SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF ROCKLAND In the Matter of the Application of CITIZENS UNITED TO PROTECT OUR NEIGHBORHOOD- HILLCREST and SHARON DOUCETTE, Petitioners-P/aintiffs, Index No. 000506/2018 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 DECISION AND ORDER THE TOWN OF RAMAPO, THE TOWN OF RAMAPO ZONING BOARD OF APPEALS, CHARLENE WEAVER, in her capacity as the Chairperson of the Town of (Motions Ramapo Zoning Board of Appeals, BLUEFIELD EXTENSIQN, LLC, SUNSHINE GARDENS REALTY, LLC, 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, - Respon dents-Defendants. Sherri L. Eisenpress, A.J.S.C., The following papers, numbered 1 to 19, were considered in connection with Petitioners/Piaintitfs? Article 78 Petition/Declaratory Judgment action which seeks an Order issuing a declaratory judgment that the January 30, 2014 use variance granted by the Town of Ramapo Zoning Board of Appeals is void ab initio and jurisdictionally defective for failure to refer the use variance application to the Rockland County Department of Planning as required by New York General Municipal Law Sections 239-m; (ii) issuing a declaratory judgment that the ZBA was without authority to act on the use variance application because th true owners of the property did not submit the application, and the applicant was not an ?aggrieved" party authorized to seek the use variance under Town Law; issuing a declaratory judgment that the ZBA was without authority to issue the use variance for failure to comply with Town Law Sec. notice provisions; (iv) issuing a declaratoryjudgment that the use variance granted by the ZBA is void as unconstitutional; annulling, vacating and setting aside the area variances Decision because it relied on a use variance that is void for failure to refer the matter to County planning as required by the (vi) issuing a declaratory judgment that ZBA was without authority to consider appeal because it was not timely under Town Law Sec. (vii) issuing a declaratory judgment that bulk table requirements are applicable to determine use variances in an R-15 zoning district or, in the alternative, that it was arbitrary and capricious for the ZBA to use Bulk Standards in granting the use variances, when the site is in an R-15 zoning district; issuing a declaratory judgment that the ZBA was without authority to issue the area variance decision for a 4?lots subdivision, when there is no existing sketch plat or other approval for four lots; (ix) annulling vacating and setting aside the area variances decision because it is arbitrary, capricious and without rational basis and not supported by substantial evidence; annuliing, vacating and setting aside the area variances decision because the ZBA failed to comply with (xi) granting an award of costs against ZBA under Town Law section 267-c)2), for acting with gross negligence, bad faith and/or with malice in issuing the use variance decision and the area variance decision: PAPERS NUMBERED OF ARTICLE 78 PETITION AND 1-7 PETITION AND OF SUSAN SHAPIRO, OF ROBERT MICHAEL OF SHARON OF DEBORAH VERIFIED ANSWER BY TOWN OF RAMAPO, ZBA, CHARLENE 8-10 IAN SMITH AND ANTHONY MALIA (collectively DEFENDANTS AFFIDAVIT OF PAMELA I. AND RETURN 11 VERIFIED ANSWER BY LAZERBEAM ACREAGE, LLC, LESSER GROSS (deceased), ZISHE BABAD, JOEL HOROWITZ and YITZCHOK ULLMAN AMENDED VERIFIED ANSWER OF BLUEFIELD EXTENSION, LLC and 12-15 SUNSHINE GARDENS REALTY, IN EXHIBIT OF ANTHONY OF WILLIAM A-B AFFIRMATION OF SUSAN SHAPIRO IN FURTHER 16-19 OF SHARON OF SUSAN OF LAW IN FURTHER SUPPORT Upon the foregoing papers, the Court now rules as follows with respect to the Article 78 Petition/Declaratory Judgment: The instant Declaratory Judgment/Article 78 proceeding, commenced on April 27, 2018, seeks the following relief: 1)To annul, vacate and set aside a February 1, 2018, Decision by the Town of Ramapo Zoning Board oprpeals XBA-4556, filed with the Town Clerk on March 28, 2018, granting area variances for a proposed four lot subdivision located on real property at 122 Union Road and 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 30, 2014 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 Sec. 239~m. Background By way of background, the properties that are the subject of the Use Variance Decision (January 30, 2014) and the Area Variances Decision (February 1, 2018) are known as numbers 122, 126,. 128 and 130 Union Road (?the site?), totaling an aggregate of approximately 1.05 acres, located in the Town of Ramapo, in the hamlet of Hillcrest. Petitioner/Plaintiff, Citizens United to Protect Our Neighborhood?Hillcrest is a volunteer non-profit community based organization, of which Plaintiff Sharon Doucette is a member. The proposed project on the Site that is the subject of the challenged variances is commonly known as ?Bluefield Extension? (also referred to herein as the ?project.?) The project 'The af?davit of Anthony Celentano is not being considered, as it is not in admissible form. The af?davit is neither notarized nor dated. 