SUPREME COURT OF THE STATE OF NEW
YORK
COUNTY OF ROCKLAND

x
In the Matter of the Application of
CITIZENS UNITED TO PROTECT OUR
NEIGHBORHOODHILLCREST and SHARON
DOUCETTE,
Petitioners-Plaintiffs,
For a Judgment Pursuant to Article 78 of the
Civil Practice Law and Rules and a
Declaratory
Judgment pursuant to Section 3001 of the
Civil
Practice Law and Rules
- against THE TOWN OF RAMAPO, THE TOWN OF
RAMAPO ZONING BOARD OF APPEALS,
CHARLENE WEAVER, in her capacity as
the Chairperson of the Town of Ramapo
Zoning Board of Appeals, BLUEFIELD
EXTENSION, LLC, SUNSHINE GARDENS
REALTY, LLC, I-AZERBEAM ACREAGE,
LLC, LESSER GROSS, individually ad as
Trustee of Yitzchok and Shifra Trust,
ZISHE
BABAD,
JOSEPH
GROSS,
YITZCHOK ULLMAN as Trustee for Lazer
Beam Trust, JOEL

HOROWITZ,
IAN SMITH in
his capacity as
Building
Inspector
for
the Town of
Ramapo
and
Director
of
Building,
Planning, and
Zoning for the
Town
of
Ramapo,
RespondentsDefendants,

x
Sherri L.
Eisenpress,
A.J,S.C.,
Index
000506/2018

No.

DECISION ON
MOTIONS

TO DISMISS
(Motions #2,3, and 4)

The following papers, numbered 1 to 18, were considered
in connection with (i) Defendants Bluefield Extension LLC and Sunshine
Gardens Realty, LLC (collectively referred to as

Notice of

Cross-Motion to Dismiss the Complaint/Petition pursuant to CPLR Rule
3211(a0(4), (a)(5) and Sec. 7804(f) (Motion #2); (ii) Defendants Town
of Ramapo, the Town of Ramapo Zoning Board of Appeals, Charlene
Weaver, Ian Smith, and Anthony Mallia's

 (collectively_referred to as "the Ramapo Defendants") Notice of Motion to Dismiss
the Verified
Petition and Complaint against them (Motion #3); and (iii) Defendants
Lazerbeam Acreage, LLC, Lesser Gross, Zjshe Babad, Yitzchok Ullman and Joel
Horowitz' (collectively referred to as the "Prior Owners") Notice of Mo•tion to
dismiss the Verified Petition and Complaint (Motion #4) :
PAPERS
NUMBERED
SUMMONS/NOTICE OF ARTICLE 78 PETITION AND
1-7
COMPLAINT/VERIFIED PETITION AND COMPLAINT/EXHIBITS "AB"/AFFIRMATION OF SUSAN
SHAPIRO, ESQ./AFFIDAVIT OF ROBERT MICHAEL
MILLER/AFFIDAVIT
OF SHARON DOUCETTE/AFFIDAVIT OF DEBORAH
MUNITZ/EXHIBITS "1-65"
NOTICE OF CROSS-MOTION (MOTION
8-9
OF TERRY RICE

ESQ./EXHIBITS "A-C!'
NOTICE OF MOTION (MOTION
OF DENNIS LYNCH, ESQ.
NOTICE OF MOTION (MOTION
OF JOHN G.
STEPANOVICH ESQ.
AFFIRMATION OF SUSAN H, SHAPIRO/ ESQ. IN OPPOSITION TO
MOTIONS TO DISMISS/EXHIBITS "66-74"/MEMORANDUM OF
LAW IN OPPOSITION TO MOTIONS TO DISMISS

1011
12-13

14-15

REPLY AFFIRMATION OF TERRY RICE, ESQ. (MOTION #2)

16

REPLY AFFIDAVIT OF DENNIS LYNCH, ESQ. (MOTION

17

REPLY AFFIDAVIT OF JOHN G. STEPANOVICH, ESQ. (MOTION #4) 18
Upon the foregoing papers, the Court now rules as follows with respect to the

motions to dismiss:
The aforementioned motions to dismiss relate to a hybrid Declaratory
Judgment/Article 78 proceeding, commenced on April 27, 2018, which seeks the
following:

