Opinion
No. CV15–0120.
07-22-2016
Carol Lynn Grimditch RODA and Wayne Grimditch, Petitioners, v. The ZONING BOARD OF APPEALS OF the TOWN OF NORTH ELBA and Village of Lake Placid and James E. Morganson, as Code Enforcement Officer of the Town of North Elba and Village of Lake Placid, Respondents.
James M. Brooks, Lake Placid, for petitioners. Miller, Mannix, Schachner & Hafner, LLC, Glens Falls (Mark Schachner of counsel), for respondent Zoning Board of Appeals of the Town of North Elba and Village of Lake Placid. Briggs Norfolk LLP, Lake Placid (Ronald J. Briggs of counsel), for respondent James E. Morganson, as Code Enforcement Officer of the Town of North Elba and Village of Lake Placid.
James M. Brooks, Lake Placid, for petitioners.
Miller, Mannix, Schachner & Hafner, LLC, Glens Falls (Mark Schachner of counsel), for respondent Zoning Board of Appeals of the Town of North Elba and Village of Lake Placid.
Briggs Norfolk LLP, Lake Placid (Ronald J. Briggs of counsel), for respondent James E. Morganson, as Code Enforcement Officer of the Town of North Elba and Village of Lake Placid.
ROBERT J. MULLER, J.
The facts are set forth in the November 18, 2015 Decision and Judgment of this Court and will be repeated only as necessary. As relevant here, the Decision and Judgment dismissed claims (2), (3) and (4) of the petition, leaving only claim (1)—which alleges that the February 2, 2015 decision of respondent Zoning Board of Appeals of the Town of North Elba and Village of Lake Placid (hereinafter the ZBA) must be vacated as arbitrary and capricious—for determination.
Subsequent to issuance of the Decision and Judgment, respondent James E. Morganson—the Code Enforcement Officer for the Town of North Elba/Village of Lake Placid—served an answer relative to the remaining claim and petitioners served a reply. The Court then scheduled oral argument for May 19, 2016 on the principal issue raised by claim (1), namely whether remittal to the ZBA is appropriate. In this regard, the Decision and Judgment states as follows:
“[T]he ZBA was correct in finding that it is without authority to compel Morganson to submit the application to the [Joint Review Board for the Village of Lake Placid/Town of North Elba (hereinafter the JRB) ] for consideration. With that said, however, the Court is troubled by its failure to address the underlying issue of whether Morganson should have treated the JRB's Resolution and the APA's Jurisdictional Determination as controlling. Notwithstanding that counsel for petitioners framed the issue in a peculiar fashion—approaching it from a procedural standpoint rather than a substantive one—substantive issues ... remain for consideration. To that end, the appropriate remedy may be remittal to the ZBA for a determination on the merits.”
Approximately two days prior to oral argument, correspondence was received from counsel for Morganson advising that the Town of North Elba (hereinafter the Town) had amended section 4.2.2(C) of the Village of Lake Placid/Town of North Elba Land Use Code (hereinafter the LUC). This section of the LUC is central to the outcome of this proceeding, with petitioners contending that—because their property was deemed a “lot of record” in a September 10, 2010 Resolution of the JRB and a March 10, 2014 Jurisdictional Determination of the Adirondack Park Agency—it is exempt from the minimum lot width and lot area requirements under section 4.2.2(C) of the LUC.
In view of this additional issue oral argument was rescheduled to June 15, 2016. Counsel were advised that oral argument would now address both the issue of mootness and, if necessary, the issue of remittal to the ZBA. Counsel were further provided an opportunity to submit brief memorandums of law on the issue of mootness and each have now done so.
Oral argument was rescheduled one final time to July 8, 2016 so as to allow the Village of Lake Placid (hereinafter the Village) to vote on the proposed amendment to section 4.2.2(C) of the LUC. This amendment was then adopted by the Village on June 20, 2016
Turning first to the issue of mootness, “the general rule ... is that when a law is amended during an appeal's pendency, the law to be utilized is that in effect at the time the decision on appeal is rendered” ' (Matter of Dutton v. Town of Canaan, 199 A.D.2d 659, 660 [1993], quoting Matter of Willard v. Haab, 170 A.D.2d 820, 822 [1991], lv denied 78 N.Y.2d 854 [1991] ; see Matter of Magee v. Rocco, 158 A.D.2d 53, 60 [1990] ).
Here, Morganson considered petitioners' application for permits to construct a residence and accessory building on their property under former 4.2.2(C) of the LUC, which provided as follows:
“A permitted building or use may be constructed or located on any lot of record, as of the effective date of these Regulations or their applicable amendment, in any [d]istrict even if said lot does not meet the minimum lot area and lot width requirements in the [d]istrict in which it is located, providing the following conditions exist or are met:
“1. The owner of said lot owns no adjoining unimproved land that would create a conforming lot if combined with the lot that is deficient in area or width.
