Matter of Liebowitz v Board of Trustees of the Inc. Vil. of Sands Point

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Matter of Liebowitz v Board of Trustees of the Inc. Vil. of Sands Point 2012 NY Slip Op 31489(U) May 7, 2012 Sup Ct, Nassau County Docket Number: 8698/11 Judge: F. Dana Winslow Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. ... ....... ...................... ... ...... ...... ... ........ ........ ... ..... .. [* 1] SHORT FORM ORDER SUPREME COURT - STATE OF NEW YORK Present: HON. F. DANA WINSLOW, Justice TRIAL/IAS, PART 3 NASSAU COUNTY In the Matter of the Application of LEO LIEBOWITZ, ROSE LIEBOWITZ, MORTIMER SLOAN and JUDY SLOAN, Plaintiffs, For a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules, -against- MOTION SEQ. NO. : 001 , 002 MOTION DATE: 3/7/12 THE BOARD OF TRUSTEES OF THE INCORPORATED VILLAGE OF SANDS POINT THE VILLAGE CLERK OF THE INCORPORATED VILLAGE OF SANDS POINT and THE INCORPORATED VILLAGE OF SANDS POINT. INDEX NO. : 8698/11 Defendants. The following papers having been read on the motion (numbered 1- 7): Order to Show Cause Motion Seq. No. 001........................................... Notice of Motion Seq. No. 002................................................................. Affirmation in Op positio D........ ............ .......... ......... ....... .......... ..... ... ..... .. Rep Iy Affirm a ti 0 D..................................................................................... pplem en tal Affirmation in Opposition.... Sup p lem en tal Rep Iy A.ffirma tiou............ ............ ..... .............. ..... Memorandum of Law.................................. ................... ....... S u Application pursuant to CPLR Article 78 by the plaintiffs/petitioners Leo Liebowitz , Rose Liebowitz, Mortimer Sloan and Judy Sloan (collectively petitioners) to inter alia annul Local Law 3 of 20 11 is denied and the petition is hereby dismissed. In view of the fact that Local Law 2 was amended by Local Law 3 , any challenge posed vis-a-vis Local Law 2 as originally enacted is academic. There is presently a justiciable controversy, therefore , only as to Local with respect to constitutionality/procedural irregularities [* 2] Motion by respondents Board of Trustees of the Incorporated Vilage of Sands Point , the Vilage Clerk of the Incorporated Vilage of Sands Point and the Incorporated Vilage of Sands Point (collectively the respondents) to dismiss the amended and its is hereby declared that Local Law 3 is not impermissibly vague. Petitioners , the owners of propert located directly adjacent to private residential propert which was used to fim a television show entitled " Royal Pains " claim that their properties were severely impacted by the respondents ' issuance by the Vilage Clerk of movie fiming permits to the neighboring homeowner pursuant to Local Law 3. They allege that movie operations, staging of equipment and the placement of sanitary facilties directly in front of their respective homes during the fiming of the show encumbered the use and enjoyment of their propert. In this hybrid proceeding, petitioners challenge respondents ' adoption of Local Law 3 entitled "Movies and Filming in the Incorporated Vilage of Sands Point Law which amended Local Law 2 of 20 11 , an earlier fiming regulation 3 ordinance, based on the theory that , in adopting Local Law 3 of 20 11 , respondents failed to comply with both the procedural and substantive requirements of the New York State Environmental complaint/petition pursuant to CPLR 321l(a)(3), (a)(7) and CPLR 7804(f) is granted Quality Review Act (SEQRA) and the referral requirements of General Municipal Law 239-m. They further allege that the law conflcts with existing provisions of the Vilage of Sands Point Zoning Code and is unconstitutionally vague. They specifically allege that , pursuant to the Vilage of Sands Point Code , there are only three permitted zoning classifications for properties located within the Vilage: Residence " A" Districts; Residence " B" Districts and Residence " C" Districts and the Vilage Code does not Law 3 of2011. Mr. & Mrs. Liebowitz and Mr. & Mrs. Sloan are the owners respectively of 7 and 8 Vanderbilt Drive , Sands Point. A fiming permit was issued to their neighbor, Peter Forman, on May 3, 2011 to allow fiming at his home located at 10 Vanderbilt Drive on May 5 , 2011 and May 6 , 2011 from 7:00 AM to 9:00 PM and on May 12 2011 and May 19 2011 from 8:00 AM to 11 :00 PM. According to petitioners, the permit issued violated Local Law 3' s restrictions with respect to the number of days of fiming allowed as well as the duration of the fiming day. According to respondents , a public hearing was held on February 15 , 2011 regarding Local Law 3 (which changed discreet portions of Local Law 2) for comment by the public and discussion by the Board of Trustees. [* 3] permit commercial or