IN RE CSI DEV.
v.
PLANNING BD. OF RHINEBECK

Supreme Court of the State of New York, Dutchess CountyOct 7, 2011
2011 N.Y. Slip Op. 51788 (N.Y. Misc. 2011)

4244/2011.

Decided October 7, 2011.

Jennifer M. Porter, Esq. and Howard D. Geneslaw, Esq., Gibbons, P.C., Attorneys for Petitioner/Plaintiff, New York, New York.

John F. Lyons, Esq., Grant Lyons, LLP, Attorneys for Respondents/Defendants, Rhinebeck, New York.


Petitioner/plaintiff initiated this hybrid Article 78 action against the respondents/defendants for an order (1) declaring the action of the Planning Board of the Town of Rhinebeck (the "Board") and Michael Trimble, in his capacity as Chairman of the Town of Rhinebeck Planning Board (the "Chairman"), in refusing and failing to endorse the petitioner's site plans arbitrary and capricious and an abuse of discretion and compelling and directing said respondents to endorse the site plans; (2) alternatively, declaring the actions of the Board and the Chairman in denying petitioner's second extension request were arbitrary and capricious and an abuse of discretion and vacating, annulling and setting aside the June 6, 2011 Board resolution denying the second extension request; (3) declaring that the respondents failed to act without bias and failed to adhere to prior precedent in making their determination regarding the petitioner's compliance with the conditions of approval necessary for endorsement of the site plans; (4) declaring the respondents failed to act without bias and failed to adhere to prior precedent in their denial of petitioner's second extension request and in adoption of the June 6, 2011 resolution; (5) finding the respondents in contempt of a court ordered stipulation dated September 10, 2008 and compelling the respondents' compliance therewith; (6) declaring that the respondents violated the petitioner's procedural due process rights; (7) declaring that the respondents violated the petitioner's substantive due process rights and equal protection rights; and (8) awarding the petitioner damages and imposing sanctions against the respondents based upon the foregoing.

The petitioner is the owner of an unimproved 7.7 acre tract of land located in the Town of Rhinebeck. The petitioner's property is zoned for commercial development and is also located in the Water Resources Protection Overlay District. Specifically, the petitioner's property contains federally protected wetlands. In 2006, the petitioner began the process of obtaining approval to construct a commercial complex on the site. As part of the process, the Board was declared lead agency for SEQRA analysis and ultimately issued a negative declaration.

While the parties each assert blame for delay on the other, it is undisputed that the review and approval process has been ongoing for approximately six years and resulted in two prior lawsuits, both of which were settled by the parties. Pursuant to a court ordered stipulation of settlement dated September 10, 2008, the parties stipulated that the petitioner's application would be reviewed under the Town of Rhinebeck's prior zoning code.

Ultimately, on June 7, 2010 the petitioner received condition approval for the construction of a 20,000 square foot medical office complex as well as special use permit approvals for the same. The conditional approvals were subject to a list of conditions that the petitioner was required to satisfy before final approval would be granted. As is indicated on the Board's June 7, 2010 resolution granting conditional approval, the Board required, among other things, that "as pre-requisites to [conditional] approval of this Special Use Permit . . . (3) a twenty-five foot wide natural buffer shall be maintained from the normal streambank . . .".

Based upon the prior zoning code, the petitioner's conditional site plan approval and special use permits were set to expire six months from June 7, 2010. By letter dated November 15, 2010, petitioner's architect requested the Board grant the petitioner a six month extension of the time permitted for meeting conditional approval. By resolution dated November 15, 2010, the Board granted the petitioner an extension from December 7, 2010 to June 7, 2011. The petitioner asserts it continued to diligently pursue compliance with all outstanding conditions during this time period, but that it was unable to completely satisfy all the conditions and therefore requested of the Board a second extension by letter dated May 13, 2011. Subsequent to that date and prior to the Board acting on the second extension request, the petitioner submitted its site plans to the Board for final approval. There is no dispute among the parties that the site plans contained a revision, although the parties vigorously dispute the import of that revision. Specifically, the revised site plans contain a new design for the wastewater treatment system that provided for an effluence outflow pipe to be located in the Town of Rhinebeck's natural stream buffer and protected wetlands. This revision would result in the discharge of effluent adjacent to a Rhinebeck Kill tributary. The petitioner asserts, and the respondents do not dispute, that they were required by New York State Department of Environmental Conservation ("NYSDEC") to relocate the effluence pipe as depicted on the revised plans in order to obtain the required State Pollutant Discharge Elimination System ("SPDES") permit.

