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Dennis C. COLLINS and Linda Collins, Petitioners, For an order pursuant to Article 78 of the Civil Practice Law and Rules, v. VILLAGE OF HEAD–OF–THE–HARBOR, Chairman Harlan J. Fischer, Philip Palmedo, Vincent Pizzulli, Stephanie Gress and Michael Utevsky, constituting the Planning Board of the Incorporated Village of Head–of–the–Harbor in their capacity as members, and Robert O'Shea, Building Inspector, and Frank Kiridly, Member of HRG Holdings, LLC, Contract Vendee, Rachel Stolowicki, Respondents.
Upon the reading and filing of the following papers in this matter: (1) Order to Show Cause, made by petitioners, dated October 6, 2017, and supporting papers; (2) Notice of Cross Motion to Dismiss, made by respondent Village of Head–of–the–Harbor and each other municipal respondent, dated October 12, 2017, and supporting papers; (3) Notice of Cross Motion, made by respondents Frank Kiridly and HRG Holdings, dated October 12, 2017,; (4) Affirmation in Opposition, made by petitioners, dated October 30, 2017; (5) Supplemental Affirmation in Support of Cross Motion, made by respondents Frank Kiridly and HRG Holdings, dated October 19, 2017; (6) Supplemental Affidavit, made by respondent Village of Head–of–the–Harbor and each other municipal respondent, dated October 19, 2017; it is,
ORDERED that Mot. Seq. # 001, made by respondent Village of Head–of–the–Harbor and each other municipal respondent, for an order pursuant to CPLR 7804(f) dismissing the petition is granted; and it is further
ORDERED that Mot. Seq. # 002, made by respondents Frank Kiridly and HRG Holdings, for an order pursuant to CPLR 7804(f) dismissing the petition is granted.
This is a hybrid action commenced on October 5, 2017 by petitioners Dennis Collins and Linda Collins against the Village of Head–of–the–Harbor and various municipal respondents (“Village”) seeking a declaratory judgment, injunctive relief, and relief pursuant to Article 78 of the CPLR in the nature of mandamus.1 Petitioners seek a declaratory judgment that a variance granted by the Board of Zoning Appeals of the Village of Head–of–the–Harbor providing reduced front-yard setback requirements on twenty-five lots spanning sixty acres dated August 29, 1958 is null and void; an order in the nature of mandamus annulling the approval of a Site Plan Application by the Village's Planning Board dated September 12, 2017, which allows respondent HRG Holdings to construct a residence on Lot 21 with a seventy-five foot front-yard setback; and a permanent injunction preventing the issuance of a building permit for Lot 21 on the subdivision map known as “Harbour Close, Section 1” unless such permit includes a front-yard setback requirement of 100 feet.
Petitioners allege that the fifty-nine year old, and apparently recently rediscovered, variance issued by the Zoning Board of Appeals, providing for a reduced foot front-yard setback requirement on twenty-five of the “Harbour Close, Section 1” lots, including a seventy-five foot front-yard setback requirement for Lot 21, contravened Village Law § 179–b, which was in effect at the time the variance was granted. Petitioners argue that Village Law § 179–b required variances to be issued to lots only on an individual basis and upon a showing of “practical difficulties or unnecessary hardship.” Petitioners argue that because the Village granted the variance to twenty-five lots simultaneously, it was a “blanket variance” that did not comport with Village Law § 179–b and is therefore void. In the alternative, petitioners argue that the variance is abandoned, and that the current zoning ordinance, adopted in 1976, which requires a one-hundred-foot front-yard setback, should apply to the lot. In either case, petitioners argue that the Village's approval of the Site Plan Application on September 12, 2017 is also void because the Village did not award petitioners due process, relied on an invalid variance and otherwise approved the Site Plan in an arbitrary or capricious manner. Accordingly, petitioners argue, the Village should be enjoined from issuing a building permit.
Respondent Village and the other municipal respondents along with respondents Frank Kiridly with HRG Holdings, now separately cross-move pursuant to CPLR 7804(f) to dismiss the action, arguing that any challenge to the area variance is time-barred, that the area variance is valid and that the petitioners lack standing to challenge the site plan approval.
