Opinion
2797-09.
Decided August 24, 2009.
Orseck Law Offices, Liberty, NY 12754, By: Gerald Orseck, Esq., of counsel, Attorney for Petitioner, Law Offices of Henri Shawn, Esq., Monticello, NY, By: Henri Shawn, Esq., of counsel, Attorney for Petitioner.
Robert S. McEwan, Jr., Esq., Schenectady, NY, Attorney for Respondents.
Bosworth Gray Fuller, Bronxville, NY, By: Kimberlea Shaw Rea, Esq., of counsel, Attorney for Respondents.
This matter comes on by Verified Petition pursuant to CPLR Article 78 with an Order To Show Cause (OSC) seeking an order against the Town of Bethel, respondent, for the issuance of a Certificate of Occupancy and an order for recission of a Stop Work Order in regard to a Schul (synagogue) being constructed upon premises in the Hamlet of White Lake, Town of Bethel, County of Sullivan. The OSC requested a temporary restraining order (TRO) recinding the Stop Work Order and an Order for the Code Enforcement Officer to issue a temporary Certificate of Occupancy.
The relief sought by the OSC was heard immediately on July 24, 2009 and the return date for the Verified Petition was adjourned to August 28, 2009.
On July 24, 2009, pursuant to proper notice to all parties, petitioner presented the above OSC to this Court. The OSC contained two "stays": first, to stay the Stop Work Order issued by the Town of Bethel, and second for the Town of Bethel Code Enforcement Officer (CEO) to issue a temporary Certificate of Occupancy.
This Court ordered a fact-finding hearing on the issues and heard testimony from witnesses for all parties in court on July 24, 2009. Following said testimony this Court ordered an inspection of the premises in question and visited the construction site for inspection with all parties being present and a court record made of the inspection by the Court. Thereafter, the matter was reconvened in court where the Court signed the OSC, granting the issuance of a Temporary Certificate of Occupancy by the Town CEO and striking enforcement of the Stop Work Order and then, scheduled the OSC for August 28, 2009 for further proceedings.
The testimony and site inspection by the Court on July 24, 2009 showed the following:
The building in question according to the petitioner, is a synagogue used only for religious purposes. It was built over the course of approximately one year at a cost exceeding two million dollars. The building contains; a large central room used for the conducting of orthodox Jewish religious ceremonies. The room contains an Ark and Torah, the religious scriptures of the orthodox Jewish religion, religious texts and seating for approximately 250 worshipers. The building also contains four class rooms used for religious study and, in a small basement, a Mikvah, a religious ceremonial bath. The front and side of the building has a large unpaved parking area and the property is in the process of being landscaped.
The Respondent Town is now claiming the structure is not a synagogue but a community center subject to Town Planning Board approval which was never sought. Hence, at this time, the parties cannot agree on what the building is.
Timothy Dexter, the certified Code Enforcement Officer (hereinafter the CEO) for the Town of Bethel for the last 16 years, has been aware of this project from its inception, has conducted all necessary inspections, approximately three times per week, for the last eight months, and "is ready, willing and able to issue a Certificate of Occupancy to the owner," but was told not to by the Town Supervisor on or about July 10, 2009.
In response to this Court's inquiry at the conclusion of the hearing, Dexter testified unequivocally.
The Town of Bethel, through its retained Engineer, now argues, and for the first time, that the building in question may be unsafe and that it should be classified as a community center, not a House of Worship, which would require Planning Board review and approval.
In the approximately 9 months of construction of the 12,000 square foot building with 35 foot high walls, the Town never intervened or issued a stop work order, although they did require, on July 10, 2009, certain modifications that were fully complied with according to the CEO.
The CEO and the owner's applications classified the building, from its inception, as a synagogue which by State Law does not require Planning Board approval, but does require inspection and approval by the CEO. The Town CEO testified that he has regularly inspected the building during its construction and that the building is being conspicuously constructed on a main street next to State Route 17B which is the main State road through Sullivan County and the Town of Bethel.
