89JPS, LLC v Joint Vil. of Lake Placid & Town of N. Elba Review Bd.

[*1] 89JPS, LLC v Joint Vil. of Lake Placid & Town of N. Elba Review Bd. 2012 NY Slip Op 51151(U) Decided on June 25, 2012 Supreme Court, Essex County Meyer, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 25, 2012
Supreme Court, Essex County

In the Matter of the Application/Action of 89JPS, LLC, Petitioner-, Plaintiff, For an Order and Judgment Under CPLR Article 78 and CPLR Section 3001

against

Joint Village of Lake Placid and Town of North Elba Review Board; Village of Lake Placid, Inc.; Town of North Elba; Code Enforcement Officer of Village of Lake Placid and Town of North Elba;, Respondents-, Defendants.



0029-11



James M. Brooks, Esq., Lake Placid, New York, for the Petitioner-Plaintiff.

Rice & Amon (Terry Rice, Esq. of counsel), Suffern, New York, for the Respondent-Defendants Joint Village of Lake Placid and Town of North Elba Review Board, and Village of Lake Placid.

Briggs & Norfolk LLP (Ronald J. Briggs, Esq. of counsel), Lake Placid, New York, for the Respondent-Defendants Town of North Elba, and Code Enforcement Officer of Village of Lake Placid and Town of North Elba.

Richard B. Meyer, J.

In this combined CPLR Article 78 proceeding and declaratory judgment action, the petitioner 89 JPS, LLC (89 JPS) seeks a judgment, inter alia, annulling a December 15, 2010 revised determination of the respondent-defendant Joint Village of Lake Placid and Town of North Elba Review Board (JRB), a six member body, limiting its proposed boathouse to 20 feet in length and to non-commercial use only. [*2]

This action and proceeding was commenced on January 21, 2011 by the filing of a notice of petition and summons, and a verified petition and complaint, with the Essex County Clerk. The respondents-defendants thereafter sought to remove the case to federal court pursuant to 28 USC §1446. By Memorandum-Decision and Order dated September 14, 2011, the United States District Court for the Northern District of New York (Mordue, D.J.) denied respondent-defendant's motion to dismiss 89 JPS' state law claims, and remanded the causes of action back to this Court for determination. Because Judge Mordue thoroughly detailed the underlying facts and procedural history in this case, those facts are incorporated herein by reference and will not be repeated here except to the extent necessary for determination of the pending issues. The papers considered by the Court are set forth at the end of this decision.

89 JPS is the owner of certain real property in the Village of Lake Placid, Town of North Elba, Essex County, New York located on Mirror Lake. It filed an application with the JRB in September 2010 for a permit to construct a one-story boathouse on the shore and lake having a maximum height of 13.75 feet and a length of 32 feet. The joint land use code then in effect as adopted by the respondents Village of Lake Placid, Inc. (Village) and Town of North Elba (Town) authorized the construction of boathouses of up to 32 feet in length in the zoning district within which the subject property is located. The proposed design of the boathouse, which the Adirondack Park Agency (APA) determined did not require an APA permit, consisted of one boat slip and a twenty-seven foot long dry boat storage area. Based upon the architectural plans submitted with the application, slightly more than 20% of the sides of the boathouse at the end farthest out on the lake are open in an arch design and covered only by extension of the boathouse roof.

At its December 1, 2011 meeting, the JRB considered factual information furnished by the Town and Village planning office "based on some field work that they did" at the request of the attorney for the JRB. This "analysis data" was withheld from 89 JPS and its counsel, over counsel's numerous objections, until after the JRB rendered its determination. The JRB granted the application but limited the length of the boathouse to twenty feet rather than the applied-for thirty-two feet. One JRB member voted to deny the application entirely after having previously recused himself because "[f]undamentally, I'm against boathouses" and "[w]e shouldn't have any boathouses on Mirror Lake". In determining to so limit the size of the boathouse, the five remaining members of the JRB relied upon the undisclosed evidence from the planning office consisting of alleged measurements of other boathouses on the lake, including how far each extended into the waters and the percentage of the shoreline length of each lot taken up by the boathouse and dock on the lot. The JRB calculated the percentage of boathouses and docks which it previously approved on the lake as being between 4 and 23% of their respective lot shoreline lengths, and the average length of all boathouses as being "a little over 20 feet". After noting that "the buildings we have approved recently, the two recent are Peter Day at 20 feet and Camp Clampet at 18.6", the JRB chairman stated "I'm looking at the 20 foot range. I think that's enough for him to get a slip in for the boat and to have some storage and if he wants to put a dock on the front or it out onto the water, that dock has a lot less impact as the rest of these structures on the lake have docks protruding further out". Three other members agreed to the twenty foot [*3]length, although one would have preferred twenty-two feet and another member wanted "something around 15".

