21/2015 12:29 PM 18453532789 Page 2 of: 12 To commence the statutory time period ofappcals as of right (CPLR you are advised to serve a copy ofthis order with notice of upon all panics. SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF ROCKLAND m. CHESTNUT RIDGE ASSOCXATBS, LLC, Plaintiff, DECISION AND ORDER Index No; 14674/10 ?against Action 1 30 SEPHAR LANE, INC. and LAWNS, INC, Defendants. . 30 SEPHAR LANE CORP. and LAWNS, INC, Plaintiffs-Petitioners, ~against? Index No.: 456/12 Action 2 VILLAGE OF CHESTNUT RIDGE ZONING BOARD OF APPEALS, RICHARD MILLER, Individually and as Chairperson of the Zoning Board of Appeals, and STEPHEN LEIBMAN and KATHLEEN GALLO, Individually and as Members of the Zoning Board of Appeals and the VILLAGE OF CHESTNUT RIDGE, NEW YORK by its Board of Trustees Consisting of JEROME KOBRE, JOAN BROOK, HOWARD COHEN, ROSARIO PRESTI, JR. and MARISSA STEWART, - Defendants-Respondents. -- 211'2015 12:29 PM 18453532789 Page 3 0.6 12 LOEI-IR, J. The following papers numbered 1-3 were originally read on the motion of Chestnut Ridge Associates, LLC (?Chestnut Ridge? the Plaintiff in Action 1, to enjoin 30 Sephar Lane Corp.i and Steve?s Lawns, inc. (collectively ?Steve?s?), Defendants in Action 1, from operating a landscaping business at 30 Sephar Lane, Chestnut Ridge, New York (the Pagers Numbered Notice of Motion - Affirmation - Exhibits 1 Memorandum of Law in Support 2 Af?nnation in Opposition Exhibit 3 and the following papers numbered 1? 5 were read originally read on the applicatioa of Steve?s, Petitioners in Action 2, to set aside a January 17, 2012 determination of the Village of Chestnut Ridge Zoning Board of Appeals (the pursuant to Article 78 of the CPLR and the motion of the Defendants in Action 2 to dismiss the Petition/Complaint pursuant to CPLR 3211(a)(i), (3X7) and CPLR 78046): Papers Numbered Notice of Motion Af?rmation - Exhibits Memorandum of Law in Support Af?rmation in Opposition Exhibits Memorandum of Law in Opposition (Jr-?3wa Reply Memorandum of Law and, a?er remittur, the following papers numbered 1-7 were read: Papers Numbered Answer of Defendants in Action 2 Af?rmation iniOpposition Exhibits Memorandum of Law in Opposition Record (Vol.1-4) ht?)le It wouid appear that the correct name for 30 Sephar Lane, Inc. is 30 Sephar Lane Corp. 2 21/2016 13:29 PM 2SBOCA-GHFAX 13453532789 Page 4 of 1.2 Reply Affidavit - Exhibits Reply Af?rmation Exhibits Reply Memorandum of Law in Support 7 Upon the foregoing papers, it appears that Chestnut Ridge ovms a largely vacant 14.6 acre parcel across the street from Steve's Property. Chestnut Ridge has been trying, unsuccessfully to develop its parcel for some 20 years. Why it has not been able to is not set forth. Steve?s Property (and Chestnut Ridge?s preperty) lie in a LO (laboratory-of?ce) zoned district. Steve purchased its Property in 2007. What operated there before is not set forth but Steve?s purchased the Property after satisfying itself that the operation of a landscaping business was a permitted use.2 This was based in large part on some 15 other landscaping business that were operating in What Steve?s believed was the LO District. Actually, it appears that two of these business operated in a PI District and/or were granted variances. Be that as it may, there is considerable evidence that numerous landscaping businesses had and were Operating in the LO District without municipal interference based on the zoning code having been interpreted to allow landscaper storage as an accessory use to the permitted of?ce use. That notwithstanding, it appears that Chestnut Ridge, which had invested some $90 million to develoP the cross-street property, either wanted Steve?s Property or for Steve?s to cease its landscaping operations as interfering with Chestnut Ridge?s development plans, and put pressure on the Mayor of Chestnut Ridge to that end. As a result, in a letter dated March 6, 20.03, the Board of Trustees of Chestnut Ridge directed Richard Mitaner, the Code Enforcemerit Officer of the Village of Chestnut Ridge to issue an appearance ticket