1)

To annul, vacate and set aside a February 1, 2018,
Decision by the Town of Ramapo Zoning Board of Appeals
("ZBA"), XBA-4556, filed with the Town Clerk on March 28,
2018t granting area variances for a proposed four lot
subdivision located on real property at 122 Union Road and
2

 130 Union Road, in the Hamlet
of Hillcrest, Town of
Ramapo, referred to as "Bluefiled Extension' or "Project. "

2)

A declaratory judgment that a January 30t 3014
Decision by the ZBA, XBA-4057, filed with the Town Clerk on
March 10, 2014, granting a use variance for the site is void
ab initio as jurisdictionally defective for failure to properly
refer the use variance application to the Rockland County
Department of Planning ("County Planning"), as required to
New York General Municipal Law ("GMC") Sec. 239-m.
The grounds for the motions to dismiss include the statute of limitations, that
there is a prior proceeding seeking the same relief, laches, failure to exhaust
administrative remedies, lack of standing, and that the prior owners are not
proper parties.

Background
Briefly, by way of background, in 2013, the prior owners of the
subject property applied for a use variance, which was granted by ZBA on
January 30, 2014, and the decision filed with the Town Clerk on March 10t 2014.
It is alleged that the ZBA expressly falsified the existence of a Rockland County
Planning Department review under GML Sec. 239-m in the Use Variance Decision
that is the subject of this proceeding l . More specifically, the Complaint/Petjtion
alleges that the ZBA failed to properly refer the use variance application to the
County and that the Use Variance Decision falsely refers to a County GML review
that never existed, then identified County Planning GML comments that were
never made, and then the ZBA overruled the non-existent review comments in
its written decision.
Thereafter, a subsequent application for Planning Board subdivision
and site plan approval was brought, during which time it is alleged that the
County realized that a Use Variance approval had been issued without proper
GML referral and review. However, when no site plan approval extensions were
filed, the subdivision approval lapsed in the end of 2014, and the project did not
go forward. In April 2015/ a new subdivision application was filed seeking
approval for a larger project and it is alleged that during the course of
3

 administrative review, the i9sue of the lack of GML review with respect to the
prior Use Variance approval was discussed.on numerous occasions.
On December 1, 2017, a hybrid declaratory judgment action/Article
78 petition was brought under Index No. 1773/2017, seeking similar relief with
respect to the 2014 Use Variance decision. Defendant Bluefield moved to
dismiss on statute of limitations grounds and lack of standing, which motion was
fully submitted on February 7, 2018. On February It 2018, the ZBA issued a
decision granting area variances for a proposed four lot subdivision on the
I

An action commenced by the County of Rockland v. Town of Ramapo, Index No. 033 1 18/2018 is
pending before this Court in which the County challenges the ZBA's issuance of the use variance decision for
lack of GML referral and for misrepresenting that hte County had issued a GML review when it did not.

subject project. On February 13, 2018, Plaintiffs/Petitioners moved to voluntarily
dismiss the 2017 action without prejudice due to the recent decision by the ZBA
on February 1, 2018, which they claimed directly related to the allegations set
forth in their Complaint/Petition. The February 1, 2018 Area Variance Decision
was filed with the Town Clerk on March 28, 2018, and the instant action, brought
by Citizens United to Protect Our Neighborhood-Hillcrest ("CUPON") and Sharon
Doucette, was filed on April 27, 2018. This Court granted Plaintiffs/Petitioners
motion to discontinue the 2017 action by Order dated May 23, 2018.
Accordingly, the application to dismiss the Complaint due to pending litigation is
now moot.

