Stein v Town of New Castle

[*1] Stein v Town of New Castle 2016 NY Slip Op 50059(U) Decided on January 15, 2016 Supreme Court, Westchester County Everett, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 January 15, 2016
Supreme Court, Westchester County

Kenneth L. Stein, NANCY C. STEIN, TIM BRADLEY, DOREEN BRADLEY, SABIN C. STREETER, and BEVERLEY STREETER, Petitioners, For a Judgment Pursuant to CPLR Article 78,

against

Town of New Castle, TOWN OF NEW CASTLE ZONING BOARD OF APPEALS, WILLIAM J. MASKIELL as the BUILDING INSPECTOR of the TOWN OF NEW CASTLE, WESTCHESTER COUNTY DEPARTMENT OF HEALTH, WESTCHESTER COUNTY ALLAN COLACO and VANESSA COLACO, Respondents.



1430/15



Clifford L. Davis, Esq.

202 Mamaroneck Avenue

White Plains, New York 10601

Pollock & Maguire, LLP

4 West Red Oak Lane, Suite 302

White Plains, New York 10604

Keane & Beane, P.C.

445 Hamilton Avenue, 15th Floor

White Plains, New York 10601

Westchester County Attorney's Office

148 Martine Avenue, 6th Floor

White Plains, New York 10601
David F. Everett, J.

Recitation of the Papers Considered in the Review of the Petition and Motions:

Notice of Petition/Verified Petition with exhibits A-Q (motion sequence 001)

Notice of Motion to Dismiss with exhibits A-C/Memorandum of Law (motion sequence 002)

Notice of Motion to Dismiss/Affidavit in Support with exhibits 1-2/Memorandum of Law (motion sequence 003)

Notice of Motion to Dismiss/Affidavits in Support with exhibits 1-3/Memorandum of Law (motion sequence 004)

Petitioner's Affidavit in Opposition with exhibits R-Y/Memorandum of Law in Opposition

Reply Affirmation with Affidavit and exhibit (motion sequence 002)

Reply Affirmation with exhibit (motion sequence 003)

Reply Affidavit (motion sequence 003)

Reply Affidavit (motion sequence 004)

Reply Affidavit (motion sequence 004)

It is unfortunate that, upon the foregoing papers, at this juncture the Court is constrained by law from issuing a finding that the Certificate of Occupancy (C/O) should not have been

issued where, as here, the environmental and health concerns raised by petitioners were not adequately addressed. Accordingly, this matter must be remanded.

Under motion sequence number 001, petitioners Kenneth L. Stein, Nancy C. Stein, Tim Bradley, Doreen Bradley, Sabin C. Streeter and Beverly Streeter bring this Article 78 proceeding for a judgment annulling and reversing the resolution of the Town of New Castle Zoning Board of Appeals (ZBA), voted upon on January 28, 2015, filed on February 6, 2015, and supplemented on February 10, 2015 (Resolution). In the Resolution, the ZBA denied the application of the Steins for a resolution declaring null and void, and revoking the C/O issued by the Town of New Castle Building Department Inspector (Building Inspector) on December 19, 2013, for a residence located at the intersection of Woods Witch Lane and Ludlow Drive, Chappaqua, New York, known by the street address of 1 Woods Witch Lane (the Premises), and currently owned by respondents Allan and Vanessa Colaco (the Colacos) on the ground that the Building Inspector lacked the authority to issue the C/O, or that he improperly issued the C/O. Respondents are the Town of New Castle (Town), the Town of New Castle Zoning Board of Appeals (ZBA), the Town of New Castle's Building Inspector William J. Maskiell (Building Inspector Maskiell), the Westchester County Department of Health (WCDOH), Westchester County (the County) and the current owners of Premises, Allan and Vanessa Colaco.

