In the Matter of Ranco Sand and Stone Corp., Appellant,v.Patrick Vecchio, et al., Respondents.BriefN.Y.February 18, 2016APL-2015-00079 Suffolk County Clerk’s Index No. 45491/09 Appellate Division, Second Department Docket No. 2012-05135 Court of Appeals STATE OF NEW YORK In the Matter of RANCO SAND AND STONE CORP., Petitioner-Appellant, against PATRICK VECCHIO, THOMAS J. MCCARTHY, EDWARD WEHRHEIM, PATRICIA BIANCANEILLO, ROBERT J. CREIGHTON, constituting the Town Board of the Town of Smithtown, Suffolk County and the TOWN OF SMITHTOWN, Respondents-Respondents. For Relief Pursuant to Article 78 of the Civil Practice Law and Rules of the State of New York >> >> REPLY BRIEF FOR PETITIONER-APPELLANT LEONARD J. SHORE, ESQ. Attorney for Petitioner-Appellant 366 Veterans Memorial Highway Commack, New York 11725 631-543-5800 Date Completed: August 7, 2015 To Be Argued By: Leonard J. Shore Time Requested: 30 Minutes i TABLE OF CONTENTS TABLE OF AUTHORITIES…………………………………………….ii ARGUMENT RESPONDENTS HAVE FAILED TO DIRECTLY REFUTE THE ARGUMENTS OF THE APPELLANT IN ITS BRIEF……………………………………………………..1 CONCLUSION…………………………………………………………10 ii TABLE OF AUTHORITIES Cases Matter of Center of Deposit, Inc. vs. Village of Deposit, 908 A.D.3d 1450, 936 N.Y.S.2d 709 (3d Dept, 2011)………….2, 3, 7, 8 Matter of East End Property Company #1, LLC v. Town Board of Town of Brookhaven, 53 A.D.3d 773, 868 N.Y.S.2d 264 (2d Dept, 2008)……………….…..4 Forte v. Kaneka America Corporation, 110 A.D.2d 81, 493 N.Y.S.2d 180 (2d Dept, 1985)…………………...4 Franklin v. Catherwood, 36 A.D.2d 561, 317 N.Y.S.2d 570 (3 rd Dept, 1971)…………………...4 Gordon v. Rush, 100 N.Y.2d 236, 762 N.Y.S.2d 18 (2003)…………………………2, 3, 8 GTF Marketing Inc. v. Colonial Aluminum Sales, Inc., 108 A.D.2d 86, 488 N.Y.S.2d 219 (2 nd Dept, 1985)...…………………4 Horan v. Town of Smithtown Unpublished – Printed at Record Pages 33-38…………………..…1, 3, 4 Koch v. Consolidated Edison Co., 62 N.Y.2d 548, 479 N.Y.S.2d 163 (1984)………………………….….5 Neville v. Koch, 79 N.Y.2d 416, 583 N.Y.S.2d 802 (1992)……………………….….6, 7 Watts v. Lanari, 27 N.Y.2d 270, 317 N.Y.S.2d 315 (1970)………………………….….5 Statutes ECL §8-0109(4)…………………………………………………….….2, 8 1 ARGUMENT RESPONDENTS HAVE FAILED TO DIRECTLY REFUTE THE ARGUMENTS OF THE APPELLANT IN ITS BRIEF While the Respondents’ Brief is replete with citations, it fails to directly address the central issues or facts raised on this appeal. The vast majority of the cases cited by Respondents stand for general statements of law and Appellant does not dispute these rules or holdings. The Appellant is in agreement that, in general, there is no doctrine of municipal estoppel for administrative action; a rezoning application triggers the necessity for a SEQRA determination; and the adoption of a resolution requiring the preparation of an Environmental Impact Statement is not the final assessment of the underlying application. But general rules usually have exceptions and the rules, with their exceptions, must be applied to the factual context of the proceeding. The Respondents’ Brief fails to properly answer and sidesteps the critical issues in this case: (a) whether the decision of Justice Oliver in prior litigation of Horan v. Town of Smithtown, unpublished, Sup. Suffolk , 1999, (included in the Record on Appeal (hereinafter “R.” ) at pages33-38), aff’d, 282 A.D.2d 498, 722 N.Y.S.2d 885 (2 nd Dept, 2001), which involved the same parties and included the Subject Premises in this action, is res judicata against the Respondents and/or 2 precludes relitigation in this proceeding of issues previously decided therein 1 ; (b) whether the Positive Declaration resolution is arbitrary and capricious when the zone change petition would merely make the long-standing existing use compatible with the requested change of zone, with no present or projected change of use of the Subject Premises; and (c) whether a seven-year period between the filing of the zone change petition by the Appellant and the adoption of the Positive Declaration resolution by the Respondents complies with the statutory requirement of prompt adoption of a SEQRA determination resolution (ECL §8-0109(4)) or constitutes a denial of due process to the Appellant. 2 Respondents have misread and mis-apply this Court’s decision in Gordon v. Rush, 100 N.Y.2d 236, 762 N.Y.S.2d 18 (2003) and the holding in the case of Center of Deposit, Inc. vs. Village of Deposit, 908 A.D.3d 1450, 936 N.Y.S.2d 709 (3d Dept, 2011). In Gordon, the Court established that if prior acts preclude a government from legally adopting a SEQRA resolution requiring an impact statement, then an applicant would suffer real injury and could not be required to prepare a DEIS. The Court held that an improper resolution requiring an impact statement will cause actual injury, which cannot be ameliorated by further government action and 1 If so, such prior litigation, to which the Town of Smithtown was a party, precludes the adoption of a resolution by the Town requiring the Appellant to prepare a Draft Environmental Impact Statement (DEIS). 2 Which the Respondents fail to address and attempt to place some of the fault on Appellant. (See Respondents’ brief, P. 22 at footnote 5.) 