Matter of Lafiteau v Guzewicz
Annotate this CaseDecided on September 20, 2006
Supreme Court, Suffolk County
In the Matter of Application of Marianne Lafiteau, David Hudson, Lisa Case and Robert Case, Petitioners,
against
Daniel Guzewicz, as Chairman, and members Kevin Guidera, Richard McMahon, Rob Devinney and Gerry Ferrara, constituting the Zoning Board of Appeals of the Village of Southampton, Respondents -and- Chabad of Southampton, applicant, Respondent Jonathan Foster, in his capacity as the Village of Southampton Building Inspector, Respondent.
06-19664
THACHER, PROFFITT & WOOD,LLP
Attys. For Petitioners
50 Main St.
White Plains, NY 10606
JEFFREY L. BRAGMAN, PC
Atty. For Resp. Chabad of
Southampton
15 Railroad Ave.
East Hampton, NY 11937
REISMAN, PEIREZ & REISMAN, LLP
Attys. For Petitioners Case
1305 Franklin Ave.
Garden City, NY 11530
RICHARD E. DePETRIS, ESQ.
Atty. For Resp. Village of
Southampton
21 So. Main St.
Southampton, NY 11969
Thomas F. Whelan, J.
ORDERED that this motion by petitioners for an order preliminarily enjoining, pursuant to CPLR 6313, the implementation of the June 22, 2006 Decision of respondent, the Village of Southampton Zoning Board of Appeals, granting Chabad of Southampton a special use permit and numerous substantial variances for property located at 214/218 Hill Street, Southampton, New York, and the illegal use of 214/218 Hill Street, Southampton, New York, including any non-residential use in a residential zone district, and a further order mandating the Village of Southampton and its Building Inspector to enforce the provisions of the Village of Southampton Zoning code to prohibit [*2]any non-residential use in a residential zone district as it relates to the property located at 214/218 Hill Street, Southampton, New York, is denied.
Petitioners have commenced an Article 78 proceeding seeking to annul the June 22, 2006 Decision of respondent, Zoning Board of Appeals of the Village of Southampton (hereinafter "the Board"), which granted respondent, Chabad of Southampton, a special use permit and numerous substantial variances for property located at 214/218 Hill Street, Southampton, New York, by a 4-1 vote, after a contentious two-year hearing process.
The respondent, Chabad of Southampton (hereinafter "Chabad"), a not-for- profit corporation formed for the purposes of conducting religious ceremonies, services, and programs, purchased the small single-family dwelling located at 214 Hill Street in May, 1999. The property is located in a residential district of the Village of Southampton. While the residence became the home for Rabbi Rafe Konikov and his family, it also became a house of prayer of the Jewish faith, that is, a Chabad House. The mixed-use of the property lead to complaints from neighbors to the Village Building Inspector, who advised Chabad that it had to apply for a special exception use permit from the Board, pursuant to the general standards set forth in § 116-22 of the Village Zoning Code and the special conditions for a place of worship pursuant to § 116-23(4). Additionally, area variances were also required, due to the non-conforming dimensions of the parcel.
Aside from directing the filing of the special exception use permit application, the Village of Southampton and its Building Inspector have failed to address the complaints that Chabad has illegally operated the Chabad House as a place of worship for at least two years prior to the filing of the application and throughout the two-year application review process.
While the respondents have answered the verified petition, the Court has been informed by the Village Attorney that the administrative return, which is voluminous, will not be ready for submission to the Court until October, 2006 and the parties will need additional time to prepare their respective submissions and Memoranda of Law. In the interim, petitioners have moved by order to show cause dated July 27, 2006 (Baisley, J.S.C.) for a preliminary injunction seeking to restrain (a) the implementation of the June 22, 2006 Decision of the Board, in particular, the processing of any applications before any administrative boards of the Village of Southampton; (b) the illegal use of the Chabad House, both pending a final determination on the merits of the underlying special proceeding; and (c) mandating the respondent, Village Building Inspector, to enforce the provisions of the Village of Southampton Zoning Code to prohibit any non-residential use at the Chabad House, without all requisite approvals and permits being issued.
While the Court is at a disadvantage in determining the injunction request without the benefit of the administrative return, which is not part of the record of this application, the parties have submitted various relevant exhibits and the Court has requested and received various additional documents, following a lengthy oral argument.