Under motion sequence number 002, WCDOH and the County jointly move for an order, pursuant to CPLR 3211 and/or 7804 (f), dismissing the petition for failure to state a cause of [*2]action upon which relief can be granted, and on the basis that the petition is untimely. Under motion sequence number 003, the Town, the ZBA, and Building Inspector Maskiell (together, the Town, unless indicated otherwise) jointly move for an order, pursuant to CPLR 3211 (a) (1), (2) and 7804 (f), dismissing the petition on the grounds of documentary evidence, lack of subject matter jurisdiction, and laches. Under motion sequence number 004, respondents the Colacos move for an order, pursuant to CPLR 404, dismissing the complaint on the grounds of laches and documentary evidence. The petition and motions, under motion sequence numbers 001, 002, 003 and 004, are consolidated for the purpose of disposition.

The following facts are taken from the petition, the parties' affidavits, documents and the record, and are undisputed unless otherwise indicated.

The Steins own and reside in a house located at 5 Woods Witch Lane. Their fellow petitioners Tim Bradley and Doreen Bradley own and reside in a house located at 15 Ludlow Drive, and Sabin C. Streeter and Beverley Streeter own and reside in a house located at 2 Woods Witch Lane. Each of these houses is either next to, or opposite the Premises.

It is undisputed that, on May 9, 2012, WCDOH, by its assistant engineer Anthony Kunny, approved a Construction Approval Application dated February 24, 2012, which was submitted by Francis and Lisa Caesar, then-owners of undeveloped property at 1 Woods Witch Lane. The Construction Approval Application was submitted together with a Subsurface Sewage Disposal System plan (alternately referred to as a septic system, S.S.D.S. or SSDS), which provides for a 1,000 gallon size septic tank. These documents indicate that the approved septic system was based upon, and designed to accommodate, a planned 3,000 square foot residence, with three bedrooms and a total of three full and two half bathrooms, at that location. The initial plans for the house, dated September 14, 2012, do not show a finished basement with plans for a bathroom (petition, exhibit K). On October 3, 2012, the Town of New Castle Board of Architectural Review (BAR) met and unanimously approved these plans and the Town of New Castle Building Department (Building Department) issued Building Permit No. 16174.

On or about January 4, 2013, WCDOH received an amendment (revision) to the Application for the Premises. On January 9, 2013, WCDOH approved a revised plan showing 1,827 square feet of finished basement, including several delineated rooms, a bathroom, and exterior access (Revised Plan) (petition, exhibit D; WCDOH notice of motion, exhibit C).

On April 30, 2013, the Building Department approved an "Application for a Construction Permit" submitted by nonparty Tavo Realty LLC [FN1] to construct a three bedroom, three full and two half bathroom house at the intersection of Woods Witch Lane and Ludlow Drive, with a portico and patio, a two car attached garage, but "no" finished basement (petition, exhibit J). The Application for a Construction Permit also states, among other things, that the total square feet of new construction is 3,932, comprised of 1,837 square feet on the first floor and 2,095 square feet on the second floor. No square footage is allocated for either the basement or the attic (id.).

According to the petition, the Premises were built in accordance with the Revised Plan, and consist of 5,759 square feet of habitable space, including four full bathrooms, two half [*3]bathrooms, and 1,827 square feet of finished basement space (petition, ¶ 22). More specifically, petitioners claim that, despite the change of plans for the house, which includes a significant increase in the amount of finished space, including delineated rooms and the addition of a full bathroom on the basement level, and despite the requirement to do so, no new plan for increased septic capacity was submitted to the Town's Building Department for approval.

On or about November 25, 2013, the engineer for the Premises submitted a Certificate of Construction Compliance Application, which was approved by WCDOH on December 6, 2013 (petition, exhibit F). The Premises are identified on the Certificate of Construction Compliance Application document as "3 Woods Witch Road," rather than "1 Witch Road" (without explanation), and the document also states, among other things, that the building type is a "single family" house with "3" bedrooms, and that "Construction Approval [was] Issued" on May 9, 2012 (id.). The Certificate of Construction Compliance Application contains no reference to the additional 1,827 square feet of finished space in the basement, or to the inclusion of additional rooms or a bathroom, and the accompanying "S.S.D.S. As-Built" plan for the Premises, which was also approved by WCDOH on December 6, 2013, indicates that the subject septic system pertains to a three bedroom house at 1 Wood Witch Road (petition, exhibit I).

