Donohue v Zoning Bd. of Appeals of Town of Middlebury

[*1] Donohue v Zoning Bd. of Appeals of Town of Middlebury 2005 NY Slip Op 51242(U) Decided on July 21, 2005 Supreme Court, Wyoming County Lane, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on July 21, 2005
Supreme Court, Wyoming County

GERALD DONOHUE, RUSSELL CRAMER, ANNE WEIDMAN, DIANNE BURNHAM, CAROL SMITH, and RICHARD FURLONG, Plaintiffs

against

ZONING BOARD OF APPEALS OF THE TOWN OF MIDDLEBURY, NEW YORK, EDWARD STRATHEARN, DOUGLAS NORTON, GARY EWELL and RUDD WETHERWAX, COMPRISING 4 OF ITS 5 MEMBERS, SYGNET COMMUNICATIONS, INC., SBA NETWORK SERVICES, INC., and JERROLD & PATRICIA DICKES, Defendants.



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DAVID J. SEEGER, ESQ., for plaintiffs

SHANLEY, SWEENEY, REILLY & ALLEN, PC, by Douglas R. Kemp,Esq., for defendants Sygnet, SBA Network, and Dickes

DAVID M. DiMATTEO, ESQ., for defendants Strathearn, Norton, Ewell, Wetherwax, and the Town of Middlebury

John P. Lane, J.

The Court has considered the following papers: notice of motion by defendants Edward

Strathearn, Douglas Norton, Gary Ewell and Rudd Wetherwax, dated January 6, 2005; affidavit of

David M. DiMatteo, Esq., sworn to January 6, 2005; notice of motion by defendants Sygnet Communications, Inc.(Sygnet), SBA Network Services, Inc.(SBA), and Jerrold Dickes and Patricia

Dickes, dated January 7, 2005; affidavit of Douglas R. Kemp, Esq., sworn to January 7, 2005; [*2]memoranda of law submitted by defendants and plaintiffs.

Moving under CPLR 3211 seeking dismissal of the complaint with prejudice, defendants assert that the court lacks jurisdiction of plaintiffs' claims, that plaintiffs have failed to join a necessary party and their claims are barred by the statute of limitations. Defendants Stratheran, Norton, Ewell and Wetherwax also contend they are not subject to the jurisdiction of the court. In response, plaintiffs maintain that the form of their combined action and proceeding is proper and ask that defendants' motions be denied. Alternatively, plaintiffs' seek conversion of the form of the action/special proceeding and, if necessary, grant plaintiffs leave to amend the caption to specifically include the ZBA as a named defendant.

Plaintiffs commenced this combined action and special proceeding challenging an area variance and a negative declaration under the State Environmental Quality Review Act (SEQRA) upon which it was based approved by the Zoning Board of Appeals of the Town of Middlebury (ZBA) by filing a summons with notice. The notice described the nature of the action and the relief sought as annulment of determinations made by the ZBA approving a 300 foot tower to be located on the property of defendants Jerrold and Patricia Dickes in the Town of Middlebury.[FN1] In their complaint, plaintiffs allege that the hearing held by the ZBA on September 23, 2004 to consider the area variance permitting erection of the tower was conducted without public notice in violation of the Open Meetings Law (Public Officers Law article 7), SEQRA, and General Municipal Law § 239-m, which requires that defendants' application be referred to the Wyoming County Planning Board. Finally, plaintiffs claim that a 300 foot high telecommunications tower is not a permitted use of land under the Town of Middlebury zoning ordinance and cannot be erected unless a use variance is obtained by defendants Sygnet and SBA. The complaint ends with a demand that the actions taken by the ZBA be annulled, vacated and set aside and the matter be remanded to the ZBA, and that plaintiffs have such other relief as is just and proper, which would likely include injunctive and declaratory relief.

Any person aggrieved by a decision of a zoning board of appeals "may apply to the supreme court for review by a proceeding under article seventy-eight of the civil practice law and rules" (Town Law § 267-c). Any person seeking to enforce the Open Meetings Law against a public body may commence a proceeding pursuant to article 78 and/or an action for declaratory judgment and injunctive relief (see Public Officers Law § 107[1]). Similarly, a plaintiff seeking to invalidate action taken by a zoning board of appeals for failure to comply with General Municipal Law § 239-m may pursue both a declaratory judgment and article 78 relief (see Matter of LCS Realty Co. v Incorporated Vil. of Roslyn, 273 AD2d 474 [2000], lv denied 96 NY2d 705 [2001]). Thus, the relief plaintiffs seek is clearly within the subject matter jurisdiction of the court. Furthermore, it is not unusual that article 78 relief and a declaratory judgment, or other relief typically sought in an action, be pursued in a single proceeding (see, e. g., Matter of City of Syracuse v Comerford, 13 AD3d 1109 [2004]; Matter of Smith v Town of Plattekill, 13 AD3d 695 [2004]; LCS Realty). Joinder of all plaintiffs' claims into a single proceeding serves judicial economy and is clearly permitted (see CPLR 103, 601[a]). Promoting judicial economy and preventing a multiplicity of suits is an objective of [*3]the CPLR (see Perez v Paramount Communications, 92 NY2d 749 [1999]).