At oral argument, petitioners conceded the fact that their request directed to the Building [*3]Inspector is in the nature of mandamus to compel. However, this Court cannot direct the Building Inspector to perform discretionary acts, such as the enforcement of the zoning code (see Matter of Church of the Chosen v City of Elmira, 18 AD3d 978, 795 NYS2d 141 [3d Dept 2005]; Matter of Kroll v Village of East Hampton, 293 AD2d 614, 741 NYS2d 98 [2d Dept 2002]; Matter of Dyno v Village of Johnson City, 261 AD2d 783, 690 NYS2d 325 [3d Dept 1999]). Therefore, since this Court is without authority to mandate the Building Inspector to prohibit the religious use of the property without all the required permits and approvals, that branch of petitioners' injunction request is denied.
Additionally, petitioners seek an order staying the processing of any applications before any administrative boards of the Village of Southampton, in furtherance of the Board's Decision. Such an order would stop processing of any site plan review before the Village's Planning Board and all related reviews, which are required before a certificate of occupancy for the mixed use can be issued. However, this request, even if granted, will not address petitioners main concern, that is, the operation of the religious use without all necessary governmental approvals. Staying the continued processing of application will not stop the continued use of the property as a Chabad House. The irreparable harm that the petitioners complain of in their verified petition will continue even with such a stay order in place. In light of the lack of legal authority offered in support of the request and the lack of showing as to how such an order will alleviate the alleged irreparable harm, this Court will not stay the continued processing of the Chabad application before governmental entities. Therefore, that branch of petitioners' injunction request is denied.
If petitioners are to be successful in their injunction request, it must be under that branch of their motion that seeks an order enjoining Chabad from operating or conducting any religious use on the parcel without all requisite approvals. Upon reviewing the papers submitted and in light of the acknowledgment at oral argument by counsel for the Chabad that some of the petitioners possess injury-in-fact from the operation of the Chabad House, petitioners have standing to maintain a common-law cause of action to enjoin Chabad from its alleged violations of the Village of Southampton zoning code (see Zupa v Paradise Point Assn., Inc., 22 AD3d 843, 803 NYS2d 179 [2d Dept 2005]; Williams v Hertzig, 251 AD2d 655, 675 NYS2d 113 [2d Dept 1998]).
Therefore, the issue before the Court is whether or not petitioners are entitled to preliminary injunctive relief against Chabad. A preliminary injunction is a drastic remedy to be used sparingly (see McLaughlin, Given, Vogel, Inc. v W.J. Nolan & Co., Inc., 114 AD2d 165, 498 NYS2d 146 [2d Dept 1986]) and will only be granted if a movant establishes a clear right to this relief under the law (see J.S. Amand Corp. v Ariel Enter., 148 AD2d 496, 538 NYS2d 840 [2d Dept 1989]), which is plain from the undisputed facts (see Blueberries Gourmet, Inc. v Aris Realty Corp. 255 AD2d 348, 680 NYS2d 557 [2d Dept 1998]; Suiko Enters., Inc. v Town Realty Co, LLC, 259 AD2d 483, 686 NYS2d 94 [2d Det 1999]). To obtain preliminary injunctive relief under CPLR 6301, petitioners must demonstrate (1) a likelihood of success on the merits; (2) irreparable harm absent the granting of the preliminary injunction; and (3) that the balancing of the equities favors the petitioners' position (see CPLR 6301; see also IVI Envt., Inc. v McGovern, 269 AD2d 497, 707 NYS2d 107 [2d Dept 2000]; Khan v State Univ. of New York Health Science Ctr. at Brooklyn, 271 AD2d 656, 706 [*4]NYS2d 192 [2d Dept 2000]; Miller v Price, 267 AD2d 363, 700 NYS2d 209 [2d Dept 1999]; W.T. Grant v Srogi, 52 NY2d 496, 438 NYS2d 761 [1981]). A prima facie showing of a right to relief is sufficient, however, the purpose of such relief is not to reach a determination of the ultimate merits of the action, but to maintain the status quo pending a resolution of the underlying claim (see Jamie B. v Hernandez, 274 AD2d 335, 712 NYS2d 91 [1st Dept 2000]; Penstraw v Metropolitan Transp. Auth., 200 AD2d 442, 608 NYS2d 807 [1st Dept 1994]) with actual proof of the case being left to further court proceedings (see Gambar Enters v Kelly Servs., Inc., 69 AD2d 297, 418 NYS2d 818 [4th Dept 1979]). Furthermore, pursuant to CPLR 6312(c), the existence of issues of fact are not grounds for denial of the application, where a determination is made following a hearing and the elements required for the issuance of a preliminary injunction exists (see Ma v Lien, 198 AD2d 186, 604 NYS2d 84 [1st Dept 1993]; see generally Town of Tully v Valley Realty Dev., Inc., 254 AD2d 835, 677 NYS2d 843 [4th Dept 1998]).