to Steve?s for operating its business at the Property without site plan approval. Mitzner did so under protest while informing the Mayor and Board of his belief, for the reasons stated above, that the landscaping Operation was a permitted use. After multiple court appearance, the Village of Chestnut Ridge withdrew the Summons. Be that as it may, during the prosecution, Steve?s ?led an application for site plan approval. The?Court understands that Steve?s sought to construct a structure to house the stored, and apparently objectionable, material and 2. What Steve?s means by ?operating a landscaping business? has not been set forth. The Property was zoned for office buildings and the Court understand that there was an of?ce on the Property. Moreover, the Court assumes Steve?s was not doing actual landscaping at the Property. On the other hand, Steve?s apparently stored landscaping equipment and supplies and debris at the Property which storage, according to the January 2012 Resolution, was not a permitted use. 3 31f2015 12:29 PM ZSBOCA-GWFAX 18453532789 Page 5 of 12 which application recognized the possible need for variances. On October 13, 2009, Paul Baum, the Village Planning Board Attorney, opined that while Steve?s might need an area variance, it did not need a use variance based, again, on the history of the way the zoning had been interpreted with reapect to landscapers, and the Flaming Board apparently concurred. Accordingly, Steve?s filed an application with the ZBA for an area variance with respect to setback requirements for the new structure. 011 December 17, 2009, the Village enacted Local Law No. which now made explicit that landscaping was a permitted use in a LO District. Mitzner avers that the purpose of the Local Law No. was to codify while ?ne tuning the criteria for of?ce buildings with storage in L0 Districts. Be that as it may, apparently as a result of Chestnut Ridge?s input, the Law also provided that it ?shall not apply to any properties that are [the] subject of applications ?led with the Chestnut Ridge Planning Board prior to December 17, 2009.?3 It appears that the exception applied only to Steve?s and it appears incontrovertible that it was enacted for no other reason than to bene?t Chestnut Ridge at Steve?s expense. Additionally, it appears that the ZBA indicated its intention to review whether Steve?s use of the Property was permitted based on opposition Chestnut Ridge had submitted in connection with Steve?s area variance application. To this point, Steve?s had been proceeding pro se. Steve?s then retained counsel and, on September 2, 2011, served a Notice of Claim on the ZBA predicated on its handling of Steve?s area variance application and, on September 11, 2011, requested that its application for an area variance be withdrawn. The ZBA refused the request, notifying Steve?s of same by letter dated September 19, 2011, while also requesting that Steve?s address the issue the jurisdiction to consider the use issue. Steve?s did not respond nor further appear before the ZBA. On September 20, 20] l, Chestnut Ridge ?led a request for an interpretation of whether Steve?s landscaping/storage at the Property was a permitted use, which request the ZBA entertained apparently as related to Steve?s area variance application and which the ZBA had refused to let Steve?s withdraw. A public hearing on Chestnut Ridge?s application was heard and concluded on December 8, 2011. Thereafter, it is averted without contradiction, the full ZBA met at least once, in a meeting not open to the public but without properly going into executive session - to secretly discuss the merits of the Chestnut Ridge application. In a resolution issued January 17, 2012, and filed February 14, 2012, the ZBA ruled that prior to the effective date of Local Law No. 1 December 17, 2009 and which in any event did not apply to Steve?s 3 This quote was taken from the Decision ofludge Jamieson in Action 1. 