Opinion
29518-09.
Decided September 18, 2009.
Twomey, Latham, Shea et al, Attys. For Plaintiff, Riverhead, NY.
Esseks, Hefter Angel, LLP, Attys. For Defendants, Riverhead, NY.
ORDERED that this motion (# 001) by the plaintiff for a preliminary injunction restraining and enjoining the defendants, their agents and all others acting on their behalf, from excavating, processing and/or exporting any material, including topsoil, loam, earth and sand from their premises, is considered under CPLR 6311 and is denied; and it is further ORDERED that a preliminary conference is scheduled for October 20, 2009, at 9:30 a.m. in Part 33, at the courthouse located at 1 Court Street, Riverhead, New York.
The plaintiff commenced this action for a judgment permanently enjoining the defendants from excavating certain premises situated in the Town of Riverhead, which the defendants own and/or possess as tenants. The plaintiff also demands declaratory relief and the imposition of civil penalties against the defendants by reason of their purported violations of the plaintiff's zoning code, permits and a stop work order issued by the plaintiff. The material facts underlying these demands for relief are as set forth below.
In January of 2009, defendant, Rossano Family Limited Partnership, applied for a building and zoning permit from the plaintiff for a project designed to develop the subject premises as a tree farm. In that application, the defendant partnership indicated that 76,000 cubic yards of material would be removed during the excavation and land clearing process. On February 27, 2009, plaintiff's Building Department granted the application by issuing Building-Zoning Use Permit # 2B34226 to defendants, Reliance Leasing Corp./Crown Sanitation. Armed with said permit, the defendants began excavating the subject premises.
In late May of 2009, the Town Board of the plaintiff, Town of Riverhead, interjected itself into the matter by the issuance of a memorandum addressed to the Building Department Administrator advising him that the Use Permit issued on February 23, 2009 was "ultra vires." Therein, the Town Board claimed exclusive authority to issue a permit for excavation or exportation of earth material under Chapter 62 of the Town code. Continuing, the Town Board advised that because no evidence was produced that a farm or agricultural operation exists on the premises, the "use permit" issued by the Building Department was "simply advisory only." The Town Board's memo concluded with the following directive:
Based upon the above, the Town Board hereby directs you to revoke the "Use Permit" and reissue a permit limited to recitation of the use, i.e. Agricultural Use, as a permitted use in the zoning district applicable to the location of the subject property. The Town Board further directs that you monitor the subject property for any activity in violation of the revised "Use Permit" or Town Code and take appropriate action to enforce the provisions of the Town Code.
On June 1, 2009, the Building Administrator served the defendants with a letter and other materials directing them to immediately cease and desist all grading, cleaning, excavation and/or exportation of any materials from the site. The Administrator further advised that the February 27, 2009 Use Permit would be reissued so as to delete those portions which authorized the removal of the 76,000 cubic yards of materials. The defendants responded with a letter by counsel rejecting the position of the plaintiff and its Building Administrator. In response, the plaintiff commenced this action for the relief outlined above.
By the instant motion, the plaintiff seeks a preliminary injunction restraining and enjoining the defendants' continued excavation, clearing and exportation of soil and other material from the site. The defendants oppose upon allegations that the activity about which the Town complains is not violative of any provision of the Town Code.
It is well established that a municipality, which seeks preliminary injunctive relief to restrain zoning violations, need only show that it has a likelihood to succeed on the merits of its claims and that the equities are balanced in its favor ( see Town of Riverhead v Silverman , 54 AD3d 1024, 864 NYS2d 169 [2d Dept 2008]; Town of Islip v Modica Assocs. of NY 122, LLC , 45 AD3d 574 , 846 NYS2d 201 [2d Dept 2007]; First Franklin Sq. Assoc. v Franklin Sq. Prop. Account , 15 AD3d 529 , 790 NYS2d 527 [2d Dept 2005]). A strong prima facie demonstration that the defendants are violating one or more provisions of the zoning ordinance is generally sufficient to satisfy the Town's burden on a motion for preliminary injunctive relief ( see Town of Islip v Modica Assocs. of NY 122, LLC , 45 AD3d 574 , supra).
Upon a review of the record adduced on this motion, the Court finds that plaintiff failed to demonstrate a likelihood of success on the merits of its claims. Not disputed is the fact that the subject property is located in a district zoned APZ wherein agricultural production, including the cultivation of nursery stock, ornamental shrubs and trees, such as Christmas trees, is permitted and farm operations are specifically permitted as an accessory use ( see Town Code § 108-22). Nor is it disputed that § 62-5 of the Town Code requires a written permit from the Town Board "before any excavation, exportation or importation is commenced for any purpose other than those exempted in § 62-4 of this chapter."
However, Town Code § 62-4(A) exempts from the application of Chapter 62, the importation, excavation or exportation of material "when such importation, excavation or exportation is made for the purpose of farming." Since farming is a permitted use in the APZ district in which the subject property is situated, the excavation and clearing undertaken by the defendants has not been shown to be violative of any of the provisions of the Town Code, including those set forth in Chapter 62 of the Town Code. The plaintiff thus failed to demonstrate a likelihood of success on the merits of its claims.
In addition, the moving papers failed to demonstrate that a balance of the equities favor the position of the Town. In its complaint, the plaintiff alleges that the excavation and clearing activities undertaken by the defendants "are not being done for the purpose of farming" and thus do not qualify for the exception from the Town Board permit requirements which the use farming expressly and unconditionally enjoys under § 62-4 of the Town Code. The plaintiffs suggest that the defendants have no intention of putting the premises to use as a Christmas tree farm or other farming purpose, but instead, are merely interested in mining the land for its earthen material.
The court finds, however, that these speculative concerns about the defendants' potential use of the premises in a manner inconsistent with the Zoning Code or in a manner contrary to that set forth in the permit application do not provide grounds for the issuance of the preliminary injunctive relief demanded. For it is well established that the standard for determining the propriety of zoning determinations by those charged with the making thereof is the actual use of the subject premises or structure not their possible use in the future ( see Association of Friends of Sagaponack v Zoning Bd. of Appeals, Town of Southampton , 287 AD2d 620, 731 NYS2d 851 [2d Dept]; Baskin v Zoning Bd. of Appeals, Town of Ramapo , 40 NY2d 942, 390 NYS2d 412, aff'd on dissent of Shapiro, J., 48 AD2d 667, 367 NYS2d 829 [2d Dept 1975]; DeMilia v Bennett , 149 AD3d 592, 540 NYS2d 274 [2d Dept 1989], cf. 9th 10th Street, LLC v Board of Standards and Appeals, City of New York , 10 NY2d 264, 856 NYS2d 28). The plaintiff has failed to demonstrate that the Town Code prohibits the excavation, clearing and exportation of material necessary to ready a parcel having a permitted farming use without a permit issued by the Town Board under Chapter 62 of the Town Code.
In view of the foregoing, this motion is denied.