On November 14, 2017 the Second Department denied petitioners' motion for leave to appeal an order of the Suffolk County Supreme Court, dated October 6, 2017, denying petitioners' request for a temporary injunction to prevent the Village from issuing a building permit to respondent HRG Holdings, LLC (Collins v. Village of Head of Harbor, ––– Ad3d –––– 2017 NY Slip Op 92072(U) [2d Dept 2017] ).
CPLR 7804(f) provides that “[t]he respondent may raise an objection in point of law by setting it forth in his answer or by a motion to dismiss the petition, made upon notice within the time allowed for answer.” “On a motion to dismiss pursuant to․ CPLR 7804(f), the petition-complaint alone must be considered, and all of its allegations are deemed true and afforded the benefit of every favorable inference” (Bloodgood v. Town of Huntington, 58 AD3d 619, 871 NYS2d 644 [2d Dept 2009] ). “In the absence of any indication that the petitioner's claim is tenable or that there is a material issue which requires a hearing, it [is] proper to dismiss the petition” (Sachs v. Bd. of Ed. of Mineola Union Free School Dist., 71 AD2d 898, 419 NYS2d 622 [2d Dept 1979]; see Arrandale Civic Ass'n v. Zoning Bd. of Appeals of Vil. of Great Neck, 27 AD3d 732, 812 NYS2d 133 [2d Dept 2006][affirming dismissal of petition brought pursuant to CPLR Article 78 as time barred]; see also Harris v. Town Bd. of Town of Riverhead, 73 AD3d 922, 905 NYS2d 598 [2d Dept 2010] [dismissing petition brought pursuant to CPLR Article 78 challenging land-use approval for lack of standing] ).
The respondents argue in their cross motions to dismiss that an area variance granted by a zoning board of appeals in 1958 cannot be challenged by an action or proceeding first commenced in 2017. Considering the allegations of the petitioners' petition alone, and affording those allegations the benefit of every favorable inference, it is clear that the petitioners' claim against the validity of the 1958 variance is time barred. The Petition was filed on October 6, 2017, well beyond the applicable thirty-day statute of limitations provided for by Village Law § 7–712–c(1) or any other conceivably applicable statute of limitations and therefore dismissal is appropriate (see Arrandale Civic Ass'n v. Zoning Bd. of Appeals of Vil. of Great Neck, supra ). Additionally, as discussed infra, petitioners' claim that the variance was abandoned is without merit because in New York, as a matter of law, area variances run with the land (see St. Onge v. Donovan, 71 NY2d 507, 527 NYS2d 721  ). Finally, because the petition fails to show, or even allege, that petitoners will suffer a direct injury different from that suffered by the public at large, petitioners have not established standing under Article 78 to challenge the Site Plan approval (Harris v. Town Bd. of Town of Riverhead, supra ). In any event, the Village Planning Board's approval of the Site Plan was not arbitrary or capricious and, notwithstanding petitioners' lack of standing, petitioners' mandamus proceeding fails on the merits.
I. Cross–Motions to Dismiss Petitioners' Declaratory Judgement Action
Statute of limitations
An Article 78 proceedings brought pursuant to Village Law § 7–712–c(1) by a “person․ aggrieved by any decision of the board of appeals” must be instituted “within thirty days after the filing of a decision of the board in the office of the village clerk.” “A strong public policy underlies the abbreviated statutory time frame: the operation of government agencies should not be unnecessarily clouded by potential litigation” (Best Payphones, Inc. v. Dept. of Info. Tech. and Telecom. of City of New York, 5 NY3d 30, 799 NYS2d 182  ).
Here, a thirty-day statute of limitations applies (Village Law § 7–712–c ). The variance, granted by the Village Zoning Board of Appeals in 1958, cannot be challenged by an Article 78 proceeding in 2017 (see Arrandale Civic Ass'n v. Zoning Bd. of Appeals of Vil. of Great Neck, supra ). Allowing such a proceeding to continue would undermine the strong public policy underlying the abbreviated statutory time frame, which is to free government agencies from the cloud of unnecessary litigation (Best Payphones, Inc. v. Dept. of Info. Tech. and Telecom. of City of New York, supra ). Petitioners argue that the Zoning Board of Appeals acted without jurisdiction when it granted the variance and 1958, and that therefore the statute of limitations has not begun to run. However, as discussed infra, this argument is unavailing and no exception to the thirty-day statute of limitations is applicable.