Defendants contend that plaintiffs were required to commence their hybrid action and special proceeding as if it sought relief only under CPLR article 78 by filing a petition (see CPLR 304). However, by prosecuting their claims in a combined action/special proceeding, plaintiffs were entitled to do so in a manner that satisfied any of the commencement-by-filing provisions of the Civil Practice Law and Rules applicable to actions or special proceedings. Those provisions do not limit the subject matter jurisdiction of this court and were enacted to raise funds for the State, a goal that was satisfied when plaintiffs filed the summons with notice and paid the required fee (see Matter of Fry v Village of Tarrytown, 89 NY2d 714 [1997]; Chiacchia & Fleming v Guerra, 309 AD2d 1213 [2003], lv denied 2 NY3d 704 [2004]).

CPLR 304 permits the commencement of an action by filing a summons with notice. This practice has its risks (see Micro-Spy, Inc. v Small, 9 AD3d 122, 125-126 [2004]). However, the Office of Court Administration has pointed out that "[T]he summons and notice procedure is a highly useful device" when, as here, plaintiffs are faced with a short statute of limitations (1978 NY Legis Ann, at 308). A summons with notice must state the nature of the action and the relief sought (see CPLR 305[b]). It is not necessary that the notice apprise defendants of the precise legal theories behind a plaintiff's case (see Bergman v Slater, 202 AD2d 971 [1994]; Pilla v La Flor De Mayo Express, 191 AD2d 224 [1993]). The notice here adequately informed defendants of the general nature of this combined proceeding and plaintiffs' claim for relief at the opening stage of the litigation (id; see also Rowell v Gould, Inc., 124 AD2d 995 [1986]).

Defendants also challenge the timeliness of this hybrid action/special proceeding. A person seeking judicial review of a decision made by a town zoning board of appeals must commence the litigation within thirty days after the filing of the decision in the office of the town clerk (see Town Law § 267-c). According to defendants, the negative declaration and area variance being challenged were filed by the town clerk on September 28, 2004. As plaintiffs summons with notice was filed by the Wyoming County Clerk on October 22, 2004, this combined proceeding is not barred by the statute of limitations.

Defendants correctly contend that the ZBA is a necessary party if the relief plaintiffs seek is to be granted (see Emmett v Town of Edmeston, 2 NY3d 817 [2004]; Phillips v Village of Oriskany, 57 AD2d 110 [1977]; Town Law § 267-c). Plaintiffs sought to satisfy this requirement by naming as defendants the four members of the ZBA who voted in favor of the challenged actions, and omitting the name of the fifth member who voted in the negative. The four named members of the ZBA, one of whom is the chairman of that board, are identified as such. It is apparent that no claim is made against anyone personally. The notice with the summons and the complaint are directed to actions by the ZBA rather than its individual members. In the absence of any prejudice to defendants, the title of the action has been amended to identify the ZBA as a defendant (see Cutting Edge, Inc. v Santoro, 4 AD3d 867 [2004]; CPLR 2001). Defendants also contend that jurisdiction of the ZBA has not been obtained as the summons with notice was served only on defendant board member Wetherwax. Such service is sufficient to confer jurisdiction of the ZBA (see Matter of Heinisch v Goehringer, 121 AD2d 721 [1986]; see also Matter of Perreten v Westchester County Bd. of Health, 146 AD2d 779 [1989]; Matter of Croissant v Zoning Bd. of Appeals of the Town of Woodstock, 83 AD2d 673, appeal dismissed 55 NY2d 826 [1981]; CPLR 312).

Defendants' motions are denied. [*4]

SO ORDERED.

Dated: Buffalo, New York

July 21, 2005

_____________________________

John P. Lane, J.S.C. Footnotes

Footnote 1:The summons with notice identifies the parties as petitioners and respondents. The complaint and later papers refer to them as plaintiffs and defendants. The parties henceforth will be identified as plaintiffs and defendants and the title of this matter is amended accordingly.