3 is located In the R-15 zoning district which allows single-family homes, and in certain instances, two family dwellings (at approximately 3-4 housing units per acre.) On October 21, 2013, then Town Building Inspector Anthony Mallia denied a building permit to construct 10 units of housing on Lots located at 130 Union Road, 126/128 Union Road and 122 Union Road, stating that a use variance was required. Thereafter, Defendant Lazerbeam LLC (which was not an owner of any of the parcels of property at the time) submitted an application to the ZBA, dated 10/11/2013, for a use variance to build 10 units of housing, each with an accessory apartment. On that same day, October 21, 2013, the ZBA Clerk referred the Use Variance application to Rockland County Planning, as required by General Municipal Law Section and which requires referral for?use or area variances" for actions applying to real property ?within five hundred feet? ofthe ?boundary of any city, village, or town or county road. County Planning received the referral, a narrative prepared by the applicant's attorney and map-dated October 1, 2013, in anticipation of a November 21, 2013 ZBA meeting. On November 20, 2013, Helen Kenny-Burrows, a Principal Planner in County Planning, sent an email at 2:25 pm. to the Applicant's attorney, the Town Planner, John Lange, and Director of Building, Planning and Zoning, Anthony Mallia, stating that the plan submitted ?does not conform to the description in the 10/11/13 narrative summary,? setting forth specific inconsistenciesz, and noting that it was an incomplete submission. In response, the applicant?s attorney, Ira Emanuel, sent an email approximately an hour later which indicated that there 1The inconsistencies between the map and narrative were not insigni?cant. Ms. Kenny- Burrows noted that ?the applicant?s preferred layout consists of three semi-attached units containing a total of six? units with six accessory apartments and four attached units with four accessory apartments. The semi?attached units are located in the Northwest and Northeast corners of the site, and the east side of the site. The four attached units are in the South side of the site. As you see, this is not what is depicted on the map submitted to this of?ce. There are no housing units in the northwest corner; a play area is proposed at that location. A two-family residence attached to a three-family residence is showa along the eastern side of the site; the same unit con?guration is shown along the south side." 4 was a mix?up, that his client has authorized him to ask that this item be adjourned to the December meeting of the ZBA, and that in the interim, ?we will make sure that the proper materials were submitted to all agencies." Ms. Kenny?Burrows then sent an email acknowledging Mr. Emanuel?s email. Notwithstanding Mr. Emanuel?s acknowledgment of the incomplete submission, and the representation that an adjournment would be sought and documents forwarded, the matter was heard by the ZBA on November 21, 2013. According to the transcript of the ZBA hearing, the matter was then adjourned without a date. The Town Respondents submit the affidavit ofTown Employee, Pamela Corry, who avers that ?her notes" con?rm that she recorded the ZBA as announcing, during the meeting, that this matter was adjourned to a specific date. However, no such date is indicated in the transcript, Ms. Corry's ?notes" confirming this statement are not produced and her affidavit is silent with respect to the alleged adjourned date. On December 19, 2013, the matter was listed on the ZBA Agenda but there appears to have been no discussion of the project on that date. Petitioner Doucette avers that she was given no notice of this meeting and no notice appears in the Record. It is alleged that there was a meeting on January 16, 2014, as there are later references to such a meeting having been held, but no stenographer was present and there is no transcript. There is no record of notification of the meeting or public notice. A meeting was held by the ZBA on January 30, 2014, at which time the Bluefield extension project was discussed. A transcript of the January 30, 2014 meeting states that at the January 16, 2014 meeting, ?in appropriate excess of caution, an additional two weeks was provided to see if the County was going to provide any additional commentary.? The Court notes that there is no dispute, or evidence adduced, that subsequent to the initial emails between Mr. Emanuel and Ms. Kenny-Burrows, no additional documentation was ever provided to County Planning in connection with the use variance application. The use variance was granted on January 30, 2014, as memorialized in a decision filed with the Town Clerk on March 10, 2014. The Decision specifically states that ?[T]he GML Review recommends disapproval." It further states, ?[T]he GML Review recommendation of disapproval is hereby over-ridden; as the Board disagrees with its finding that the applicant cannot meet the ?Otto" test.? Thereafter, on March 4, 2014, an application for Planning Board subdivision and site plan approval was filed, and that application was also referred to County Planning for GML review. On May 5, 2014, the County Planning GML review recommended disapproval of the subdivision application. The decision noted the following with respect to the prior use variance GML review: On October 23, 2013, this department received a GML referral from the Town of Ramapo for a use variance to permit the proposed multi-family development in the zoning district. The Town and the applicant?s attorney, Ira Emanuel, were informed that the application contained conflicting information. As a result, the application was withdrawn from the November ZBA agenda and adjourned to