Opinion
17/7421
12-05-2017
David MATTIA, and Tina Mattia, Petitioners, v. The VILLAGE OF PITTSFORD PLANNING AND ZONING BOARD OF APPEALS, Respondent.
Donald W. O'Brien, Esq., Rochester, Attorney for Petitioners Mindy L. Zoughlin, Esq., Attorney for Respondent
Donald W. O'Brien, Esq., Rochester, Attorney for Petitioners
Mindy L. Zoughlin, Esq., Attorney for Respondent
J. Scott Odorisi, J.
This second Civil Practice Law and Rules ("CPLR") Article 78 special proceeding arises out of a dispute over a new home project in the historic Village of Pittsford. Pending before this Court is: (1) a Verified Petition seeking to annul Respondent's decision to classify the project a State Environmental Quality and Review Act ("SEQRA") Type I Action, with a Positive Declaration requiring Petitioners to complete a Draft Environmental Impact Assessment ("DEIS"); and, (2) Respondent's dismissal motion.
Based upon a review of: the Notice of Petition, dated July 18, 2017, and the Verified Petition, with exhibits, dated July 18, 2017 - both submitted in support of the proceeding; the Verified Answer, dated, September 11, 2017, the Notice of Motion, dated September 12, 2017, the Attorney Affirmation of Mindy L. Zoughlin, Esq., with an exhibit, dated September 11, 2017, and the four-volume Administrative Return - all submitted in opposition to the proceeding and in support of Respondent's motion; as well as upon oral argument heard at court, this Court hereby: (1) GRANTS the Verified Petition; and, (2) DENIES Respondent's motion - both for the reasons set forth hereinafter.
LAWSUIT FACTS
Background Information
On or about July 22, 2015, David and Tina Mattia ("Petitioners") bought 44 Sutherland Street in the Village of Pittsford (the "Village") - a brick, single family home built around 1947 with the intent to renovate it. In support of their original renovation plan, Petitioners hired architect R. Jon Schick ("Architect Schick") who undertook a complete inspection. Unfortunately, the inspection revealed a critical mold contamination problem that rendered a renovation infeasible. In light of this discovery, Petitioners changed their initial plans and intended to apply to Village officials to demolish the existing home and replace it with a new 2-story, 3-car garage, wood-framed 3400' house.
This Court is well acquainted with the sixteen-month long demolition application saga before the Village of Pittsford Architectural and Preservation Review Board ("APRB"), so it will not re-state of all the same, with the exception of noting that the APRB, on October 5, 2015, indicated that it would seek SEQRA lead agency status and that the project was a Type I Action - which Petitioners disputed [Ver. Pet., Ex. # 1, pp. 6-7]. During a later e-mail exchange between attorneys, the APRB's counsel - Jeffery Turner - confirmed with the DEC that the matter was in fact a Type II Action as Petitioners contended [Ex. # 2]. At the August 31, 2016, APRB Meeting, the project was formally re-designated a Type II Action per Section 617.5 (c) (2) [Ex. # 3, p. 1]. This designation was later confirmed via another attorney e-mail exchange, but adding citation to Section 617.5 (c) (9) [Ver. Pet., Ex. # 5]. Demolition permission was finally bestowed in December of 2016, but work was contingent upon the APRB and Respondent Pittsford Planning and Zoning Board of Appeals ("PZBA") approving the plans for the new home [Ex. # 4].
This threshold process before the APRB was the subject of a prior Article 78 proceeding before this Court, which was settled on or about October 5, 2017, with an approved, revised house design. This Court may take judicial notice of the facts, filings, and outcome in that first, and clearly related, matter. See CPLR 4511 ; Gugino v. Tsvasman , 118 A.D.3d 1341, 1342, 987 N.Y.S.2d 753 (4th Dept. 2014). This compromise negates the PZBA's efforts to assail the project of the new home's "suburban" styling [Respondent's MOL, pp. 18-19].
After the APRB approved demolition, Petitioners on January 19, 2017, applied to the PZBA for a site plan review [Ex. # 6; R. 1-2, 13]. The first PZBA Meeting was held on February 27, 2017, whereat the PZBA's lawyer - Mindy Zoughlin - noted a need for a SEQRA classification [Ex. # 7, p. 13; R. 52]. The next day, Ms. Zoughlin and Petitioners' previous attorney - Betsy Brugg - discussed the SEQRA classification, and Ms. Brugg later supplied Ms. Zoughlin with the same materials she gave to Mr. Turner supporting the Type II classification. After reviewing Ms. Brugg's memorandum, Ms. Zoughlin indicated a conflict between SEQRA classification provisions, noting that the historic site made it an automatic Type I Action, and she asked for case-law from Ms. Brugg [Ex. # 8]. On March 2nd, Ms. Brugg e-mailed back disputing the conflict as the historic district section applied only to Unlisted Actions, which this was not.
At the April 4th PZBA Meeting, it was resolved that the matter was a Type I Action per 6 NYCRR § 617.4 (b) (9) [Ex. # 10; R. 60-69]. In its resolution, the PZBA found that the APRB did not take the proper steps for lead agency status - as it did not respond to the PZBA's inquiry - nor did it explain its change in position on the Action type [R. 62-63, 479]. Another meeting was held on April 17th, at which Ms. Brugg contested the Type I classification [R. 75-76].
At the May 8th PZBA Meeting, and given the Type I Action classification, the PZBA undertook a Part 2 Long-Form Environmental Assessment Form review to determine any potential negative impacts. Based upon that review, the PZBA found four (4) areas of concern, namely: (1) impact of aesthetic resources [Question # 9]; (2) impact on historic and archeological resources [Question # 10]; (3) consistency with community plans [Question # 17]; and, (4) consistency with community character [Question # 18] [Ex. # 12, pp. 6-7, 10; R. 33-34, 37-39, 79-85].
