Opinion
No. 10–0692.
07-14-2015
NEW YORK & ATLANTIC RAILWAY COMPANY, The Long Island Rail Road Company and Coastal Distribution, LLC, Petitioners, v. The TOWN OF BABYLON, Respondent and The Town of Babylon Board of Zoning and Pinelawn Cemetery, Additional Respondents.
Glynn Mercep and Purcell, LLP, Stony Brook, Attorney for Petitioner N.Y. & Atlantic Railway Co. Jay Safar, Esq., Central Islip, Attorney for Petitioner The Long Island Railroad Co. Lazer Aptheker, Rosella & Yedid, P.C., Melville, Attorney for Petitioner Coastal Distribution, LLC. James P. Clark, P.C., Northport, Attorney for Respondents Town of Babylon and Town of Babylon Board of Zoning. Mark A. Cuthbertson, Esq., Huntington, Attorney for Respondent Pinelawn Cemetery.
Glynn Mercep and Purcell, LLP, Stony Brook, Attorney for Petitioner N.Y. & Atlantic Railway Co.
Jay Safar, Esq., Central Islip, Attorney for Petitioner The Long Island Railroad Co.
Lazer Aptheker, Rosella & Yedid, P.C., Melville, Attorney for Petitioner Coastal Distribution, LLC.
James P. Clark, P.C., Northport, Attorney for Respondents Town of Babylon and Town of Babylon Board of Zoning.
Mark A. Cuthbertson, Esq., Huntington, Attorney for Respondent Pinelawn Cemetery.
DANIEL MARTIN, J.
In this CPLR article 78 proceeding, the petitioners seek a judgment annulling, vacating, and setting aside the April 22, 2005 determination of the additional respondent Town of Babylon Board of Zoning Appeals (BZA) denying their appeal from a stop work order issued by the Town Building Inspector. This matter was originally commenced by the filing of a summons and complaint. In said complaint, the petitioners, as plaintiffs, set forth as their fourth cause of action the allegations relative to their efforts to overturn the BZA's decision to uphold the stop work order. In their first three causes of action, the plaintiffs/petitioners seek a declaratory judgment on issues related to said stop work order. By order dated August 2, 2013, the undersigned converted the aforesaid fourth cause of action into a CPLR article 78 proceeding, severed the remaining causes of action, and directed the parties to notice this proceeding for a hearing. Said notice was served on or about November 27, 2014, and the matter is now properly before the Court.
The petitioner The Long Island Rail Road Company (LIRR) is in possession of two parcels of property (the property) located within the Town of Babylon pursuant to leases it entered into with the owner, the additional respondent Pinelawn Cemetery (Pinelawn), in 1904 and 1905. LIRR entered into a Transfer Agreement with the petitioner New York & Atlantic Railway (N.Y.AR) on or about November 1996. Said agreement transferred LIRR's freight operations to NYAR, including use of the property. On or about February 2002, NYAR entered into a contract with the petitioner Coastal Distribution, LLC (Coastal) to operate a transloading facility on the property. Thereafter, Coastal commenced construction of a 22,000 square foot building (the transloading building) on the property. On March 29, 2004, the Town issued a stop work order directing that all work on the transloading building cease, as Coastal had not obtained a building permit for the construction.
On or about April 27, 2004, Coastal filed an application with the BZA seeking to vacate and annul the stop work order on the grounds that the Metropolitan Transit Authority (MTA) and LIRR are exempt from zoning regulations and the Town is without jurisdiction to issue said order. A public hearing on the petitioner's application was held on September 9, 2004. At the hearing, the attorney for the petitioner explained that the property has been used for transloading operations since 1904, that transloading is the practice of transferring a shipment from one mode of transportation to another, for example, from trucks to rail cars, and that MTA has jurisdiction over the property and had reviewed the plans for the transloading building. The petitioner submitted the testimony of an expert, John McHugh, Esq. (McHugh), regarding its claim that federal law preempts the application of the Town's zoning laws, and a real estate appraiser, John Breslin, regarding the land uses of the surrounding properties. Fred Krebs (Krebs) testified that he is the president of NYAR, that his company applied to, and has been declared a railroad by, the Federal Railroad Administration, and that NYAR had to submit documents to the Surface Transportation Board (STB), the authority charged with federal oversight of the nation's transportation system, to enable it to undertake the operations at the property. He indicated that the property has been used "as a transload" for over 100 years, that NYAR's agreement with Coastal limits operations to transloading, and that Coastal is NYAR's agent for freight hauling. He stated that NYAR performed the transloading operations at the property from 1997 until its agreement with Coastal, that one of Coastal's operations is transferring construction debris from trucks onto rail cars, and that municipal solid waste (MSW) is not loaded at the property. Krebs further testified that the construction debris is transported to landfills in Ohio which do not take MSW, that metal and MSW is sorted out, and the sorting is a railroad function. He indicated that the landfill would stop any transportation of MSW, that NYAR has crews on site every day to observe Coastal's activities, and that NYAR does not inspect the rail cars to determine their contents.
