Opinion
13675/10
03-05-2012
In the Matter of the Application of Tuxedo Land Trust, Inc., THOMAS WILSON, MARY F. GRAETZER, ROBERT RENNIE McQUILKIN, JR., PETER REGNA, TORNE VALLEY PRESERVATION ASSOCIATION, and PATRICIA WOOTERS, Petitioners, For a Judgment Pursuant to Article 78 of the CPLR, and a Declaratory Judgment Pursuant to Section 3001 of the CPLR v. The Town of Tuxedo, THE TOWN BOARD OF THE TOWN OF TUXEDO, THE PLANNING BOARD OF THE TOWN OF TUXEDO, DAVID MAIKISCH as BUILDING INSPECTOR OF THE TOWN OF TUXEDO, and TUXEDO RESERVE OWNER, LLC, Respondents.
WHITEMAN OSTERMAN & HANNA LLP Attorneys for petitioners One Commerce Plaza JACOBOWITZ AND GUBITS, LLP Attorneys for respondents, Town of Tuxedo, Town Board of the Town of Tuxedo, Planning Board of the Town of Tuxedo, and David Maikisch as Building Inspector of the Town of Tuxedo SIVE, PAGET & RIESEL, P.C. Attorneys for respondent, Tuxedo Reserve Owner, LLC 460 Park Avenue
WHITEMAN OSTERMAN & HANNA LLP
Attorneys for petitioners
One Commerce Plaza
JACOBOWITZ AND GUBITS, LLP
Attorneys for respondents, Town of Tuxedo, Town Board of the Town of Tuxedo,
Planning Board of the Town of Tuxedo, and David Maikisch as Building
Inspector of the Town of Tuxedo
SIVE, PAGET & RIESEL, P.C.
Attorneys for respondent, Tuxedo Reserve Owner, LLC 460 Park Avenue
, J.
The following documents numbered 1 to 86 were read on these motions (1) by respondents, Town of Tuxedo, Town Board of the Town of Tuxedo (individually hereafter, the "Town Bd"), Planning Board of the Town of Tuxedo (individually hereafter, the "Planning Bd") and David Maikisch as Building Inspector of the Town of Tuxedo (collectively hereafter, the "Town Respondents"), and (2) by respondent Tuxedo Reserve Owner, LLC (hereafter, "TRO"), for orders pursuant to sections 7804(f) and 3211(a) of the Civil Practice Law and Rules dismissing the Verified Petition And Complaint (hereafter, "Petition"):
Notice of Petition - Petition - Exhibits - Affidavits1 - 13
Notice of Motion (Town Respondents) - Affidavits -
Exhibits14 - 59
Notice of Motion (TRO) - Affidavits - Exhibits -
Memorandum of Law60 - 70
Affidavits in opposition - Exhibits -
Memorandum of Law71 - 79
Reply Affirmation (Town Respondents) - Exhibits80 - 85
Reply Memorandum of Law (TRO)86
Upon consideration of all of the foregoing, and for the following reasons, the motions are granted and the Petition is dismissed.
Factual and Procedural Background
Unless otherwise indicated, the following facts are undisputed or alleged in or by petitioners in support of the Petition.
TRO is the owner of approximately 2,400 acres of land in the Town of Tuxedo. TRO's land consists of three irregularly shaped and non-contiguous tracts (hereafter, the "Southern Tract," the "Northern Tract," and the "Fox Hill Tract"), each of which abuts a different portion of the boundary of the Village of Tuxedo Park (hereafter, the "Village") in the Town of Tuxedo. The Southern Tract, largest of the three, abuts a portion of the southeastern boundary of the Village, the Northern Tract abuts a portion of the northwestern boundary of the Village, and the Fox Hill Tract, smallest of the three, abuts a portion of the northeastern boundary of the Village. Sometime prior to 1998, TRO's predecessor in interest applied for approval of a Planned Integrated Development (hereafter, "PID) on said lands to be called Tuxedo Reserve. In 1998 the Town Bd adopted Local Law No. 4A of 1998 (hereafter,"LL4A/98"), which modified the Town's existing laws concerning PIDs but specifically exempted therefrom "[t]he pending application for a [PID] known as Tuxedo Reserve.'" (Section 2 of LL4A/98; a copy of LL4A/98 is annexed to the Town Respondents' Notice Of Motion as Exhibit D, at 12, and the entire text is quoted in the Petition at ¶283).
In 2004, following an environmental review which it conducted as lead agency pursuant to article 8 of the Environmental Conservation Law (also known as the State Environmental Quality Review Act [hereafter, "SEQRA"]), the Town Bd issued to TRO a Special Permit and Preliminary Plan approval (hereafter, the "Special Permit") for Tuxedo Reserve. The Special Permit authorized the construction of dwelling units, all of which were to be located in the Southern Tract, and approximately 266,000 square feet of non-residential space, some of which was to be located in the Northern Tract and some of which was to be located in the Southern Tract. The entire Fox Hill Tract, more than ninety percent of the Northern Tract, and much of the Southern Tract were to be preserved as open space. There were no challenges to any aspect of the SEQRA process or the Special Permit.
In August 2007 the Town Bd granted TRO's application for an amendment to the Special Permit authorizing the addition of approximately five acres of land which were contiguous to the southeastern boundary of the Southern Tract — i.e., the boundary on the other side of the Southern Tract from the boundary that abuts the Village. In February 2008 the Town Bd granted TRO's application for a second amendment which authorized certain waivers from and modifications to the Special Permit with respect to a limited area of development within Tuxedo Reserve. In each instance the Town Bd determined that the preparation of a supplemental environmental impact statement was not required. There were no challenges to any of the Town Bd's determinations or actions concerning either application.
In August 2008, TRO applied for further amendments to the Special Permit. According to the Petition, the application sought amendments "to, among other things, i) allow [TRO] to increase the amount of commercial development to a total of 103,000 square feet in the Southern Tract, ii) alter the type, location and mix of owner-occupied single family homes, multi-family units and active senior housing units . . . , and iii) develop 32-acres within a new development area, previously proposed as permanent open space." (Petition at ¶35). The Town Bd referred the application to the Planning Bd for review. The Planning Bd issued a report to the Town Bd in April 2009, and in June 2009 the Town Bd adopted a resolution, inter alia, requiring TRO to prepare a draft supplemental environmental impact statement (hereafter, "DSEIS") concerning some, but not all, of the proposed amendments. After public hearings and a public comment period on the DSEIS, the Town Bd considered a preliminary final supplemental environmental impact statement and required modifications to the proposed amendments.