“Where a local land use agency acts without jurisdiction in approving or denying a site plan, special permit, or other land use application, a challenge to such an administrative action, as ultra vires, is not subject to the 30–day limitations period applicable to review of the site plan, special permit, or other land use determination” (420 Tenants Corp. v. EBM Long Beach, LLC, 41 AD3d 641, 838 NYS2d 649 [2d Dept 2007] [internal citations omitted] ). Accordingly, “plaintiffs must show a jurisdictional defect in order to avoid the bar of the Statute of Limitations” (id.). A decision by the Zoning Board of appeals is jurisdictionally defective when it is made beyond the scope of the board's authority (see Hampshire Mgt. Co., No. 20, LLC v. Feiner, 52 AD3d 714, 860 NYS2d 204 [2d Dept 2008]; 420 Tenants Corp. v. EBM Long Beach, LLC, supra ). Decisions that are, or alleged to be, merely arbitrary are not jurisdictionally defective (compare Casolaro v. Zoning Board of Appeals of the Village of Elmsford, 200 AD2d 742, 607 NYS2d 79 [2d Dept 1994] [board's failure to make supportive findings of fact in denying variance did not “toll” the running of the statute of limitations] and Beckman v. Talbot, 278 NY 146, 15 NE2d 556  [board's decision to consider sixteen lots in one variance application was not jurisdictionally defective] and Velez v. Board of Appeals of the City of New Rochelle, 147 AD2d 648, 538 NYS2d 52 [2d Dept 1989] [board's failure to provide petitioner with notice of a hearing on a variance application as required by City of New Rochelle Zoning Ordinance § 8.4 was not a jurisdictional defect] with South Shore Audubon Society, Inc. v. Board of Zoning Appeals of the Town of Hempstead, etc., et al, 185 AD2d 984, 587 NYS2d 29 [2d Dept 1992] [board's approval of variance was jurisdictionally defective when it approved the variances with a simple majority instead of a majority plus one vote as required by General Municipal Law § 239–m, and thus the statute of limitations was inapplicable] ).
The difference between acting in an arbitrary and capricious manner and acting in excess of jurisdiction has been explained as follows:
The terms ‘arbitrary’ and ‘capricious’ mean willful and unreasoning action without consideration of or in disregard of the facts․ An arbitrary determination is not, however, ipso facto one made in excess of jurisdiction. The jurisdiction of an administrative board or agency consists of the powers granted it by statute and a determination is void where it is made either without statutory power or in excess thereof. In such a case there is nothing to be reviewed, the determination being a nullity.
It is illegal for an administrative agency to reach a conclusion not permitted by the statute but it is arbitrary and capricious if it merely fails to give due weight to the evidence. Both the ‘arbitrary and capricious’ standard and the ‘substantial evidence board of appeals shall hear and decide’ rule ․ relate to justification rather than to power.
(Nager v. Inc. Vil. of Saddle Rock, 140 Misc 2d 644, 530 NYS2d 966 [Sup Ct, Nassau County1988], affd, 160 AD2d 785 [2d Dept 1990] ).
Here, petitioners argue that the Board of Zoning Appeals was without authority pursuant to former Village Law § 179–a to grant a variance to twenty-five lots simultaneously and that therefore the 1958 variance was jurisdictionally defective, rendering the thirty-day statute of limitations inapplicable. Accordingly, the court must decide whether the board had the authority pursuant to former Village Law § 179–a to grant the variance (Hampshire Mgt. Co., No. 20, LLC v. Feiner, supra; 420 Tenants Corp. v. EBM Long Beach, LLC, supra ).
Former Village Law § 179–b provided that:
Such board of appeals shall hear and decide appeals from and review any order, requirement, decision or determination made by an administrative official charged with the enforcement of any ordinance adopted pursuant to this act ․
Where there are practical difficulties or unnecessary hardship in the way of carrying out the strict letter of such ordinance, the board of appeals shall have the power in passing upon appeals to vary or modify the application of any of the regulations or provisions of such ordinance relating to the use, construction or alteration of buildings or structures, or the use of land, so that the spirit of the ordinance shall be observed, public safety and welfare secured and substantial justice done.