The MTA owns the LIRR, and it is undisputed that the latter is entitled to the protections afforded railroads under the laws and public policies of the State of New York.
Martin Sternberg (Sternberg), a member in Coastal, testified that in addition to transporting construction debris off Long Island, its transloading facility offloads materials from rail cars to trucks for Long Island companies purchasing such items from other locations, that the Department of Health in Ohio inspects every rail car offloaded at its landfills, and that any material that cannot be sent to Ohio is either put back on the truck that brought it to the transloading facility or, if not caught immediately, is placed in a special container and sent to an incinerator or class one landfill. He indicated that the materials coming on site are from "transfer stations" that do all the sorting making it more economical and safer for Coastal, and that Coastal does not "sort" but "extracts" materials it does not transport. He stated that Coastal does not sell any of the products that come into the transloading facility, and that it does not do anything other than transload materials owned by others.
In opposition to the application, the BZA heard the testimony of Kurt Schneider a neighboring businessman who expressed concerns over the traffic created by the transloading facility. John Armentano, Esq. (Armentano), attorney for Pinelawn, argued that the BZA did not have the authority to hear Coastal's application because Pinelawn had not signed the required endorsement as owner of the property, that the only issue raised in this application is whether New York's Public Authorities Law [PAL] preempts the Town's jurisdiction, and that the LIRR has not properly extended one of the two leases regarding the property. He further argued that the freight operations of the LIRR are not intended to be covered by Title 11 of the PAL, that Pinelawn, as the owner of the property, can be held liable for any environmental issues should hazardous waste be shipped to the transloading facility, and that there is a question whether the MTA completed a SEQRA review of this project. Armentano stated that he believes that the Town has jurisdiction over the property because Coastal is a profit-making company.
The BZA also heard testimony from William Treuber, president of First New York Title Agency, and Phillip Kilian, Esq., a member of the law firm representing Pinelawn, regarding the dispute with the LIRR over the extension of one of the two leases involving the property. Mike Sceppa, vice-president of Pinelawn, testified that the BZA should consider the rights of the "next-to-kin" of those buried in the cemetery relative to the "perspective of the ... building that's located on the property." After some rebuttal testimony by Coastal, the Chair of the BZA closed the hearing and indicated that the parties would have two weeks to submit legal briefs on the issues.
Thereafter, Armentano as counsel for Pinelawn, submitted additional evidentiary materials which were rejected by the BZA. Upon Armentano's request, the BZA re-opened the hearing and noticed the matter for December 16, 2004. The matter was adjourned and a "continued" hearing was held on February 3, 2005. In the interim, Mark A. Cuthbertson, Esq. (Cuthbertson) was substituted as the attorney for Pinelawn.
At the continued hearing, Cuthbertson indicated that Pinelawn had four witnesses to present, and he argued that Coastal is not a rail carrier entitled to federal preemption of the Town's zoning laws. He stated that the agreement between Coastal and NYAR reveals that a principal-agent relationship has not been created, and that, in contravention of transportation policy, this transloading facility increases truck traffic on Long Island instead of reducing it. Michael Poscillico (Poscillico), president of Blue Water Environmental, a business neighbor to the Coastal facility, testified that his company just completed a project involving the hauling of radioactive material, and that "the rule of waste hauling is it never hits the ground." He indicated that his experience managing two recycling facilities has made him aware that construction debris can sometimes contain materials such as asbestos or lead, that he has seen trucks dump materials on a "pad" inside the transloading building, and that he has seen machines pushing the material around without going directly from truck to rail car.