3 therefore is a controversy ripe for judicial review. The Court did not establish a “bright line” test on the circumstances which would make this intermediary municipal action a proper subject for Court review. The rule, under the facts of Gordon, is that an applicant cannot be subject to two SEQRA reviews for the same project. But Gordon did establish that a positive SEQRA resolution may be a justiciable controversy depending on the facts. Utilizing this exception to the general rule of lack of ripeness, the Third Department decided the case of Center of Deposit, supra. The Respondents’ argument to narrowly interpret Gordon should not be adopted by the Court. Rather, Respondents are opposed to any weighing test and attempt to trivialize and dismiss the effect of the prior legal action in Horan vs. Smithtown. While the decision of Justice Oliver (R. 33-38) did address a motion to amend the Complaint, both as to caption and adding additional causes of action, it also determined not to remand the rezoning application to the Town Board for its further determination, but retained jurisdiction and made factual and legal rulings for the upcoming trial. Such holdings were central to that case at that point. These findings were not dicta, as is argued by the Respondents. Dicta is defined as “opinions of the judge which do not embody the…determination of the court”. Black’s Law Dictionary, Rev. 4th, 1968. In his decision, Justice Oliver denied the Town’s request to remand the case to the Respondents for 4 reconsideration. Rather, the Court retained jurisdiction as to whether or not the Town had acted arbitrarily in denying the rezoning and was prepared to try the case. The parameters as set forth by the Court for the trial were clearly factual determinations which bind both parties and the Court. GTF Marketing Inc. v. Colonial Aluminum Sales, Inc., 108 A.D.2d 86, 488 N.Y.S.2d 219 (2 nd Dept, 1985). See generally Franklin v. Catherwood, 36 A.D.2d 561, 317 N.Y.S.2d 570 (3 rd Dept, 1971). Justice Oliver directly held the Town could not require Horan to prepare an Environmental Impact Statement (R. 37) as part of a rezoning petition for the adjoining parcel. The Town appealed and the decision was affirmed. After the affirmance, the Town settled the case by agreeing to rezone the property to Heavy Industry and not requiring Horan to prepare a DEIS. Issue preclusion prevents the Town from relitigating this holding. Matter of East End Property Company #1, LLC v. Town Board of Town of Brookhaven, 53 A.D.3d 773, 868 N.Y.S.2d 264 (2d Dept, 2008). The settlement prior to trial does not affect the controlling law decided by Justice Oliver. Forte v. Kaneka America Corporation, 110 A.D.2d 81, 493 N.Y.S.2d 180 (2d Dept, 1985). Respondents also attempt to place distance between Horan vs. Smithtown and the case at bar, claiming it involved different parties and different property. However, the Town, in the 2004 Report of the Planning Director, admits “The 5 subject lot and the adjacent lots are under the same ownership and currently used as a single site.” (“R. 54, fifth paragraph”). Marilyn Horan, the majority owner of Ranco, and sole beneficiary of the Peter Horan Trust, obtained her interest in both parcels upon the death of her husband, Peter Horan, the owner of the adjoining parcel and at the time of his death, the sole shareholder of Ranco. Watts v. Lanari, 27 N.Y.2d 270, 317 N.Y.S.2d 315 (1970). It is undisputed that at the time of the Oliver site visit and decision in 1999, and at all times since, the two parcels have been utilized by a single tenant for a single purpose and there is no differentiation as to the property line between the two parcels. Under the theory of res judicata and issue preclusion, this Court should hold the Town of Smithtown is bound by Justice Oliver’s decision that Respondents cannot, because of their own lax conduct, require a DEIS prior to consideration of a resolution to rezone the Subject Premises. Koch v. Consolidated Edison Co., 62 N.Y.2d 548, 479 N.Y.S.2d 163 (1984). The Appellant does not dispute the thoroughness of the 2004 Report of the Town Planning Director, Frank DeRubeis (R. 53-58). However, the Respondents ignore both the admissions in the Report as to the Appellants’ longstanding use of the property which is only permitted in a Heavy Industrial zone and the recommendations of both the Smithtown Town Planning Board and the Suffolk County Planning Commission. As embodied in the Report, each body 6 recommended that the change of zone petition to Heavy Industrial be granted (R. 57, 56). Mr. DeRubeis’ Report favors the rezoning and points out that if the property were to be zoned heavy industrial, that there were certain uses which could not be easily accommodated on the Subject Premises, especially if it were developed without the utilization of the adjoining co-owned property. Appellant contends that if, after a rezoning, the property owner were to seek such a proposed use, it is the function of SEQRA to address such potential uses and their effects. Respondents’ Brief (at Pages 16-17) urges that the