At the May 22nd PZBA Meeting, Petitioners were afforded the chance to rebut the findings, and their other attorney - Donald O'Brien - challenged the PZBA's authority in regard to the site plan review, specifically the already approved demolition by the APRB [Ex. # 11, pp. 4-16, 23-34, 40; R. 111-115, 302-305, 382-390]. Ms. Zoughlin responded that the SEQRA process had just begun [p. 34]. The PZBA Chair - Justin Vlietstra ("Vlietstra") - distinguished the 36 Sutherland Street project because it kept the overall historical value [p. 50]. Vlietstra also insisted that the DEC's guidelines provided that the demolition of a historical building was automatically a Type I Action [p. 56].
At the June 19th PZBA Meeting, the PZBA again confirmed that it was the lead agency given the APRB's failure to properly assume that role, and then it issued a Positive Declaration [Ex. # 13, pp. 1, 4, 7; R. 130-136, 160, 182-183]. The Declaration further distinguished this project from the 36 Sutherland Street home renovation project and the Pittsford Dairy project [pp. 11-18; R. 132]. This Declaration mandated that Petitioners pay for an environmental impact statement process, which starts with a DEIS [Ex. # 14; see also R. 131].
Procedural History
Petitioners' Verified Petition
This special proceeding was timely commenced on July 18th, and it seeks to annul the PZBA's Positive Declaration, and substitute it with a Type II Action classification allowing the matter to go forward to final site plan approval without a DEIS - a claimed costly process with unnecessary delay. Petitioners challenge the determinations on the grounds that: the PZBA was not empowered to re-review the demolition which the APRB already approved; they run afoul of the SEQRA for a single, family residence replacement in kind; and, they are also discriminatory as other projects were given "free passes."
The PZBA did not include a statute of limitations defense or move to dismiss based upon the same; therefore, it waived any such contention against Petitioners' requested forms of relief. See e.g. Cheney v. J.C. Penney Co., Inc. , 270 A.D.2d 855, 856, 705 N.Y.S.2d 156 (4th Dept. 2000) (the defendant waived statute of limitations by not pleading it as a defense and also by not moving to dismiss based upon the same).
PZBA's Verified Answer & Dismissal Motion
As to its Verified Answer, the PZBA alleges that the demolition cannot begin without it satisfying its legal obligations per SEQRA [Ver. Ans., ¶ 15 (f) ]. The PZBA denied that it improperly classified the project under SEQRA, and further denies discriminatory treatment [Ver. Ans., ¶¶ 28 (d) & 32 (a)-(c); 33-34]. In regard to its accompanying dismissal motion, the PZBA contends that Petitioners did not exhaust their administrative remedies, or in the alternative, their case does not have merit. See CPLR 3211 (a) (7) & 7801 (1). Also, the PZBA moves to strike materials from the Verified Petition.
Petitioners' Reply/Motion Response
Petitioners argue that the PZBA engages in bootstrapping to justify its erroneous Type I Action designation. As a Type II Action, Petitioners submit that a coordinated review with the APRB was not required for this replacement in kind project. Petitioners deny that an "exact replication" is needed to qualify for the Type II replacement in kind category, especially when the use is identical - here a continued single-family residence. Petitioners continue to fault the PZBA for not providing a rational explanation from treating them differently as their "excuses" are distinctions without a difference.
In regard to the strike request, Petitioners indicate that the e-mails between attorneys are relevant to the exact issues the PZBA decided, and thus were improperly excluded by the PZBA in its record submission. The same is purportedly true for the APRB communications. Additionally, Petitioners suggests that they are substantial questions as to the PZBA's motivations; thus, these items help expose the same.
As to the dismissal motion, Petitioners assert that their case is ripe for review given a legal exception to the normal Positive Declaration rule, namely that the PZBA did not have jurisdiction over the demolition and the project does not qualify for full SEQRA review.
PZBA's Motion Reply
The PZBA replies that Petitioners wrongly ask this Court to create a new exception to the ripeness doctrine concerning mere Positive Declarations.
That portion of the PZBA's reply which re-addressed the Verified Petition's merits is an improper sur-reply, which this Court did not consider. See CPLR 2214 (b) ; Martin v. Fiutko , 7 Misc. 3d 1003(A), 2005 WL 742368 (Monroe Co. Sup. Ct. 2005), aff'd as mod , 27 A.D.3d 1130, 811 N.Y.S.2d 250 (4th Dept. 2006) ; Justice Odorisi Local Rules # 6.
LEGAL DISCUSSION
Petitioners are awarded Article 78 relief. See e.g. Pyramid Co. of Watertown v. Planning Bd. of Town of Watertown , 24 A.D.3d 1312, 1315, 807 N.Y.S.2d 243 (4th Dept. 2005) (granting amended petition annulling SEQRA determination). As in Pyramid Co. of Watertown , the present Petitioners are also entitled to have the PZBA's SEQRA decisions set aside. See also Kahn v. Pasnik , 90 N.Y.2d 569, 664 N.Y.S.2d 584, 687 N.E.2d 402 (1997) (affirming the grant of an Article 78 petition which set aside a SEQRA ruling) [Respondents' MOL, p. 7]; Wellsville Citizens ex rel. Responsible Dev., Inc. v. Wal-Mart Stores, Inc. , 140 A.D.3d 1767, 1771, 33 N.Y.S.3d 653 (4th Dept. 2016) (granting Article 78 contesting SEQRA outcome).
Threshold Matters
Before addressing the substantive merits of this SEQRA litigation, there are two preliminary items in the PZBA's motion that require resolution, and they are as follows:
Scope of the Record
The very first issue to tackle is the proper scope of the record given the PZBA's challenge to some of the Verified Petition exhibits. That strike application is denied. See CPLR 405 (a) ; New York City Health and Hospitals Corp. v. St. Barnabas Community Health Plan , 22 A.D.3d 391, 802 N.Y.S.2d 363 (1st Dept. 2005) (modifying by denying motion to strike).