the December meeting. This department was informed of this decision by Ira Emanuel in a November 20, 2013 email, and advised that the proper materials would be submitted to all agencies. This department did not receive any new information on this proposal until an incomplete and inaccurate subdivision application was submitted on March 4, 2014. A GML review was never issued for the use variance deSpite the reference to such a review in the January 30, 2014 ZBA resolution. The use variance application must be submitted for our review so we can evaluate the applicant's demonstration of financial hardship, and the other criteria that must be met to justify a use variance. On May 13, 2014, the Planning Board adopted a negative SEQRA declaration and approved the Final Subdivision without necessary area variances or Sketch Plat approval. 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 aileged that during the course of administrative review, the issue of the lack of GML review with respect to the prior use variance approval was discussed on numerous occasions. On May 6, 2015, County Attorney Thomas Simeti wrote to Deputy Town Attorney Specht, stating that despite reference in the 1/30/2014 ZBA minutes that there was a GML review of the use variance, ?there was no such referral or GML review by the Rockland County of Planning? and the minutes should be ?corrected and re-filed" to ?reflect that there was no referral by the ZBA nor GML review by the Rockland County Department of Planning. On July 7, 2016, an application was filed with the Town Planning Board for Sketch Plat and Final Subdivision approval by Bluefield Extension, LLC, the new owner of two of the lots, and Sunshine Garden Realty LLC, the new owner of the other lot. On June 5, 2017, Town Deputy Building Inspector Ian Smith denied a building permit for the Project, stating that area Variances were required. On August 10, 2017 Bluefield LLC applied for area variances. The County GML review again raised the issue of lack of GML referral for the Use variances. On February 1, 2018, the ZBA issued a decision granting area variances for a proposed four lot subdivision on the subject project. The February 1, 2018 area variances Decision was filed with the Town Clerk on March 28, 2018, and the instant action, brought by Citizens United to Protect Our Neighborhood-Hillcrest and Sharon Doucette, was ?led on April 27, 2018. By Decision and Order dated September 29, 2018, this Court denied Respondents/Defendants motions to dismiss the petition/complaint; the answered; and?a Record and Return was produced. Legal Discussion The 2004 Use Variances Petitioners/Plaintiffs seek a declaration that the use variance is void based upon a violation of GML Sec. 239-m. They assert that case law holds that a municipality's failure to make a proper referral under GML Sec. 239-m is a jurisdictional defect, which renders its enactment void. When there is a jurisdictional defect, the statute of limitations does not begin to run upon the ?ling of the jurisdictionally defective document, or alternatively, the statute of limitations is six years. In this case, Plaintiffs allege that there was no referral by ZBA to County Planning of a ?full statement of such proposed action,? in light of the indication by County Planning of an ?incomplete submission.? Plaintiffs point out that this Court has already decided that the GML claim is not barred by the statute of limitations nor is it barred by doctrine of laches. As such, the law of the case bars re-consideration of these defenses. In opposition to the causes of action which pertain to the 2004 use variance, the Blue?eld defendants assert, once again, that consideration of these claims is barred by the doctrine of laches. In support of this claim, Defendants submit an affidavit from Yakov Grunwald, owner and managing partner of Bluefield Extension, LLC and Sunshine Gardens Realty LLC. He argues that he purchased the subject property in good faith and upon the belief that the use variance was granted two years prior to his acquisition and that it was not timely challenged. He asserts that in the event the use variance is deemed void, he would not yield a reasonable return on his investment, and would suffer a devastating financial loss if he were required to utilize the property in conformity with the R-15 zoning regulations. Counsel argues that the doctrine of laches bars this challenge, taken four years after the approval of the variance and two years after the properties were acquired, as Plaintiffs fail to offer a reasonable excuse for their delay. The Bluefield Defendants also assert that the GML related claims are barred by the statute of limitations, notwithstanding the fact that this Court already ruled on their motion to dismiss that they are not barred by the statute of limitations. Defendants acknowledge that the Second Department has held that a six year statute of limitations applies to a claim of failure to comply with the GML referral requirements, but argues that this Court should ignore Second Department precedent and follow Third Department precedent which limits the statute of limitations to 30 days for public policy reasons. In addition to the statute of limitations defense, the Biuefield Defendants argue that the First Cause of Action must be denied bECause the submission was not deemed incomplete but was deemed a