Pinelawn presented the testimony of two private investigators, James Murphy (Murphy) and James Flores (Flores), who independently investigated Coastal's operations. Murphy testified that his firm was asked to determine whether the materials brought to the transloading facility were construction debris and where the materials were coming from. He indicated that his operatives observed, among other things, that trucks carrying construction debris from the Metropolitan Transfer Station in Bronx County went directly to the Coastal facility, and on one occasion a load of construction debris from a home in Nassau County went directly to the Coastal facility. He acknowledged that the Bronx facility is a valid transfer station, and he stated that "there were some trucks that did exactly what they are supposed to do" and go to a transfer station and then to the Coastal site. Flores merely testified that his report, submitted to the BZA, contains his observations regarding Coastal's operations.
Harry Jordan, Esq. (Jordan) testified that he has 40 years experience in transportation issues, that Coastal is not a rail carrier with any authority from the STB, and that it is not entitled to any federal exemption from local zoning regulations. He indicated that the agreement between Coastal and NYAR reveals that Coastal is not an agent of NYAR, "it is actually providing a service." He stated that if NYAR was performing the same activities at the transloading facility it would be exempt under federal law with a "residue of potential regulation from local authorities" for issues such as safety, but that such laws cannot burden transportation. Jordan further testified that he did not believe that zoning regulations would be a burden on transportation.
In rebuttal, Coastal again produced McHugh who testified that the issue here is that NYAR controls all of Coastal's activities, and that Coastal is a partial agent of the LIRR which is obligated under the subject agreements to be a common carrier, required to consider anyone who offers freight for transport. He indicated that the Town retains the authority to enforce standards to prevent the transloading facility from becoming a nuisance, but that this is clearly a transportation related facility.
Coastal again called Sternberg to testify. He indicated that, despite Pinelawn's contention that the transloading facility increases truck traffic, it actually reduces such traffic on Long Island and in New York State. Joseph Rutigliano testified that he is a member of Coastal, that everything done at the property was done with the Town's approval as the commissioner of the planning department had originally indicated to us that the Town did not have jurisdiction over the property. He stated that Coastal is reducing truck traffic on Long Island, and that it invested in the property believing that it was exempt from compliance with local regulation.
After some discussion between the parties whether an advisory opinion from the STB regarding Coastal's status as a rail carrier should be sought, the BZA closed the hearing. In a written decision adopted on April 21, 2005 (Decision), the BZA denied the appeal and upheld the Building Inspector's stop work order. In its Decision, the BZA addressed Coastal's claim that it was exempt from the Town's zoning regulations based on federal and state law. Regarding Coastal's claim for federal exemption from said regulations, the BZA found, among other things, that Coastal's "use of the site is not transportation by rail carrier' so as to come within the [STB's] jurisdiction," and that NYAR does not have the necessary control over Coastal to establish a principal-agent relationship.
Based upon certain provisions in the agreement between Coastal and NYAR, the BZA found that: "Coastal is controlling the operation of the site ... is marketing the site, erecting structures that it requires ... and repairing the tracks at the site, not [NYAR] ... Coastal is fundamentally operating independently of the railroad. It is for this reason that the Board finds that Coastal is not an agent of [NYAR] and is thus not entitled to exemption from local zoning pursuant to [federal law]." In additional support of its findings, the BZA notes that paragraph 2.01 of said agreement provides that "all bills of lading and similar documents for outbound rail shipments from the Facility ... for the Commodities transloaded at the Facility shall be between Railroad and the Customer, but Coastal, as the Railroad's agent, may execute such documents] ... and shall apply prudent internal control procedures to ensure compliance with the provisions of this Agreement." In its concluding section on the issue of federal preemption, the BZA found that Coastal is "not merely transloading" and is "using the site for more that just transloading" ‘ at the property based on its "extracting/sorting" of construction debris "for a profit."
In addressing Coastal's state law claim for preemption, the BZA discussed the history of the property, noting that it is not owned by the MTA (which now owns the LIRR), which entered into an agreement with NYAR in 1996 "in an attempt to privatize its freight services, who in turn subleased to the applicant (lease dated July 11, 2002). Thereafter, in August of 2004, the sublease to Coastal was replaced with the [agreement between Coastal and NYAR].... Thus, the MTA, the authority' bestowed with the exemption set forth in Public Authorities Law § 1266(8) merely holds the lease from Pinelawn. The operation of the site has been privatized (transferred to New York and Atlantic for this purpose) and thereafter subleased to Coastal. The sublease was later replaced with the [agreement with Coastal]. Based on this history, the Board finds the applicant's use of the site too far removed from the MTA, for its exemption to apply to the applicant." In addition, the BZA found that the evidence establishes that Coastal was conducting sorting on the site, that it charged a fee for said sorting/extracting service, and that Coastal is entitled to enter into its own agreements "for obtaining the disposal of Commodities ... independent from the transportation and loading service provided under [Coastal's agreement]."