Legal Discussion
Standing
The Ramapo Defendants allege that neither Plaintiff nor CUPON has
standing to bring the within action. "Whether a person seeking relief is a proper
party to request an adjudication is an aspect of justiciability which, when
challenged, must be considered at the outset of any litigation." Society of
Plastics Industry, Inc. v. Countv of Suffolk, 77 N.Y.2d. 761/ 769, 570 N.Y.S.2d 778
(1991)."Standing should be liberally construed so that land use disputes are

4

 settled on their own merits rather than by preclusive, restrictive standing rules."
Matter of
Barrett v. Dutchess County Legislature, 38 A.D.3d 651 t 653, 831 N.Y,S.2d 540
(2d Dept. 2007)
In land use matters especially, the courts have long imposed the
limitation that the plaintiff, for standing purposes, must show that it would suffer
direct harm, i.e. injury that is in some way different from that of the public at
large, and that the injury falls within the

of interests,' or concerns, sought to

be promoted or protected by the statutory provision under which the agency has
acted. Society of Plastics Industry, Inc. 77 N.Y.S.2d at 774; Ziemba v. City of Troy,
37 A.D.3d 68, 827 N.Y.S.2d 322, 324 (3d Dept. 2006), This requirement applies
whether the challenge to governmental action is based on a SEQRA violation, or
other grounds. Society of Plastics Industry, Inc., 77 N.Y.S.2d at 774.
An allegation of-close proximity alone may give rise to an inference of damage
or injury that enables a nearby owner to challenge a zoning board decision
without proof of actual injury. Ziemba, 37 A.D.2d at 70. See also Steele v. Town
of Salem Planninq Board, 200
A.D.2d 8709, 606 N.Y.S.2d 8109 (3d Dept, 1994)(standing conferred where
petitioner lives in the immediate vicinity of the project and it affects his scenic
views); Barrett v. Dutchess County_ Legislature, 38 A.D.3d 651/ 831 N.Y,S.2d
540 (2d Dept, 2007)(standing found where petitioner resided directly across
from the main building and would suffer an adverse scenic view.); Friends of
Woodstock Inc. v. Town of Woodstock Planninb Bd., 152 A.D.2d 876, 543 N.Y.S,2d
1007 (3d Dept. 1989); Shinnecock Neighbors v. Town of Southampton, 53 Misc.
3d 874, 37

N.Y.S.3d 679 (Sup. ct. Suffolk co. 2016).
In the instant matter, the individual petitioner Sharon Doucette has standing to
challenge the Board's action in this Declaratory Judgment/Article 78 proceeding.
Ms. Doucette lives adjacent to the subject property and the site has a right of
way on her driveway. Given her proximity to the property, she need not allege
actual injury of special damage to confer standing. With respect to Petitioner
5

 CUPON, the applicable principles for associational or organizational standing are
embodied in three requirements. Society of Plastics Industry, Inc. 77 N.Y.2d
at786. First, if an association or organization is the petitioner, the key
determination to be made is whether one or more of its members would have
standing to sue, which cannot be achieved merely by multiplying the persons a
group purports to represent. Id. Second, an association must demonstrate that
the interests it asserts are germane to its purposes so as to satisfy the court that
it is an appropriate representative of those interests. Id. Third, it must be evident
that neither the asserted claim nor the appropriate relief requires the
participation of the individual members, Ja. In the instant matter, CUPON has
established that it too has standing to contest the Board's actions. Petitioner
Doucette, who is a member of CUPON's steering committee, does have individual
standing to bring the action. As for the other prongs, the Petition identifies the
interests that the action seeks to protect and alleges how they are germane to
CUPON's purpose.

Statute of Limitations
There are two separate claims with respect to the statute of
limitations argument. The Ramapo Defendants argue that the Article 78 Petition
was untimely filed with respect to the March

O

28, 2018/ decision to grant area

variances because the ZBA decision was filed at 10:58 a.m. with the Town Clerk
and Petitioners served their litigation papers on the Town on April 27, 2018 at
4:23 p.m., amounting to 30 days plus a few hours, There is no merit to this
argument. Town Law Sec. 267-c(l) allows for the proceeding to be instituted
within 30 days after the filing of a decision of the board in the office of the town
clerk. Moreover, service can be made not later than fifteen days after the date
on which the applicable statute of limitations expired, pursuant to CPLR Sec.
306-b. New York General Construction Law Sec. 20 relies on whole days and not
on a specific time of day. As the Complaint/Petition was filed on April 27, 2018,
the 30