Ultimately, the petitioner's request for a second extension was denied pursuant to the Board's resolution dated June 6, 2011. The Board found that there was "a significant design change in the site plan for the project." The Board also determined that the prior zoning code prohibited it from granting site plan approval.

An Article 78 proceeding assumes the character of a motion for summary judgment, in which the court must determine whether or not there is a triable issue of fact. ( Matter of Gagnon v. Board of Educ. Of Manhasset Union Free School District, 119 AD2d 674 [2nd Dept. 1986]. Since the respondents have filed and served an answer in this proceeding, the court may address the merits of the petition.

CPLR § 7803(3)

This court's review of the respondents' determinations is limited to whether the determinations were made in violation of lawful procedure, were affected by an error of law, or were arbitrary and capricious or an abuse of discretion. (CPLR § 7803; Kahn v. Pasnik, 90 NY2d 569.) Arbitrary action contemplated by CPLR § 7803 is action without sound basis and reason and is generally taken without regard to the facts. ( Matter of Pell v. Board of Education, 34 NY2d 222.) The court should not disturb the respondent's determination unless the record shows that the board's action was "arbitrary, unreasonable, irrational or indicative of bad faith." ( Matter of Cowan v. Kern, 41 NY2d 591.)

APPROVAL OF PLANS

The record before the court demonstrates that the respondents had a rational basis for refusing to endorse the petitioner's site plans. Although the petitioner alleges to have complied "to the maximum extent practicable" with the respondents' requested changes or comments, such an allegation is insufficient to support the granting of an order compelling the respondents to approve the plans. Nor is the petitioner's contention that the site plans were in sufficient form for endorsement but for minor changes or conditional requirements that would be typically dealt with during the construction phase supported by anything other than the affidavit of the petitioner's managing member. As is evident from the submissions of the parties, of primary concern to the respondents is that the plans submitted by the petitioner for final approval depicted an outfall pipe from the sewage treatment plant traversing through wetlands and discharging adjacent to a Rhinebeck Kill tributary. The respondents contend, and the voluminous record supports, that the complained of outfall pipe was not contained on the petitioner's conditionally approved plans, nor was it considered in the SEQRA review. While the petitioner contends this change was "de minimus" and required by the NYSDEC as part of the SPDES permit, the court will not substitute its judgement for that of the Planning Board of the Town of Rhinebeck, acting as the lead agency, in determining the impact of the changed outfall location.

Petitioner's assertion that the authority exercised by the NYSDEC in issuing a SPDES permit to the petitioner preempts the authority of the respondents with regard to site plan approval conditions is without merit. As stated by the Court of Appeals, "SPDES regulation is not so broad in scope or so detailed as to require a determination that [Article 17] has superseded all existing and future local legislation.'" ( Bri-Mar Corp. v. Town Board of the Town of Knox, 74 NY2d 826, 828, quoting Jancyn Mfg. Corp. v. County of Suffolk, 71 NY2d 91.) Therefore, the issuance of a SPDES permit to the petitioner did not foreclose the respondents from further review of the amended plans.

Moreover, the petitioner has failed entirely to establish that the respondents' actions were motivated by bias or that they failed to adhere to prior precedent regarding the final approval of the petitioner's plans. The respondents' review of the 2004 subdivision application for the subject property presented substantially different factors for consideration, primarily there were no current proposals for construction. The petitioner has otherwise failed to demonstrate that the other applicants/ property owners were similarly situated. Specifically, the petitioner has failed to demonstrate that any of the referenced applicants presented site plans for final approval that contained revisions of potential environmental impact not previously approved by the Board.

After a careful review of the record, the court finds that the respondent board's determination was neither arbitrary nor capricious, an abuse of discretion, or a result of bias against the petitioner because the board had a sound basis in reason and the determination was based upon facts presented. Therefore, it is ordered that the respondents shall have judgment dismissing the petitioner's first and third causes of action.

PETITIONER'S SECOND EXTENSION REQUEST

In the alternative, the petitioner has also requested an order vacating, annulling and setting aside the respondents' denial of the petitioner's second extension request as such denial was allegedly arbitrary, capricious and an abuse of discretion.