The Steins, either on their own behalf, or on the behalf of their neighbors as well, submitted multiple letters, dated December 20, 2011, April 4, 2012, June 19, 2012, June 21, 2012, December 12, 2012, June 4, 2013, November 27, 2013, December 5, 2013, December 11, 2013, and December 17, 2013 (Letters), to, or copies thereof to, some or all of the following: the Building Department, the Building Inspector, the Deputy Town Engineer Robert Cioli, Town Supervisor Rob Greenstein, the BAR, the Town's Planning Board, WCDOH, Deputy Commissioner Rick Morrissey, MPA, of the Westchester County Department of Health (Deputy Commissioner Morrissey), the Town, Deputy County Executive Kevin Plunkett of the Office of the Westchester County Executive, Environmental Coordinator for the Town of New Castle Steve Coleman, the New York State Department of Environmental Conservation, and Assistant Engineer of the Westchester County Department of Health Tony Kunny (petition, exhibit G). Each of the Letters questioned and/or challenged, among other things, the perc test results, the status of the property as a regulated wetland, the septic tank capacity, the plan for stormwater management, and a perceived pattern of granting, especially with this particular developer, after-the-fact approvals where, as here, there have been intentional deviations from a previously approved plan.

On December 19, 2013, the Building Inspector issued a Certificate of Occupancy (C/O) certifying, in relevant part:

"that TAVO HOLDINGS LLC, having filed an Application for a Certificate of Occupancy on 12/11/13 applying to premises located in an R-1A district at 1 WOODSWITCH[sic] LN . . . having complied with the requirements of the Building Code and Zoning Ordinance under Building Permit No. 16174, issued 4/30/13, and application having been approved, authority is hereby given to occupy and use said premises or building or part thereof for the following purposes and subject to all the privileges, requirements, limitation and conditions prescribed by law

SINGLE FAMILY RESIDENCE

This certificates does not, in any way, relieve the owners, or any other per[s]on or persons in possession or control of the premisses . . . from complying with any lawful order issued with the subject of maintaining the premise or building in a safe or lawful condition.No change or re-arrangement in the structural parts of the building . . . shall be made. . . until a permit to accomplish such change has been obtained from the building inspector"

(petition, exhibit C).

The Colacos purchased the 5,159 square foot Premises on or about January 21, 2014. The Premises included the finished basement with a bathroom comprised of a toilet, sink and shower.

Several days prior to the closing, on January 16, 2014, the Steins filed a written application and legal memorandum in support of the application with the ZBA seeking: (1) an interpretation that the Building Inspector lacked the authority to issue a C/O for the Premises; and (2) a determination that the C/O is null and void under the enforcement provisions of Section 60-500 of the Town of New Castle Zoning Code.

Section 60-500 (A) provides:

"[n]o board, agency, officer or employee of the Town shall issue, grant or approve any permit, license, certificate or other authorization for any construction, reconstruction, alteration, enlargement or moving of any building or structure or for any use of land or building that would not be in full compliance with the provision of this chapter and Chapter 48 of the [Town Code], except as permitted under § 60-540 D (2). Any such permit, license, certificate or other authorization issued, granted or approved in violation of the provisions of this chapter shall be null and void."

Section 60-500 (B) provides, in relevant part:

"the Building Inspector . . . and any other person designated by the Town Board

. . . shall enforce the provisions of this chapter and any rules and regulations made or as may be made in furtherance thereof. For such purposes, such person may, from time to time, inspect any such building, structure or premises."