Pertinent to this litigation is the Town of Bethel Code sections 135-3 and 135-7.
Town of Bethel Code § 135-3 (A) created the office of Code Enforcement Officer and endowed the Code Enforcement Officer with the powers and duties: " (1) to receive, review and approve or disapprove applications for building permits, certificates of occupancy/certificates of compliance, temporary certificates and operating permits, and the plans, specifications and construction documents submitted with such applications; (2) upon approval of such applications, to issue building permits, certificates of compliance, temporary certificates and operating permits, and to include in building permits, certificates of occupancy/certificates of compliance, temporary certificates and operating permits such terms and conditions as the Code Enforcement Officer may determine to be appropriate; (3) to conduct construction inspections, inspections to be made prior to the issuance of certificates of occupancy/certificates of compliance, temporary certificates and operating permits, firesafety and property maintenance inspections, inspections incidental to the investigation of complaints, and all other inspections required or permitted under any provision of this chapter."
Petitioner submitted an application for a building permit to erect a structure to be used as a house of worship which was intended to replace a small wooden synagogue on Petitioner's premises in order to provide for the religious needs of a growing community of worshipers.
A building permit was granted by the Town of Bethel CEO on 12/23/2008 for a "Community Ctr/Synagogue."
A building permit seeking to modify the original building permit was submitted to the Town of Bethel Building Department and the CEO issued an amended permit on 3/18/2009 for a "Replacement Shul."
Shul, also spelled Schul, is the Yiddish word for Synagogue.
After approximately seven months of massive construction, on July 6, 2009 a meeting with the owner's representatives and the Township (Timothy Dexter, Code Enforcement Officer; B.J. Gettel, Assistant Code Enforcement Officer; Daniel Sturm, Town of Bethel Supervisor), was held. It was agreed by all that if Petitioner submitted additional proof concerning the items described hereafter, the temporary Certificate of Occupancy would be available for pick-up on Friday, July 10, 2009. Petitioner's representative submitted the required documentation and was advised by the Town's CEO that the temporary Certificate of Occupancy for the premises would, in fact, be available on Friday, July 10, 2009.
A letter from the owner's engineer dated July 22, 2009 satisfied the requested information.
Relying upon the Town's representation, Petitioner arranged for all of the religious articles, including, but not limited to, religious artifacts and the Torahs to be moved to the new facility prior to Friday, July 10, 2009. This move was precisely timed to observe the Jewish shabbath and to precede a holy nine-day period in the Jewish religion, which is observed in the synagogue as a prayer and mourning period commemorating the destruction of the Jewish temple in the land of Israel thousands of years ago.
Shabbath is the Jewish equivalent of the Christian Sabbath. The Jewish Shabbath begins at sundown on Friday night, while the Christian Sabbath begins on Sunday morning.
This nine-day period strictly limits devout Jewish observants, as Petitioners are, from many daily activities which would ordinarily be available, including the removal of articles such as described above into the new facility. Sometime, on or about the eve of the day when the Certificate of Occupancy was promised, the Building Inspector, Timothy Dexter, was ordered by the Town Supervisor, not to issue a Certificate of Occupancy. Timothy Dexter, the Code Enforcement Officer, is, in fact, the only public official authorized by law to issue a Certificate of Occupancy, temporary or otherwise. He testified, and his testimony is accepted by this court as credible and worthy of belief, that he saw no reason why a temporary Certificate of Occupancy should not be issued subject, however, to certain limitations, mainly not using the bathroom or basement area which was not fully completed yet.
Petitioners are "Hasidim," an ultra-orthodox Jewish sect.
This court visited the site and took testimony at the site from Respondents' expert engineers, observed the structure, both inside and out, obtained additional testimony from Timothy Dexter at the site and then reconvened the Court to issue a preliminary decision from the bench due to the exigent circumstances of the application, namely that the presentation of the application was made on a Friday, the eve of the Shabbath, with the urgency of the Petitioner's 116 devout Jewish religious families, had no place to conduct their religious worships on that Friday evening, and Saturday, the Shabbath itself, for the religiously important observations.