4 21/2016 12:29 PM 2580CA-GWFAX 13453532789 Page 5 of 12 Steve?s use of the Property for landscaping storage was a non-permitted use. On an unspeci?ed date in 2010, Chestnut Ridge commenced Action 1, seeking a permanent injunction against Steve?s operation of its landscaping business at the Property in alleged violation of the zoning. Chestnut Ridge moved for a preliminary injunction which was denied by Judge Jamieson in a Decision and Order dated March 29, 201 I based on a lack of likelihood on the merits based on the reasons stated above.? On March 30, 2012, Steve?s commenced Action 2. It is a hybrid action seeking both article 78 and declaratory relief as well as damages. The Action was removed to Federal court. On April ll, 2012, the PetitianCornplaint, as amended, was remanded back to this Court- The First, Second and Eighth Causes of Action seek to set aside the January 2012 Resolution of the ZBA pursuant to article '78, the Open Meetings Law (and for attorney?s fees with respect to such claim) and SEQRA, The balance of the claims allege violations of substantive due process, equal protection and a taking without due process and just compensation. While the Sixth Cause of Action seeks a declaratory judgment that Local Law No.1 is unconstitutional as applied to Steve?s, it is unclear whether and to what extent the other claims are directed at, or predicated cu, Local Law No. 1, the handling of the applications before it, or both. Finally, damages are apparently sought from all cfthe Defendants/Respondents for the asserted constitutional violations. Defendants/Reapondents moved to dismiss all of the claims. While that motion was pending, Chestnut Ridge moved to enjoin Steve?s from operating in violation of the zoning? In a Decision and Order dated June 17, 2013, this Court held: ?All the Defendants/Respondents in Action 2 move to dismiss the Petition/Complaint pursuant to CPLR 32] and 78046). As stated above, the First and Second Causes of Action seek to set aside the January 17, 2032 Resolution of the ZBA as arbitrary 4 Thereafter, in a Decision and Order dated August 20, 2012, udg?e Jamicson granted Chestnut Ridge summary judgment on the issue of whether Steve?s was operating in violation of the zoning based on the January 2012 Resolution but subject to a determination in this Article 78 proceeding that such Resolution was invalid. 5 Actually, the motion was to enforce the ?Court Ordered injunction prohibiting [Steve?s] from using the property to operate a landscaping/contracting business.? No evidence ofa prior Court Ordered injunction was submitted. To the contrary, Judge Iamieson denied Chestnut Ridge a preliminary injunction. Accordingly, the Court treats the motion as one to renew its request for an injunction. 21!2016 12:29 PM ZSBOCA-GWFAX 18?53532?89 sage 7 of 12 and capricious and made in violation of lawful procedure that is without jurisdiction and in violation of the Open Meetings Law.6 Defendants/Respondents move to dismiss these claims for failing to join a necessary party - Chestnut Ridge and failing to state a claim inasmuch as, they argue, they may not be estOpped from enforcing the zoning code.7 1001(a) provides that a person or entity is a necessary party to a litigation if they are needed in order for complete relief to be accorded between the persons who are parties to the action or who might be inequitabiy affected by ajudgment in the action. Joinder is mandatory if the nonparty is subject to the jurisdiction of the court. If urisdiction can be obtained only by consent or voluntary appearance, then the court may allow the action to proceed without joinder based on five enumerated factors (CPLR 1001[b]; Shoesz Merrill Pierce, Fenner Smirk, Inc, 19 543, 550-51 [2012]). Thus, Where a necessary party over whom the court had jurisdiction was notjoined within the statute of limitations, absent voluntary joinder, such as by intervention without assertion of the statute of limitations, the action must be dismissed (Windy Ridge Farm vAssess-or of Town of Shanda-ken, 725, 726?27 [2008]; Matter ofEas! Bayside Homeowners Assn. Chin, 12 370 [2d Dept 2004]; Matter ofKormal White Plains Common Council, 284 464, 465 [2d Dept 2001]; ched Hook/Gowanns