Judicial review of administrative action is usually limited to the facts and record adduced before the agency when the determination was made. See CPLR 7804 (e) ; Levine v. New York State Liq. Auth. , 23 N.Y.2d 863, 864, 298 N.Y.S.2d 71, 245 N.E.2d 804 (1969) (post-decision submissions to reviewing court were improper); Zembiec v. County of Monroe , 104 A.D.3d 1243, 1245, 960 N.Y.S.2d 819 (4th Dept. 2013) (same). However, non-record items can be added if "the record is incomplete or substantial questions arise which cannot be resolved therefrom." Piasecki v. Dept. of Social Services , 225 A.D.2d 310, 311, 639 N.Y.S.2d 319 (1st Dept. 1996).
Here, and unlike Levine and Zembiec , Petitioners included pre-decision communications between Ms. Brugg and Mr. Turner, APRB records, and contemporaneous e-mails between Ms. Brugg and Ms. Zoughlin - to which the PZBA objects. This Court sees no reason to strike the same, as they collectively bear upon the issues at hand. The PZBA, on numerous occasions, cited in its document that the APRB: did not properly assume lead agency status; initially classified this as a Type I action; and, did not explain the switch to a Type II designation. The Brugg/Turner communications and APRB records deal with those items raised by the PZBA, and are thus relevant given its own allegations. In addition, the Brugg/Zoughlin e-mails on the Type classification were submitted to the PZBA's attorney in support of Petitioners' position. The e-mails may not have been made formal exhibits at any meeting, but they do directly impact the ultimate decision at issue - the proper Action Type classification.
The PZBA's objection is slightly disingenuous as it cites to the objected-to documents in support of its decision [Respondent's MOL, pp. 18, 23]. The PZBA cannot have it both ways.
Accordingly, this Court allows the contested exhibits to remain in the record. See e.g. Knibbs v. Wagner , 14 A.D.2d 987, 222 N.Y.S.2d 469 (4th Dept. 1961) (sustaining denial of motion to strike evidentiary matters which were relevant and thus not prejudicial).
In the alternative, and even without the subject exhibits, the Court's decision is not swayed in the PZBA's favor as other proof in the record, and the law, undermines its SEQRA resolutions.
Ripeness
Yet one more key preliminary issue stems from the PZBA's dismissal request, namely whether this dispute is even ripe for judicial review. This Court concludes that the matter is ripe for judicial scrutiny. See e.g. Cor Rte. 5 Co., LLC v. Vil. of Fayetteville , 147 A.D.3d 1432, 1434, 46 N.Y.S.3d 765 (4th Dept. 2017) (finding that the petitioner was aggrieved by the respondent's alleged failure to comply with SEQRA; therefore, the Supreme Court erred in dismissing the proceeding as not ripe for review). Pursuant to Cor Rte. 5 Co., LLC , this case is also properly postured for a merits review. See also Jones v. Town of Carroll , 57 A.D.3d 1379, 873 N.Y.S.2d 395 (4th Dept. 2008) (ruling that action presented a justiciable controversy).
The beginning of CPLR Article 78 provides in relevant part that:
a proceeding under this article shall not be used to challenge a determination:
1. which is not final or can be adequately reviewed by appeal to a court ...
CPLR 7801 (1) (emphasis added). See also Watergate II Apartments v. Buffalo Sewer Auth. , 46 N.Y.2d 52, 57, 412 N.Y.S.2d 821, 385 N.E.2d 560 (1978) ; Mahoney v. Pataki , 261 A.D.2d 898, 899, 689 N.Y.S.2d 830 (4th Dept. 1999).
The above provision is to ensure that a party first secures a final determination and also exhausts all of his or her remedies before resorting to Article 78. See Walton v. New York State Dept. of Correctional Services , 8 N.Y.3d 186, 194, 831 N.Y.S.2d 749, 863 N.E.2d 1001 (2007) ; Tyler v. Forma , 231 A.D.2d 891, 891-892, 647 N.Y.S.2d 314 (4th Dept. 1996). Based upon this rule, the PZBA argues that this Article 78 proceeding is premature as a mere Positive Declaration is not a final determination, but only the start of a larger overall environmental review process. This is normally a correct legal statement. See e.g. Young v. Bd. of Trustees of Vil. of Blasdell , 221 A.D.2d 975, 977, 634 N.Y.S.2d 605 (4th Dept. 1995) ("A SEQRA determination is usually considered to be a preliminary step in the decision-making process and, therefore, is not ripe for judicial review until the decision-making process has been completed"), aff'd , 89 N.Y.2d 846, 652 N.Y.S.2d 729, 675 N.E.2d 464 (1996).
However, there is case-law allowing Article 78 review of a threshold SEQRA Positive Declaration given the detrimental economic impact on the Petitioners, and their lack of any further administrative recourse. See Gordon v. Rush , 100 N.Y.2d 236, 762 N.Y.S.2d 18, 792 N.E.2d 168 (2003). In Gordon , the Court of Appeals found that the SEQRA Positive Declaration matter was ripe for judicial review. Id . at 243, 762 N.Y.S.2d 18, 792 N.E.2d 168. But see Ranco Sand and Stone Corp. v. Vecchio , 27 N.Y.3d 92, 94, 29 N.Y.S.3d 873, 49 N.E.3d 1165 (2016) (SEQRA Positive Declaration was not justiciable); Modern Landfill, Inc. v. New York State Dept. Of Envtl. Conservation , 21 A.D.3d 1381, 1382, 801 N.Y.S.2d 214 (4th Dept. 2005) (same) [Respondent's MOL, pp. 45, 47, 51-52]. Given the conflicting case outcomes, justiciability is not a bright-line test, but is dependent on the specific circumstances of each case. See Gordon , 100 N.Y.2d at 242-243, 762 N.Y.S.2d 18, 792 N.E.2d 168 (refusing to adopt a bright-line justiciability test for SEQRA); Ctr. of Deposit, Inc. v. Vil. of Deposit , 90 A.D.3d 1450, 1451, 936 N.Y.S.2d 709 (3d Dept. 2011). In fact, Gordon decreed that:
Rochester Tel. Mobile Communications v. Ober , 251 A.D.2d 1053, 674 N.Y.S.2d 189 (4th Dept. 1998) (ruling that a Positive Declaration was not reviewable) was dispelled by Gordon as mandating a bright-line ripeness test for Positive Declarations [Respondent's MOL, p. 48]. The PZBA's case of Brierwood Vil., Inc. v. Town of Hamburg Planning Bd. , 277 A.D.2d 1051, 715 N.Y.S.2d 351 (4th Dept. 2000) was also decided before Gordon , and thus does not dictate a dismissal [Respondent's MOL, p. 47].