In Pokoik v. Silsdorf, as Mayor of Vill. of Ocean Beach , 40 NY2d 769 (1976), the motion term annulled a decision of the Town's Board of Appeals and ordered the issuance of a permit. The Appellate Division reversed. The Court of Appeals reinstated the motion term's order and granted the permit, holding that even though the permit had not been issued, the property owner was deprived of the vested right which would exist if a building permit had been issued, but for the inappropriate delay by the Town Board of Appeals. The net holding in that case is that improper delays in processing building permits, etc., is considered appropriate grounds for injunctive relief. Here, the Petitioner has a vested due process and religious interest in the building, which is for the most part fully constructed and ready for religious services.
In Town of Orangetown v. Magee , 88 NY2d 41 (1996), the Court of Appeals held that a property owner under defined circumstances has a "vested right" in the planned construction and in a legally issued permit. In that case, the building permit was issued, but then revoked by the building inspector. "Having acquired a cognizable property interest, due process assures the defendants the right to be free from arbitrary or irrational municipal actions destructive of this interest. . . ." Town of Orangetown refers to federal due process law and agrees that the deprivation of a vested right in a building permit is a violation of due process. It cites Nasierowski Bros. v. City of Sterling Heights , 949 F2d 890 (6th Cir 1991). Orangetown which also holds that there is no requirement to exhaust administrative remedies where there is a violation of due process. Here, even if the Town was content that the Zoning Board of Appeals' approval was necessary, the Town failed to intercede throughout the application and construction process and permitted the petitioner to acquire a "vested right" in the constructed building.
In Brady v. Town of Colchester , 863 F2d 205 (2nd Dept 1988), a permanent Certificate of Occupancy (CO) was issued for the first floor of the building. No CO, temporary or permanent, was issued with respect to the second floor. This is similar to the temporary certificate of occupancy involved in the case at bar and also involved the owner's "property interests" in a CO. In the instant case, the Petitioner has a property interest in a CO when the construction is basically complete for the purposes for which the building was intended.
In DLC Management Corp. v. Town of Hyde Park , 163 F3d 124 (2nd Cir 1998), although the Federal District Court ruled against the property owner on the merits, it confirmed the principle that a court may intervene with respect to the denial or deprivation of building permits or certificates of occupancy. The court first "determin[ed] whether a constitutional cognizable property interest is at stake." The Court held that the party must have a "legitimate claim of entitlement" to the permit as distinguished from a mere abstract need or desire for, or unilateral expectation of the claimed right."
In the case at bar, there was a commitment made by the CEO in the presence of the Town Supervisor that a temporary CO would be issued on a certain date. In the case at bar, the construction was ongoing for over nine months within 500 yards of the Town Hall and next to the major highway in the township. The DLC Management court held, which may be applied in parallel to the case at bar, that in the event of "improper delay[ed] by town officials in an attempt to prevent vesting, the right to an existing [permit] may also vest by equitable estoppel." In the case at bar, the elements of estoppel are clearly present in the concrete and block that was erected to towering heights in the presence of the respondents and CEO. The CEO and Town Supervisor stated that upon compliance by the property owner with four conditions, the temporary CO would be issued on Friday. The building inspector testified that there was immediate compliance with all four conditions. The Town of Bethel Supervisor was thereby estopped from preventing the CEO to issue the promised permit. It must also be noted that the Town Supervisor first began to look for an engineering justification for his actions, post facto, that is, four days after he told the building inspector not to issue the temporary CO.
In Cine v. SK8 Inc. v. Town of Henrietta , 507 F3d 778 (2nd Cir 2007), the Second Circuit discussed a property owner's vested right in "an existing land use benefit." Such "vesting" is usually found where the proper owner "has incurr[ed] substantial expenses to further the development." For all intents and purposes, since the permit in the case at bar was promised, this court may rule as though the permit had actually been issued; hence, the deprivation of the permit might very well constitute a violation of the land owners due process rights. To a certainty, UTA spent over two million dollars in the construction of its shul, which was substantially completed by July 9, 2009. Under the facts of this case, it appears that the Town should be equitably estopped from failing to keep its promise of issuing a temporary Certificate of Occupancy, upon which the UTA relied and for which the Town has no good faith basis fro reneging on its promise.