Any person or persons, jointly or severally aggrieved by any decision of the board of appeals, or any officer, department, board or bureau of the village may present to a court of record a petition, duly verified, setting forth that such decision is illegal, in whole or in part, specifying the grounds of the illegality. Such petition must be presented to the court within thirty days after the filing of the decision in the office of the board.
The Court of Appeals has upheld a Board of Zoning Appeals decision as jurisdictionally sound when the board granted a variance to multiple lots in one variance application (Beckman v. Talbot, supra );
Here, there is no evidence that the Village Zoning Board of Appeals acted in excess of the jurisdiction afforded it by former Village Law § 179–b when it granted an area variance to Lot 21, the lot-at-issue here. Petitioners argue that former Village Law § 179–b required applications to the Zoning Board of Appeals for variances to be considered on an individual basis and that, because the variances were granted to twenty-five lots simultaneously, the Board of Appeals acted in excess of its jurisdiction. However, neither the plain text of former Village Law § 179–b nor the case law requires that variances for lots be determined individually (Beckman v. Talbot, supra ). As in Beckman v. Talbot (278 NY 146, 15 NE2d 556  ), where, the Court of Appeals held, the Zoning Board of Appeals was within its jurisdictional power when it considered a variance application to allow the storage of petroleum products on sixteen lots and granted the application for eight of the lots, here the Zoning Board of Appeals was within its jurisdictional power when it considered a variance application for thirty lots and granted the application for twenty-five of those lots. In fact, Beckman reversed the decision of the Second Department, which had ruled that the Zoning Board of Appeals was, as a matter of law, without authority to grant the variance application for eight lots on the grounds that it was “without power to set aside the zoning ordinance in its entirety” (Beckman v. Talbot, 252 AD 870, 300 NYS 6 [2d Dept 1937] ). Notwithstanding petitioners' contention that the Village Zoning Board of Appeals' decision to grant the variance was arbitrary, decisions that are merely arbitrary are not jurisdictionally defective and are thus subject to the thirty day statute of limitations (see Hampshire Mgt. Co., No. 20, LLC v. Feiner, supra ). Because petitioners cannot show that the Zoning Board of Appeals decision granting the 1958 variance application was jurisdictionally defective, petitioners are time barred from challenging the decision and cannot avail themselves of any exception to the statute of limitations (420 Tenants Corp, supra ).
Petitioners argue that even if this court finds that the challenge to the original grant of the variance is time barred, the variance was abandoned and the current zoning ordinance, requiring a one-hundred-foot front-yard setback, therefore applies. However, in New York, “[i]t is basic that a variance runs with the land” and that an area variance will not be extinguished absent some time limit or condition (St. Onge v. Donovan, supra ).
Here, the variance issued by the Village Board of Appeals contains neither a time limitation nor condition and it is, therefore, still in effect. Petitioners' claim that the variance was abandoned fails.
It has been said that “[t]o avoid disputes over the acquisition of jurisdiction in hybrid actions-proceedings the pleading [should] be served with both a summons and notice of petition (or order to show cause). The summons invokes jurisdiction for the declaratory-judgment-action component while the notice of petition performs the same function for the Article 78 aspect of the case” (Alexander, Practice Commentary, McKinney's Cons Laws of NY, 2016 Electronic Update, CPLR 7804; [internal citations omitted] ). At least one trial court has found that “the notice of petition and petition are the functional equivalent of a summons and complaint for the declaratory judgment claim pleaded” in a hybrid action (see New York State Assemblyman Powell v. City of New York, 16 Misc 3d 1113(A), 2007 Slip Op 51409(U) [Sup Ct NY Co 2007] ). Neither the Court of Appeals nor any Appellate Division have ruled on this question.