As alleged in the Petition, "on September 27, 2010 the full Town Board and Town Planner [for the Town of Tuxedo] met and discussed the Project at a Hampton Inn in Princeton, New Jersey[, t]wo additional meetings of the full Town Board to discuss the Project occurred thereafter later in the day at the Town Hall office of the Township of Robbinsville, New Jersey[, and t]he meetings occurred without any formal published notice whatsoever." (Id. at ¶¶297-299). Also, as alleged in the Petition, "the Town Supervisor [for the Town of Tuxedo], a Town Board member and the Town Planner previously traveled to Florida for the stated purpose of touring a residential project developed by [TRO, and] the travel included accommodations on a private plane, meals and other accommodations provided at [TRO's] expense." (Id. at ¶¶310—311).
In November 2010, the Town Bd accepted a final supplemental environmental impact statement (hereafter, "FSEIS"). On November 22, 2010, the Town Bd determined TRO's August 2008 application and "voted to adopt a SEQRA Findings Statement[, g]rant an amendment to [the Special Permit, a]dopt Local Law 4 of 2010 regarding an amendment of the Zoning Map [within Tuxedo Reserve, and a]dopt Local Law 5 of 2010 regarding an amendment of Local Law 4A of 1999 [sic], to allow the changing of the approved mix of uses [within Tuxedo Reserve]." (Id. at ¶¶219-220). (See Amended And Restated Resolution Granting Special Permit And Preliminary Plan Approval To Tuxedo Reserve [hereafter, the "Restated Permit"], a copy of which is annexed to the Petition as Exhibit A).
On December 22, 2010, petitioners commenced the instant proceeding — a hybrid action for a judgment premised upon CPLR 7803(3) and for a declaratory judgment pursuant to CPLR 3001 — by filing with the court the Petition, in which are pled twelve separately stated and numbered causes of action. As alleged in the Petition: petitioner, Tuxedo Land Trust, Inc. (hereafter, "TLT"), is a not-for-profit corporation which "was formed for the purpose of conserving the natural resources and preserving the community character in and around [the Village]" (Petition at ¶5); petitioner, Thomas Wilson (hereafter, "Wilson"), is a "managing director" of TLT and resides in the Village in property located "in close proximity to the proposed development project" (id. at ¶6); petitioner, Mary F. Graetzer (hereafter, "Graetzer"), is a member of TLT and resides in the Village in property located "in close proximity to the proposed development project" (id. at ¶7); petitioner, Robert Rennie McQuinlkin, Jr. (hereafter, "McQuilkin"), is a member of TLT and resides in the Village in property located "in close proximity to the proposed development project" (id. at ¶8); petitioner, Peter Regna (hereafter, "Regna"), is a "contributor" to TLT and resides in the Village in property located "in close proximity to the proposed development project" (id. at ¶9); petitioner, Torne Valley Preservation Association (hereafter, "TVPA"), is a not-for-profit corporation which "exists to raise awareness and advocate for the protection and preservation of the Ramapo Highlands and the Ramapo River Watershed" (id. at ¶10), and; petitioner, Patricia Wooters (hereafter, "Wooters"), is a member of TLT and TVPA, resides in the Village of Suffern, and "is a property owner and organizational member that [sic] will be adversely impacted by the proposed development project" (id. at ¶11)
Petitioners seek, inter alia, judgment: annulling the determinations and resolutions of the Town Bd concerning the DSEIS, FSEIS, Findings Statement and amendment of the Special Permit; annulling and declaring null and void Local Law No. 4 of 2010 and Local Law No. 5 of 2010 (hereafter, "LL5/10"); declaring that the Town Bd violated section 104 of the Public Officers Law and section 805-a of the General Municipal Law, and; "enjoining and restraining the Planning Board and Building Inspector of the Town of Tuxedo from issuing site plan approval and zoning permits or other permits or approvals permitting any site disturbance, grading, construction or construction-related activity relative to [Tuxedo Reserve]." (See id. at 65-66).
In lieu of serving a pleading responsive to the Petition, the Town Respondents moved to "[d]ismiss plaintiff's [sic] complaint in its entirety pursuant to CPLR 7804(f) and CPLR 3211(a)" (Notice Of Motion [hereafter,"Town NOM"] at 1) and TRO moved "for an Order, pursuant to Civil Practice Law and Rules §§ 3211(a) and 7804(f) dismissing the Verified Petition (Notice Of Motion To Dismiss Of Tuxedo Reserve Owner, LLC [hereafter, "TRO NOM"] at 1). Movants allege several grounds for dismissal, including that petitioners lack standing to assert any claim under SEQRA (see CPLR 3211[a][3]), that some of petitioners' SEQRA claims are barred by the applicable statute of limitations (see CPLR 3211[a][5]) and that the Petition fails to state a cause of action (see CPLR 3211[a][7]). Petitioners oppose both motions.
Discussion
Motions to Dismiss for Lack of Standing
In their first five causes of action petitioners allege that the environmental review that culminated in the Town Bd's acceptance of the FSEIS and adoption of the Findings Statement was deficient and violated many of the provisions of SEQRA; in their twelfth cause of action petitioners seek injunctive relief based upon said SEQRA violations. Those causes of action are dismissed pursuant to CPLR 3211(a)(3) because petitioners have failed to prove that any of them have standing to assert their claims under SEQRA.
In order to assert a claim that an administrative body has failed to comply with or acted in contravention of SEQRA a petitioner "must show that the in-fact injury of which it complains . . . falls within the zone of interests,'" which SEQRA seeks to promote or protect, and "that it would suffer direct harm, injury that is in some way different from that of the public at large." Socy. of Plastics Indus., Inc. v County of Suffolk, 77 NY2d 761, 772-775 (1991) (internal citations omitted). Further, the injury must be environmental in nature. See Matter of Mobil Oil Corp. v Syracuse Indus. Dev. Agency, 76 NY2d 428, 433 (1990).