Whether the agency action is ripe for review depends upon several considerations. First, the action must 'impose an obligation , deny a right or fix some legal relationship as a consummation of the administrative process' ... In other words, " 'a pragmatic evaluation [must be made] of whether the "decisionmaker has arrived at a definitive position on the issue that inflicts an actual, concrete injury " ' " ... Further, there must be a finding that the apparent harm inflicted by the action "may not be 'prevented or significantly ameliorated by further administrative action or by steps available to the
complaining party ' "
Id . at 242, 762 N.Y.S.2d 18, 792 N.E.2d 168. See also Essex County v. Zagata , 91 N.Y.2d 447, 453, 672 N.Y.S.2d 281, 695 N.E.2d 232 (1998).
In applying this pragmatic approach, the Gordon Court found that the subject Positive Declaration required the completion of a DEIS which "imposes an actual injury on petitioners as the process may require considerable time and expense " and petitioner "would have no available remedy for the unnecessary and unauthorized expenditures ." Gordon , 100 N.Y.2d at 242-243, 762 N.Y.S.2d 18, 792 N.E.2d 168 (emphasis added). The Gordon Court further explained that:
We recognize that the Board may not have had jurisdiction to conduct its own SEQRA review and 'an agency's erroneous assertion of jurisdiction may ultimately never cause any real injury' ... Here, the mere assertion of jurisdiction alone was not the actual, concrete harm that was inflicted upon petitioners. Rather, the harm was the issuance of the positive declaration directing petitioners to prepare a DEIS, involving the expenditure of time and resources, after petitioners had already been through the coordinated review process and a negative declaration had been issued by the DEC as lead agency. As a result, the Board's action in issuing a positive declaration is a final administrative action ripe for judicial review.
Id. at 243, 762 N.Y.S.2d 18, 792 N.E.2d 168 (emphasis added).
The scenario in Gordon is exactly the situation in the case at hand so as to entitle Petitioners to seek court intervention. See e.g. Ctr. of Deposit, Inc. , 90 A.D.3d at 1451, 936 N.Y.S.2d 709 (SEQRA Positive Declaration challenge was ripe for review per Gordon ). Employing the pragmatic evaluation of the unique facts of this case, this Court starts by noting that Petitioners already went through an exhaustive review process with the APRB which, as will be discussed in more detail below, came to the correct conclusion regarding demolition approval and the Action Type. Petitioners should not have been subject to further SEQRA scrutiny; therefore, and unlike Ranco Sand and Stone Corp. and Modern Landfill, Inc. , the PZBA exceeded its jurisdiction in proceeding past the Action Type designation, reviving the demolition issue, and needlessly imposing upon Petitioners the DEIS process. But see Delvecchio v. City of Cortland Planning Com'n , 18 Misc. 3d 1120(A), 2007 WL 4788452 (Cortland Co. Sup. Ct. 2007) (missing SEQRA jurisdiction need not be a predicate to attacking a Positive Declaration in court).
Also, Petitioners have a strong argument for financial harm due to the DEIS process, for which they have no other remedy than coming before this Court. See e.g. Ken-Vil Assoc. Ltd. Partnership v. New York State Div. of Human Rights , 100 A.D.3d 1390, 1393, 954 N.Y.S.2d 294 (4th Dept. 2012) (concluding that the plaintiff's challenges were ripe for judicial review inasmuch as there was no further administrative proceeding available to raise the issues). Further unlike Ranco Sand and Stone Corp. and Modern Landfill, Inc. , the present matter is not a large, commercial/industrial development where in a company could more easily bare the burden of a DEIS, but a residential project advanced by two individuals. See e.g. Toll Land V Ltd. Partnership v. Planning Bd. of Vil. of Tarrytown , 49 Misc. 3d 662, 668, 12 N.Y.S.3d 874 (Westchester Co. Sup. Ct. 2015) (because the Positive Declaration effectively directs the reopening of the petitioner's subdivision application, which was finalized in 2010, they could sue per Article 78). Consequently, the PZBA is not entitled to a dismissal.
In all, Petitioners are sufficiently aggrieved by the PZBA's extra-jurisdictional acts to avoid a dismissal and to allow this Court to hear their case on the merits, to which this writing now turns. See Gordon , 100 N.Y.2d at 243, 762 N.Y.S.2d 18, 792 N.E.2d 168 ; Cor Rte. 5 Co., LLC , 147 A.D.3d at 1434, 46 N.Y.S.3d 765 ; Ctr. of Deposit, Inc. , 90 A.D.3d at 1451, 936 N.Y.S.2d 709 ; Toll Land V Ltd. Partnership , 49 Misc. 3d at 668, 12 N.Y.S.3d 874.