Here, the respondents argue that the cause of action for declaratory relief should be dismissed because service of a summons is required pursuant to CPLR § 304 for the matter to proceed as a hybrid action, and petitioners did not serve a summons with the petition. The petitioner faxed the court a copy of a summons on December 6, 2017 but did not provide evidence of service. It is unnecessary, however, to reach the question of whether the order to show cause and petition here serve as the functional equivalent of a summons and complaint, thereby providing the Court with jurisdiction to consider the declaratory judgment component of this hybrid action without the necessity of also requiring service of a summons, as the Court is dismissing both the Article 78 proceeding and declaratory judgment action on other grounds.
II. Cross–Motions to Dismiss Petitioners' Article 78 Proceeding
Standing to Challenge the Site Plan Approval
Petitioners maintain that even if they cannot challenge the 1958 variance, and even if the variance was not abandoned, they can nonetheless challenge the September 17, 2017 approval of the Site Plan. To establish standing in an Article 78 proceeding challenging the approval of a land use application, “petitioners are required to show that they will suffer a direct injury different from that suffered by the public at large” (Harris v. Town Bd. of Town of Riverhead, supra ). “An allegation of close proximity may give rise to an inference of damage or injury that enables a nearby property owner to challenge a land use decision without proof of actual injury. However, this does not entitle the property owner to judicial review in every instance” (CPD NY Energy Corp. v. Town of Poughkeepsie Planning Bd., 139 AD3d 942, 32 NYS2d 275 [2d Dept 2016] ). “[P]etitioner must also satisfy the other half of the test for standing to seek judicial review of administrative action—that “the interest asserted is arguably within the zone of interest to be protected by the statute” (Sun–Brite Car Wash, Inc. v. Bd. of Zoning and Appeals of Town of N. Hempstead, 69 NY2d 406, 515 NYS2d 418  ). “Zoning ordinances are enacted to protect the health, safety, and welfare of the community” (Zupa v. Paradise Point Ass'n, Inc., 22 AD3d 843, 803 NYS2d 179 [2d Dept 2005] ). On a motion to dismiss pursuant to․ CPLR 7804(f), the petition-complaint alone must be considered, and all of its allegations are deemed true and afforded the benefit of every favorable inference” (Bloodgood v. Town of Huntington, supra ).
Here, the respondents argue in their Supplemental Affidavits in support of their cross motions to dismiss that petitioners do not have standing to maintain the Article 78 action because they have failed to claim an injury within the zone of protected interests. Considering the petitioners' petition, and affording it the benefit of every favorable inference, the petitioners do not have standing to challenge the site plan approval. In support of their contentions that they have standing to challenge the site plan approval, petitioners cite Matter of Shepherd v. Maddaloni (103 AD3d 901, 960 NYS2d 171 [2d Dept 2013] ) and argue that their allegation is sufficiently pleaded to avoid a motion to dismiss. However, the facts are not analogous. In Shepherd, the petitioner alleged that the approved construction project would harm their regular use, enjoyment and interest in protecting the ecological health of the harbor adjacent to both petitioners' and respondents' properties. Here, the petition alleges only that the proposed dwelling would “destroy the nature and character of the neighborhood.” This allegation is merely that the neighborhood would change. Petitioners make no assertion in their petition that their personal use of their neighboring property would be impaired or otherwise harmed and therefore they claim no injury different from that allegedly suffered by the public at large (Harris v. Town Bd. of Town of Riverhead, supra ). As petitioners make no claim that the health, safety or welfare of the community, of which they are part, is threatened, they have, therefore, failed to claim an injury within the zone of interests protected by the zoning regulations (Bloodgood v. Town of Huntington, supra ).