Persons or entities whose properties are in close proximity to the site of the project to which the administrative action or noncompliance relates "are the beneficiaries of a presumption that they are adversely affected by the alleged SEQRA violation and, accordingly, need not allege a specific harm." Matter of Long Island Pine Barrens Socy., Inc. v Planning Bd. of the Town of Brookhaven, 213 AD2d 484, 485 (2nd Dep't 1995). Landowners seeking said benefit have "the burden of coming forward with competent evidence to support a finding that their property is located in the immediate vicinity of the [the site]." Matter of Piela v Van Voris, 229 AD2d 94, 95 (3rd Dep't 1997). Moreover, because the action which allegedly caused them harm was the Town Bd's deficient environmental review in its determination of TRO's August 2008 application for amendments to the Special Permit, petitioners in the instant proceeding must demonstrate that their injuries were the result of that determination (hereafter, the "Action"), not some other or prior alleged nonfeasance or misfeasance. And to the extent that any of the petitioners are alleged to have sustained injuries based upon the Action such injuries were the result of the relocation of a specific residential development to an area previously proposed as open space within the Southern Tract (hereafter, the "Mountain Lake Development"), an increase in the amount of commercial space permitted in another part of the Southern Tract and a change in the mix of the types of housing units permitted throughout the Southern Tract. (See Petition at 9). Thus, to be entitled to the close proximity presumption petitioners had the burden to produce competent evidence that their properties are located in the immediate vicinity of one of those specific areas within the Southern Tract. Petitioners have not satisfied that burden.
Thus, petitioners may not rely upon injuries they allegedly sustained as a consequence of alleged deficiencies in the environmental review that culminated in the Town Bd's determination approving the Special Permit in 2004 or as a consequence of alleged SEQRA violations committed in its determinations granting TRO's applications for amendments in August 2007 and February 2008. Indeed, any claims based upon such deficiencies or violations would have been time-barred long before the Petition was filed in December 2010 (see CPLR 217[1] ["a proceeding against a body of officer must be commenced within four months after the determination to be reviewed becomes final and binding upon the petitioner"]) and petitioners can not reanimate those purported claims by commingling them with timely ones.
Neither TLT nor TVPA is entitled to the benefit of the presumption. There is no allegation that TLT or TVPA are the owners of any real property. Rather, TLT and TVPA allege that they are entitled to associational standing. For an entity to have associational standing it must establish three elements, and "the key determination to be made is whether one or more of its members would have standing." Socy. of Plastics Indus., Inc. v County of Suffolk, 77 NY2d at 775. Wilson, Graetzer, McQuinlin and Wooters are the only persons identified in the Petition as members of TLT, and Wooters is the only person identified as a member of TVPA. And there is no allegation that any member of TLT or TVPA other than said petitioners would have standing in her or his own right. Therefore, TLT has standing to challenge the determinations at issue herein only if Wilson, Graetzer, McQuilkin or Wooters has personal standing, and TVPA has standing only if Wooters has personal standing. See Matter of Bloodgood v Town of Huntington, 58 AD3d 619, 622 (2nd Dep't 2009).
An association must also establish "that the interests it asserts are germane to its purposes," and "that neither the asserted claim nor the appropriate relief requires the participation of the individual members." Socy. of Plastics Indus., Inc. v County of Suffolk, 77 NY2d at 775. TVPA has failed to establish that the interests it asserts in the instant proceeding are germane to its purposes as alleged in the Petition. However, TVPA lacks standing in any event because Wooters lacks standing in her own right.
None of the individual petitioners is entitled to the benefit of a presumption that they are adversely affected by the Action. While each of the individual petitioners allege that she or he is the owner of property located either in the Village or another neighboring municipality, McQuilkin, Regna and Wooters do not even allege, much less submit evidence, that their properties are located in the immediate vicinity of the Southern Tract. Wilson alleges that his "house is located across the street from the Southern Tract," and "less than a half a mile away from the boundary of the proposed [Mountain Lake D]evelopment" (Affidavit Of Thomas Wilson, submitted in opposition to motions to dismiss [hereafter, "Wilson Opp Aff"], at ¶6) and Graetzer alleges that her "residence is located . . . less than 660 feet from the northern boundary of the Southern Tract" (Affidavit Of Mary F. Graetzer, submitted in opposition to motions to dismiss [hereafter, "Graetzer Opp Aff"], at ¶3). But neither property is in the immediate vicinity of the site(s) at issue to the extent that the owners of said properties would be entitled to the benefit of a presumption that they would be adversely affected by the Action.
Indeed, the only evidence of the locations of petitioners' properties relative to the Southern Tract and the Mountain Lake Development is a "Proximity Map" — the accuracy of which petitioners do not challenge — which was prepared by, and submitted in support of the instant motion as an exhibit to the affidavit of, an expert who had been retained by the Town Bd and the Planning Bd to assist them in their consideration and evaluation of Tuxedo Reserve. (See Affidavit Of Bonnie Franson [hereafter, "Franson Aff"], Exhibit B). As shown on the Proximity Map, the northeastern corner of the Southern Tract curls inward like a fishhook, which comes to a point on the opposite side of a Village street from the northern boundary of Wilson's property. But the entire boundary between the Southern Tract and the Village is defined by a wide swath of preserved open space called the Conservation Buffer, which actually thickens at that fishhook, and the nearest boundary of the envelope of the Mountain Lake Development lies to the south of Wilson's property, across an area within the Village, the Conservation Buffer and an additional expanse of preserved open space within the Southern Tract. Graetzer's property is located to the northwest of Wilson's property, farther from the boundaries of both the Southern Tract and the envelope of the Mountain Lake Development; the properties of the other individual petitioners lie farther still from said boundaries. In sum, as shown on the Proximity Map none of the properties is located in the immediate vicinity of the site(s) to which the Action relates, and petitioners have failed to come forward with competent evidence to the contrary. Therefore, petitioners are not entitled to the benefit of a presumption that any of them are adversely affected by the Action. See Matter of Piela v Van Voris, 229 AD2d at 95
Consequently, in order to establish standing each individual petitioner must demonstrate that as a result of the Action she or he would suffer an environmental injury which is in some way different from that of the public at large. See Matter of Long Island Pine Barrens Socy., Inc. v Planning Bd. of the Town of Brookhaven, 213 AD2d at 485. And where, as here, the issue of standing is disputed, "perfunctory allegations of harm" are insufficient; petitioners "must prove (emphasis added) that their injury is real and different from the injury most members of the public face." Matter of Save the Pine Bush, Inc. v Common Council of City of Albany (hereafter, "City of Albany"), 13 NY3d 297, 306 (2009). Petitioners have not satisfied their burden of proof.