Chamber of Commerce New York City Board of Standards and Appeat's, 5 452 [2005]; Jocoby Real Property, LLC Malcome, 96 747, 748?49 [2d Dept 2012]). Accordingly, if Chestnut Ridge were a necessary party, the Court, having jurisdiction over it but the statute of limitations having run (Village Law 7412-43), wouid have to dismiss the Petition. ?An entity whose preperty rights were determined in an administrative proceeding is a necessary party when another brings an article 78 proceeding to review that detennination 5 The Eighth Cause of Action also sought to set aside the January 17, 2012 Resolution for the failure to comply with SEQRA. As SEQRA is inapplicable to a ZBA interpretation of a local zoning ordinance (Matter ofLindsn'om Zoning Bd. oprpeols ofTown of Womick, 205 690 [2d Dept 1994), the claim is dismissed as failing to state a cause of action. 7 The Court notes that no objection was made that the PetitionfCornplaint was not timely filed. Moreover, ReSpondents? objection to Petitioner?s submission of factual af?davits in opposition to the motion to dismiss are not well taken: as a special proceeding, article 78 proceedings are always decided summarily on factual af?davits (see also Law Section 7- 31/2016 12:29 PM ZSBOCA-GWFAX 18453532789 Page 8 of 12 (see. Real Property, LLC Moleorne, 96 747 [2d Dept 2012]). Here, Chestnut Ridge?s preperty rights were not determined by the ZBA, Steve?s were. Moreover, that Chestnut Ridge might have had standing to intervene here (see Sun-Brits Car Wash, Joe. 1: Board ononfng and Appeals ofTown of North Hempsfead, 69 406, 413 [1987]) a right it did not avail itself of does not make it a necessary party. Accordingly, as Chestnut Ridge was not a necessary party, the motion to dismiss for failing to join it is denied (see Transgas Energy Systems, New York State Board on Electric Generation Siting and Environment, 65 124? [2d Dept 2009]). ?As to the merits, the First and Second Causes of Action in the Petition seek to set aside the January 17, 2012 Resolution of the ZBA as arbitrary and capricious and made in violation of law?Jl procedure. Defendants/Respondents move to dismiss on the basis that the ZBA cannot be estopped from enforcing the zoning code or correcting incorrect determinations (see Parkview Associates City ofNew York, 71 274, 282 [1983]; Town ofSouthold Estate ofEdson, 78 816 [2d Dept 2010]; accord Matter oankwood Prop. Mgn, LLC Town of Brunswick, 103 106? [3d Dept 2013]). Steve?s, however, is not relying on an estoppel but that its storage was a permitted use under the zoning code under prior interpretations and that the Resolution was therefore arbitrary and capricious in that it failed to adhere to prior precedent without distinguishing it (see Matter ofChorZes A. Field Delivery 66 516, 517 [1985]; Matter ofWafdler 1: Young, 63 953, 954 [2d Dept 2009]; Matter of Hoiperin City of New Rochelle, 24 768, 770-71 [2d Dept 2005]). Before the Court even gets to this issue, however, it must address the issue of whether the ZBA had the jurisdiction to address the question. have only appellate jurisdiction (Village Law Anayatr? Board of Zoning Appeals of own of North Hempstead, 65 681, 683 [2d Dept 2009]; Silvers: Town ofAmenfa Zoning Board of Appeals. 33 706, 708 [2d Dept 2006]; Baron Gemick, 107 1017, 1018 [4'h Dept 1985]). Here, Steve?s invoked the jurisdiction of the ZBA by ?ling its area variance application. It then withdrew it. The EBA purported to disregard the withdrawal. Other than evidencing the bad faith, such refusal had no legal effect. Defendants/Respondents cite no authority pursuant to which they could compel Steve?s to pursue an area variance it no longer desired. Thus, when Chestnut Ridge filed its application there was nothing pending to review - except perhaps the Village?s long standing 7 21/2016 12:29 PM ZSBOCA-GWFAK 18453532789 Page interpretation that landscaper storage was a permitted accessary use something well beyond the statute of limitations of the ZBA to hear (Village Law 7-712-a[5] Clarke Town of Sand Lake Zoning Board of Appeals, 52 997, 999 [3d