Standards of Review
CPLR Article 78
Petitioners' second case is again based upon CPLR 7803 (3)'s mandamus to review provision, which they fulfill. See e.g. Rochester Eastside Residents for Appropriate Dev., Inc. v. City of Rochester , 150 A.D.3d 1678, 1679, 54 N.Y.S.3d 484 (4th Dept. 2017) (agreeing with the petitioners that the Supreme Court should have granted their amended petition to annul SEQRA decision). Per Rochester Eastside Residents for Appropriate Dev., Inc. , the present SEQRA determination is also invalid. See also Citizens Against Retail Sprawl ex rel. Ciancio v. Giza , 280 A.D.2d 234, 240, 722 N.Y.S.2d 645 (4th Dept. 2001) (granting Article 78 petition in part by annulling the respondent's SEQRA resolutions).
As to mandamus to review, the CPLR permits an administrative determination to be set aside if it was "... affected by an error of law or was arbitrary and capricious ..." CPLR 7803 (3) (emphasis added).
An error of law has a clear cut meaning and most often involves an allegation that the agency improperly interpreted or applied a statute or regulation. See New York City Health and Hospitals Corp. v. McBarnette , 84 N.Y.2d 194, 205, 616 N.Y.S.2d 1, 639 N.E.2d 740 (1994). In this regard, courts will uphold the interpretation of regulations by the agencies responsible for their administration if such an interpretation is reasonable. See Howard v. Wyman , 28 N.Y.2d 434, 438, 322 N.Y.S.2d 683, 271 N.E.2d 528 (1971). "Where, however, the question is one of pure legal interpretation of statutory terms, deference .... is not required ." Toys R Us v. Silva , 89 N.Y.2d 411, 419, 654 N.Y.S.2d 100, 676 N.E.2d 862 (1996) (emphasis added). Further "an interpretation that 'runs counter to the clear wording of a [code] provision is given little weight .' " Emmerling v. Town of Richmond Zoning Bd. of Appeals , 67 A.D.3d 1467, 1467-1468, 888 N.Y.S.2d 703 (4th Dept. 2009) (reversing and granting petition to annul illegal decision) (emphasis added and citing Excellus Health Plan, Inc. v. Serio , 2 N.Y.3d 166, 171, 777 N.Y.S.2d 422, 809 N.E.2d 651 (2004) (sustaining grant of petition to annul determination) ). In this later scenario:
... where 'the question is one of pure statutory reading and analysis, dependent only on accurate apprehension of legislative intent , there is little basis to rely on any special competence or expertise of the administrative agency' ... In such circumstances, the judiciary need not accord any deference to the agency's determination, and is free to ascertain the proper interpretation from the statutory language and legislative intent '
Belmonte v. Snashall , 2 N.Y.3d 560, 566, 780 N.Y.S.2d 541, 813 N.E.2d 621 (2004) (emphasis added and internal citation omitted). See also Meegan v. Progressive Ins. Co. , 43 A.D.3d 182, 189-190, 838 N.Y.S.2d 748 (4th Dept. 2007).
As to the arbitrary and capricious category, the Court of Appeals decreed that:
The arbitrary or capricious test chiefly 'relates to whether a particular action should have been taken or is justified *** and whether the administrative action is without foundation in fact .' Arbitrary action is without sound basis in reason and is generally taken without regard to the facts.... the proper test is whether there is a rational basis for the ... order.
Pell v. Board of Educ. , 34 N.Y.2d 222, 231, 356 N.Y.S.2d 833, 313 N.E.2d 321 (1974) (internal citations omitted and emphasis added). See also 512-3rd St., Inc. v. New York State Liquor Auth ., 217 A.D.2d 1010, 629 N.Y.S.2d 932 (4th Dept. 1995) ; Coco v. Zoning Bd. of Appeals , 236 A.D.2d 826, 828, 653 N.Y.S.2d 769 (4th Dep't 1997).
The PZBA's reference to the "substantial evidence" standard is misplaced as that standard applies only to Section 7803 (4) review, which is not part of this case [Respondent's MOL, p. 8].
Dismissal Motion per CPLR 3211 (a) (7)
In determining a CPLR 3211 (a) (7) motion - whether the pleading states a valid claim - the subject pleading is to be afforded a liberal construction. See CPLR 3026 ; Leon v. Martinez , 84 N.Y.2d 83, 87, 614 N.Y.S.2d 972, 638 N.E.2d 511 (1994) (ruling that motion to dismiss should have been denied). Under this liberal construction, "[t]he facts pleaded are to be presumed to be true and are to be accorded every favorable inference" in a plaintiff's favor to see if they fit within any cognizable legal theory. Younis v. Martin , 60 A.D.3d 1373, 876 N.Y.S.2d 587 (4th Dept. 2009) (affirming denial of motion to dismiss). Thus, the criterion is whether the plaintiff has a cause of action, not whether he or she has properly stated one. See Guggenheimer v. Ginzburg , 43 N.Y.2d 268, 275, 401 N.Y.S.2d 182, 372 N.E.2d 17 (1977) (reversing grant of motion to dismiss).
The above standards will next be applied to Petitioners' various contentions, and the other prong of the PZBA's dismissal motion. See e.g. Concetta T. Cerame Irrevocable Family Tr. v. Town of Perinton Zoning Bd. of Appeals , 6 A.D.3d 1091, 776 N.Y.S.2d 660 (4th Dept. 2004) (Supreme Court properly granted Article 78 petition) [Respondent's MOL, p. 8]; Penfield Panorama Area Community, Inc. v. Town of Penfield Planning Bd. , 253 A.D.2d 342, 350, 688 N.Y.S.2d 848 (4th Dept. 1999) (affirming Article 78 judgment in the petitioner's favor on SEQRA matter).See also Syracuse Indus. Dev. Agency v. Gamage , 77 A.D.3d 1353, 1354, 908 N.Y.S.2d 503 (4th Dept. 2010) (affirming denial of dismissal motion).
Merits Review
Demolition Scope
The first substantive SEQRA issue to tackle is whether the PZBA could re-visit the APRB's prior demolition approval. This Court holds that they could not.