The injuries which petitioners allege they would suffer as a result of the Action consist principally of: (1) impacts from increased vehicular traffic; (2) pollution of drinking water, and; (3) the diminution of their enjoyment of the "historic, quaint character of Tuxedo Park" (Affidavit [of Thomas Wilson] In Support Of Verified Petition at ¶11), walks along the historically significant Continental Road (see, e.g., id. at ¶9), the natural beauty of "rock shelters" located near the Mountain Lake Development site (see, e.g., Wilson Opp Aff at ¶15) and of a site called Claudius Smith's Cave in Harriman State Park (see Affidavit [of Patricia Wooters] In Support Of Verified Petition at ¶10), hikes along what is referred to as the Eagle Mountain Hiking Trail and boating on Tuxedo Lake (see Affidavit [of Peter James Regna] In Support Of Verified Petition [hereafter, "Regna Aff"] at ¶¶9, 10), and their observation and appreciation of certain species of flora and fauna (see, e.g., Graetzer Opp Aff at ¶6).
Petitioners have failed to satisfy their burden of proof as to alleged impacts from vehicular traffic. If developed to its fullest, Tuxedo Reserve would have no direct impact upon roadways within the Village, which are private roads and can not be accessed from any of the three tracts. Petitioners contend, however, that Tuxedo Reserve will have an impact on vehicular traffic to and from their properties because one of the means of access to the Village would also be the primary means of access to the Southern Tract. But the means of access to which petitioners refer is New York State Route 17, and the Village and the Southern Tract would be reached by different exits from that thoroughfare. (See, e.g., Proximity Map). Nor do petitioners offer any evidence that additional traffic from either a fully-developed Tuxedo Reserve or, more to the point, the changes wrought by the Action would so overburden Route 17 as to have a significant environmental impact. Furthermore, any injury suffered by petitioners would be no different from that suffered by all Village residents or indeed anyone traveling on Route 17. Therefore, petitioners have failed to satisfy their burden to prove that as a result of vehicular traffic impacts caused by the Action any of them would suffer an injury in fact of an environmental nature and that said injury would be different from that of the public at large. See City of Albany, 13 NY3d at 306.
Petitioners have failed to satisfy their burden of proof as to alleged water pollution. The Mountain Lake Development is so called because of its proximity to a body of water that is wholly located within the Southern Tract. Petitioners allege that Tuxedo Lake, a different body of water, located within the Village and no part of which is located in Tuxedo Reserve, "is the Village of Tuxedo's [sic] sole drinking water resource." (Petition at ¶185). Petitioners also allege, "that the newly proposed Mountain Lake neighborhood is situated directly over a major groundwater-bearing fracture system" (id. at ¶187), and that storm water runoff therefrom would discharge pollutants to the fracture system and eventually contaminate both the Tuxedo Lake watershed and the Ramapo River, which is allegedly "a drinking water supply for hundreds of thousands of people in New York and New Jersey" (id. at ¶189). Petitioners have submitted no evidence in support of their allegations of pollutant discharge and contamination, but even assuming the truth thereof the injury which each individual petitioner would suffer as a result is precisely the same as would be suffered by every other Village resident and every other person for whom the Ramapo River is a source of drinking water. Such generalized allegations of impact to a public drinking water supply are insufficient to establish standing to assert a SEQRA claim. See Matter of Shelter Is. Assn. v Zoning Bd. of Appeals of Town of Shelter Is., 57 AD3d 907, 909 (2nd Dep't 2008) lv dismissed and denied 12 NY3d 797 (2009); Matter of Long Is. Pine Barrens Socy. v Planning Bd. of the Town of Brookhaven,213 AD2d at 485-486.
As far as this Court can determine, there is no "Village of Tuxedo," either in the Town of Tuxedo or anywhere in New York State. It is apparent from affidavits submitted in support of the Petition that the Village to which the Petition refers is the Village of Tuxedo Park. (See, e.g., Graetzer Opp Aff at ¶¶3-5).
Petitioners have failed to satisfy their burden of proof as to the alleged diminution of their enjoyment of natural and cultural resources. The preservation of natural and cultural resources —such as wildlife habitats, natural rock formations or man-made roads, trails and structures of historic significance — is within the zone of interests which SEQRA seeks to promote and protect, and the diminution of one's enjoyment of such a resource may constitute an environmental injury that can confer standing. See City of Albany, 13 NY3d at 305-306. But, as with any environmental injury, a person seeking to assert a SEQRA claim on the basis of such harm must prove that she would be injured in fact and that said injury would be different from that of the public at large.See id.13 NY3d at 306. Thus, to establish standing a petitioner must prove that the action of which she complains would have an adverse impact upon a particular resource, and that her use of said resource is "repeated not rare or isolated" (id., 13 NY3d at 305) to such a degree that the adverse impact would for her constitute "an injury distinct from the public in the particular circumstances" (Matter of Citizens Emergency Comm. to Preserve Preserv. v Tierney, 70 AD3d 576 (1st Dep't 2010). Petitioners have proven neither part of this equation.
Most, and in some instances all, of the individual petitioners allege they will suffer the same harms as a result of changes wrought by the Action. However, with one exception, petitioners' allegations of injury to natural and cultural resources due to said changes are speculative and conclusory, and all lack any evidentiary support. There is no evidence that the allegedly larger number of residents and users of commercial space in the Southern Tract would have any effect upon the Village, much less degrade or mar its "historic, quaint character." There is no evidence that the construction or occupancy of the Mountain Lake Development would have any effect upon the state of the Continental Road, much less impair petitioners' access to, ability to walk along or enjoyment of, that portion of the road located in the Village. Nor is there any evidence that such construction or occupancy would have any impact upon boating on Tuxedo Lake, all of which is located within the Village, or the Eagle Mountain Hiking Trail, or that it would destroy any "rare plant species known to exist on the Project site" (Graetzer Opp Aff at ¶6), and which species petitioners fail even to identify. And there is no evidence to support petitioners' purported fears that future residents of or visitors to the Mountain Lake Development would vandalize the "rock shelters" or Claudius Smith's Cave. The sole exception to this litany of rank speculations are the allegations in the Petition that the new location of the Mountain Lake Development would disturb the habitat of various species of wildlife, particularly the dens and migratory corridors of the Copperhead snake and the Timber Rattlesnake, but those allegations are based entirely upon statements in the DSEIS and FSEIS which were prepared during the environmental review that culminated in the Action (see Petition at 26-31); petitioners have submitted no evidence that changes wrought by the Action would in fact have an adverse impact upon these species.
