purposes, without an application to the Planning Board or Zoning Officer for a lot line change as required by Village Code Chapter 270, Articles I — V, or for a variance to use the separate lot as a parking lot pursuant to Village Code 270-25, must be considered in conjunction with the February 9, 2010 application.
In reaching this decision, the Court is mindful that the exhaustion of remedies doctrine has no application where the purpose of the judicial proceeding is to compel the performance of a legal duty ( Milnarik v Rogers, 298 AD2d 637, 638-639, citing Matter of Friends Academy v Superintendent of Div. of Bldg. of Town of Oyster Bay, 134 AD2d 497, 498, lv denied 71 NY2d 806). However, under the circumstances presented, the Court cannot usurp the function of the Planning Board and render a decision on the pending application.
"Where a defendant moves pursuant to CPLR 3211 (a) (1) to dismiss an action asserting the existence of a defense founded upon documentary evidence, the documentary evidence must be such that it resolves all factual issues as a matter of law, and conclusively disposes of the plaintiff's claim' ( Trade Source v Westchester Wood Works, 290 AD2d 437 [citations omitted]" ( Berger v Temple Beth-El of Great Neck, 303 AD2d 346, 347 [2nd Dept 2003].
To the extent that the complaint alleges claims of religious discrimination, the Court finds that the defendants have shown that the documentary record herein demonstrates that defendants did not violate plaintiff's rights under the Religious Land Use and Institutionalized Persons Act (42 USC 2000 cc et seq.) (RLUIPA). Further, the record demonstrates that there was no unreasonable implementation of land use regulation and imposition of conditions in approving plaintiff's application which created a "substantial burden on the religious exercise" of plaintiff. Nor does the record show that defendants deprived plaintiff of its due process and equal protection rights in violation of 42 USC § 1981 and § 1983 and the Fourteenth Amendment to the U.S. Constitution. In response to defendants' motion to dismiss the discrimination claims, the plaintiff has failed to make a sufficient showing of any such alleged violation which would merit a trial on the issue.
It is undisputed that plaintiff's premises in the R-M (residential) zoning district require a special use permit for use as a place of worship. Plaintiff's initial May 4, 2007 site plans proposed 42 parking spaces on a separate lot across the street from the mosque. The record shows that the initial application was deficient in several respects, including that it did not meet the requirement for parking on the same lot as the building to which such parking is incidental ( see Village Code 280-23 [F]); that the specifications and site plans did not provide necessary details, including building heights and set-back distances ( see Village Code 280-20/265-29); and that the lot was sub-standard in square footage ( see Village Code 280f). Such requirements are routine and cannot be considered unreasonable or burdensome to plaintiff. Plaintiff did not challenge the Board's refusal to accept the original site plans.
New plans were submitted on October 11, 2007 which include a parking lot across the street containing 22 parking spaces with landscaping; the site plan shows a proposed consolidation of Village of Monticello tax map lot 111-4-6 (the mosque lot) with adjoining lot 111-4-50 (behind the mosque); the plans continue to be deficient in details necessary to show compliance with the Village Code. Additionally, the record is devoid of an application for subdivision approval to combine the mosque lot with the lot across the street or to request a variance for use of the separate lot as a parking lot for the mosque or to request a variance for a sub-standard sized lot. Thereafter, plaintiff's engineer withdrew on or about October 23, 2007.
On or about this time, plaintiff purchased two lots (Village of Monticello tax map lots 111-4-49 and 111-4-50) contiguous to the mosque lot in order to meet the minimum square-footage lot requirement ( see Village Code 280f) and to allow for parking on the same lot as the mosque building ( see Village Code 280-23 [F]). While a Board member may have suggested that purchase of the contiguous lots would provide the necessary lot requirements, there is no indication in the administrative record that the Planning Board required the purchase of these lots. Nor did plaintiff challenge any such alleged coercion or the denial of acceptance of the first two site plans.
On January 15, 2008, plaintiff, now represented by a new engineer, applied for site plan and subdivision approval to divide lot 111-4-49 into two parcels and to combine lots 111-4-6 (the mosque lot), 111-4-49 and 111-4-50. On or about February 11, 2008 plaintiff submitted plans showing 37 parking spaces, with a potential for a total of 62 spaces, on the same parcel as the mosque structure (the combined lots 111-4-6, 111-4-49 and 111-4-50); the former proposed parking area (across the street) appears unimproved. These plans were accepted by the Planning Board as sufficient to schedule a hearing on the application.
A duly noticed public hearing was held on August 26, 2008 at which the Planning Board designated itself as the lead agency, voted a negative declaration and voted to issue a special use permit with four conditions: 1) that the total potential parking spots be used, paved and striped; 2) that landscaping "as agreed upon" be implemented; 3) that the parcel across the street will not be used for parking and will be landscaped so as to prevent parking thereon; and 4) that the three separate parcels are combined to one parcel.
As plaintiff had not completed the required items, as set forth in the August 26, 2008 approval, at the February 24, 2009 meeting, the Planning Board voted to also require that plaintiff post a $120,000 bond to ensure compliance with the approved site plans. The bond requirement is not unique to plaintiff and is a routine practice by planning boards to insure completion of sites in accordance with approved plans. On February 26, 2009 plaintiff filed its amended plans and a conditional CO was issued, conditioned upon completion of "Parking Lot," "Landscaping," and "Storm Water." Plaintiff's allegation that the February 26, 2009 plans show a proposed parking lot located across the street from the mosque is not supported by the record before the Court. No appeal was taken from the February 26, 2009 conditional CO.