CPLR § 3613(a) prohibits a Court from issuing a TRO against a public officer, board or municipal corporation of the state to restrain the performance of statutory duties. A Court may issue a TRO against a public officer, board or municipal corporation of the state to force it to perform it's statutory duties. 110 Manno Realty Corp. V Town of Huntington , 61 Misc 2d 702 (NY Cty. Sup. Ct., 1970). Hence, in the case at bar, the CEO is not being enjoined from doing his duty but is being allowed to perform his duty of issuing a temporary Certificate of Occupancy as promised.
CONCLUSIONS OF LAW
This court has jurisdiction to hear this application.
The issue of meeting the test necessary to obtain a preliminary injunction is moot in view of statement by counsel for the Town Board of the Town of Bethel voluntarily withdrawing the stop work order.
The objection of the Respondents with respect to their claim that a Temporary Restraining Order may not be issued against a municipality, as set forth in CPLR Section 6313(a), is not applicable because Petitioner seeks to compel a municipal official to fulfill its duties in accordance with the municipality's code, rather than prevent it from taking certain actions.
The evidence, the site inspection, and the equities as well as the fundamental Federal and State Constitutional rights, favor Petitioner in that there would be irreparable harm by prohibiting Petitioner from exercising its constitutional and fundamental legal right to worship. Whenever the government takes action to prevent citizens from exercising and enjoying their right to recognized worship there is irreparable harm which sets a high standard for the government action. CPLR § 6313(a) cannot, under the circumstances present, be used by the Town of Bethel or any other government to strike down religious freedom.
Respondent Town raises a jurisdictional issue of a TRO being sought against a municipality. However, in this case, there are exigent circumstances based upon the fact that the Town's CEO who is solely authorized with the duties of determining whether a Certificate of Occupancy is to be issued, has made a determination that such certificate should be issued but despite the fact that the Town Supervisor now is preventing the CEO from performing his duties. Thus, this Court will not be restraining the municipality, but allowing the CEO to perform his discretionary and statutory duties which he choices to perform, ie, issuing a temporary Certificate of Occupancy.
Respondent also argues that the Court does not have jurisdiction because Petitioner must first go to the Town's Zoning Board in the process of exhausting administrative remedies prior to coming to this court is misplaced.
In actuality, it is the Town Board which has not exhausted its administrative remedies. The proper procedure herein would have been for the Town of Bethel to appeal the decision of the CEO from issuing a Temporary Certificate of Occupancy after he has done so, by appealing to the Zoning Board of Appeals, and, if not satisfied, then to appeal to the Supreme Court.
The Town of Bethel's own Code at Chapter 345, Zoning § 345-39 states: "B. Hear and decide appeals. The Zoning Board of Appeals may hear and decide appeals where it is alleged that error or misinterpretation in any order, requirement, decision, grant or refusal was made by the Code Enforcement Officer or other administrative official in carrying out or enforcement of the provisions of this chapter or ordinance pursuant thereto."
If the Town is aggrieved by the decision of the Zoning Board of Appeals then their administrative remedies have been exhausted and it may appeal to the Supreme Court pursuant to Article 78 of the CPLR.
Respondents' claim that Petitioner has failed to properly consummate service, is also without merit. Petitioner has, in fact, duly commenced this matter by Order to Show Cause and that the issue of personal service, as raised by Respondents, is premature and, therefore, not applicable to the authority of this court to entertain the Order to Show Cause with a TRO.