As petitioners concede, none of them would have a right of access to any portion of the Continental Road located in Tuxedo Reserve regardless of the Action. (See, e.g., Wilson Opp Aff at ¶14).
Indeed, petitioners fail even to allege where the Eagle Mountain Hiking Trail is located; although if, as Regna alleges, it is "nearby" his property, which is "adjacent to Tuxedo Lake" (see Rena Aff at ¶9) on the shore opposite from the Southern Tract (see Proximity Map), the hiking trail is approximately one and one-half miles from the nearest boundary of the envelope of the Mountain Lake Development (see id.)
Moreover, petitioners have failed to prove that any of the injuries they would suffer due to the alleged impacts to said natural and cultural resources would be different from that of the public at large. Each of the individual petitioners allege that she or he has often availed herself or himself of one or more of said resources. But they do not allege, much less submit evidence, that they do so any more frequently or with any greater enthusiasm, inquisitiveness or concern than any other person with physical access to the same resources. In short, petitioners allege at most interests in these resources which are not uncommon among other residents of the Village and other users of the resources located therein, and other visitors to Harriman State Park. However, " interest' and injury' are not synonymous. A general — or even a special — interest in the subject matter is insufficient to confer standing, absent an injury distinct from the public in the particular circumstances." Matter of Citizens Emergency Comm. to Preserve Preserv. v Tierney, 70 AD3d at 576 (internal citations omitted); see also City of Albany, 13 NY3d at306 (holding that standing to assert a SEQRA claim based upon an impact upon a natural or cultural resource "requir[es] a demonstration that a plaintiff's use of a resource is more than that of the general public"); Matter of Save the Pine Bush, Inc. v Planning Bd. of the Town of Clifton Park, 50 AD3d 1296, 1297 (3rd Dep't 2008) lv denied 10 NY3d 716 (2008) (holding that the petitioners' enjoyment in observing a rare species of butterfly in its natural habitat was "no different than the interest enjoyed by the public at large," so that the impact upon such activity as a result of the proposed development "does not establish the specific environmental injury' [source of quotation omitted] that confers standing under [SEQRA]"). Thus, petitioners have failed to satisfy their burden to prove that any of the injuries they would suffer would be different from that of the public at large.
Therefore, none of the persons or entities named as petitioners in the Petition has standing to assert their claims under SEQRA as alleged in the first through fifth, and twelfth causes of action, which causes of action are dismissed pursuant to CPLR 3211(a)(3).
Motions to Dismiss for Failure to State a Cause of Action
"On a motion pursuant to CPLR 3211(a)(7) and 7804(f), only the petition is considered, all of its allegations are deemed true, and the petitioner is accorded the benefit of every possible inference." Matter of Brown v Foster, 73 AD3d 917, 918 (2nd Dep't 2010) lv denied 15 NY3d 710 (2010). On such a motion, "The court is to determine only whether the facts as alleged fit within any cognizable legal theory. [However, w]hen evidentiary material is adduced in support of the motion, the court must determine whether the proponent of the pleading has a cause of action, not whether the proponent has stated one." Thomas v LaSalle Bank N.A., 79 AD3d 1015, 1017 (2nd Dep't 2010) (internal citations omitted).
Sixth Cause of Action
The sixth cause of action is dismissed pursuant to CPLR 3211(a)(7) because petitioners do not have a cause of action. Petitioners' claim that LL5/10 was illegally adopted was based upon language therein which erroneously referred to "Local Law No. 4A of 1999" rather than "Local Law No. 4A of 1998," the actual law amended by LL5/10. The Town Respondents have submitted proof that this error has since been corrected. (See Reply Affirmation (of Larry Wolinsky, Esq.) at ¶¶44-48, and Exhibit B annexed thereto). Therefore, whatever cause of action petitioners may have had is now moot.
Seventh Cause of Action
The seventh cause of action is dismissed pursuant to CPLR 3211(a)(7) because it fails to state a cause of action. In support of the allegations made in their seventh cause of action petitioners argue that the "pending application" identified in Section 2 of LL4A/98, referred only to the application which the Town Bd determined in 2004 — i.e., the Special Permit — not to any of TRO's subsequent applications for amendments to the Special Permit. Therefore, petitioners contend, while the original application was exempted from the modifications to the PID law enacted by LL4A/98, the subsequent applications had to be determined pursuant to the LL4A/98 modifications; and since the Town Bd applied pre-LL4A/98 rather than post-LL4A/98 terms of the PID law to those applications, its determinations thereof were unlawful. Petitioners' allegations do not state a cause of action.
To begin with, it is not at all clear that the language of Section 2 of LL4A/98 limited the "pending application" to which it referred only to those submissions that resulted in the Special Permit, or that such was the Town Bd's intent in adopting Section 2. Indeed, the first sentence of Section 2 describes the "pending application" exempted from LL4A/98 as one "for a [PID] known as Tuxedo Reserve'" — in other words, an application for permission to construct on TRO's property a PID called Tuxedo Reserve. And in adopting LL5/10 the Town Bd found specifically "that it is in the public interest to continue to godfather Tuxedo Reserve [emphasis added] under the pre-[L4A/98] zoning regulations governing [PIDs] and to change the minimum number of required number of single family detached and semidetached units." (LL5/10, a copy of which is annexed as Appendix G, to Exhibit A to the Petition, at 1). Consequently, the application at issue remained, and will remain, "pending" until the construction of Tuxedo Reserve is accomplished — despite that said development as ultimately constructed may differ from that envisioned in the original submissions. However, even assuming that not to be the case, petitioners fail to state a cause of action.
As petitioners construe it, the "pending application" language prohibited all future Town Bds that might be called upon to consider another application concerning any aspect of Tuxedo Reserve from exempting such application from the post-LL4A/98 terms of the PID law. The merit of petitioners' construction is dependent upon the precept that at any point in its history a legislative body may hold its pronouncements inviolate and thereby bind all future iterations of that legislative body to its will. But petitioners fail to cite, and this Court is unaware of, any authority for such a principle. Nor do petitioners allege that the Town Bd's failures to abide by the purported prohibition in Section 2 violated any provision of the federal or state constitutions, the town charter, or any provision of federal or state law. Petitioners' bare legal conclusions do not fit within any cognizable theory and are insufficient to make out a claim that the Town Bd's determinations of TRO's applications for amendments to the Special Permit were unlawful. See Matter of Brown v Foster, 73 AD3d at 918. Therefore, the seventh cause of action is dismissed pursuant to CPLR 3211(a)(7) for failure to state a cause of action.