Based on these findings, the BZA determined that "the applicant's use of the subject premises does not entitle the applicant to an exemption from local zoning as the applicant's use of the site is not purely and entirely for transportation or transit purposes' as required by Public Authorities Law § 1266(8)." As set forth by the BZA in its final substantive paragraph before upholding the subject stop work order:
Based on the above procedure outlined by the applicant itself, as well as the above cited provision contained within [Coastal's agreement], the Board finds that Coastal distribution is not solely utilizing the subject premises for transportation or transit purposes only. It is instead taking materials that are deposited at the site by trucks, pre-sorting it for a fee, and then transferring it onto railcars. The board finds this money-making endeavor by Coastal of presorting construction and demolition material prior to its transport does not constitute transportation or transit purposes within the meaning of § 1266(8) of the Pubic Authorities Law. The Board therefore finds that the applicant is not exempt from the Town's local zoning ordinances."
After receiving a copy of the Decision, Coastal and NYAR commenced a timely action in the United States District Court, Eastern District of New York seeking to enjoin enforcement of the stop work order on the ground that the Town lacked authority to enforce its zoning laws based on federal law, which grants an exemption to railroads and generally preempts local laws. Said action also included a pendant cause of action alleging that the BZA's denial of the appeal was arbitrary and capricious. After years of litigation, including a referral to the STB for a determination whether Coastal was entitled to protection under federal law, the United States Court of Appeals for the Second Circuit affirmed the STB's finding that Coastal is not a rail carrier and that the Town's zoning jurisdiction was not preempted by federal regulations governing "transportation by a rail carrier." However, the Second Circuit held that "there is no question that the activity in issue constitutes transportation' within the meaning of the [federal] statute." The Second Circuit dismissed without prejudice the pendant cause of action seeking to annul the BZA decision.
Thereafter, the petitioners commenced this putative hybrid CPLR article 78 proceeding and action. In said complaint/petition, the petitioners allege that the Town "has made improper and illegal efforts to exercise jurisdiction over LIRR's Transportation Facility in violation of Section 1266(8) of the [PAL ]," and that the activities conducted at said facility carry out the freight operations of the LIRR and fulfills a function for which the LIRR was created. As noted above, the claim for CPLR article 78 relief seeking a judgment annulling, vacating, and setting aside the BZA Decision pursuant to PAL 1266(8) is now the only issue before the Court. By its verified answer to this severed cause of action, the Town asserts two affirmative defenses (objections in point of law), which must be disposed of in determining this special proceeding. The Town's first objection in point of law is that the "decision of the BZA had a rational basis and was based upon a complete review of the evidence in the record before it." The Town's second objection in point of law is that "the evidence in the hearing record supported the decision of the [BZA]." Said contentions go to the ultimate findings of the Court in this special proceeding, and do not establish the Town's entitlement as a matter of law to a determination in their favor regarding of any of the claims raised in the petition.
Pinelawn has elected to serve a verified answer directed to the four causes of action in the complaint rather than serving a separate answer to the severed cause of action/special proceeding herein. The Court will deem that portion of Pinelawn's answer which relates to this special proceeding as the answer to the petition. In its verified answer, Pinelawn sets forth eight affirmative defenses. It is determined that only two of said defenses can be considered objections in point of law bearing on the petitioners' claim for relief.
Pinelawn's fifth affirmative defense is that "[the petitioners] have failed to exhaust their administrative remedies." Pinelawn has not submitted any additional papers regarding this special proceeding, and there is no merit to this objection in point of law. The Town of Babylon Code § 213–11 grants the BZA all the powers granted by the Town Law and certain additional powers. Pursuant to Town Law 267–a"the jurisdiction of the board of appeals shall be appellate only and shall be limited to hearing and deciding appeals from and reviewing any order, requirement, decision, interpretation, or determination made by the administrative official charged with the enforcement of any ordinance or local law...." The Town Code and the Town Law do not provide for any additional administrative review. Accordingly, this objection in point of law is dismissed.