Certain provisions of the prior zoning code permit the Board to grant extensions of site plan and special use permit approvals. Specifically, Section VI(G), which governs the expiration and extension of special use permits, provides as follows:

EXPIRATION OF SPECIAL USE PERMIT. A special use permit . . . shall expire if the special use permit activity is not commenced and diligently pursued within six (6) calendar months of the date of issuance of the special use permit.

Upon prior request to the Planning Board, the time period for initiation of the special permit use may be extended for a maximum period of one (1) calendar year from its otherwise specified termination date.

Section VII(E)(4), which governs the extension and expiration of site plan approvals, states:

Expiration of Approval. Planning Board approval of a site plan shall expire if either of the following circumstances occurs:

a. The site plan is not submitted for stamping and signature by the Chairman within six (6) calendar months of the Planning Board's resolution of site plan approval, with or without modification.

b. A complete application for either a Building Permit or Certificate of Occupancy is not submitted to the Zoning Enforcement Officer within six (6) calendar months of the stamping and signing of the site plan by the Chairman.

Upon prior written request to the Planning Board, the time period for either submission of the site plan or submission of the complete application for a Building Permit or Certificate of Occupancy may be extended for a maximum period of six (6) calendar months from its otherwise specified termination date.

Because an applicant's project may require both site plan approval and a special use permit, the Zoning Code also empowers the Planning Board to integrate the site plan and special permit procedures. Specifically, Section VI(I) provides that:

INTEGRATION OF PROCEDURES. Whenever a particular application requires both the consideration of a special use permit and site plan review and approval by the Planning Board, the Planning Board shall integrate, to the extent practicable and consistent with applicable law, special use permit review, as required by this Section, with the site plan review and approval process. Such integration of procedures may require upon mutual written consent of the planning board and applicant, reasonable modification of the time schedules otherwise stated in this Section or in Section VII, as related to site plan review and approval.

Correspondingly, Section VII(I) states:

INTEGRATION OF PROCEDURES. Whenever the particular circumstances of a proposed development require compliance with either another procedure in this Local Law, such as special permit review and approval . . . the Planning Board may integrate, if it deems appropriate, and to the extent of its authority under law, site plan review as required by this Section with the procedural and/or submission requirements for such other compliance. Such integration of procedures may require, upon mutual written consent of the Planning Board and the applicant, reasonable modification of the time schedules otherwise stated in this Section or in said related regulations or requirements.

The petitioner's position is that the respondents abused their discretion and acted arbitrarily and capriciously when the petitioner's second extension request was denied. In response, the respondents contend that they were without authority to extend the expiration date for the petitioner's site plan approval based upon the restraints set forth in Section VII(E)(4). Furthermore, the respondents assert that the integration of procedure provisions serve only to extend timetables and do not speak to the extension of expiration dates. It is well settled that "[z]oning regulations are in derogation of the common law and must be strictly construed against the municipality. Thus, any ambiguity in the language used in zoning regulations must be resolved in favor of the property owner." ( KMO-361 Realty Assoc. v. Davies, 204 AD2d 547, 548 [2nd Dept. 1994].)

Although the Planning Board's interpretation of the zoning code is entitled to deference, the ultimate responsibility for interpreting the law is that of the court. ( Chrysler Realty Corp. v. Orneck, 196 AD2d 631 [2nd Dept. 1993], citing Matter of Exxon Corp. v. Board of Stds. Appeals of City of New York, 128 AD2d 289 [1st Dept. 1987].) A planning board's interpretation that is irrational or unreasonable will be annulled. ( Chrysler Realty Corp., supra, at 632. In the present case, the court finds the Board's interpretation of the "Integration of Procedures" sections was irrational and unreasonable. The position asserted by the Board would eviscerate certain aspects of the intended goal of the integration provisions by permitting one portion of an applicant's project, the site plan approval, to expire while another portion, the special use permit, continued for an additional six months through the extension provisions contained in the respective code section. Such a result is both irrational and unreasonable. Nor does this court agree with the respondents that the phrase "time schedules" is so restrictive as to permit the Board to extend only the schedules set forth for site plan review, such as the time to apply for site plan approval, conduct a public hearing, or act on the site plan application. A plain meaning of the phrase "time schedules" would apply that term to all deadlines and timing requirements, including the extension thereof.

