Town of Kinderhook v Slovak

[*1] Town of Kinderhook v Slovak 2006 NY Slip Op 52640(U) [21 Misc 3d 1115(A)] Decided on March 6, 2006 Supreme Court, Columbia County Egan, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 6, 2006
Supreme Court, Columbia County

Town of Kinderhook, Plaintiff,

against

Faith Slovak a/k/a Edith Slovak, Donald Slovak, Schodack Farms, Inc., and Slovak Auto Transport Incorporated, Defendants.



8215-04



Maney, McConville & Liccardi, P.C., Attorneys for Plaintiff, (Edward P. McConville, Eeq.), 77 Troy Road, Suite 4, East Greenbush, New York 12061.

Lewis B. Oliver, Jr., Esq., Attorneys for Defendants, 156 Madison Avenue, Albany New York 12202.

John Egan, J.

Plaintiff, the Town of Kinderhook, commenced this action against defendants for their operation of an automobile transport business on their property located in the Town of Kinderhook, in violation of plaintiff's Zoning Law. Plaintiff moves pursuant to CPLR 3212 for an order granting partial summary judgment in its favor and dismissing defendants' second, fourth, fifth, seventh, and eighth affirmative defenses. Defendants oppose the motion and cross move pursuant to CPLR 3124 for an order compelling plaintiff to provide full and complete answers to defendants' First Set of Interrogatories and First Set of Document Demands. Plaintiff opposes the cross motion.

Plaintiff contends that defendants are operating an automobile transport business in an industrial zoning district. Plaintiff contends that an automobile transport business is permitted in the industrial zone by its Zoning Law, but only with site plan approval. Plaintiff also contends that defendants are operating a motor vehicle junkyard on their property which use is not permitted under the Zoning Law and poses a threat to the health, safety and welfare of the community.

In order to properly operate their automobile transport business, plaintiff contends that defendants must apply for site plan approval as required by plaintiff's Zoning Law §8147(C). By its complaint, therefore, plaintiff seeks to compel defendants to comply with the Zoning Law and apply for site plan approval so that plaintiff can regulate the use of defendants' property in [*2]accordance with the Zoning Law. Plaintiff contends that such regulation will serve the purpose of §81-47(C), which is to protect the health, welfare and safety of the community, because it will allow plaintiff to address the problem of the junkyard with defendants within the context of the site plan approval process.

In their answer, defendants posed several affirmative defenses. Plaintiff served a First Set of Interrogatories and eventually, following a motion to compel, defendants answered the interrogatories. Now, based on defendants' responses, plaintiff seeks to dismiss certain affirmative defenses.

In particular, plaintiff seeks to dismiss the second affirmative defense which alleges that the complaint is barred by the statute of limitations. Defendants do not oppose the motion in this regard, but rather concede that this defense should be dismissed since there is no dispute that the alleged violation of the Zoning Law is a continuing violation. Consequently, there being no merit to the second affirmative defense, it is hereby dismissed.

The fourth affirmative defense is that the complaint is barred by laches, waiver and estoppel. In addition, the fifth affirmative defense is that extraordinary circumstances exist to bar the complaint on the grounds of laches, waiver and estoppel. Defendants recognize the general principle that laches and estoppel are not available as a defense against a municipality in a zoning enforcement action. However, defendants contend that there is an exception to the general rule where extraordinary circumstances exists that require the doctrines to apply in order to prevent injustice. In this instance, defendants contend that such extraordinary circumstances exist to permit the defense.

In particular, defendants contend that the defendant, Donald Slovak, and his father before him, Joseph Slovak, have openly, notoriously and continuously operated an automobile transport business on the subject property for more than forty years, without plaintiff taking any enforcement action against them. Defendants contend that Joseph Slovak operated the business from the mid 1950's, prior to the enactment of the Zoning Law in 1972, to the mid 1980's, that Donald Slovak operated the business with his father from the mid 1980's to the mid 1990's, and that Donald Slovak has been operating the business on his own from the mid 1990's until the present. Defendants contend that 1998, was the first time they had ever received any objection to their business by plaintiff in the form of a summons. However, defendants contend that plaintiff had represented in that proceeding to defendants that their business was a legal nonconforming use that had been grandfathered in and that the proceeding was eventually dropped. Based on this representation, defendants contend that Donald Slovak 1) has not applied for site plan approval, 2) has invested thousands of dollars in transportation trucks, trailers and equipment, 3) has invested years in building up a customer base and customer goodwill, 4) has not pursued or has neglected other business opportunities, and 5) has made the business his exclusive means of supporting his family.