Dept 2008]; Spando?v Building Inspector of Imam-paroled Village ofEasr Hills, 193 682, 683 [2d Dept 1993]) and a basis forjurisdietion the Defendants/Respondents have not even relied on. Rather, the Defendants/Respondents hang theirjurisdictional hat on Steve?s refused-to-be?withdrawn area variance application. Assuming Steve?s application were still apprOpriately pending, however, the result would be the same. Steve?s sought an area variance. Chestnut Ridge sought an interpretation of whether Steve?s use was permitted. This was a different issue from that before the ZBA and did not seek to appeal any pending determination. The ZBA was therefore without jurisdiction to make the January 17, 2012 Resolution (Matter ochDonaId?s Corp. Kern, 260 578 [2d Dept 1999]). ?Additionally, article 7 of the Open Meeting Law requires that every meeting of a public body at which a quorum is present -- whether formal or informal, whether ?work sessions? or ?agenda sessions,? where matters of substance are addressed shall be open to the public unless conducted in executive session properly initiated at a public meeting in accordance with the statute (Public Of?cers Law 103; Mortar of Orange County Publsi, Div. of Ottawa); Newspapers Council of City ofNewburgh, 60 409, 414-16 [2d Dept l978];s accord Goodson Todman Enterprises, LTD. City of Kingston Common Council. 153 103, 105?06 [3d Dept 1990]). Where the statute has been violated, sanctions, within the Court?s discretion, including annulling the determination, costs and attorney?s fees may be imposed (Public Officers Law 107; Village Law szney Board of Trustees of Village ofGrona? View, 72 960, 961?62 [2d Dept 2010)). ?Here, the uncontroverted evidence is that the full ZBA held at least one meeting, not Open to the public, at which the substance of Chestnut Ridge?s application was discussed. This violated the statute. Moreover, Defendants? bad faith is apparent: having decided to put 3 While the Second Department in Orange County (60 409, 417) Originally made a distinction between meetings and quasi-judicial proceedings, holding that the latter were not subject to the Open Meeting Law, the Second Department effectively overruled Orange County with respect to such distinction in Matter of Hohserin City of New Rochelle, 24 768, 770 [2d Dept 2005]). 9 of 12 21/2016 12:29 PM ZSBOCA-GWFAX 18453532789 Page 10 of 12 Steve?s out of business at Chestnut Ridge?s behest, it is not?surprising that Defendants/Respondents did not want to discuss same before the public. Based thereon, the Petition is granted and the January 17, 2012 Resolution of the EBA is annulled as having been issued without jurisdiction, in violation of the Open Meetings Law and as arbitrary and capricious based on the failure to adhere to prior precedent or distinguish same. Moreover, based on the bad faith of the Village and ZBA, costs and attorney?s fees are awarded (Matter of Oshry Zoning Bo?. of Appeals oflnc. Vii. of Lawrence, 276 491, 492 [2d Dept 2000]; Matter ofGoetshz?us Board ofEduc. ofGreenburgh Eleven Union Free School Dist, 244 552, 554 [2d Dept 1997]). Steve?s shall submit evidence of its attorney?s fees incurred with respect to the Open Meeting Law claim for relief. ?Chestnut Ridge?s motion to enjoin Steve?s from using the Property for landscaper storage is denied as based on the January 17, 2012 Resolution that has now been set aside. ?As to Local Law No. l, the Complaint seeks a declaratory judgment that it is unconstitutional as a denial of, inter alia, substantive due process and equal protection. As stated above, the evidence is that Local Law No. 1 essentially codi?ed the prior zoning interpretations that landscaper storage was a permitted accessory use in a LO District then made it inapplicable to anyone Steve?s) who had an application then pending before the planning board. The Court asscmes that Steve?s is seeking to declare only that proviso unconstitutional . ?The Due Process Clause ofthe Fourteenth Amendment embodies a substantive component that protects against certain government actions regardless of the