Eighth Cause of Action
The eighth cause of action is dismissed pursuant to CPLR 3211(a)(7) because petitioners do not have a cause of action. Petitioners allege that during the trip which members of the Town Bd took to New Jersey in September 2010, meetings were held which were neither "publicly noticed" nor "open to the public" in violation of "section 104 of the Public Officers Law (the Open Meetings Law' )." (See Petition at ¶¶297-305). Therefore, petitioners argue, the various enactments related to Tuxedo Reserve which the Town Bd adopted thereafter "should be null and void." (Id. at ¶308). In support of their motion to dismiss, the Town Respondents have submitted the affidavits of each member of the Town Bd, all of whom were present in New Jersey on the date in question. (See Affidavits of Peter Dolan [hereafter, "Dolan Aff"], Lisa Spivak [hereafter, "Spivak Aff"], Thomas Darling, Gary Phelps and Cliff Loncar). In said affidavits it is alleged that the board members were "interested in and concerned about the . . . projected fiscal impacts [of Tuxedo Reserve] and wanted to find a similar planned community to see what the community's actual experience was with the municipal cost to serve a development of this type." (Dolan Aff at ¶21). A similar development had previously been constructed in Robbinsonville Township, New Jersey, so the board members traveled there to speak with the municipal officials by whom that development had been approved. (See, e.g., id. at ¶22). Each of the board members alleges that, upon the advice of counsel, during the trip they "did not discuss the Tuxedo Reserve project or otherwise conduct public business." (Id., e.g., at ¶¶23-27). Petitioners have not submitted any evidentiary material which controverts the board members' allegations.
See Public Officers Law art. 7 (also known as and referred to hereafter as the "Open Meetings Law"). Moreover, Public Officers Law 104 concerns only public notice, while section 103, which petitioners fail to invoke, concerns open meetings.
"The cornerstone of the Open Meetings Law is that decisions made by public bodies should be made publicly. The Open Meetings Law is violated when a quorum of a public body holds a private meeting for the purpose of transacting public business, thus making unavailable for public scrutiny that body's deliberative process." Matter of MCI Telecommunications Corp. v Pub. Serv. Commn. of the State of New York, 231 AD2d 284, 290 (3rd Dep't 1997) (internal citations omitted). If a court determines that a public body has violated the Open Meetings Law the court has "the power, in its discretion, upon good cause shown, to declare . . . the action taken in relation to such violation void." Public Officers Law 107(1). However, a trip undertaken by the members of a public body to gather information that will provide them with a greater understanding of the issues involved in their determination of an application before them does not violate the Open Meetings Law. See Matter of City of New Rochelle v Pub. Serv. Commn. of the State of New York, 150 AD2d 441 (2nd Dep't 1989) appeal denied 74 NY2d 610 (1989). Nor do conclusory and speculative allegations that a violation occurred make out a claim for voiding an action, particularly where, as in the instant proceeding, the petitioners fail to assert any facts controverting the members' sworn allegations that there was no violation. See Matter of Gernatt Asphalt Prods., Inc. v Town of Sardinia, 87 NY2d 668, 687 (1996); Matter of MCI Telecommunications Corp. v Pub. Serv. Commn. of the State of New York, 231 AD2d at 290; Mobil Oil Corp. v City of Syracuse Indus. Dev. Agency, 224 AD2d 15, 29 (4th Dep't 1996) lv denied 89 NY2d 811 (1997). Therefore, the eighth cause of action is dismissed pursuant to CPLR 3211(a)(7) because petitioners do not have a cause of action for a violation of the Open Meetings Law.
Ninth Cause of Action
The ninth cause of action is dismissed pursuant to CPLR 3211(a)(7) because it fails to state a cause of action. Petitioners allege that on some unspecified occasion the Town Supervisor, the Town Planner, and a member of the Town Bd traveled to and were provided accommodations in Florida at TRO's expense, and that such travel and accommodations constituted "impermissible gifts" in violation of General Municipal Law 805-a(1)(a). (See Petition at ¶¶310-314). Therefore, petitioners contend, "the proper remedy" would be to declare the various enactments related to Tuxedo Reserve "void pursuant to General Municipal Law section 805-a." (Id. at ¶316). In support of their motion to dismiss, the Town Respondents have submitted the affidavits of each of the three town officials who made the trip to which petitioners refer. (See Franson Aff, Dolan Aff, and Spivak Aff). In said affidavits it is alleged that on January 29, 2007, the three officials traveled to Florida aboard an airplane chartered by TRO to tour four existing planned communities which were similar to the type of development contemplated for Tuxedo Reserve, that while in Florida they "were provided sandwiches, soda and chips for lunch," and that they returned to New York the same day (see, e.g., Franson Aff at ¶¶29-31); it is also alleged that the trip did not "result in a more favorable attitude toward Tuxedo Reserve" (Spivak Aff at ¶18). Petitioners have not submitted any evidentiary material which controverts the officials' allegations.
Even assuming, arguendo, that the travel and/or snacks constituted "gifts" within the meaning of General Municipal Law 805-a(1)(a), there is no statutory provision pursuant to which a private person has standing to enforce its mandate. Compare with Public Officers Law 107(1). And the only remedies delineated in the statute for violations of its provisions are the imposition of a fine, suspension or removal from office. See General Municipal Law 805-a(2). Therefore, there is no cause of action to void the determination of a municipal body based upon allegations that one or more of its members violated subsection (1)(a). Cf. Matter of Cahn v Planning Bd. of Town of Gardiner, 157 AD2d 252, 259 (3rd Dep't 1990) (concerning General Municipal Law 805-a[1][c]); Friedhaber v Town Bd. of Town of Sheldon, 16 Misc 3d 1140(A), 851 N.Y.S.2d 58 (S. Ct. Wyoming Co. 2007) (concerning General Municipal Law 809) affd 59 AD3d 1006 (4th Dep't 2009).