As demonstrated by approval of the special use permit on August 26, 2008, and again on February 24, 2009, and issuance of the conditional CO on February 26, 2009, the building was approved for use as a mosque and was found to be in conformance with the plans and specifications and applicable building codes; three items were outstanding on the site plan: the parking lot (located behind the mosque on the approved site plan), landscaping, storm water drainage.
Instead of complying with the conditions of the conditional CO, plaintiff persisted in its effort to seek approval for the proposed parking lot across the street from the mosque. To that end, the record shows that plaintiff filed an application and amended plans and specifications on February 9, 2010 seeking approval of use of the area across the street for parking (instead on the area located on former lots 111-4-49 and 111-4-50) and a playground (not shown on the plans). The Planning Board considers this a new application, which is reasonable and within its authority pursuant to Village Code 265-16, as this site plan presents a substantial change from the February 26, 2009 site plan.
Plaintiff asserts that it is being discriminated against because it had initially requested that the parking be in the separate lot across the street (in contravention of Village Code 280-23[F]) and is further prejudiced because it had, albeit unilaterally and without a building permit or Board approval, already improved that lot with gravel and crusher run, ready for blacktopping. Plaintiff's further contention that this plan had been approved by defendants over a year before and a conditional CO had been issued on February 26, 2009, subject to paving the proposed parking lot, is belied by the site plans submitted and approved in conjunction with the August 26, 2008 public hearing and the amended site plans in support of the February 26, 2009 conditional CO.
Plaintiff's action with regard to the 2010 amended site plan is pre-mature as review and Planning Board action were not completed at the time of commencement of the action. The action with regard to the condition CO was commenced after the expiration of the 30-day statute of limitations for a challenge of the Planning Board decision. Further, plaintiff was successful in obtaining a conditional CO in accordance with the site plan it submitted. The fact that plaintiff may prefer to have parking across the street from the mosque is irrelevant. Plaintiff did not pursue the available zoning applications to obtain legal use of the lot across the street; and, instead, withdrew that site plan and submitted another, different plan which was approved. Plaintiff's amended site plan and application for approval of parking across the street is currently being considered by the Planning Board. Reasonable fees relating to process and review of this new application would not be arbitrary or capricious or unlawful; review of this issue is more appropriately reserved for a future challenge of the decision of the Planning Board on the new application, if plaintiff is unsuccessful or otherwise deems such a challenge necessary.
The Court also notes that the mosque has been allowed to operate in the building for years without a special use permit or approved parking while the required municipal approval was being processed; and the parking lot across the street has also been used and continues to be used illegally. Further, the record before the Court fails to establish that the Village Code has been applied to plaintiff's application and amended applications in an unreasonable and burdensome fashion. Nor can the delays be attributed to defendants, as plaintiff allowed months to elapse between its submissions to the Planning Board and failed to appear at several Board meetings.
The Court has reviewed the record with particular attention to Mr. Makovic's allegations of religious discrimination. On this record, there certainly is not evidence of religious discrimination; rather, the record speaks to a community and local government endeavoring to accommodate the need for a house of worship for the local Islamic community.
Finally, defendant has demonstrated that other religious institutions, in the Village, which did not pre-date the Village Code and thus were not pre-existing uses, were also required to conform to Village Code standards. Plaintiff has failed to show that any other religious institutions were treated differently and/or more favorably than plaintiff by the Village, in general, or more specifically, in their applications before the Planning Board.
The Court has considered all other issues raised by plaintiff herein and finds them unsupported in law and/or fact.
"The controlling consideration in reviewing the request of a school or church for permission to expand into a residential area must always be the over-all impact on the public's welfare" ( Cornell University v. Bagnardi, supra at 595); "* * * educational and religious uses ordinarily have inherent beneficial effects that must be weighed against their potential for harming the community" ( Ibid. at 597). The administrative record shows that defendants have done nothing more than required plaintiff to adhere to the Village Code process, which cannot be considered a substantial burden ( see Town of Mount Pleasant v Legion of Christ, Inc., supra). The Court is satisfied that in evaluating plaintiff's application, defendants have made every effort to accommodate the religious use ( Matter of Genesis Assembly of God v Davies, supra).
Plaintiff's fourth cause of action for attorneys' fees and costs pursuant to 42 USC 1988(b) is dismissed as moot as the Court finds no RLUIPA violation.
Accordingly, for all the reasons stated above, the complaint must be dismissed.
Therefore, it is
ORDERED that defendants' cross motion to dismiss the complaint is granted and the complaint is dismissed; and it is further
ORDERED that plaintiff's motion is denied as moot; and it is further
ORDERED that the May 18, 2010 Temporary Restraining Order is hereby vacated.
This shall constitute the decision and order of this court. The original Decision Order and all papers are being filed in the Sullivan County Clerk's Office. Counsel are not relieved from the provisions of CPLR 2220 regarding service with notice of entry.
SO ORDERED.
Papers considered:
Order to show cause and affidavit of Ibrahim Makovic dated May 18, 2010; notice of cross-motion, affirmation of Ralph L. Puglielle, Jr. dated June 16, 2010, and affidavit of John Barbarite dated June 15, 2010; affidavit of Ibrahim Makovic dated July 12, 2010, affirmation of Gerald Orseck dated July 12, 2010; reply of Ralph L. Puglielle, Jr. dated July 23, 2010, affidavit of John Barbarite dated July 22, 2010.