The primary issue before this Court is whether the JRB's conditions prohibiting commercial use of the boathouse and limiting its length are arbitrary and capricious. "Although a municipality may place conditions on the approval of site plans, such authority is not limitless. Under Town Law § 274—a (4), conditions and restrictions must be reasonable' and directly related to and incidental to a proposed site plan.' We have held that conditions are proper when they constitute corrective measures designed to protect neighboring properties against the possible adverse effects of [a proposed] use' ( Matter of St. Onge v. Donovan, 71 NY2d 507, 516, 527 NYS2d 721, 522 NE2d 1019 [1988]). In contrast, conditions are invalid when they do not seek to ameliorate the effects of the land use at issue' (id. at 517, 527 NYS2d 721, 522 NE2d 1019). Accordingly, courts have repeatedly held that a municipality's imposition of a condition which is not reasonably designed to mitigate any demonstrable defects' is arbitrary and capricious (Matter of Clinton v. Summers, 144 AD2d 145, 147, 534 NYS2d 473 [1988]; see also Matter of Castle Props. Co. v. Ackerson, 163 AD2d 785, 786-787, 558 NYS2d 334 [1990]; Matter of Black v. Summers, 151 AD2d 863, 865, 542 NYS2d 837 [1989]). Where a court determines that the imposition of a condition is arbitrary and capricious, the appropriate relief is to excise the condition (see Matter of St. Onge, 71 NY2d at 519, 527 NYS2d 721, 522 NE2d 1019)" (Smith v. Town of Mendon, 4 NY3d 1, 28, 789 NYS2d 696, 713, 822 NE2d 1214, 1231 [2004]).

With regard to commercial use, there is nothing in the record, including the application and evidence submitted by 89 JPS which indicates that the project was commercial in nature. Thus, the condition prohibiting commercial use is not arbitrary or capricious.

A different result cannot be avoided as to the twenty foot limit, however. Significantly, 89 JPS was precluded from being advised of and furnished with the planning office analysis data evidence and afforded the opportunity to cross-examine [FN1] the preparer of that report as well as rebut it. Also, this evidence was adduced following the JRB's close of the evidentiary hearing on [*4]November 17, 2010 apparently at the request of the JRB's attorney and without the official direction of the JRB itself or notice to 89 JPS or its counsel. Under these circumstances, the JRB proceeded in violation of lawful procedure. By not affording 89 JPS the opportunity to rebut or challenge the planning office report, its "due process rights were violated by the board's ex parte receipt and consideration of the subject [analysis data] in that it arrived at its decision with the aid of new evidence which it had no right to consider under the circumstances presented (Matter of Wunder v. Macomber, 34 Misc 2d 281, 289-290, 228 NYS2d 552; Fulton v. Board of Appeals of Town of Oyster Bay, 152 NYS2d 974; Humble Oil & Refining Co. v. Board of Aldermen of Town of Chapel Hill, 286 NC 170, 209 SE2d 447; Pizzola v. Planning and Zoning Comm. of Town of Plainville, 167 Conn 202, 355 A2d 21, 25)" (Stein v. Board of Appeals of Town of Islip, 100 AD2d 590, 591, 473 NYS2d 535, 537 [1984]; see also, Hampshire Management Co. v. Nadel, 241 AD2d 496, 660 NYS2d 64; Sunset Sanitation Service Corp. v. Board of Zoning Appeals of Town of Smithtown, 172 AD2d 755, 569 NYS2d 141).