Arguably, there may be a cause of action to void such a determination based upon allegations that a voting member(s) of the municipal body should have been disqualified due to a perceived conflict of interest which was likely to have unduly influenced or otherwise tainted the proceedings which resulted in the determination. See Matter of Cahn v Planning Bd. of Town of Gardiner,157 AD2d at 259. But the conduct of which petitioners complain does not rise to the level of a conflict of interest, much less one that was likely to have unduly influenced or otherwise tainted the Town Bd's determination of TRO's applications; indeed, petitioners have failed even to controvert the sworn allegations of the officials involved that they were not personally influenced. Compare with Matter of Schweichler v Vill. of Caledonia, 45 AD3d 1281, 1283-1284 (4th Dep't 2007) (holding that planning board's approval of site plan had to be annulled where three voting members had previously "signed a petition in favor of the rezoning and the project"); Matter of Zagoreos v Conklin, 109 AD2d 281, 286-288 (2nd Dep't 1985) (holding that determination was correctly set aside where three voting members were also applicant's employees because "the likelihood that their employment . . . could have influenced their judgment is simply too great to ignore"); Matter of Tuxedo Conservation & Taxpayers Assn. v Town Bd. of Town of Tuxedo, 69 AD2d 320, 323-327 (2nd Dep't 1979) (holding that determination was correctly set aside where voting member was employed by entity that did business with applicant and would likely benefit financially if application granted). Therefore, even if petitioners had alleged that the circumstances surrounding the trip to Florida created the perception of a conflict of interest, rather than a violation of General Municipal Law 805-a(1)(a), their ninth cause of action would be dismissed pursuant to CPLR 3211(a)(7) in any event because petitioners' allegations are insufficient to make out a claim for the relief sought.
Tenth Cause of Action
The tenth cause of action is dismissed pursuant to CPLR 3211(a)(7) because petitioners do not have a cause of action. Petitioners allege that LL5/10 and the Restated Permit "seek to limit the authority of future Town Boards and, together, constitute impermissible contract zoning." (Petition at ¶318). In New York, the power of a municipality to regulate the use of land within its borders through zoning is limited to that vested in its legislature by state law. See Town Law art. 16; BLF Assocs., LLC v Town of Hempstead, 59 AD3d 51, 54-55 (2nd Dep't 2008) lv denied 12 NY3d 714 (2009). "[A] Legislature cannot bargain away or sell its powers" (Church v Town of Islip, 8 NY2d 254, 259 [1960]) , or "make contracts that control or limit it in the exercise of its legislative powers and duties" (Collard v Inc. Vill. Of Flower Hill, 52 NY2d 594, 601 [1981]). Thus, an agreement whereby a legislature binds itself in advance to exercise its zoning authority in the future for the benefit of a landowner upon the landowner's provision of a consideration would be unlawful, and an ordinance enacted pursuant to such an agreement may be subject to attack on the ground that the enactment constitutes zoning by contract. See, e.g., Citizens to Save Minnewaska v New Paltz Cent. School Dist., 95 AD2d 532, 534 (3rd Dep't 1983) appeal dismissed 61 NY2d 853 (1984); Levine v Town of Oyster Bay, 26 AD2d 583 (2nd Dep't 1966).
Petitioners contend that several provisions of the Restated Permit evince that there was such a contract between the Town Bd and TRO. The provisions to which petitioners refer concerned conditions imposed by the Town Bd following its review of TRO's August 2008 application including, for example, the leasing and licensing to the Town of space within Tuxedo Reserve (see Petition at ¶320), the donation to the Town of land owned by TRO both within and without Tuxedo Reserve (see id.), the donation of land to the Village subject to a conservation easement (see id. at ¶321), that TRO would offer for dedication only certain roads within Tuxedo Reserve (see id. at ¶320), and that the Restated Permit "is to be recorded in the chain of title to the property and, by its own terms, runs with the land'" (id. at ¶324). Petitioners also complain that TRO's obligations to fulfill some of those conditions were triggered by its receipt of building permits (see id. at ¶322) or certificates of occupancy (see id. at ¶320).
However, "conditions per se do not void zoning amendments." Levine v Town of Oyster Bay, 26 AD2d at 583 (citing Church v Town of Islip, supra); see also Cram v Town of Geneva,190 AD2d 1028 (4th Dep't 1993). And it is not unlawful for a municipality to require that an applicant donate land or property rights or record a restrictive covenant — even if the applicant's obligation to do so is conditioned upon its receipt of necessary approvals — so long as the municipality had not committed itself to a specific course of action with respect to the zoning amendment as consideration therefor. See Matter of DePaolo v Town of Ithaca, 258 AD2d 68, 71 (3rd Dep't 1999) lv denied 94 NY2d 751 (1999) (holding that there was no contract zoning because, "[w]hile [applicant's] grant of the license to the Town was conditioned upon its receipt of all approvals required for the project, including rezoning, no provision in the agreement obligated the Town to issue such approvals or approve [applicant's] rezoning application"); cf. Strasbourg Realty Co. v City of New York, 193 AD2d 358 (1st Dep't 1993) (holding that where zoning amendment was adopted on condition that applicant execute a restrictive covenant, the covenant was enforceable). Absent proof of such an agreement the amendment must be upheld against a contract zoning challenge, and the imposition of conditions in the legislation itself does not constitute such proof. See Collard v Inc. Vill. of Flower Hill, 52 NY2d at 601.
Compare DePaolo and Strasburg with Citizens to Save Minnewaska v New Paltz Cent. School Dist., 95 AD2d at 533 (holding that tax exemption was null and void where it was enacted one day after applicant submitted written offer to make payment in lieu of taxes if legislature passed a resolution to affirmatively recommend the exemption).
There is no language in the Restated Permit or LL5/10 — nor have petitioners submitted any other evidence — which would indicate that the Town Bd had committed itself to the determinations delineated in the Restated Permit and LL5/10 before it actually adopted those enactments on November 22, 2010, or as consideration for any obligations imposed upon TRO. Therefore, the tenth cause of action is dismissed pursuant to CPLR 3211(a)(7) because petitioners do not have a cause of action that LL5/10 or the Restated Permit constitute contract zoning.