Further, because plaintiff has waited for more than 40 years to enforce its Zoning Law, [*3]defendants contend many of the drivers and customers who could be witnesses and prove that their automobile transport business has existed since before the enactment of plaintiff's Zoning Law have passed away. In addition, defendants contend that their own business records from the 1960's and 1970's no longer exist and records such as registrations for Joseph Slovak's trucks and hauling trailers from the 1960's and 1970's have been destroyed by the New York State Department of Motor Vehicles. Defendants contend that if plaintiff is allowed to proceed in this matter, they will be severely prejudiced by their inability to present evidence that shows that their business is a legal nonconforming use.

Finally, defendants contend that plaintiff has failed to adequately respond to their First Set of Interrogatories and Demand for Documents wherein they requested that plaintiff explain why it did not cite or prosecute defendants for illegal operation of their business from 1965 to 2004. Defendants contend that plaintiff has submitted inconsistent responses that indicate on the one hand, that it did not know about defendants' business, while on the other hand, stating that it was in a constant dialogue with defendants to stop operating their business. Defendants contend that they will show through discovery that plaintiff was aware of defendants' business at all relevant times and never engaged in any dialogue with defendants concerning the cessation of their business.

For all of the foregoing reasons, defendants contend that the Court should find that sufficient issues of fact exist as to whether extraordinary circumstances exist to allow them to utilize the defense of laches and estoppel to bar the complaint. At a minimum, defendants contend that they are entitled to further discovery with regard to the existence of extraordinary circumstances so that the defense of laches and estoppel may be factually developed. Defendants contend that plaintiff should be allowed to renew their motion for summary judgment, only if appropriate, after discovery has been conducted.

Plaintiff denies that it ever represented to defendants that their business constitutes a preexisting nonconforming use. Plaintiff also denies that it discontinued the 1998 proceeding brought against defendants for an auto transport zoning violation on the ground that their business constitutes a preexisting nonconforming use. Plaintiff contends, and the Court agrees, that defendants are misrepresenting the facts and their interrogatory responses. Rather, plaintiff contends that it only became aware that defendants were operating their business without site plan approval in 1997, and that it began a dialogue with defendants at that time to get them to comply with the Zoning Law. Plaintiff contends that the 1998 proceeding was dropped due to the fact that defendants repeatedly changed attorneys and kept failing to appear in court. Plaintiff also contends that it has witnesses and documentary evidence to show that defendants' business does not constitute a preexisting nonconforming use. However, plaintiff concedes that whether defendants' business constitutes a preexisting nonconforming use is an issue which will have to be tried.

Nevertheless, plaintiff contends that the defense of a preexisting nonconforming use, which was asserted in defendants' third affirmative defense, has nothing to do with the defense of laches and estoppel. Plaintiff contends that the doctrines of laches and estoppel simply cannot be asserted [*4]here because the doctrines do not apply to a municipality to preclude it from enforcing its zoning laws. Thus, plaintiff contends that the fourth and fifth affirmative defenses must be dismissed as a matter of law.

It is well settled that neither estoppel nor laches may not be invoked against a municipal agency to prevent it from discharging its statutory duties. See Parkview Associates v. New York, 71 NY2d 274, 282 (1988); E.F.S. Ventures Corp. v. Foster, 71 NY2d 359, 369-370 (1988). More particularly, neither laches nor estoppel may prevent a municipality from enforcing its zoning laws. Parkview Associates v. New York, supra; Union v. J. & M Pallet Co., 50 AD2d 628 (3rd Dep't 1975). Although exceptions to the general rule may be warranted in unusual factual situations to prevent injustice, this is not a case in which estoppel or laches may be imposed. E.F.S. Ventures Corp. v. Foster, supra.

First, there is no evidence that plaintiff induced defendants to continue the maintenance of its nonconforming use or induced it not to make alternative plans. Nor is there evidence of any activity by plaintiff which prejudiced the defendants. Philanz Oldsmobile, Inc. v. Keating, 51 AD2d 437, 442 (4th Dep't 1976). The defense of laces and estoppel is based upon the principle that one party either by delay or some other affirmative course of conduct has caused some prejudice to the other in reliance thereon. Id. Mere acquiescence cannot make illegal acts legal. Moreover, the Court is not convinced that there is no one alive today, other than Donald Slovak, who could testify to the fact that defendants operated automobile transport business prior to 1972. Further, the undisputed delay in enforcement has not been shown in any manner to have worked a detriment upon defendants. To the contrary, the delay in enforcement has afforded the defendants many years of profitable use. Id. Finally, in similar cases, courts have denied the application of estoppel or laches against a municipality even though there were lengthy delays. See e.g. Marcus v. Mamaroneck, 283 NY 325 (1940); Lake Placid Village v. Lake Placid Main Street Corp., 90 AD2d 873 (3rd Dep't 1982); Mandell v. Pasquaretto, 76 Misc 2d 405 (Sup. Ct. Nassau Co., 1973); aff'd 47 AD2d 715 (2rd Dep't 1975). Hence, the Court hereby dismisses defendants' fourth and fifth affirmative defenses.