August 11, 2009 “Positive Declaration” was well-reasoned. The Appellant argues that the resolution did not take the required “hard look” at the actual facts, but instead was actually a boilerplate resolution which listed a full array of the general potential impacts on noise, air, odor, light, dust, traffic, storage and handling of toxic and hazardous materials and requires the Appellant to perform an assessment of every potential use under a heavy industrial zone and their impacts. None of the case law which the Respondents cite supports the adoption of such a burdensome, broad-based, non-project specific assessment. Respondents cite to this Court’s decision in Neville v. Koch, 79 N.Y.2d 416, 583 N.Y.S.2d 802 (1992), which involved the redevelopment of a full square block on West 42 nd Street in Manhattan. In that action, which involved a rezoning application, the 7 Applicant had general, but not non-specific, plans to demolish an existing two- story building. The requested rezoning would allow a building up to six times larger than the existing building and mixed uses. The Court of Appeals upheld the New York City regulation that the DEIS should address just the impact of maximum floor space allowed. In Neville, the Applicant apparently did not object to the preparation of a lengthy DEIS for a project costing tens of millions of dollars. Such a decision does not equate to the facts in the case at bar. Rather, this Court should find that a weighing test, as adopted in Center of Deposit, Inc., supra, does not justify such a broad-based environmental assessment on a 2.16-acre parcel of land. The preparation of the DEIS and EIS by the Appellant will cost nearly two years’ gross rental (for both parcels) and for which the Applicant has no specific plans to change the current (and long-existing) use of the Subject Premises. Such a determination should be held to be arbitrary. Adding to the arbitrariness of the Town’s action is that it did not occur until seven years after Appellant initially filed the change of zone petition and five years after the Town Board public hearing. As argued in Appellant’s Brief, this inaction violates the “as soon as 8 practicable” dictate of the ECL §8-0109(4). The 2004 Planning Report admits the Town has failed to address the issue of proper zoning and rezoning in the area 3 . The Appellant is not seeking a ruling to have every municipal resolution requiring preparation of a DEIS to a matter ripe for Court review. Rather, your Appellant urges the Court to adopt a weighing test utilizing criteria similar to the factors weighed by the Court in Center of Deposit, Inc. While your Appellant argues that the unique facts here fall within the limited factual circumstances set forth in Gordon, 4 the Appellant urges that the Court’s rule not be limited to circumstances where a property owner has had a prior SEQRA review or other government action (or inaction), which precludes a subsequent environmental review. Respondents’ statement that if this Court reverses that, the litigation flood gates will open and cause more delays in the process, is not necessarily correct. Appellant strongly disputes Respondents’ prediction of dire consequences. Appellants urge this Court to adopt a set of criteria which would weigh the several factors involved in determining the ripeness of a positive SEQRA resolution for 3 Mr. DeRubeis’ Report admits at Point 5, second paragraph, “There have been several zone change petitions in the area that have been adjourned indefinitely.” (R. 54) 4 The decision of Justice Oliver (R. 33-39) determining the Town could not require the property owner to prepare an Environmental Impact Statement legally precludes the Town from now requiring an impact statement on this parcel. Just as the Town of East Hampton was barred from requiring an impact statement after failing to participate in DEC’s coordinated review in Gordon, the Town of Smithtown is barred from revisiting the determinations made by Justice Oliver declaring the Town could not impose an Environmental Impact Statement on the property owner. 9 judicial review. That bar should be high, but Appellant believes the unique facts of this case will satisfy any such set of criteria. Such a weighing test should allow a property owner to immediately challenge abuses by government in the application of SEQRA, by reviewing the potential costs and economic injury to an applicant versus the benefits of preparing an Environmental Impact Statement. The establishment of such a weighing test by this Court would not open the floodgates for litigation. CONCLUSION For the reasons set forth in both the Appellant's Brief and this Reply, this Court should reverse the decision of the Court below and find that the adoption of a positive declaration pursuant to SEQRA is a justiciable controversy under the facts as alleged and that the adoption of a positive declaration by the Respondents is unwarranted, untimely and improper and should be held as arbitrary and capncIOus. Dated: August 7, 2015 Commack, New York To: John M. Denby, Esq. Devitt Spellman Barrett, LLP 50 Route 111 Smithtown, N.Y. 11787 10