The JRB determined that the 32' length proposed "is incompatible with the size and scale of existing boathouses on Mirror Lake", did not fit into the landscape, "would not be compatible with representative building patterns", and would adversely impact the views of the lake and Whiteface Mountain from nearby properties. Review of the record discloses that the facts upon which these determinations were made were contained within the planning office analysis data wrongfully withheld from 89 JPS. The contentions of the respondents-defendants that the "members of the JRB are intimately familiar with Mirror Lake and the boathouses which are located on it and/or have personal first hand knowledge of them" and "is fully able to appreciate the size of the proposed boathouse and its scale to the property as compared to other boathouses along the shore of Mirror Lake" are unavailing. "It is well-established law that a board may act upon its own knowledge of conditions and/or its own personal inspection, but the mere conclusory statement in the findings of its personal knowledge and inspection does no more than demonstrate or establish the basis for the board's arrival at the factual findings. When the board does so act, it is incumbent upon it to set forth in its return the facts known to the members, but not otherwise disclosed. People ex rel. Fordham Manor Ref. Church v. Walsh, 244 NY 280, 287, 155 NE 575, 577" (Community Synagogue v. Bates, 1 NY2d 445, 454, 154 NYS2d 15, 22-23, 136 NE2d 488, 493 [1956]). The return [FN2] here contains no recitation of the facts so known to the JRB members and upon which they based their determinations. None of the affidavits submitted by the JRB members provide those facts, as the facts which are contained in those affidavits were derived from the planning office analysis data that was improperly considered. [*5]

Review of the return reveals that no analysis was conducted nor consideration given by the JRB as to the whether the 20 foot limit was the maximum length that could be approved in order to "maintain a balance between development and the preservation of . . . visual appeal" (Land Use Code, Part IV, Article V), complement "adjacent and nearby structures and . . . not intrude upon or overwhelm the natural environment" (id.), and comply with the site design guidelines that projects "complement rather than dominate the natural landscape" and "not break prominent skylines" (Land Use Code Section [3][A][4]) in order to comply with the code. Rather, the JRB merely picked a number representing the average length of JRB-approved boathouses with no nexus or correlation between that distance and the code criteria which the JRB was required to consider and apply. No consideration was given as to whether a length of 21 feet, 22 feet, 24 feet, or some other distance would still meet the criteria imposed by the code. The twenty foot limit also lacks any empirical evidence in the record since the JRB did not direct the placement of "on site simulation with balloons or other indicators . . . in order to adequately demonstrate true building scale" (Part IV, Article V, §3[A][1]). Only three JRB members, one of whom initially recused himself from considering the application out of personal bias against all boathouses and subsequently voted to deny the application, actually visited the site on November 8, 2010 to inspect the one buoy that was placed at a point thirty-two feet from shore. There is no evidence in the record that the other JRB members visited the site at any other time.

The foregoing determinations of the JRB "had no objective factual basis in the record, but instead rested on subjective considerations such as general community opposition' (Matter of Halperin, supra at 772, 809 NYS2d 98)" (Richter v. Delmond, 33 AD3d 1008, 1010, 824 NYS2d 327, 329 [2006]) and the subjective opinions of the JRB, more than half of whom voting for this condition did not visit the site. Here, the only opposition was from two absentee owners, and an upper floor tenant, of an adjacent commercial building whose objections related to how the proposed boathouse would possibly obstruct their views of Whiteface Mountain from the lakeside yard of the building, and from an attorney representing the commercial bank owning another nearby parcel. The record lacks "sufficient evidence to support the rationality of its determination (see Matter of Richter v. Delmond, 33 AD3d 1008, 1010, 824 NYS2d 327; Matter of Marte v. Town of Greenburgh, 13 AD3d 630, 786 NYS2d 345; Matter of Hudson Canyon Constr. v. Town of Cortlandt, 289 AD2d 576, 735 NYS2d 807)" (In-Towne Shopping Centers, Co. v. Planning Bd. of Town of Brookhaven, 73 AD3d 925, 927, 901 NYS2d 331, 332 [2010]; see also, Hudson Canyon Const., Inc. v. Town of Cortlandt, 289 AD2d 576, 735 NYS2d 807 [2001]).

In light of the foregoing, the JRB's findings of fact number 13, 13A, 15, 16, 17 and 18 are annulled. Also annulled are: the second sentence of finding of fact number 7; and that portion of finding of fact number 14 stating that "and because of its length is incompatible with the size and scale of existing boathouses on Mirror Lake". Finally, the JRB's determinations to modify the boathouse "length to twenty (20) feet or less" and condition approval of the project "subject to submission by the applicant to the Joint Review Board of a design of the boathouse not exceeding twenty (20) feet for the purpose only of allowing the Board to confirm that such redesign continues to be approvable by the Board and the Board further delegates to its Chairman [*6]the authority to review and approve on behalf of the Board any redesign submitted to the Board by the applicant for a boathouse not exceeding twenty (20) feet in length", are annulled. Otherwise, the determination is confirmed.