Respondent claims that service of the OSC was not proper against the Town and that the affidavit of service by a Private Investigator consists of hearsay. One of the exceptions to the exclusion of hearsay evidence is when there is an admission against interest by the party against whom the evidence is presented. In this case, the affidavit of Michael E. Brennan, Private Investigator, sets forth statements made by the CEO, who is to be deemed a member of the Respondent municipality. Those statements are found by this court to, in fact, be admissions against the interest of Respondent Town and, therefore, admissible as exceptions to the hearsay rule in establishing proper service.
Pursuant to Town of Bethel Code Section 135-7, issuance of Certificates of Occupancy is within the prerogative of the CEO. As a matter of law, Timothy Dexter was, in fact, the CEO with authority to issue or deny a Certificate of Occupancy.
The CEO unequivocally testified that the work was completed in accordance with all applicable provisions of the Uniform Energy Code as to the portion of the premises for which a temporary Certificate of Occupancy was to be issued. A Certificate of Occupancy, pursuant to Section 135-7 may be issued on a temporary basis for a period of time not to exceed six months.
The CEO has the authority, power, and duty to determine whether or not a Certificate of Occupancy should be issued. Pursuant to Section 135-12 of the Town of Bethel, the CEO is charged with reviewing and investigating complaints which allege or assert conditions which fail to comply with the Uniform Code or any other law, ordinance or regulation for the administration and enforcement of the Uniform Court of Energy Code.
The CEO has determined that a temporary Certificate of Occupancy is to be issued and there has been no factual showing by the Township to override the CEO's decision. The concerns of the Engineering Firm retained by the Town are not based upon any observations of the construction process.
Based upon the above, this Court has determined that an Order be issued granting a temporary Certificate of Occupancy with certain conditions be issued by the Town of Bethel's CEO. See, Addendum, Index #2797-09, dated August 20, 2009, attached hereto.
The OSC specifically requested the issuance of a temporary certificate of occupancy by the CEO and a stay of the July 15, 2009 stop work order. The temporary certificate of occupancy, by its terms, dissolves as of September 6, 2009, and the Town has withdrawn that stop work order. However, under the petitioner's request for "[s]uch other and further relief as to the Court may deem just, proper and equitable," the Court will retain jurisdiction of this case, at least (a) with respect to the issues as to whether or not the building constitutes a place of worship, which would be exempt from Planning Board review, or a community center, which is subject to Planning Board review, and (b) with respect to compliance by the petitioner with building code standards such as would entitle it to a permanent certificate of occupancy — the parties will be guided by this Interim Decision and Order.
This shall constitute the Decision and Order of this Court.
ADDENDUM 1
This Court having issued a Decision and Order dated August 20, 2009, and attached hereto, ordering the Town of Bethel Code Enforcement Officer to issue a temporary Certificate of Occupancy in the above captioned matter, and this Court having determined that said temporary Certificate of Occupancy shall be in full force and effect until further order of this Court, and this Court having determined that certain conditions shall be attached to the temporary Certificate of Occupancy, as follows:
a. There are to be no vehicles parked in the area designated as the parking lot or driveway adjacent to the building in question except for construction machinery and/or vehicles.
b. The parking lot is to be restricted by a netting type fence on the side of the structure which faces Schultz Road.
c. Access to the structure in question for occupants is to be restricted to foot access alone.
d. There is to be no use of the structure for sleeping or eating purposes.
e. The lower level of the structure which is composed of a Mikvah and related uses is not to be accessed by occupants of the structure until completely approved by the Town of Bethel Code Enforcement Officer.
f. The doors to the main sanctuary are to be reattached so that they swing outwardly instead of inwardly as required by the building code.
g. The fourth prayer room on the upper level has a door leading to the outside of the building which is to be spot-welded so there is to be no access outside of that door pending further constructions as shall make that door deemed to be safe by the Code Enforcement Officer.
h. All fire exits in the main sanctuary are to be made to swing outwardly as required by the building code.
i. The temporary Certificate of Occupancy which has been authorized by this court shall be in effect until September 6, 2009 pending further proceedings.
This shall constitute the Addendum Order of this Court.