Claiming that the developer, Tavo Holdings, had clearcut the lot and constructed a massive residence, which was inconsistent with the plans approved under Building Permit No. 16174, and which adversely impacts the neighborhood, including their own home, the Steins' application lists specific objections to the issuance of the C/O based on purported violations of, or deviations from, the Town Zoning Code. These are: (1) the size, or "bulk" of the house exceeds the maximum permitted height, number of stories and floor area ratio (Town Code §§ 60-201, 60-410A); (2) the developer did not install a septic tank with adequate capacity for the Premises (Town Code § 102A-1); (3) the developer did not obtain a wetland permit from the New Castle Planning Board (Planning Board) pursuant to chapter 137 of the Town Code (Town Code §§ 137-1, 137-3, 137-5 and 137-11); (4) the developer did not install an adequate stormwater management system (Town Code, chapter 108); (5) the developer did not comply with the Town's tree preservation regulations and did not submit an adequate landscaping [*4]maintenance bond (Town Code § 121 et seq.); and (6) the developer did not comply with environmental review regulations, including the Environmental Protection Overlay Regulations Local Law of the Town of New Castle, or test and remediate, if necessary, the fill imported on the site (6 NYCRR 617.7; State Environmental Quality Review Act [SEQRA]; Town Code § 64). On these bases, petitioners demanded revocation of the C/O.

At the public ZBA hearings held on February 26, 2014, and continued on March 26, 2014, and May 28, 2014, members of the public, including the Steins and their attorney, were given an opportunity to comment on the issues raised in the Steins' Application, and to submit documents for the ZBA's consideration in determining the Application. On May 14, 2014, an engineering report for the subject property site was submitted on behalf of the Steins. Also submitted for the ZBA's consideration were letters and memoranda, dated March 21, 2014, together with supporting exhibits from the Town's Building Inspector, the Environmental Coordinator and the Deputy Town Engineer. The public hearing was closed on May 28, 2014.

By letter dated October 28, 2014, and during the hearing held on January 28, 2015, the Steins sought to submit additional materials for consideration by the ZBA. These materials had been previously requested by the Steins, but not been provided to them until the Office of the County Attorney did so on October 16, 2014.

On January 28, 2015, the ZBA voted to adopt the Resolution as drafted. The Resolution denied the Steins' Application based on the equitable defense of laches in that the Steins waited until the residence was completed and the C/O was issued before pursuing legal action. The ZBA also deemed the Steins' prior written objections and expressions of concern to be inadequate, and their argument about the developer having "unclean hands" (because he had previously developed another property in the Town of New Castle which had triggered similar objections from neighbors) to be unrelated to the matter at hand.

The ZBA addressed each of the Steins' complaints and made the following determinations.

The Building Inspector's calculations as to the height of the residence does not reveal a violation of either the height or story restrictions, as per the Zoning Code (it is noted that the calculations contained in the engineering report prepared by the Stein's engineer differ from those of the Building Inspector). The Building Inspector had properly determined that the residence has two stories, the number of stories permitted under the Zoning Code, and that neither the basement (which is not more than six feet above grade), nor the attic meet the definition of a story (Zoning Code § 60-210).

The residence, which consists of 5,158 square feet, was built in accordance with the approved plans and is less than the 6,098 square feet permitted in the R-1A District for the 44,649 square foot lot (Zoning Code § 60-420.A [8] [b] [3]). The ZBA explained that finishing the basement does not change this calculation because only one-half of the basement floor area counts toward the floor area ratio, regardless of whether it (the basement) is finished or not.

The ZBA stated that it does not have the power to review matters relating to septic and sewer systems, because, under Zoning Code § 60-540 (D) (2) (a), its jurisdiction is limited to applications and interpretations of orders, decisions or determinations relating to the enforcement of Zoning Code chapter 60, and Town Code chapter 48. As nothing in Zoning Code chapter 48, or Town Code chapter 60, relate to sewer or septic system requirements, the ZBA concluded that [*5]it lacks jurisdiction to revoke the C/O based on the adequacy of the septic system installed, and/or based on whether there was compliance with WCDOH regulations.