“In a proceeding in the nature of mandamus to review a court examines an administrative action involving the exercise of discretion” (Scherbyn v. Wayne–Finger Lakes Bd. Of Co-op Educ. Services, 77 NY2d 753, 570 NYS2d 474  ) “The standard of review in such a proceeding is whether the agency determination was arbitrary and capricious or affected by an error of law” (id.; see also CPLR 7803). Courts have characterized determinations by both municipal planning boards and zoning boards of appeal as administrative, and therefore encompassed by mandamus to review (see e.g. Viscio v. Town of Guilderland Planning Bd., 138 AD2d 795, 525 NYS2d 439 [3d Dept 1988] [affirming Supreme Court's determination that a town planning board's denial of petitioner's subdivision plan was arbitrary and capricious in a case brought pursuant in a case brought pursuant to CPLR Article 78 in the nature of mandamus]; Sasso v. Osgood, 86 NY2d 374, 633 NYS2d 259  [determining that Zoning Board decisions are administrative and therefore subject to Article 78 review in the nature of mandamus] ). A local planning board has broad discretion in deciding applications for site-plan approvals (Fairway Manor, Inc. v. Bertinelli. 81 AD3d 821, 916 NYS2d 630 [2d Dept 2011] [affirming Supreme Court's finding that site plan approval by planning board was not arbitrary and capricious because planning board held a hearing and considered arguments of both sides] ).
Here, the respondents argue in their affidavits in support of their cross-motions to dismiss that mandamus to annul the site plan approval is not available to the petitioners because site plan approval is not a ministerial, nondiscretionary and nonjudgmental act or determination. Respondents misunderstand the distinction between mandamus to compel and mandamus to review (see generally Alexander, Practice Commentary, McKinney's Con Laws of NY, 2016 Electronic Updated, CPLR 7801). A proceeding seeking mandamus to annul the approval of a site plan is a form of mandamus to review (see Viscio v. Town of Guilderland Planning Bd., supra ). Accordingly, the standard of review of the site plan approval is whether the Village Planning Board's determination was arbitrary and capricious (see Scherbyn v. Wayne–Finger Lakes Bd. Of Co-op Educ. Services, supra ). Notwithstanding petitioners' contentions to the contrary, the Village Planning Board relied on a valid variance when it granted the site plan application and therefore did not “bypass” the Zoning Board of Appeals (see Beckman v. Talbot, supra ). As in Fairway Manor (supra ), where the Second Department upheld a Supreme Court finding that a planning board's site plan approval was neither arbitrary nor capricious where the board held a hearing and considered the evidence offered by both sides, here petitioners concede that the Village Planning Board conducted a hearing and heard evidence. Based upon the record, it cannot be said that the Village planning board's decision to approve the site plan was in any way arbitrary or capricious, and therefore respondents' cross-motion to dismiss is granted.
The due process clause of the Fifth Amendment provides that “[n]o person shall be deprived of life, liberty, or property, without due process of law” (US Cont Amend V). “[W]hile the Fifth Amendment contains no equal protection clause, it does forbid discrimination that is ‘so unjustifiable as to be violative of due process” (Schneider v. Rusk, 377 US 163, 168, 84 S Ct 1187, 1190, 12 L Ed 2d 218  ).
Petitioners maintain that the Village's Planning Board should not have relied on the purportedly void 1958 variance when it approved the respondents' site plan with a seventy five-foot front yard setback, and that, in doing so, it circumvented the procedures of the Zoning Board of Appeals, to which, they argue, the property owner should first have been required to apply for a valid variance. Accordingly, petitioners argue that the Village Planning Board violated the Fifth Amendment “Equal Protection Clause” and deprived the petitioners of due process because it required “all but one parcel in [the] subdivision to maintain 100 foot setbacks” without giving petitioners an opportunity to be heard before the Zoning Board of Appeals. However, putting aside the odd notion that an equal protection analysis under the Fifth Amendment would even be applicable in this instance, it is clear that no discrimination or deprivation of due process by the Village Planning Board has occurred. First, the Planning Board relied on a valid variance and the record shows that the opportunity to be heard before the Zoning Board of Appeals was afforded in 1958. Second, petitioners themselves have suffered no discrimination as their lot is among the twenty-five lots to which the seventy-five foot variance was granted in 1958.
For all of the above reasons, the petition must be dismissed.
1. The Order to Show Cause, made by petitioners, includes “Michele Stolowicki” as a party. The petition does not name Michele Stolowicki as a party. The caption on record with the Suffolk County Clerk does not include Michele Stolowicki. Accordingly, Michele Stolowicki is not included in this caption.
Sanford Neil Berland, J.
Response sent, thank you
Docket No: 17–05202
Decided: February 15, 2018
Court: Supreme Court, Suffolk County, New York.
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