Under the facts and circumstances presented herein, the Court finds that petitioners have offered proof that it is likely to ultimately succeed on the merits of the proceeding (see Nelson, L.P. v Jannance, 248 AD2d 448, 668 NYS2d 936 [2d Dept 1998]; cf Petro, Inc. v Giffords Fuel Buyers Group, Inc, 258 AD2d 450, 683 NYS2d 877 [2d Dept 1999]).
With regard to the issue of likelihood of ultimate success on the merits, the Court notes that petitioners have, in essence, limited their challenge to three basic points, that is, errors of law with respect to SEQRA and the accommodation standard under Cornell Univ. v Bagnardi, 68 NY2d 583, 510 NYS2d 861 (1986), and the claimed arbitrary disregard of fire safety issues.
We begin with the understanding that zoning ordinances are enacted to protect the health, safety, and welfare of the community (see Matter of Sun-Brite Car Wash v Board of Zoning & Appeals of Town of N. Hempstead, 69 NY2d 406, 412, 515 NYS2d 418 [1987]). Municipalities that adopt zoning ordinances enter into a contract with its citizens whereby permitted uses are set forth in particular, distinct districts. In the Village of Southampton, places of worship are only permitted in residential districts with a special exception use permit obtained from the Board.
Petitioners claim that the Board, in granting Chabad a special exception use permit, committed an error of law with respect to its application of the "accommodation standard" under Cornell Univ. v Bagnardi, 68 NY2d 583, supra (see Petition, ¶ 14; ¶ 59[a]). Based upon the limited record before the Court on this motion, it does appear the Board failed to follow the appropriate legal standard in evaluating the Chabad permit request.
The special conditions for a place of worship pursuant to § 116-23(4) of the zoning code set forth minimal conditions for lot area, structure set-backs, lot coverage, and off-street parking set back. The Chabad application fails to satisfy a single condition and, in fact, varies substantially from each criteria. Various other related variances were also requested in the Chabad application.
In Matter of Real Holding Corp. v Lehigh, 2 NY3d 297, 778 NYS2d 438 (2004), the Court of Appeals held that a zoning board had authority pursuant to Town Law § 274-b(3) [the identical [*5]counterpart to Village Law §7-725-b(3)] to grant area variances from any requirements in the zoning regulations, including requirements for issuance of special use permits. That holding abrogated long-standing caselaw that held that compliance with the standards promulgated for issuance of a special permit must be demonstrated before a special permit may be issued. Village Law § 7-725-b(3) makes reference to an application pursuant to the area variance requirements of Village Law § 7-712-b. That provision of law requires a zoning board to undertake a five-part balancing test prior to the determination of a variance request (see Matter of Sasso v Osgood, 86 NY2d 374, 384, 633 NYS2d 259 [1995]; Matter of Pasceri v Gabriele, 29 AD3d 805, 815 NYS2d 218 [2d Dept 2006]).
In fact, various cases have examined, in detail, the five factors under the balancing test for a variance when examining a special permit application for a place of worship (see Matter of Corp. of Presiding Bishop of Church of Jesus Christ of Latter-Day Saints v Zoning Bd. of Appeals of Town/Village of Harrison, 296 AD2d 460, 745 NYS2d 76 [2002]; Matter of Apostolic Holiness Church v Zoning Bd. of Appeals of the Town of Babylon, 220 AD2d 740, 633 NYS2d 321 [2d Dept 1995]; see also Matter of Richmond v City of New Rochelle Bd. of Appeals on Zoning, 24 AD3d 782, 809 NYS2d 110 [2d Dept 2005]; Matter of Rosenfeld v Zoning Bd. of Appeals of the Town of Ramapo, 6 AD3d 450, 774 NYS2d 359 [2d Dept 2004]). If the zoning board makes findings against the variance request with respect to the five factors, then the board must, whenever possible, make every effort to accommodate a religious use by the imposition of conditions (see Matter of Islamic Socy. of Westchester and Rockland, Inc. v Foley, 96 AD2d 536, 464 NYS2d 844 [2d Dept 1983]; Cornell Univ. v Bagnardi, 68 NY2d 583, supra ).