Eleventh Cause of Action
The eleventh cause of action is dismissed pursuant to CPLR 3211(a)(7) because petitioners do not have a cause of action. In their eleventh cause of action petitioners actually allege two separate claims: (1) that LL5/10 and the Restated Permit "issued under the [pre-LL4A/98] PID law violates Town Law section 262 by creating a special district with different regulations applicable only to the Tuxedo Reserve property" (id. at ¶332), and (2) that LL5/10 and the Restated Permit constitute "illegal spot zoning" because "the application of the [pre-LL4A/98] PID law to the Project site has been done solely to benefit [TRO]" (id. at ¶¶334, 335).
Neither LL5/10 nor the Restated Permit violate Town Law 262. Among other things, Town Law 262 requires that all land use regulations within a designated zoning district "shall be uniform for each class or kind of buildings, [sic] throughout such district." This uniformity mandate "is intended to assure property holders that all owners in the same district will be treated alike and that there will be no improper discrimination." Matter of Augenblick v Town of Cortlandt, 104 AD2d 806, 814 (2nd Dep't 1984) (Lazer, J.P., dissenting) revd (66 NY2d 775, 777 (1985) ("Order reversed . . . and petition granted for the reasons stated in the dissenting memorandum by Justice Leon D. Lazer at the Appellate Division"). Petitioners' contentions to the contrary notwithstanding, section 262 does not require that "Zoning District regulations shall be uniform for all Districts within the Town" (Petition at ¶327), but that such regulations shall be uniform for all properties located within the same specific district. See Town Law 262 ("the regulations in one district may differ from those in other districts"); Matter of Green Point Sav. Bank v Bd. of Zoning Appeals of the Town of Hempstead, 281 NY 534, 540 (1939); cf. Klebetz v Town of Ramapo, 109 Misc 2d 952, 954-955 (S. Ct. Rockland Co. 1981) (opining that uniformity is required for all properties located within all zoning districts of the same classification). The lands comprising Tuxedo Reserve are located within several zoning districts, involving several different classifications — e.g., R-1, R-2, R-4 — and the regulations applicable within each of those specific districts are uniform for all of the properties located therein. Evidentiary material adduced in support of the instant motions establishes that the continuing exemption of Tuxedo Reserve from the pre-LL4A/98, PID law of which petitioners complain does not impose regulations on any property which are different from or inconsistent with those imposed on any other property located within the same district. Therefore, neither LL5/10 or the Restated Permit violate the uniformity mandate of Town Law 262.
In the Petition, the terms, "District," with an uppercase "D," and "Zoning District," with an uppercase "Z" and "D," first appear at paragraph 327, where they are used without reference to any specific zoning district or particular classification; nor are they otherwise defined elsewhere in the Petition. Consequently, the Court assumes that petitioners refer to zoning districts generally.
Nor do LL5/10 or the Restated Permit constitute spot zoning. "Spot zoning is the process of singling out a small parcel of land, for a use classification totally different from that of the surrounding area, for the benefit of the owner of such property and to the detriment of other owners (see Rodgers v Village of Tarrytown, 302 NY 115, 123 [1951])." Little Joseph Realty, Inc. v Town Bd. of Town of Babylon, 52 AD3d 478, 479 (2nd Dep't 2008) lv denied 11 NY3d 706 (2008). Spot zoning is unlawful because it fails to satisfy the requirement in Town Law 263 that land use regulations "shall be made in accordance with a comprehensive plan." See Little Joseph Realty, Inc. v Town Bd. of Town of Babylon, 52 AD3d 4 at 479. Thus, "[w]hile numerous factors are taken into account in evaluating such a claim, the ultimate inquiry is whether the challenged zoning is other than part of a well-considered and comprehensive plan calculated to serve the general welfare of the community.'" Matter of Baumgarten v Town Bd. of Town of Northampton, 35 AD3d 1081, 1084 (3rd Dep't 2006) (internal citations and source of quotation omitted); see also Rodgers v Vill. of Tarrytown, 302 NY 115, 124 (1951).
Petitioners do not contend that LL5/10 or the Restated Permit violate Town Law 263 or are other than part of a comprehensive plan. Indeed, to the extent that petitioners allege that the Town Bd "impermissibly spot zoned the Tuxedo Reserve Site," they contend only that "the application of the [pre-LL4A/98] PID law to the Project site has been done solely to benefit [TRO]." (Petition at ¶333, 335). However, the mere fact that a zoning amendment will benefit the landowners that applied therefor does not establish that the result is spot zoning; it must also be demonstrated that said benefit will come "at the expense and detriment of their neighbors, without public advantage or justification." Kravetz v Plenge, 84 AD2d 422, 430 (4th Dep't 1982). Petitioners fail to demonstrate that LL5/10 and the Restated Permit will have such an affect. Moreover, evidence that the law at issue was the product of an extensive review undertaken by the municipality with sufficient forethought to insure that it would be in keeping with a comprehensive plan calculated to serve the general welfare of the community is indicative that it is not spot zoning. See Little Joseph Realty, Inc. v Town Bd. of Town of Babylon, 52 AD3d at 479; Matter of Baumgarten v Town Bd. of Town of Northampton, 35 AD3d at 1083-1084. Evidentiary material adduced in support of the instant motions establishes that the Town Bd's review of TRO's August 2008 application and its determination thereof met that standard, and petitioners have submitted no evidence to the contrary. Compare with, e.g., Matter of West Branch Conservation Assn. v Town of Ramapo, 284 AD2d 401, 403 (2nd Dep't 2001) (holding that amendment constituted spot zoning where petitioners presented evidence that it "was contrary to goals of the Town's Development Plan[, and that] development of the subject property was contrary to the trend in the subject area") and Matter of Cannon v Murphy, 196 AD2d 498, 500-501 (2nd Dep't 1993) (holding that zoning was invalid where "there was a variety of evidence tending to establish the negative impacts . . . on the neighbors and the community at large," and no evidence that it had been enacted with regard to such considerations). Therefore, neither that LL5/10 or the Restated Permit constitute spot zoning.
Consequently, the eleventh cause of action is dismissed pursuant to CPLR 3211(a)(7) because petitioners do not have a cause of action that LL5/10 or the Restated Permit violate Town Law 262 or 263, or constitute spot zoning.
Accordingly, for the forgoing reasons, the Petition is dismissed in its entirety.
The foregoing constitutes the decision and order of the Court.
Dated: White Plains, New York
March, 2012
ENTER:
HON. JOAN B. LEFKOWITZ
Justice of the Supreme Court