Pinelawn's eighth affirmative defense is that "[the petitioners'] claims are barred in whole or in part by the statute of limitations." Again, Pinelawn has not submitted any additional papers regarding this special proceeding. Based on the timely filing of the federal action which included a pendant "article 78" cause of action, and the dismissal without prejudice of that cause of action, it is determined that this special proceeding is timely filed (CPLR 205 ). Accordingly, this objection in point of law is dismissed.
In its Decision, the BZA cites to PAL 1266(8) and it acknowledges the applicability of said statute to the issue herein. PAL 1266(8) provides, in pertinent part, that the MTA/LIRR (the authority):
may do all things it deems necessary, convenient or desirable to manage, control and direct the maintenance and operation of transportation facilities, equipment or real property operated by or under contract, lease or other arrangement with the authority and its subsidiaries.... Except as hereinafter specially provided, no municipality or political subdivision, ... including but not limited to a ... town ... shall have jurisdiction over any facilities of the authority and its subsidiaries, ... or any of their activities or operations. The local laws, resolutions, ordinances, rules and regulations of a municipality ... shall not be applicable to the activities or operations of the authority and its subsidiaries, ... except such facilities that are devoted to purposes other than transportation or transit purposes.
As noted above, this special proceeding is limited to the question whether the Town is without jurisdiction regarding the construction of the transloading facility pursuant to PAL 1266(8). The parties' submissions acknowledge that fact. Thus, that portion of the decision regarding the issue of federal preemption is unchallenged and, in light of the decision of the Second Circuit, rational and supported by the record before the BZA.
The Court now turns to the issue before it. Generally, in a special proceeding seeking judicial review of administrative action, the Court must ascertain only whether there is a rational basis for the decision or whether it is arbitrary and capricious (see Matter of Sasso v. Osgood, 86 N.Y.2d 374, 633 N.Y.S.2d 239 [1995] ; Matter of Chemical Specialties Mfrs. Assn. v. Jorling, 85 N.Y.2d 382, 626 N.Y.S.2d 1 [1995] ). In applying the "arbitrary and capricious" standard, a court looks only to whether the determination lacks a rational basis, i.e., whether it was without sound basis in reason and without regard to the facts (Matter of Peckham v. Calogero, 12 NY3d 424, 863 N.Y.S.2d 751 [2009]; Matter of Manko v. New York State Div. of Hous. & Community Renewal, Off. of Rent Admin ., 88 AD3d 719, 930 N.Y.S.2d 72 [2d Dept 2011] ). In addition, a zoning board of appeals charged with interpreting a local zoning ordinance is entitled to great deference (see Matter of Toys "R" Us v. Silva, 89 N.Y.2d 411, 654 N.Y.S.2d 100 [1996] ; Matter of Putter v. Zoning Bd. of Appeals of Vil. of S. Nyack, 101 AD3d 1127, 956 N.Y.S.2d 541 [2d Dept 2012] ). However, judicial deference is not required when the issue presented for review requires a pure legal interpretation of the terms in an ordinance (see Matter of Raritan Dev. Corp. v. Silva, 91 N.Y.2d 98, 667 N.Y.S.2d 327 [1997] ; Matter of Subdivisions, Inc. v. Town of Sullivan, 92 AD3d 1184, 938 N.Y.S.2d 682 [3d Dept], lv denied 19 NY3d 811, 951 N.Y.S.2d 721 [2012] ).
The issue presented for review in this proceeding involves a "pure legal interpretation" of PAL 1266(8), which is not a zoning regulation and does not implicate the expertise of the BZA (see Trump on Ocean, LLC v. Cortes–Vasquez, 76 AD3d 1080, 908 N.Y.S.2d 694 [2d Dept 2010] ; Matter of Professional Home Bldrs., Inc. v. Greenfield, 67 AD3d 803, 888 N.Y.S.2d 182 [2d Dept 2009] ). In matters of statutory interpretation, the primary consideration is to discern and give effect to the Legislature's intention (see Yatauro v. Mangano, 17 NY3d 420, 426, 931 N.Y.S.2d 36 [2011] ). The text of a provision "is the clearest indicator of legislative intent and courts should construe unambiguous language to give effect to its plain meaning" (Matter of DaimlerChrysler Corp. v. Spitzer, 7 NY3d 653, 660, 827 N.Y.S.2d 88 [2006] ; see also Matter of Albany Law School v. New York State Off. of Mental Retardation & Dev. Disabilities, 19 NY3d 106, 120, 945 N.Y.S.2d 613 [2012). Moreover, it is a fundamental principle of statutory construction that a statute or ordinance must be construed as a whole, and all parts of an such statute or ordinance must be read and considered together to determine the legislative intent (see Sanders v. Winship, 57 N.Y.2d 391, 456 N.Y.S.2d 720 [1982] ; People v. Mobil Oil Corp., 48 N.Y.2d 192, 422 N.Y.S.2d 33 [1979] ).