Under "the cardinal principle of judicial restraint — if it is not necessary to decide more, it is necessary not to decide more" (PDK Laboratories Inc. v. U.S. DEA, 362 F3d 786, 799 [Roberts, J, concurring]; see also People v. Carvajal, 6 NY3d 305, 316, 812 N.Y.S.2d 395, 402, 845 N.E.2d 1225, 1232), this Court need not reach the remaining issues raised in the first, second, third and fourth causes of action in the petition and complaint. 89 JPS is entitled to judgment on those causes of action consistent with this decision, the cross-motion by the JRB and Village to dismiss the first and second causes of action is denied without costs, and the fifth cause of action is severed. Counsel for 89 JPS shall submit judgment accordingly on notice.

It is so ordered.

ENTER

___________________________________

Richard B. Meyer, A.J.S.C.

Notice of Petition and Summons dated January 20, 2011; Petition and complaint verified January 20, 2011 with exhibits 1 through 7.

Notice of motion to dismiss dated March 18, 2011 with affirmation of Ronald J. Briggs, Esq., dated March 18, 2011 with exhibits A through E. Affidavit of James M. Brooks, Esq., sworn to April 14, 2011 with exhibits A and B in opposition to motion to dismiss. Decision and order of this Court dated April 20, 2011. Memorandum/Decision and Order of the United States District Court for the Northern District of New York (Mordue, USDJ).

Verified answer of respondents-defendants Joint Village of Lake Placid and Town of North Elba Review Board, and Village of Lake Placid, dated November 15, 2011.

Verified answer of respondents/defendants Town of North Elba and Code Enforcement Officer of the Village of Lake Placid and Town of North Elba dated November 15, 2011; affidavit of William R. Hurley, sworn to November 15, 2011 with exhibit A; affidavit of Michael A. Orticelle sworn to November 15, 2011; affidavit of Horst Weber, sworn to November 14, 2011; affidavit of Olga Krone sworn to November 14, 2011; affidavit of Arthur D. Bissell, III sworn to November 14, 2011; affidavit of James E. Morgansen sworn to November 15, 2011 with exhibit A.

Record certified by James E. Morgansen pursuant to CPLR §3122-a. This section only applies to business records produced pursuant to a subpoena duces tecum, which is not applicable here, and requires at least 30 days notice before the hearing that they intend to offer such records. [*7]

Notice of cross motion dated November 15, 2011 by respondents Joint Village of Lake Placid and Town of North Elba Review Board and Village of Lake Placid to dismiss the first and second causes of action; affirmation of Terry Rice, Esq. dated November 15, 2011; affidavit of William R. Hurley sworn to November 15, 2011 with exhibit A; affidavit of Olga Krohn sworn to November 14, 2011; affidavit of Michael A. Orticelle sworn to November 15, 2011; affidavit of Horst Weber, sworn to November 14, 2011; affidavit of Arthur D. Bissell, III sworn to November 14, 2011; affidavit of James E. Morgansen sworn to November 15, 2011 with exhibit A.

Reply Affidavit of James M. Brooks sworn to December 14, 2011 with exhibits 1 through 17. Footnotes

Footnote 1:No evidence was presented as to how the planning office collected the analysis data or the specific methodology utilized in doing so, such as how that office determined the square footage and width of each lot, the actual length of each boathouse into the waters of Mirror Lake, or the square footage of each boathouse, including whether such square footage included any uncovered dock. No explanation was given to the JRB as to the points on the shoreline from which measurements of all boathouses were taken, how those starting points were determined, and whether the procedure followed was entirely consistent among the various properties.

Footnote 2:The return is not certified to be a "transcript of the record of the proceedings under consideration" (CPLR §7804[e]) nor a true and complete copy thereof. Instead, the code enforcement officer merely certified that "the records produced hereto are true and accurate copies of the business record that are in my possession, custody, or control" and that "the records produced represent documents concerning this matter". His certification is not made under CPLR R4540, but, rather, under CPLR §3122-a as a business record "produced pursuant to a subpoena duces tecum".