The ZBA further stated that, because, under Town Code §102-7, a written permit must be obtained from the WCDOH "before commencement of construction of a private sewage disposal system," and because, under Town Code § 102-8, "[a]ll work in connection with a private sewage disposal system and the use of such a system shall be under the control of the [WCDOH]," the Building Inspector's decision to issue a C/O "is not dependent on the existence of a septic system that complies with each and every aspect of the Public Health Law or WCDOH regulations." The ZBA stated that, any dispute regarding the SSDS must be made to the WCDOH, and that "even if the SSDS was somehow improperly designed or did not comply with certain technical requirements, this is not a valid basis to grant the Application and nullify the Building Inspector's issuance of the C/O."

As to WCDOH's approval of the septic system at issue, the ZBA found that, by signing off on the Certificate of Construction Compliance Application on January 9, 2013, WCDOH had given its approval to the SSDS, and had confirmed that it (WCDOH) was aware that the basement was being finished and that the residence would only have three bedrooms. The ZBA noted that, to the extent the Steins disagreed with WCDOH's determination, "they could and should have taken appropriate action against the WCDOH with respect to its determination. However, there is no basis for the Building Inspector to override the WCDOH's determination."

The ZBA commented that, even if WCDOH's approval of the septic system had been improper, "the Building Inspector confirmed that the finishing of the basement did not require a referral back to the WCDOH for expansion of the septic system because the rooms in the finished basement are not considered bedrooms" (without providing any support, regulatory or otherwise, for this proposition).

Next, the ZBA stated that it lacks jurisdiction to review claims relating to the tree removal and replacement plan under chapter 121 of the Town Code. Despite this statement, the ZBA then determined that the tree removal and replacement plan does comply with Town Code. In doing so, the ZBA specifically found that the developer provided adequate tree replacement (measured in diameter of inches) for those trees removed for development purposes. It also found that the balance of replacement inches had been addressed in the form of a payment to the Town's "Tree Bank Fund," with the permission of the Town Environmental Coordinator, Stephen Coleman, based on legitimate concerns over the high density of trees and poor draining soils, as well as for aesthetic reasons. The ZBA also found that the landscaping maintenance bond was in compliance with Town Code chapter 121.

Addressing the Steins' clams that a wetlands permit was needed prior to commencement of construction on the Property, and that the developer's failure to obtain such permit mandates revocation of the C/O, the ZBA disagreed. Referring to a survey prepared on November 11, 1996, and last revised on April 4, 2012, the ZBA explained that, because each of the two wetlands located on the property consists of less than the 1/10 of an acre in size, and are situated more than 100 feet from each other, they cannot be combined to meet the minimum size threshold for a regulated wetland (Town Code chapter 137). Therefore, a wetlands permit was not required for development of this lot.

As to the Stein's complaint that the C/O should not have been issued until an independent [*6]engineer evaluated the stormwater management system, the ZBA stated that it is without jurisdiction to review this claim because stormwater management falls within the purview of Chapter 108 of the Town Code, and it (the ZBA) only has jurisdiction over matters determined under Chapters 48 and 60 of the Town Code. The ZBA then stated that, to the extent it does have jurisdiction, the stormwater management system designed for this particular location was in accordance with the March 21, 2014 memorandum issued by Robert Cioli, and in conformance with all applicable rules and regulations (see Chapter 108A of the Town Code). The ZBA also rejected the Steins' complaint on the basis that the Town had performed numerous inspections to ensure that the stormwater management system, as installed, complied with the approved plans.

The ZBA rejected the Steins' claim that the C/O should not have been issued absent a determination as to whether the subject property was located in an Environmental Protection Overlay District. The reason given was that the lack of evidence to contradict the Building Inspector's proof as to this issue.