denial. Moreover, they assert that the operative language of the statute clearly does not mandate that a ?full statement of such proposed action? be referred to the County Department of Planning. Lastly, Defendants argue that the remaining causes of action related to the 2004 use variance are barred by the 30-day statute of limitations. GML Sec. 239?m requires referral ofcertain proposed planning and zoning actions to a county planning agency for recommendation and report. GML Sec. 239nm(b) states that such county planning 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 report its recommendations to the referring body, accompanied by a statement of the reasons for such recommendations. A ?full statement of such proposed action? is defined in GML Sec. and ?shall mean all materials required by and submitted to the referring body as an application on a proposed action, including a completed environmental assessment form and all other materials required by such referring body in order to make its determination of significance pursuant to the state environmental quality review act under article eight of the environmental conservation law and its implementing regulations. 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. Realty Corp. v. City of Glen Cove, 256 336, 338, 681 296 (2d Dept. 1998)} Matter of Burchetta v. Town Bd. of Town of Carmel, 167 338, 561 305 (2d Dept. 1990MW Manor, LLC v. Town of Riverhead, 160 842, 76 72 (2d Dept. 2018). Mama; the Court in Matter of LCS Realty Co. v. Incorporated Vil. Of Roslyn, 273 474, 475,710 605 (2d Dept. 2000) made clear that a decision is void when there is a failure to comply with the GML Sec. 239-m requirement to submit the ?full statement of such preposed action" for at least 30 days before an action is taken. In Matter of LCS Realty Co., the Court noted that after referral by the Village, the County Planning Commission was not in possession of all the materials required for an application on a preposed action. E- 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, it also requires a full statement be provided within 30 days as well. See al? Calverton Manor, LLC v. Town of Riverhead, 160 842, 845, 76 72 (2d Dept. 2018). The First Cause ofAction is not barred by the statute of limitations. 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 1493, 1496, 74 422 (4th Dept. 2018): Matter of Hampshire Mqt. Co. No. 20, LLC v. Feiner, 52 714, 715, 860 204 (2d Dept. 2008)( 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 an administrative action, as ultra vires, is not subject to the 30?day limitations period applicable to review of hte site plan, special permit, or other land use determination); Matter of Eastport Alliance v. Lofaro, 13 527, 878 346 (2004). Failure to comply with the GML referral provisions renders the action jurisdictionally defective, ultra vires and void and not subject to a 30-day statute of limitations. Additionally, the Second Dapartment has held that challenges premised upon violations of GML Sec. 239-m are Subject to a six year statUte of limitations; Ernalex Constr. Realty Corp. Ci_ty Qf_Gl_en_C_ov_e, 256 at 337; Johnston v. Town Bd. Of Town of Brookhaven, 11 Misc.3d 819 848 (Sup. Ct. Nassau County 2006); Nor is consideration of this claimed barred by the doctrine of laches. ?Laches is defined as ?such neglect or omission to assert a right as, taken in conjunction 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 76, 81, 334 890 (1972). The four basic elements of laches are, (1) conduct by an offending party giving rise to the situation complained of, (2) delay by the complainant asserting his or her claim for relief despite the opportunity to do so, (3) lack of knowledge or notice on the part of the offending party that the complaint would assert his or her claim for relief, and (4) injury or prejudice to 10 the offending party in the event that relief is accorded the complaint. Dwyer v. Mazzola, 171 726, 727, 567 281 (2d Dept. 1991). The party asserting laches has the burden to satisfy all four elements for proper invocation of the doctrine. E.- This Court has already determined that the doctrine of laches does not bar the Petition/Complaint with respect to the 2004 use variance. With regard to the basic elements of laches, the Court notes that Petitioners were unaware that there was a jurisdictional defect in the use variance decision relating to the lack of GML referral because the use variance decision itself explicitly refers to a GML review that didn't exist, and then addresses arguments allegedly raised by the County in the non?existent GML review. Moreover, the Bluefield Respondents were on notice, or should have been, of claims pertaining to the lack of a GML review in connection with the prior use variance application. Due diligence would have revealed the County?s 2014 and 2015 GML reviews which noted the lack of a GML review in connection with the use variance application. Mr. Grunwaid does not aver that he lacked knowledge that such a claim may be asserted. Lastly, nothing has prevented the Bluefield defendants from seeking a proper use variance, including during the pendency of this action. Having dispensed with the defenses of the statute of limitations and laches and applying the relevant law as set forth herein, the Court finds that the Town did not provide a ?full statement" with respect to the use variance application