business uses within any of the Districts except for a club use. They, therefore , request a preliminary injunction to enjoin respondents from issuing any further fiming permits in order to preserve the status quo pending full adjudication of the merits. Notwithstanding the fact that the contested fiming occurred in May, 2011 , and petitioners accepted location gratuities to compensate for anticipated inconvenience caused by the fiming, they now seek to challenge Local Law 3 which sets forth the guidelines for fiming within the Vilage of Sands Point. Respondents argue that the challenge is untenable on the grounds that: (1) petitioners lack standing to pursue their claims; (2) the enactment of Local Law 3 was a Type II Action not subject to SEQRA review as it concerns minor temporary use of land (see 6 NYCRR 617 . 5 (c)(15)) and the adoption of regulations , policies , procedures and local legislative (see 617. 5(c)(27)); (3) Local Law 3 was not required to be referred to the Nassau County Planning Commission under 239-m because it is not a zoning ordinance but , rather , a local law regulating fiming - a First Amendment protected activity - in the Vilage; and (4) Local Law 3 is not unconstitutionally vague. Respondents further contend that because petitioners have not suffered a direct injury from the enactment of Local Law 3 , which differs from that suffered by the public at large - nor alleged that the public at large suffered any injury at all , they lack standing to challenge either the enactment or constitutionality of the law. On a motion to dismiss pursuant to CPLR 3211(a)(7) and CPLR 7804(t) such as that before the court , the petition/complaint alone must be considered and all of its allegations are deemed true and must be afforded the benefit of every favorable inference. Matter of Miligan 73 AD3d 781 783 (2 Town of Huntington 58 AD3d 619 621 (2 Dept 2009). In reviewing a determination made pursuant to SEQRA , it is not the role of the court to weight the desirabilty of the proposed action , choose among alternatives , resolve having negligible or no permanent impact on the environment decisions in connection with a listed action 6 NYCRR General Municipal Law Miler Dept 2010); Matter of Bloodgood disputes among experts or substitute its judgment for that of the agency. Jackson Matter of New York State Urban Dev. Corp. 67 NY2d 400 416 (1986). Whether in the form of an Aricle 78 proceeding for review of an administrative determination , or an action for an injunction , challenges to zoning determinations may [* 4] only be made by aggrieved persons. Aggrievement warranting judicial review generally requires a threshold showing that a person has been adversely affected by the respondents ' activities , i.e. , that he has sustained special damage , different in kind and Matter of Sun-Brite Car Wash, Board of Zoning and Appeals of the Town of North Hempstead 69 NY2d 406 412 70 NY2 694 (1987). Whether a part has standing to seek judicial review of a particular claim or controversy is a threshold matter , which , once challenged, should ordinarily be resolved by the courts before the merits are reached. County of Suffolk 77 NY2d 761 , 769 (1991). Standing to challenge an administrative action is generally based on a showing that the action wil have a harmful effect on the challenger and that the interest to be asserted Matter of Gernatt Asphalt Town of Sardinia 87 NY2d 668 687 (1996). Standing to bring a CPLR Article 78 proceeding requires the existence of an injury in fact - direct harminjury that is in some way distinct from that of the general public. Town Bd. of Town of River head 73 AD3d 922 , 924 (2 15 NY3d 709 degree from that suffered by the community generally. Inc. (1987), reargument denied Society of Plastics Indus. is within the zone of interest to be protected by the statute. Prods. Matter of Harris Dept 2010), Iv to appeal denied (2010). Ownership of propert adjacent to , or very close to, affected property may generally give rise to a presumption of standing involving zoning changes because it is reasonable to assume that an owner located in the immediate vicinity of a rezoned area wil suffer Matter of Sun-Brite an injury different from that of the community at large. Car Wash, Inc. Board of Zoning and Appeals of the Town of North Hempstead, supra p. 413. Here, the challenged action does not constitute a change in the zoning law, and petitioners ' interests are not in any way different from those of the public at large. Nor have they shown any manner in which the Local Law 3 wil have a far reaching/dramatic effect on , or alter , the character of the Vilage of Sands Point. It is not enough that the issue may be one of wide public concern. Here , petitioners have not shown that they have suffered actual injury different from any injury suffered by the community at large. Town ofRamapo 29 Misc 3d 