Moreover, although the Board's resolution recites the revised location for the outflow pipe as one basis for its resolution denying the extension request, it is undisputed by the respondents that the Board did not yet have an opportunity to determine the environmental impact of this change. It is the court's determination that the Board should have granted the petitioner's second extension request, pursuant to the terms of the prior zoning code, to permit both the further review of the proposed plans by the Board and the continued attempted compliance by the petitioner of any remaining conditions of approval. Therefore, it is ordered that the petitioner shall have the relief demanded in its second cause of action and the Board's determination to deny the second extension request is vacated, annulled and set aside.

While petitioner also asserts the respondent Board failed to act without bias and in contravention to its prior precedent in denying the petitioner's second extension request, it has failed to allege a single example of another applicant who was granted a second extension request. Therefore, the petitioner's fourth cause of action dismissed.

PROCEDURAL DUE PROCESS

The petitioner further asserts a violation of its procedural due process rights under the Constitution of the United States and the New York State Constitution to have the plan endorsement and resolution adoption processes conducted in accordance with law. As discussed supra, the respondents' refusal to endorse the petitioner's submitted plans had a sound basis in reason and the determination was based upon facts presented. Moreover, the petitioner has not provided any binding authority for its position that its substantive due process rights were violated based on the respondents' failure to endorse its plans or grant it a second extension request. The only case cited by the petitioner in its memorandum in support of its petition/complaint is factually distinguishable from the case at bar. In Hughes Village Restaurant Inc. v. Village of Castleton-on-Hudson, the court examined the unauthorized acts of a state employee in closing an apartment building after an electrical fire and determined that sufficient post-deprivation remedies existed for the plaintiff precluding a 42 USC § 1983 claim. ( 46 AD3d 1044 [3rd Dept. 2007].) Nothing in Hughes Village Restaurant supports the petitioner's contention that the Board violated its rights by refusing to endorse its plans or grant its second extension request. In short, the petitioner has provided no support for its allegation that its rights were violated when the Board prepared its resolution in advance of the meeting and denied the petitioner "meaningful discussion" regarding its submitted plans or extension request. As is evidenced by the record, the only item on the Board's agenda at the June 6, 2011 hearing, as it relates to the petitioner, was the petitioner's application for a second extension request. The minutes from the Board's meeting indicate that discussion was had on the request and the petitioner acknowledges it was permitted time to comment, albeit less time than it desired, on its extension request. As such, the record wholly refutes the petitioner's allegation that its substantive due process rights were violated. Therefore, it is ordered that the petitioner's sixth cause of action is dismissed.

SUBSTANTIVE DUE PROCESS AND EQUAL PROTECTION

The petitioner's allegations concerning its cause of action for a violation of its substantive due process and equal protection rights is premised largely on the same allegations that permeate its procedural due process claim, namely that it was denied a sufficient opportunity to be heard, the respondents refused to consider certain of its submissions, and the respondents improperly refused to endorse its site plans and incorrectly concluded it lacked authority to grant a second extension request.

A substantive due process claim consists of two elements: (1) a cognizable property interest, meaning a vested property interest, and (2) a demonstration that the governmental action was wholly without legal justification. ( Bower Assoc. v. Town of Pleasant Valley , 2 NY3d 617 .) "Only the most egregious official conduct can be said to be arbitrary in the constitutional sense." ( City of Cuyahoga Falls, Ohio v. Buckeye Community Hope Found., 538 US 188.) Assuming the petitioner has satisfied the first prong, the petitioner has failed to set forth sufficient allegations to satisfy the second prong. While the court has determined as part of this application that the respondents' denial of the petitioner's second extension request was an abuse of discretion and without sound basis in law, the petitioner has failed to allege or demonstrate that the respondents' conduct was so egregious that it implicates constitutional law. ( Bower Assoc. v. Town of Pleasant Valley , 2 NY3d 617 .)

The court turns next to the petitioner's equal protection cause of action. The essence of the constitutional guarantee of equal protection is that all persons similarly situated must be treated alike. ( Id. at 603). Here, the petitioner's cause of action is not sounded in differential treatment as a constitutionally protected suspect class or the denial of a fundamental right, but rather in the allegation that it has been selected by the respondents for disparate treatment during the permit and plan approval process for its project. As such, it is necessary for the petitioner to allege and establish that the respondents singled it out with malevolent intent. ( Id. at 631). It is not sufficient for the petitioner to demonstrate only that it was treated differently than similarly situated landowners. Instead, there must be proof that the applicant was singled out with an "evil eye and unequal hand, so as practically to make unjust and illegal discriminations between persons in similar circumstances." ( Matter of 303 W. 42nd St. Corp. v. Klein, 46 NY2d 66, 693.) The petitioner alleges it was treated in a disparate manner from other applicants and that the Board wrongfully refused to endorse its site plans or grant its second extension request. There is no proof, however, that the other landowners were similarly situated to the petitioner — in terms of either obtaining endorsement of its plans, which include a revision potentially affecting wetlands, or in obtaining a second extension. Moreover, the petitioner has failed to demonstrate an improper motive; to the contrary, its improper motivation claim more closely addresses the merits of the Board's decisions than the constitutionality thereof. ( Bower Assoc., 2 NY3d at 632).