It is of course possible that a board need not address the accommodation standard, if it finds that the variance request satisfied at least three of the five factors of the variance balancing test. In the instant case, upon review of the 35-page determination of the Board, while the balancing test of Village Law § 7-712-b(3) is acknowledged (see Decision, p 3), there is no separate analysis of the five factors set forth in the determination. At oral argument, counsel for the Board claimed that the analysis is set forth throughout the decision. However, at best, while the third factor of whether the proposed variance is substantial is addressed at points throughout the decision, the required five-factor balancing test is not obvious to this Court upon its reading of the determination. The Court notes that the Board's determination in this case was not unanimous and if the appropriate balancing test was undertaken, it may have had an effect on the Board's analysis of the accommodation standard and its final determination.
Additionally, petitioners claims an additional error of law in the Board's Decision with respect to SEQRA, in particular, the failure to include in the application and in the environmental review, the adjoining flag lot, that is, the newly acquired rear lot, commonly known by its Suffolk County Tax Map Number as lot 3.3. The Chabad property is respectfully referred to as lot 3.2. In September, 2005, based upon various expert reviews, it appeared that the Chabad application was headed for denial. In response to the Board's affirmative duty to suggest measures to accommodate the proposed religious use (see Matter of Islamic Socy. of Westchester and Rockland, Inc. v Foley, 96 AD2d 536, supra ), Chabad, through a limited liability corporation, acquired the adjourning rear [*6]lot, that is, lot 3.3. The properties were kept in separate legal title and not merged.
The Board's Decision and suggested site plan requires, among other things, the relocation of the driveway that leads to lot 3.3, which driveway area in part of lot 3.3, and the use of the former driveway area as a 20 foot buffer to the adjoining property to the east. Additionally, the Decision calls for the creation of a parking lot in the rear of the Chabad property, that is, lot 3.2, with no buffer between the parking lot and lot 3.3. As a result, the Board's prior determination in 1989 that created the two lots out of a single parcel had to be altered and modified so as to grant relief from various conditions imposed at that time.
The Board did not render a separate SEQRA determination and instead incorporated a negative declaration within its Decision. A review of that Decision references the September, 2005 review undertaken by its environmental consultant. Additionally, that consultant, in a separate memo recommended denial of the application. However, the Decision then offers that subsequent to the consultant's review, extensive submissions and comments occurred, leading to the determination that the proposed action will not have a significant adverse impact on the environment.
Petitioners claim in their verified petition that the environmental review did not include lot 3.3 and that no analysis of impacts associated with the conversion of lot 3.3, or even a part thereof, to a mixed use, that is, residential and place of worship use. Petitioners also claim that lot 3.3 has not been made a part of the Amended Application, even though use of portions of lot 3.3 is necessary to grant the religious use for the Chabad parcel, lot 3.2.
In its answering papers, Chabad states that it did amend its application to include the second parcel (see Respondent's Memorandum of Law, p 22). However, to the contrary, the Board claims that no proposal was made to the Board for use of lot 3.3 for religious use (see Board's Memorandum of Law, p 11). While the Decision states that it credits the response of Chabad's representatives (except with regard to off-street parking impacts), which the Board is entitled to do, the Court can not find a separate analysis with regard to lot 3.3, or the potential impact on surrounding parcels by the use of lot 3.3 in conjunction with lot 3.2 for the religious use. Based upon the limited record before the Court, it does not appear that the required "hard look" at the environmental impacts associated with the inclusion of lot 3.3 into the application was undertaken by the Board or any retained consultant.
.
While, at oral argument, Chabad's counsel refuted petitioners' additional claim concerning potential fire protection risks, the above discussion demonstrates, for purposes of this motion, that petitioners have offered sufficient proof that they are likely to ultimately succeed on the merits. However, oral argument also convinced this Court that petitioners have failed to demonstrate irreparable harm absent the granting of the preliminary injunction.
Aside from the largely conclusory allegations set forth in the verified petition, petitioners fail to offer credible evidence that the continued use of lot 3.2 as a Chabad House substantially impairs the privacy, enjoyment, and use of the neighboring residential properties. Petitioners fail to offer any [*7]affidavits that demonstrate that traffic and parking conditions are hazardous on Friday or Saturday. No proof is offered of how many cars are present or how many people converge on the property and to what extent such interferes with the quite enjoyment of the neighboring properties. No proof is offered as to noise complaints. The unsubstantiated complaint at oral argument that young children are at risk from the traffic conditions at the parcel is wholly without support and falls far short of the evidence of sufficient detail necessary for the granting of a preliminary injunction. The failure to provide sufficient support to substantiate the conclusory allegations of the verified petition mandates denial of the motion for a preliminary injunction. In light of the above finding, the Court need not address the issue of balancing of the equities.
Accordingly, the motion is denied. This constitutes the decision and Order of the Court.
DATED: _______________________________________________
THOMAS F. WHELAN, J.S.C.
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