The Public Authorities Law, 1260 et seq., a/k/a the Metropolitan Transportation Authority Act, grants sweeping powers to the MTA regarding transportation in the metropolitan area, including Long Island. PAL 1261(17) defines a transportation facility as "any transit, railroad, omnibus, marine or aviation facility and any person, firm, partnership, association or, corporation which owns, leases or operates any such facility or any other facility used for service in the transportation of passengers, United States mail or personal property as a common carrier for hire and any portion thereof and the rights, leaseholds or other interest therein together with routes, tracks, ... garages, warehouses, ... stations and other related facilities thereof ..." PAL 1266(2), entitled "Special powers of the authority" provides that the MTA "may on such terms and conditions as the authority may determine necessary, convenient or desirable itself plan, design, acquire, establish, construct, effectuate, operate, maintain, renovate, improve, extend, rehabilitate or repair (a) any transportation facility ... or may provide for such planning, design, acquisition, establishment, construction, effectuation, operation, maintenance, ... by contract, lease or other arrangement on such terms as the authority may deem necessary, convenient or desirable with any person, including but not limited to any common carrier or freight forwarder."
It is undisputed that PAL 1266(8) prohibits the Town from exercising its powers to enforce its zoning regulations as to transportation facilities or real property "except such facilities that are devoted to purposes other than transportation or transit purposes (emphasis added)." Webster's Third International Dictionary defines "devote" to mean, among other things, "to attach the attention or center the activities of [oneself] wholly or chiefly on the specified object, field or objective ..." In the Decision, the BZA misapplied the proviso in the statute and determined that Coastal is not entitled to the statutory exception because its "use of the subject premises ... is not purely and entirely for transportation or transit purposes ...' "
The Second Circuit, in affirming that determination of the STB, held that Coastal's activities constitute transportation within the meaning of the federal statute. It is also undisputed that Coastal constructed the transloading facility pursuant to an agreement deriving from the MTA's authority, and obligation, to transport freight. Here, it is determined that the transloading facility is not devoted to "purposes other than transportation," and that the transloading facility is being used for transportation purposes pursuant to the PAL. Thus, the petitioners are entitled to a preemption from the Town's zoning regulations regarding the construction of the transloading facility. Based on its determination as to the intent and meaning of the relevant statute, the Court determines that the findings of the BZA were affected by an error of law (CPLR 7803[3] ).
Here, whether Coastal's activities violate other provisions of the Town of Babylon Code is not at issue. In addition, because it has been determined that the petitioners are not required to comply with the Town's zoning regulations, it follows that the subject stop work order was issued in error. Thus, the petitioners are entitled to a determination in their favor annulling said stop work order. Despite the petitioners' failure to request a reversal and remand of the BZA's decision denying their appeal, it is determined that such relief is warranted by the facts, and that there is no prejudice to any party (see Emigrant Mtge. Co., Inc. v. Fisher, 90 AD3d 823, 935 N.Y.S.2d 313 [2d Dept 2011] ; Torre v. Giorgio, 51 AD3d 1010, 858 N.Y.S.2d 765 [2d Dept 2008] ). Because the relief granted is an essential component of the relief demanded, the respondents may not be said to have been prejudiced by the petitioners' failure to demand the relief specifically (see Siegel, Practice Commentaries, McKinney's Consolidated Laws of NY, Book 7B, CPLR C2214:5).
Accordingly, the petition seeking to annul, vacate and set aside the BZA's determination dated April 22, 2005 denying their appeal from the subject a stop work order is granted, and the matter is remitted to the BZA for a determination in compliance with the decision herein.
Settle judgment.