This analysis must begin with a quick mention of lead agency status. The APRB sought lead agency status in October of 2015 [Ver. Pet., Ex. # 1, pp. 6-7], but the PZBA contends that the APRB did not properly assume the same thereby opening the door to it to do so, and then resurrect the whole demolition evaluation. This ultimately is an irrelevant point advanced by the PZBA, and does not justify its SEQRA endeavors.
SEQRA provides in pertinent part that:
(a) Initial review of actions.
(1) As early as possible in an agency's formulation of an action it proposes to undertake, or as soon as an agency receives an application for funding or for approval of an action, it must do the following:
(i) Determine whether the action is subject to SEQR. If the action is a Type II action, the agency has no further responsibilities under this Part ...
6 NYCRR § 617.6 (a) (1) (i) (emphasis added). See also 6 NYCRR § 617.6 (b) (2).
Therefore, if an application is a Type II Action, no lead agency status is needed, so the APRB did not need to properly assume the same, and its failure to do so did not give the PZBA carte blanche to re-start the entire demolition process. The PZBA's attack on the special proceeding on this lead agency basis is misplaced.
Nevertheless, the PZBA insists that it had its own SEQRA review obligations independent of the APRB's thereby vesting it with the authority to assume lead agency status, re-consider demolition, and find the project to be a Type I Action. See 6 NYCRR § 617.3 (a) ("No agency involved in an action may undertake, fund or approve the action until it has complied with the provisions of SEQR"). But see 6 NYCRR § 617.3 (b) ("SEQR does not change the existing jurisdiction of agencies nor the jurisdiction between or among state and local agencies"). This Court does not disagree that the PZBA had some SEQRA responsibility for the site plan review for the new construction, but as decreed in Section 617.3 (b), it surpassed the same by reviving the demolition portion of the project - a project component already approved by the APRB after a panoptic review.
Separate and apart from SEQRA is the Village of Pittsford Code, on which Petitioners heavily rely to vest jurisdiction over demolition wholly with the APRB. Of most importance, the Village Code contains the following provisions:
Duties and powers of APRB
A. The APRB shall have the following powers and duties:
(1) Review of plans. It shall be the duty of the APRB to review, approve or disapprove all plans and
building permit applications for the construction, reconstruction, removal, restoration, alteration or demolition of any exterior architectural feature within the District .
See Village Code § 210-60 (A) (1) (emphasis added).
Standard for review
E. Demolition.
(1) Demolition may be permitted only after the developer of the site has submitted and obtained approval for his plans for new development, including APRB approval for new construction, including an acceptable timetable and guaranties which may include performance bonds or letters of credit for demolition and completion of the project. In no case shall the time between demolition and the commencement of new construction exceed six months. No structure may be demolished unless the APRB finds that ...
See Village Code § 210-61 (E).
Procedure for Review
Certificate of approval. Notwithstanding any inconsistent local law, code, rule or regulation concerning the issuance of building permits, no alteration, restoration, construction or demolition of any exterior architectural feature in the District shall be commenced without a certificate of approval from the APRB , nor shall any building permit for such change be issued without such a certificate of approval having first been issued. The certificate of approval required by this section shall be in addition to and not in lieu of, any building permit that may be required by any local law, code, rule or regulation of the Village of Pittsford, New York.
See Village Code § 210-62 (B) (emphasis added).
Upon a plain reading of the Village Code (see generally Tall Trees Const. Corp. v. Zoning Bd. of Appeals of Town of Huntington , 97 N.Y.2d 86, 91, 735 N.Y.S.2d 873, 761 N.E.2d 565 (2001) ; Cayuga Indian Nation of New York v. Gould , 66 A.D.3d 100, 112, 884 N.Y.S.2d 510 (4th Dept. 2009), aff'd as mod , 14 N.Y.3d 614, 904 N.Y.S.2d 312, 930 N.E.2d 233 (2010) ), the Village conferred upon the APRB the authority over all demolition applications within the Historic District. Given that the subject house is with the Village's Historic District, only the APRB had the power to approve its demolition. As a result, the PZBA was precluded from re-considering the demolition approval, and any environmental aspects of the same, under the guise of a SEQRA review. Contrary to the PZBA's contention, this is not an improper segmentation. See e.g. Rodgers v. City of N. Tonawanda , 60 A.D.3d 1379, 875 N.Y.S.2d 409 (4th Dept. 2009) (replacement project was properly segmented between demolition and construction citing Settco, LLC v. New York State Urban Dev. Corp. , 305 A.D.2d 1026, 759 N.Y.S.2d 833 (4th Dept. 2003) (finding no improper segmentation of environmental review) ). See also 6 NYCRR § 617.2 (ag). There is clearly a tug of war between the PZBA and the APRB, with Petitioners getting caught in the middle and unfairly bearing the brunt of that discord.
In sum, the APRB's demolition approval decision, which was levied after an inordinate amount of analysis, should have been honored. Even assuming demolition was somehow within the PZBA's purview, it still faltered in its Action Type classification - the next legal issue.
Type Classification
The second substantive SEQRA issue is whether the PZBA properly classified this SEQRA action. This Court concludes that the PZBA mis-classified the application in contravention of the clear wording of SEQRA thereby committing an error of law. See e.g. Inc. Vil. of Munsey Park v. Manhasset-Lakeville Water Dist. , 150 A.D.3d 969, 971, 57 N.Y.S.3d 154 (2d Dept. 2017) (construction of new water tank was a replacement in kind Type II Action); Accorsco v. Appeals Bd. of Admin. Adjudication Bur. , 185 A.D.2d 611, 586 N.Y.S.2d 40 (4th Dept. 1992) (affirming Article 78 relief to the petitioners as the respondent's statutory construction was invalid). See also 511 West 232nd Owners Corp. v. Jennifer Realty Co. , 98 N.Y.2d 144, 152, 746 N.Y.S.2d 131, 773 N.E.2d 496 (2002) (the plaintiff's complaint was sufficient to survive a motion to dismiss).