to County Planning, as required by the GML. There is little doubt that the request to provide a map which conforms to the narrative description provided, is the type of materials that the Town would require in order to make its determination on the application. The failure to provide all necessary materials was acknowledged by the applicant?s attorney, who made an af?rmative representation that an adjournment would be sought and the proper materials provided in the interim. Despite these representations, none of this occurred. Rather, no additional documents were provided and the Town inaccurately stated in its decision granting the use variance, that a GML review recommended disapproval and noted that the ZBA disagreed with specific findings that County 11 Planning never made. Accordingly, this Court ?nds that the 2004 Use Variance to be void for failure to comply with GML Sec. 239-m. As this Court has found the 2004 use variance to be void, the Court need not address the other causes of action which seek the same declaration. February 1, 2018 Area Variances Decision Petitioners/Plaintiffs assert that the 2018 Area Variances Decision is invalid because it is premised on the jurisdictionally defective Use Variance. It must be noted that the Area Variance Decision specifically relies upon thejurisdictionally defective Use Variance, as set forth herein: Terry Rice, Esq. having appeared on behalf of the applicant and having noted that the ZBA granted use variances on January 30, 3014 permitting the property to be used for uses permitted in the zoning district;? and ?There is no other feasible method of available for the Applicant to pursue, other than an area variances as the applicant has previously obtained a use variance applying the zoning district to apply to this property." Thus, on its face, the Area Variances Decision makes clear that in applying the zoning requirements to the property, as opposed to the R-15 bulk requirements, the Town relied upon the grant of the use variance in conducting the required analysis under Town Law Sec. 267- In Matter of Fischera v. New York State Dept. of Envtl. Conservation, 159 1493, 1495,74 422 (4rh Dept. 2018), the Court held that the failure to comply with GML Sec. 239-m with respect to the initial application for the area variances, renders the subsequent approval by the ZBA ?null and void? where its determination to grant an amended area variance was based on its previous void determination. See also Younqewirth v. Town of Ramapo Town Board, 155 755, 762, 65 540 (2d Dept. 2017)(where underlying determination is void, then decision premised on the void decision must also be set aside.) Here, given the Town?s reliance on the grant of a use variance found to be void, to grant the 12 area variances, the area variances must be voided as well. In light of the fact that the Court has found the area variances set forth in the February 1, 2018 Decision to be void, the Court need not address the other causes of action which seek the same relief. C?t? Lastly, pursuant to Town Law Sec. ?[C]osts shall not be allowed against the board of appeals unless it shall appear to the court that itacted with gross negligence or in bad faith or with malice in making the decision appealed from." Plaintiffs seek costs on the ground that their exhibits substantiate the claim that the ZBA acted in bad faith with regard to the deceptive and fraudulent Use Variance Decision that falsely refers to a County GML that never existed, which identified County Planning GML comments that were never made, and then overruled the non?existent review comments. They further argue that when the County discovered the deception and demanded on May 6, 2015, that the ZBA correct its egregious conduct, the ZBA still refused to correct its decision. The Town does not appear to take a position with respect to the demand for costs. Upon the record herein, the Court finds that costs are warranted in this matter, particularly given the 2014 Use Variance Decision which references comments from a GML review which was not issued. Plaintiff is directed to submit a proposed bill of costs, with notice of settlement, within twenty (20) days of the date of this Order. Accordingly, for the foregoing reasons, it is hereby ORDERED that Petitioners-Plaintiffs? Petition/Complaint is GRANTED to the extent that the January 30, 2014 Use Variance granted by the Town of Ramapo ZBA is void ab initio and jurisdictionally defective for failure to comply with New York General Municipal Law Sec. 239?m; and it is further ORDERED Petitioners?Plaintiffs? Petition/Complaint is GRANTED to the extent that the Area Variances Decision dated February 1, 2018, is annulled, vacated and set aside because it relied on a Use Variance that is void for failure to comply with New York General 13 Municipal Law Sec. 239-m; and it is further ORDERED that Plaintiffs are directed to submit Proposed Costs, with notice of settlement upon defendants, within twenty (20) days of the date of this Order. This constitutes the Decision and Order of the Court. Dated: New City, New York Januaw 6, 2020 - L. npress Acting Justice upreme Court 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 Blue?eid Extension LLC Four Executive Boulevard Suite 100 Suffern, New York 10901 Dennis 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 Drive, Suite Virginia Beach, Virginia 23454 14