th

day, and service was made on the same day, the action with regard to

the March 28, 2018, Decision is timely.
6

 All Defendants/Respondents move to dismiss the challenge to the
2014 ZBA Decision as untimely and in violation of the statute of limitations. This
argument is also without merit. GML Sec. 239-m requires referral of certain
proposed planning and zoning actions to a county planning agency for
recommendation and report. GML Sec. 239-m(b) states that such county
planning agency...shall have thirty days after receipt of a full statement of such
proposed action, or such longer period as may have been agreed upon by the
county planning agency...to report its recommendations to the referring body,
accompanied by a statement of the reasons for such recommendations. Here, it
is alleged in the Complaint/Petition that although the matter was initially referred
to the County Planning agency on October 21, 2013, that on November 20, 2013,
within the 30 day period, County Planner Helen Kenny-Burrows responded that it
was an "incomplete submission" that could not be reviewed, pointing out specific
discrepancies between the maps and the narrative provided. Thus, it is alleged
that
Defendants/Respondents failed to comply with GML Sec. 239-m, in that they
never provided the required "full statement" of such action.
It

has long been held that the alleged failure to comply with the referral

provision of the GML Sec. 239-m statute is not a mere procedural irregularity but
is rather a jurisdictional defect which renders its enactment invalid. Ernalex
Constr. Realtv Corp. v. City of Glen Cove, 256 A.D.2d 336, 338, 681 N.Y.S,2d 296
(2d Dept. 1998)• Matter of Burchetta v. Town Bd. of Town of Carmel, 167 A.D.2d
338, 561 N.Y.S.2d 305 (2d Dept. 1990); Matter of Calverton Manor LLC v. Town of
Riverhead, 160 A.D.3d 842, 76 N.Y.S.3d 72 (2d Dept. 2018). It is also well settled
that the "statute of limitations does not begin to run upon the filing of [the]
jurisdictionally defective document." Matter of Fichera v. New York State Dept. Of
Envtl.
Conservation, 159 A.D.3d 1493, 1496/ 74 N.Y,S.3d 422 (4th Dept. 2018).
There is no merit to Defendants/Respondents contention that (i) this case law is
distinguishable from the matter at bar because the Town referred the matter to
the County
7

 Planning Agency but was unaware that there were outstanding issues in the GMC
referral; and (ii) the above cited case law only pertains to situations when there
was no referral, and not when the ZBA was advised of an incomplete referral.
First, the contention that the ZBA was unaware that the submission was
incomplete is completely belied by the documentary evidence submitted,
Second, the Court in Matter of LCS Realty Co. v. Incorporated Vil. Of Roslyn, 273
A.D.2d 474, 475, 710 N.Y.S.2d 605 (2d Dept. 2000) made clear that a decision is
void if there is a failure to comply with GML Sec. 239-m requirement to submit
the "full statement of such proposed action" for at least 30 days before an action
is taken. Thus, a jurisdictional defect is not limited to simply failing to refer the
matter to the County Planning Agency pursuant to GML Sec. 239-m. Accordingly,
the Complaint/Petition is not barred by the statute of limitations. For that reason,
this Court will not grant Bluefield's application to strike references to the use
variance in the Complaint/Petition.

Laches
Defendants/Respondents assert that the action must be dismissed on
the ground
of laches. They argue that it has been four years after the approval of the
variance and two years after the properties were acquired, before Petitioners
instituted the instant proceeding. Additionally, the Bluefield defendants claim
that they made the purchase of the property in good faith two years after the
variance was granted and that they have expended substantial funds in gpod
faith reliance on the variance,
In opposition, Plaintiffs/Petitioners argue that Defendants/ Respondents
have "unclean hands" and are thus not entitled to equitable relief. Specifically,
they note that any person reading the 2014 Decision would have every reason to
believe that there was in fact a GMC referral and review by the County, and
would not presume deceit. Additionally, Plaintiffs/Petitioners argue that the
8