fairness of the procedures used to implement them. Where, as here, the right is not fundamental, the regulation need only be reasonably related to a legitimate state objective (Bryon! New York State Education Department, 692 F3d 202, 218 [2d Cir 2012]; Montgomery 1: Daniels, 38 4i [1975]). Similarly, the Equal Protection clause allows disparate treatment provided there is a rational relationship between the disparity and some legitimate governmental purpose. With the understanding that what is being challenged is the exception which would make Local Law No. 1's codification inapplicable to Steve?s, the question becomes: what governmental interest is being advanced and how is it being advanced by denying the application of the Law to only those with applications pending before the Planning Board? As alleged in the Complaint, the exception appears irrational except, perhaps as a means to force Steve?s out 9 31/2016 12:29 PM 2SBOCA-GWFAX 18453532789 E?aqe 11 Of 12 of business for the bene?t of Chestnut Ridge. If the Village of Chestnut Ridge wants to acquire Steve's Property, it must do so appropriately pursuant to the power of eminent domain and pay just compensationmeans of adopting zoning laws with no apparent purpose other than to force Steve?s out of business. Accordingly, the motion to dismiss the Sixth Cause of Action (and the other Causes of Action to the extent they serve as bases for the Sixth Cause of Action) are denied. . ?The balance of the Complaint seeks damages. The claim for damages for a taking is dismissed as moot. The claim for damages against the ZBA, its members individually, and the Village of Chestnut Ridge and its Board of Trustees individually are dismissed as failing to state a cause of action as all are immune from damage claims (Tartar State ofNew York, 68 511, 518 [1986]; Martens State ofNew York, 73 1376, 1377 [3d Dept], Iv denied 15 706 [2010]; Matter ofMoundroukas Foley, 99 784 [2d Dept 1984])? Chestnut Ridge appealed in both actions (see Chestnut Ridge Associates, LLC 30 Sephor Lane, Inc. 129 885 [2d Dept 2015]; see also Chestnut Ridge Associates, LLC #0 Sephor Lane, Inc, 129 .384 [2d dept 2015]). The Second Department affinned that there was no court- ordered injunction to enforce in Action that Chestnut Ridge was not a necessary party in Action 2 and that the motion to dismiss the First, Second and Eighth Causes of Action to set aside the January 2012 Resolution of the pursuant to article 78 as made without jurisdiction and in violation of the Open Meetings Law, and the Sixth Cause of Action that Local Law No. 1 was unconstitutional was properly denied As to this Court?s decision on'the merits, the Second Department held: ?Here, it cannot be said that the facts yvere so fully presented in the papers of the respective parties that it was clear that no diapute as to the facts existed and no prejudice resulted from the failure to require an answer. Accordingly, the Supreme Court erred in granting the petition on the merits without ?rst affording the Village defendants an opportunity to answer (id. at 837). The Second Department therefore remitted both 'Actions to this Court to redetermine the issues of the jurisdiction, the Defendant?s violation of the Open Meeting Law and the constitutionality of Local Law No?. 1, and whether Steve?s landscaping storage should be enjoined after the Defendants answered (id. at 888). The Defendants having now ?led a pro~forma answer and an attorney?s Af?rmation with no new facts, the Court adheres to it prior Decision except that it now also grants 10 21/2016 12:29 PM ZSBOCA-GWFAX 18453532789 I?an 12 of 12 Steve?s summary judgment on its Sixth Cause of Action for a declaration that Local Law No. 1 was unconstitutional. 'This constitutes the decision and order of the Court. Dated: New City, New York June: I 2016 GERALD E. LOEHR 1.34:. FERRICK PLLC Attorneys for Defendants in Action 1 and Plaintiff-Petitioners in Action 2 96 South Broadway South Nyack, NY10960 RICE AMON Attorneys for Defendants in Action 2 Four Executive Boulevard, Suite 100 Suffem, NY 10901 11