Defendants' seventh affirmative defense is that plaintiff's Zoning Law constitutes a taking of private property without just compensation and violates due process of law. On the motion, plaintiff has demonstrated that defendants have not stated anything in their interrogatories which would sustain this defense. In opposition, defendants have failed to address this defense in any manner. As a result, the Court finds that defendants cannot sustain this defense and it is hereby dismissed.

Finally, defendants' eighth affirmative defense is that plaintiff is guilty of discriminatory enforcement in violation of the equal protection clause of the Fourteenth Amendment and is motivated by personal malice. The essence of a violation of the constitutional guarantee of equal protection is, of course, that all persons similarly situated must be treated alike. Bower Assocs. v. Town of Pleasant Valley, 2 NY3d 617, 630-631 (2004). Defendants' equal protection challenge does not rest on differential treatment as a constitutionally protected suspect class or denial of a [*5]fundamental right. Rather, defendants' equal protection claim sounds in selective enforcement. Id. See also Vil. of Willowbrook v. Olech, 528 U.S. 562 [2000]. As such, a violation of equal protection arises where first, a person, compared with others similarly situated, is selectively treated and second, such treatment is based on impermissible considerations such as race, religion, intent to inhibit or punish the exercise of constitutional rights, or malicious or bad faith intent to injure a person. Bower Assocs. v. Town of Pleasant Valley, supra; Criscione v. City of Albany Board of Zoning Appeals, 185 AD2d 420 (3rd Dep't 1992). Since defendants do not allege selective treatment based on race or religion, they must demonstrate that plaintiff is singling them out to punish them for their exercise of their constitutional rights or to regulate their property with malevolent intent.

In Bower Assocs. v. Town of Pleasant Valley, supra at 630-631, the Court of Appeals stated that:

"The 'similarly situated' element of the test asks 'whether a prudent person, looking objectively at the incidents, would think them roughly equivalent'. But even different treatment of persons similarly situated, without more, does not establish a claim. What matters is impermissible motive: proof of action with intent to injurethat is, proof that the applicant was singled out with an 'evil eye and an unequal hand, so as practically to make unjust and illegal discriminations between persons in similar circumstances.' " (citations omitted).

Defendants contend that they are being singled out because their business consists of nothing more than parking their trucks and trailers on their property which is no different than any of the other businesses in the zoning district that park their trucks or business or commercial vehicles on their property, which is perfectly legal. In other words, defendants contend that they are the only ones in town being prosecuted for parking vehicles on their property and being forced to seek site plan approval because of it. Defendants go so far as to contend that plaintiff has fictitiously categorized their business as operating an automobile transport business in an effort to regulate their property. However, defendants contend that plaintiff's Zoning Law does not in fact refer at all to "automobile transport businesses" in order to allow plaintiff to even regulate it.

In regards to plaintiff's motive for prosecuting defendants, they contend that plaintiff is punishing defendant Donald Slovak for "his exercise of his constitutional rights under the First Amendment and is in malicious bad faith with intent to injure him." Defendants contend these allegations alone should suffice to allow the defense of selective enforcement to survive the motion for summary judgment. Notwithstanding the sufficiency of the allegations, defendants explain that they believe that plaintiff commenced the instant action in 2004, in retaliation for Donald Slovak backing Walt Simonsmier, the Republican candidate for Town Supervisor who ran against the incumbent and current Supervisor, Douglas McGivney, in the November Election in 2003. Defendants contend that Mr. McGivney tried to get the code enforcement officer to cite Donald Slovak for a 22 foot long sign he placed on his truck that supported Mr. Simonsmier and therefore tried to curtail his First Amendment rights of free political speech. The Court notes, however, that it is undisputed that the sign was in violation of plaintiff's sign laws. Nevertheless, defendants contend that the failure to prosecute for over 40 years coupled with the [*6]commencement of this action after the 2003 November Election, is evidence from which a jury could infer that plaintiff is retaliating against defendants for exercising their First Amendment rights.

Defendants also contend that plaintiff is attacking Donald Slovak financially to deprive him of his only source of income again as retaliation for backing Mr. McGivney's opponent. At a minimum, defendants contend that they should be allowed to conduct further discovery in order to factually develop the issue of plaintiff's malice and improper motivation. Defendants contend that there is sufficient evidence to sustain the defense of selective enforcement, but they should be allowed to develop the defense further by obtaining further responses to their interrogatory requests and document demands and through depositions. Defendants again contend that plaintiff should be allowed to renew its motion for summary judgment, if appropriate, once discovery is completed.