To support its Type I Action designation, the PZBA relies upon the following SEQRA provision:
(b) The following actions are Type I if they are to be directly undertaken, funded or approved by an agency ...
(9) any Unlisted action (unless the action is designed for the preservation of the facility or site) occurring wholly or partially within, or substantially contiguous to, any historic building, structure, facility, site or district or prehistoric site that is listed on the National Register of Historic Places, or that has been proposed by the New York State
Board on Historic Preservation for a recommendation to the State Historic Preservation Officer for nomination for inclusion in the National Register, or that is listed on the State Register of Historic Places ...
6 NYCRR § 617.4 (b) (9) (emphasis added). See also 6 NYCRR § 617.2 (ak) ("Unlisted action" means all actions not identified as a Type I or Type II action in this Part, or, in the case of a particular agency action, not identified as a Type I or Type II action in the agency's own SEQR procedures." {emphasis added} ). On the other hand, Petitioners advocate for the following provisions, in the alternative, covering Type II Actions:
The PZBA's use of Section 617.5 (b) to shift even a Type II Action into a full blown environmental review is erroneous as the Village has no such enabling Code provision [Respondent's MOL, p. 2]. See 6 NYCRR § 617.5 (b) ("Each agency may adopt its own list of Type II actions to supplement the actions").
(c) The following actions are not subject to review under this Part [Type I SEQRA]:
(2) replacement, rehabilitation or reconstruction of a structure or facility, in kind, on the same site , including upgrading buildings to meet building or fire codes, unless such action meets or exceeds any of the thresholds in section 617.4 of this Part ...
(9) construction or expansion of a single-family , a two-family or a three-family residence on an approved lot ...
6 NYCRR § 617.5 (c) (2) & (9) (emphasis added). See also Levine v. Town of Clarkstown , 307 A.D.2d 997, 998, 763 N.Y.S.2d 661 (2d Dept. 2003) (the construction of a conforming single-family home, along with the demolition of the existing home, on an approved lot is a Type II action per (c) (9) and (c) (2) ).
As to a subdivision (2) replacement in kind, they presumptively do not "have a significant impact upon the environment." Coney-Brighton Boardwalk All. v. New York City Dept. of Parks and Recreation , 122 A.D.3d 924, 925, 998 N.Y.S.2d 114 (2d Dept. 2014) (decision to erect a new boardwalk made out of different materials was still a replacement in kind). Additionally, and "[i]n order to constitute a replacement in kind, exact replication is not required . A replacement in kind will be effected if a new facility has a substantially similar use as the old facility ." Comm. to Preserve Historic Chautauqua Amphitheater v. Bd. of Trustees of Chautauqua Inst. , 51 Misc. 3d 729, 736, 25 N.Y.S.3d 583 (Chautauqua Co. Sup. Ct. 2016) (project was a replacement in kind) (emphasis added). See also Manhattan Val. Neighbors for Permanent Hous. for the Homeless v. Koch , 168 A.D.2d 262, 263, 562 N.Y.S.2d 621 (1st Dept. 1990) (housing conversion project was a Type II replacement in kind).
Under Levine , Petitioners' position is the legally sound one when the unequivocal language of the regulations is applied. See generally Majewski v. Broadalbin-Perth Cent. School Dist. , 91 N.Y.2d 577, 583, 673 N.Y.S.2d 966, 696 N.E.2d 978 (1998) ; Level 3 Communications, LLC v. Chautauqua County , 148 A.D.3d 1702, 1703, 50 N.Y.S.3d 202 (4th Dept. 2017), rearg denied , 153 A.D.3d 1675, 60 N.Y.S.3d 910. As championed by Petitioners all along, the PZBA's narrow focus on the historic district wording in Section 617.4 (b) (9) ignores the preface verbiage about Unlisted Actions - which this is not. Such a skewed reading of Section 617.4 (b) (9) runs afoul of the well-settled principle of not interpreting laws to permit words "to be rejected as superfluous." Rosner v. Metro. Prop. and Liab. Ins. Co. , 96 N.Y.2d 475, 479, 729 N.Y.S.2d 658, 754 N.E.2d 760 (2001). See also Statutes § 231; Stateway Plaza Shopping Ctr. ex rel. Longley Jones Mgt. Corp. v. Assessor of City of Watertown , 87 A.D.3d 1359, 1361, 930 N.Y.S.2d 696 (4th Dept. 2011) (rejecting the respondent's proposed statutory construction because it would render language meaningless).
Moreover, Petitioners proved that their project falls squarely within the confines of 6 NYCRR § 617.5 (c) (2) and/or (9) as was found in Levine . See Levine , 307 A.D.2d at 998, 763 N.Y.S.2d 661. See also Groarke v. Bd. of Educ. of Rockville Ctr. Union Free School Dist. , 63 A.D.3d 935, 936, 880 N.Y.S.2d 535 (2d Dept. 2009) (replacement in kind on the same site was a Type II Action not subject to any environmental review). Beginning with subdivision (2), Petitioners showed beyond any question that they were replacing one single-family home with another single-family residence - a fact which Respondents did not dispute. Cf . Town of Bedford v. White , 155 Misc. 2d 68, 587 N.Y.S.2d 72 (Westchester Sup. Ct. 1992) (addition of a completely new traffic control device in a historic district was a Type I Action per DOT regulations), aff'd , 204 A.D.2d 557, 611 N.Y.S.2d 920 (2d Dept. 1994) [Respondent's MOL, pp. 21-22, 24]. Unlike the PZBA's Town of Bedford case, the present matter is not a totally new installation; therefore, that case does not dictate a dismissal or a denial. Even though the proposed new home is styled differently, and perhaps slightly larger and made with different materials, it serves the same exact function - a one family dwelling. See e.g. Anderberg v. New York State Dept. of Envtl. Conservation , 141 Misc. 2d 594, 597, 533 N.Y.S.2d 828 (Sup. Ct. 1988) (bridge replacement project was a Type II action even when the bridge design was different and it was contiguous to a preserved which was on the list of National Historic Places).