“2. Any building or use located on a nonconforming lot shall have front, side and rear yards conforming to the minimums required for the [d]istrict in which said lot is located....”
With that said, amended section 4.2.2(C) of the LUC—of which the Court takes judicial notice (see Municipal Home Rule Law § 52 )—provides as follows:
“A building or use which was permissible at the time of creation of a given lot of record may be constructed or located on any lot of record, as of the effective date of these Regulations or their applicable amendment, in any [d]istrict even if said lot does not meet the minimum lot area and lot width requirements in the [d]istrict in which it is located, providing the following conditions exist or are met:
“1. The owner of said lot owns no adjoining unimproved land that would create a conforming lot if combined with the lot that is deficient in area or width.
“2. Any building or use located on a nonconforming lot shall have front, side and rear yards conforming to the minimums required for the [d]istrict in which said lot is located ...
Under the general rule, amended section 4.2.2(C) of the LUC is now applicable to petitioners' application (see Matter of Dutton v.. Town of Canaan, 199 A.D.2d at 660 ; Matter of Willard v. Haab, 170 A.D.2d at 822 ; Matter of Magee v. Rocco, 158 A.D.2d at 60 ). With that said, the language in the first sentence of amended section 4.2.2(C) of the LUC deviates substantially from the language in the first sentence of former section 4.2.2(C) of the LUC. Indeed, while former section 4.2.2(C) provides that a permitted building or use may be constructed on any lot of record, amended section 4.2.2(C) is more restrictive, providing that only a building or use that was permissible at the time of creation of a given lot of record may be constructed on any lot of record. Inasmuch as the application was made and considered under former section 4.2.2(C) of the LUC, it has been rendered moot by the amendment. The Court therefore finds that the proceeding must necessarily be dismissed as moot.
Briefly, where “special facts' are present to demonstrate that the municipality acted in bad faith and unduly delayed acting upon an application while the zoning law was changed,” the Court can ignore the general rule and apply the law as it existed at the time of the application (Matter of Bibeau v. Village Clerk of Vil. of Tuxedo Park, 145 A.D.2d 478, 479 [1988] ; see Matter of Magee v. Rocco, 158 A.D.2d at 60 ). While petitioners contend that this “special facts” exception is applicable under the circumstances herein, the Court is not persuaded. There is no evidence to suggest that the Town and Village deliberately delayed this proceeding so as to amend section 4.2.2(C) of the LUC, nor is there any evidence to suggest that the amendment “was the product of malice, oppression, manipulation or corruption” (Matter of Magee v. Rocco, 158 A.D.2d at 60 ; see Matter of Bibeau v. Village Clerk of Vil. of Tuxedo Park, 145 A.D.2d at 479 ).
In view of the foregoing, there is no need to address the issue of remittal to the ZBA. It must be noted, in any event, that remittal to the ZBA for a determination on the merits would necessitate application of former section 4.2.2(C) of the LUC which—as discussed above—is no longer applicable (see Matter of Dutton v. Town of Canaan, 199 A.D.2d at 660 ; Matter of Willard v. Haab, 170 A.D.2d at 822 ; Matter of Magee v. Rocco, 158 A.D.2d at 60 ).
If petitioners file a new application under amended section 4.2 .2(C) of the LUC and an administrative appeal ensues, the ZBA is encouraged to address both the substantive and procedural issues raised.
Therefore, having considered the Petition with exhibits attached thereto, verified March 3, 2015; Answer of the ZBA, verified May 1, 2015; Administrative Record, certified April 30, 2015; Memorandum of Law of Jacqueline P. White, Esq., dated May 1, 2015; Reply Affidavit of James M. Brooks, Esq. with exhibit attached thereto, sworn to May 6, 2015; correspondence of Mark Schachner, Esq. dated May 11, 2015; Answer of Morganson, verified December 7, 2015; Reply of petitioners, verified December 24, 2015; Memorandum of Law of James M. Brooks, Esq., dated December 24, 2015; Memorandum of Law of James M. Brooks, Esq. with exhibit attached thereto, undated; Memorandum of Law of Jacqueline P. White, Esq. with exhibit attached thereto, dated June 6, 2016; and correspondence of Ronald J. Briggs, dated June 6, 2016; and oral argument having been heard on July 8, 2016 with James M. Brooks, Esq. appearing on behalf of petitioners, Ronald J. Briggs, Esq. appearing on behalf of Morganson and Mark Schachner, Esq. appearing on behalf of the ZBA, it is hereby
ORDERED AND ADJUDGED that the petition is dismissed as moot.
The above constitutes the Decision and Judgment of this Court.
The original of this Decision and Judgment has been filed by the Court together with the Notice of Petition dated March 3, 2015 and the submissions enumerated above. Counsel for Morganson is hereby directed to promptly obtain a filed copy of the Decision and Judgment for service with notice of entry upon all other parties in accordance with CPLR 5513.