Therefore, it is ordered that the petitioner's seventh cause of action is dismissed. Additionally, because all of the petitioner's 42 USC § 1983 claims have been dismissed, it is further ordered that petitioner's eighth cause of action, which requests legal fees in relation in its 42 USC § 1983 claims, is also dismissed.

CONTEMPT

In addition to the aforementioned relief, the petitioner also requests an order holding the respondents in contempt of the parties' court-ordered stipulation dated September 10, 2008. Specifically, the petitioner alleges the respondent Board failed "expeditiously to process and act upon the submission of a new application by [p]etitioner for Site Plan and/or Special Permit approval for the development of its [p]roperty."

This court has the power to punish for civil contempt, by fine and imprisonment, or either, in an instance where a party disobeys a lawful court order. ( Dept. of Environmental Protection of City of New York v. D.E.C. of State of New York, 70 NY2d 233; Judiciary Law § 753[A][3].) In order to sustain a finding of civil contempt, it must be determined that a lawful order of the court, clearly expressing an unequivocal mandate, was in effect. In addition, the contemner must have had knowledge of the subject order, although it is not necessary that the order actually have been served upon the party. ( Matter of McCormick v. Axelrod, 59 NY2d 574.) Finally, it must be demonstrated that prejudice to the right of a party to the litigation has occurred. ( Id. at 583; Judiciary Law § 753[A].)

Contempt is a very powerful tool of the court that must always be administered cautiously and with restraint. Here, the petitioner/plaintiff has failed to demonstrate that the respondents/defendants disobeyed an unequivocal mandate of the court. The full text of the subject clause states as follows:

WHEREAS, the parties have had settlement discussions in the hopes of potentially resolving the Proceeding and the Moratorium Action and allowing for Petitioner to expeditiously proceed with and the Planning Board to expeditiously process and act upon the submission of a new application by Petitioner for Site Plan and/or Special Permit approval for development of its Property.

The court declines to find this clause an unequivocal mandate of the court requiring the respondents/defendants to process the petitioner's submissions expeditiously. The subsequent incorporation of all "whereas" clauses in the court-ordered stipulation does not serve, as suggested by the petitioner, to convert by implication the subject clause into a court ordered mandate. Therefore, the petitioner's application for an order holding the respondents in contempt of the September 10, 2008 court-ordered stipulation is denied.

Accordingly, it is ordered the petitioner's second cause of action is granted and it shall have the relief as requested therein vacating, annulling and setting aside the June 6, 2011 resolution denying its second extension request. All of the petitioner's remaining causes of action are dismissed.

The Court read and considered the following documents upon this application:

PAGES NUMBERED 1.Order to Show Cause...................................... 1-6 Verified Petition..................................... 1-33 Exhibits.............................................. A-I Memorandum of Law..................................... 1-22 2.Verified Answer.......................................... 1-54 Affidavit in Opposition-Michael Trimble............... 1-17 Affidavit in Opposition-Arthur Brod, Jr............... 1-3 Affidavit in Opposition-John Maasz.................... 1-2 Exhibits.............................................. A-S Certified Record of Proceedings (Parts 1 2) Town of Rhinebeck Zoning Law Memorandum of Law..................................... 1-8 3.Reply Affidavit-Patrick Carella.......................... 1-44 Exhibits (Part 1)..................................... A-J Exhibits (Part 2)..................................... A-F Exhibits.............................................. 1-14 Reply Memorandum of Law............................... 1-24 4.Sur-Reply Affidavit-Michael Trimble................. 1-13 Sur-Reply Memorandum of Law...................... 1-21 Appendix.............................................. A

Although there is no provision in the CPLR for a sur-reply submission, the Court considered these documents in the interest of justice. In addition, the petitioner/plaintiff consented to these sur-reply submissions and the Court permitted same.

The foregoing constitutes the decision and order of the Court.