1220(A) (N. Sup. 2010). Shapiro Criteria regarding standing in a proceeding pursuant to Aricle 78 to challenge a land-use approval are the same as those that govern an action for a judgment declaring that a zoning ordinance is invalid. Matter of Riverhead PGC, LLC Town of Riverhead, 73 AD3d 931 , 934 Dept 2010), Iv to appeal denied 15 NY3d 709 (2010).. [* 5] The State Environmental Quality Review Act (SEQRA) requires that social economic and environmental factors be considered in reaching decisions on proposed 0103 (7). SEQRA insures that agency decision makers , enlightened by public comment where appropriate, wil identify and activities. Environmental Conservation Law focus attention on any environmental impact of a proposed action. Matter of Jackson at p. 414- 415. The New York Codes , Rules and Regulations (NYCRR) provides enforcement procedures with respect to the Environmental Conservation Law. Pursuant to the regulations , actions undertaken by an agency that have a significant impact on the environment require an environmental impact statement. Actions under SEQRA are divided into two categories: Type I and Type II actions. Type II actions are not subject to review and have been determined not to have a significant impact on the environment or are otherwise precluded from environmental 617. 2(a). Actions include any "projects or physical activities , such as construction or other activities that may affect the environment by changing the use appearance or condition of any natural resource or structure , that: (i) are directly undertaken by an agency; or (ii) involve funding by an agency; or (ii) require one or more new or modified approvals from an agency or agencies; . . . 617. 2(b)(i- iii). A challenger asserting that SEQRA has been violated must demonstrate that he New York State Urban Dev. Corp. , supra review. 6 NYCRR " 6 NYCRR wil suffer an injury that is environmental and not solely economic in nature. Matter of 76 NY 428 433 (1990). A SEQRA challenger must also demonstrate that it wil suffer an injury that is different in kind or degree from that suffered by the public at large. Generalized environmental concerns wil not suffice and when no zoning related issue is involved , there is no presumption to raise a SEQRA challenge based on a part' s close proximity alone. The burden of establishing Society Mobil Oil Corp. Syracuse Indus. Dev. Agency, standing to challenge an administrative action lies with the party seeking review. of Plastics Indus. County of Suffolk, supra at p. 769. 239-m(3)(a)(ii) and (3)(b), the adoption or amendment of a zoning ordinance or local law affecting real property within 500 feet from the boundary of any city, vilage , town , or existing or proposed county, state park or road must be referred to the County Planning Board for review. Local Law 3 is not an amendment to the Vilage of Sands Point Zoning Ordinance Rather , it regulates filming, an ongoing, previously unregulated activity permitted by Local Law 2. As such 239-m was Pursuant to General Municipal Law , the referral requirement of General Municipal Law [* 6] not triggered. Tioga County, Hold As stated by the Court of Appeals in 56 NY2d 414 (1982), ( w )hen a locality exercises the legislature power delegated to it by the State Constitution, there is an ' exceedingly strong presumption ' that the local law enacted is constitutional. 2d 8227 , 359 N. E. 337). 41 NY2d 7, 11, 390 N. Town of Is lip, (Lighthouse Shores The exceedingly strong presumption of constitutionality applies not only to legislative New York City Dept. of Festa enactments but to municipal ordinances as well. 12 Misc 3d 466, 475 (N. Sup. 2006). In order to defeat the presumption of validity, a par must show that the local law in question is inconsistent Consumer Affairs, Kew Gardens Rd. Assoc. with either the State Constitution or a general law. 41 Tyburski 70 NY2d 325 , 333 (1987). Petitioner has failed to show any manner in which the regulations set forth in Local Law 3 are constitutionally vague. Petitioners have failed to rebut the strong presumption of the constitutional validity of Local Law 3 by demonstrating its unconstitutionality Public Servo Comm. of State Rochester Gas beyond a reasonable doubt. Elec. Corp. ofN.Y. 71 NY2d313, 320 (1998). The regulations set forth in Local Law 3 afford a she is not reasonable degree of certainty to a person of ordinary intellgence so that he or forced to guess at their meaning, and they are sufficiently clear so as to safeguard against New York State Urban Dev. Corp. 15 NY3d Matter of Kaur arbitrar enforcement. Corp. by cert. denied 235, 256 (2010), S. Tuck-It-Away, Inc. 131 S. Ct. 822 , 178 L.Ed. 2d New York State Urban Development 556. This constitutes the Order of the Court. Dared: tf )-0 19-- ENTERED MAY 2 3 2012 NASSAU COUNTY COUNTY CLERK'S OFFICE

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