 issues raised in the present action were steadfastly raised in the ongoing
proceedings before the Town both before and after the Bluefield Defendants
purchased the Property, thus putting them on notice regarding this issue. They
also note that the 2018 Decision is the first Town decision since the subdivision
application lapsed in 2014. Lastly, Plaintiffs/Petitions argue that there is no
prejudice here where the Bluefield Respondents have no subdivision approval, no
site plan approvals, no building permits, nor has any type of construction
commenced.
"Laches is defined as 'such neglect or omission to assert a right as,
taken in conjunctio.n with the lapse of time, more or less great, and other
circumstances causing prejudice to an adverse party, operates as a bar in a
court of equity."' In re Barabash's Estate, 31 N.Y.2d 76, 81, 334 N.Y.S.2d 890
(1972). "The essential element of this equitable defense is delay prejudicial to
the opposing party." Id. The instant action is not barred by the doctrine of laches.
Defendants/Respondents have failed to demonstrate sufficient prejudice to
warrant such relief and Plaintiffs/Petitioners have offered reasonable excuses for
any delay, particularly in light ofethe alleged acts of deceit on the part of
Defendants/Respondents with regard to the
GML referral.

Prior Owners as Necessary Parties
The Prior Owner defendants claim that they are not proper parties in
this action since they "have little, if anything to do with the legal issues
regarding the 2014 as well as the 2018 ZBA decisions being challenged." CPLR
Sec. 1001 (a) requires that parties must be brought into an action when the
interests of the person might be "inequitably affected by a judgment in the
action." It is well settled that the possibility that a judgment rendered without
the omitted party could have an adverse practical effect on that party is enough
to indicate joined. Matter of 27

th

St. Block Assn. v. Dormitory Auth. of State of

New York, 302 A.D.2d 155, 160, 752 N.Y.S.2d 277 (1
9

st

Dept. 2002). Given the

 alleged claims asserted in the Complaint, there is a possibility that these
defendants may be inequitably affected, and as such, the Court will not dismiss
them from this action on this motion to dismiss.

Failure to Exhaust Administrative Remedies
Lastly, Defendants/Respondents assert that Plaintiffs/Petitioners have
failed to exhaust their administrative remedies in that this Court's review is
limited to the arguments and record adduced before the agency. They argue that
the second, third and fourth causes of action are based upon issues that had not
been raised in the underlying proceedings. Because the motions were made
without the benefit of the administrative record, this Court is unable to make a
determination as to whether Plaintiffs/Petitioners did in fact fail to exhaust their
administrative remedies at this time. For this reason, this aspect of the motions
to dismiss must be denied without prejudice to renew upon the submission of the
administrative record. Any other arguments set forth in the motions to dismiss
not specifically addressed herein are found to be without merit.
Accordingly, for the foregoing reasons, it is hereby
ORDERED that Motion #2 to dismiss the action is hereby DENIED in
its entirety, and it is further
ORDERED that Motion #3 to dismiss the action is hereby DENIED in its entirety,
and it is further
ORDERED that Motion #4 to dismiss the action is hereby DENIED in its
entirety, and it is further
ORDERED that the Petition/Complaint (Motion #1) is adjourned to
November

and it is further

ORDERED that Defendants/Respondents are directed to file and serve their
Answers, Record and Return and any legal briefs on or before Friday, November
2, 2018, and
Plaintiffs/Petitioners may file any Reply legal briefs on or before November 23,
2018.
This
constitutes
the
Decision and Order of the
Court.
10

Court

 Dated: New City, New York
September 29, 2018

To: (via. US mail)

Susan H. Shapiro, Esq.
Rockland Environmental Group
Attorney for Petitioners
75
North
Middletown
Road
Nanuet, New York 10954
Terry Rice, Esq.
Attorney for Defendants Bluefield Extension LLC
Four Executive Boulevard
Suite 100
Suffern, New York 10901

Dennis Lynch, Esq.
Ramapo Town Attorney
Town of Ramapo 237
Route 59
Suffern, NY 10901
John G. Stepanovich
Stepanovich Law, PLC
Attorneys for Defendants Lazerbeam Acreage, et al

618 Village brive, Suite K
Virginia Beach, Virginia 23454

11