For the above reasons, Petitioners' project is also exempt from environmental review under subdivision (9). See e.g. Griffin v. Town of Somers , 13 Misc. 3d 1205(A), 2006 WL 2585376 (Westchester Co. Sup. Ct. 2006) (construction of a single-family residence is a Type II Action exempt from SEQRA review per 6 NYCRR § 617.5 (c) (9) ). There is no proof before the PZBA that the Sutherland Street lot was not zoned and/or approved for such a residential use.
Accordingly, the PZBA's rejection of subdivisions (2) and/or (9) was an error of law, and was further arbitrary and capricious given the facts before it, and directly contributed to the later unnecessary Positive Declaration. Due to this multi-faceted mistake, the PZBA's Type I Action classification is annulled, the same is replaced with a Type II Action designation, the PZBA's Positive Declaration is also annulled, and the PZBA's dismissal motion is denied. See CPLR 3211 (a) (7) & 7806 ; Sasso v. Osgood , 86 N.Y.2d 374, 633 N.Y.S.2d 259, 657 N.E.2d 254 (1995) (reversing and granting Article 78 petition to annul zoning board decision) [Respondent's MOL, p. 26]; 190 Murray St. Assoc., LLC. v. City of Rochester , 19 A.D.3d 1116, 795 N.Y.S.2d 923 (4th Dept. 2005) (reversing order granting motion to dismiss).
Lastly, and although this Court's decision is premised upon the plain wording of SEQRA, this Court pauses to address a policy-based position the PZBA advances. More specifically, the PZBA alleges that permitting this project to go forward as a Type II Action would create the proverbial "slippery slope" and "allow the historic Village of Pittsford to be dismantled one building at a time ..." [Respondent's Reply MOL, p. 1; see also p. 6]. In light of the APRB's existence, and its oversight of demolition requests, this proposition simply will not come to fruition. The Village created the APRB to preserve historic resources. See General Municipal Law § 96-a ; Village Code § 210-57. Therefore, the Village already has more than adequate protections in place to regulate the Village's character. In fact, this case - which is very unique - is a prime example of the APRB's extreme diligence in saving historic resources. Petitioners went through a grueling 16-month long demolition review process during which they hired experts [even some to report for the APRB], allowed site inspections, and made multiple written and oral submissions in support of why the present home was not longer a viable living space given the mold infestation. The APRB explored all viable avenues of possible remediation to salvage the home. So not only was this specific project subject to rigorous review, this Court is confident that the APRB will do so for any future demolition application. In conclusion, the PZBA's decision to forgo 6 NYCRR § 617.5 (c) (2) and/or (9) was the wrong determination, and as such, it is voided. See Inc. Vil. of Munsey Park , 150 A.D.3d at 971, 57 N.Y.S.3d 154 ; Coney-Brighton Boardwalk All. , 122 A.D.3d at 925, 998 N.Y.S.2d 114 ; Groarke , 63 A.D.3d at 936, 880 N.Y.S.2d 535 ; Levine , 307 A.D.2d at 998, 763 N.Y.S.2d 661 ; Manhattan Val. Neighbors for Permanent Hous. for the Homeless , 168 A.D.2d at 263, 562 N.Y.S.2d 621 ; Anderberg , 141 Misc. 2d at 597, 533 N.Y.S.2d 828 ; Comm. to Preserve Historic Chautauqua Amphitheater , 51 Misc. 3d at 736, 25 N.Y.S.3d 583.
Petitioners' final contention deals with alleged disparate treatment. See Knight v. Amelkin , 68 N.Y.2d 975, 510 N.Y.S.2d 550, 503 N.E.2d 106 (1986) ; Wegmans Enterprises, Inc. v. Lansing , 134 A.D.2d 898, 521 N.Y.S.2d 1011 (4th Dept. 1987), aff'd , 72 N.Y.2d 1000, 534 N.Y.S.2d 372, 530 N.E.2d 1292 (1988). This Court certainly understands Petitioners' exasperation with the handling of their project; however, the PZBA took a great deal of time to distinguish the other projects. Because the PZBA set forth its reasoning - as opposed to no reasons at all for the differing outcome - there is no valid basis to overturn the same as arbitrary and capricious on this precise ground. See e.g. Cowan v. Kern , 41 N.Y.2d 591, 394 N.Y.S.2d 579, 363 N.E.2d 305 (1977) (the petitioner failed to prove discrimination in the denial of an application); Mimassi v. Town of Whitestown Zoning Bd. of Appeals , 124 A.D.3d 1329, 1330, 997 N.Y.S.2d 888 (4th Dept. 2015) (the petitioner failed to establish that the respondent's determination on another application was based on essentially the same facts as the petitioner's present application so as to qualify as disparate treatment).
CONCLUSION
Based upon all of the foregoing, it is the Decision, Order, and Judgment of this Court that:
1. The Verified Petition is GRANTED under CPLR 7803 (3).
2. Respondent's dismissal motion is DENIED .
Accordingly, the PZBA's SEQRA resolutions are annulled, and the matter is re-classified as a Type II Action, with no further environmental review required. See CPLR 7806. Further, the matter is remitted to the PZBA to complete the simple site plan review of the new house.
By way of a November 3, 2017, letter, Petitioners requested that this Court waive the need for any further site plan review. The PZBA contested this belated request. As such discrete relief was not pleaded, this Court declines to entertain that the same and forego any more site plan review. See Free In Christ Pentecostal Church v. Julian , 64 A.D.3d 1153, 881 N.Y.S.2d 773 (4th Dept. 2009).