Plaintiff contends that the defense of selective enforcement must be dismissed because there is simply no proof in the record of either selective treatment or improper motive or malice. Rather, plaintiff contends that it is clear from the record that its only motivation is to enforce its Zoning Law as to what it contends is not a legal preexisting nonconforming use and to eradicate a unlawful health and safety hazard in the process. Plaintiff contends further that the category in the Zoning Law entitled "Manufacture, fabrication, extraction, assembly, warehousing and other handling of material..." which lists permitted uses in the industrial zone as of right, but which requires site plan approval, while not specifically referring to an automobile transportation business, is designed to be broad enough to permit uses which are not dangerous, nuisances or otherwise prohibited by law such as defendants' automobile transportation business and gives plaintiff the authority to proceed with this action. Plaintiff contends that it is not treating defendants any differently than any other business that would require site plan approval and is in violation of the Zoning Law. Finally, plaintiff contends that defendants' "evidence" of malice in the form of political retaliation is nothing more than conjecture which is insufficient to defeat summary judgment. Plaintiff contends that it is not seeking to drive defendants out of business, but rather to protect its citizens as required by the Zoning Law, which cannot be viewed as action undertaken with an "evil eye" and an "uneven hand".

The Court finds that defendants have failed to meet their burden of showing that they were singled out for enforcement and others similarly situated were not. Defendants argue from one side of the mouth that they have had an automobile transport business for over 40 years and then argue from the other side that they are doing nothing more than parking a few cars and trucks on their property like many others businesses. This does not substantiate a selective enforcement claim and trivializes the Fourteenth Amendment. Rather, defendants had to submit some proof that other businesses similarly situated have been treated more favorably, but clearly failed to do so.

Nor have defendants submitted any proof to show that plaintiff has acted with malicious intent or to punish Donald Slovak for exercising his First Amendment rights. Rather, the Court finds that [*7]defendants' conclusory assertions that plaintiff is motivated by retaliation is pure conjecture which does not rise to the level of unlawful malice. Utica Mut. Ins. Co v. Magwood Enters, 15 AD3d 471 (2nd Dep't 2005). The mere hope or self serving claim that additional discovery will uncover evidence of malice or retaliation is not sufficient. Jeffries v. NY City Hous. Auth., 8 AD3d 178 (1st Dep't 2004). Lastly, defendants' assertions that even in the absence of malice, they are a "class of one" and that there is evidence that there is no rational basis for the plaintiff's actions are equally without merit. See Vil. of Willowbrook v. Olech, supra; Ardmar Realty Co. v. Building Inspector of Village of Tuckahoe, 5 AD3d 517 (2nd Dep't 2004). The record sufficiently shows that plaintiff has a legitimate basis for commencing this action and that it is supported by the Zoning Law. As a result, the Court finds that defendants' eighth affirmative defense is without merit and it is hereby dismissed.

Accordingly, plaintiff's motion for partial summary judgment is granted in its entirety.

Turning to defendants' cross motion, the Court notes that discovery was stayed pursuant to CPLR 3214(b) during the pendency of the instant motion. The Court also notes that neither plaintiff nor defendants have any objection to the granting of a conditional order that would provide plaintiff thirty days after this Court's decision on the motion to further respond to defendants' discovery demands. Thus, the Court hereby grants defendants' cross motion to the extent that plaintiff is directed to further respond to defendants' First Set of Interrogatories and First Set of Document Demands to provide complete responses within thirty (30) days of receipt of this decision and order.

The Court also directs the parties to appear at conference at 8:50 a.m., on April 13, 2006, at the Columbia County Courthouse, for the purpose of discussing the case and setting a new scheduling order.

This memorandum shall constitute both the decision and the order of the Court. All papers, including this decision and order, are being returned to plaintiff's counsel. The signing of this decision and order shall not constitute entry or filing under CPLR 2220. Counsel is not relieved from the applicable provisions of that section relating to filing, entry and notice of entry.

IT IS SO ORDERED.

Dated: March 6, 2006.

Albany, New York



JOHN C. EGAN, JR., J.S.C.

The Court considered the following papers: [*8]

By Plaintiff:

Notice of Motion dated August 25, 2005;

Affirmation in Support of Edward P. McConville, Esq., dated August 25, 2005, with exhibits A-J;

Affidavit of Douglas McGivney sworn to August 23, 2005;

Affidavit of Donald Kirsch sworn to August 23, 2005;

Memorandum of Law dated August 25, 2005;

Affirmation of Edward P. McConville, Esq., dated November 15, 2005;

Surreply Affirmation of Edward P. McConville, Esq., dated December 15, 2005;

By Defendants:

Notice of Cross Motion dated October 24, 2005;

Affirmation in Support of Lewis B. Oliver, Jr. Esq., dated October 24, 2005, with exhibits 1-6;

Reply Affirmation of Lewis B. Oliver, Jr. Esq., dated December 5, 2005.

NCAS

Town of Kinderhook v. Slovak