In response to the Steins's assertion that the C/O should not have been issued until the fill that was imported onto the Property was tested for contamination, the ZBA stated, in relevant part: (a) the Steins offer no authority for this proposition; (b) the WCDOH, and not the ZBA, has sole approval authority for any soil imported for the construction of the SSDS; and (c) the only evidence presented for review established that the soil used for grading around the residence had been excavated from the stormwater basin or foundation, rather than being imported.

The ZBA also found no merit to the Steins' contention that the C/O should be invalidated because no SEQRA (New York State Environmental Quality Review Act) review had been performed prior to its issuance. The ZBA dismissed this claim on the grounds that, pursuant to

6 NYCRR § 617.5 (c) (9), the construction of a single family residence on an approved lot, which includes the provision of necessary utility connections, drinking water and a septic system, constitutes a "Type II" action, and projects classified as Type II actions are not subject to review, as they have been determined not to have significant impact on the environment.

As to the Steins' assertion that the residence does not satisfy the side yard setback requirement set forth in Zoning Code § 60-210, the ZBA noted that this claim was not included in the Steins' Application, and that they did not timely seek to amend the Application to add this claim. Given that the claim was not raised before the 60 day period for review of the C/O had expired, the claim was deemed time-barred. The ZBA noted that, even if it had been timely, the claim would nevertheless be denied, as proper measurements of both the rear and side yards confirm that there is no violation of the Zoning Code's lot line requirements.

Finally, that aspect of the Steins' Application that challenged the lot itself on the basis that it was never properly re-subdivided, that claim was also deemed by the ZBA to be untimely and, more importantly, inaccurate. The ZBA points out that the legality of the lot had been resolved in a prior litigation (see Matter of Green v Planning Bd. of Town of New Castle, 220 AD2d 415 [1995]), and that the Steins offered no evidence to contradict that determination.

Petitioners filed this Article 78 petition on February 27, 2015, seeking a judgment: (1) annulling and reversing the Resolution; (2) directing the ZBA and Building Inspector to revoke the C/O; (3) directing the ZBA, the Building Inspector and the Town to refer the septic system permit to WCDOH for review and reconsideration based on the changes made to the original construction plan; (4) directing WCDOH to revoke the existing septic system permit; and (5) [*7]enjoining the Colacos from occupying the Premises until it has been brought into compliance with all applicable laws, rules and regulations, including an adequate septic system, a lowering of the Premises by approximately four feet and removing the landfill, and until a proper C/O is issued.

It is well settled that "[a] court reviewing a CPLR article 78 petition may not disturb the decision of a municipal body charged with determining land use questions unless that body's decision is arbitrary and capricious, lacks a rational basis, or is an abuse of discretion" (Matter of Fuentes v Planning Bd. of the Vil. of Woodbury, 82 AD3d 883, 883 [2d Dept 2011]).

In their effort to make the requisite showing, petitioners submit a detailed explanation of their position and they annex, as exhibits, copies of: the Resolution; the Letters submitted to the various town and county entities; the C/O; the preliminary and revised plans for the Premises; the approved Construction Approval Application with supporting documentation; the approved Certificate of Construction Compliance Application; the Town Planning Board minutes comparing the Premises to another house built by the same builder; the approved "SSDS As built"; the approved application for a construction permit; the minutes of the October 3, 2012 meeting of the Board of Architectural Review; a statistical analysis of homes sold in the Town; the guidelines provided by the WCDOH Bureau of Environmental Health to the Building Department in 2000, pertaining to its procedures for septic tank capacity in residential homes located in Westchester; the Building Inspector's March 21, 2014 letter responding to the issues raised by the Steins; the Town engineer's March 21, 2014 report responding to the issues raised by the Steins; and photographs of signs placed at or about 1 Woods Witch Road advising potential purchasers not to buy property in the area without speaking to neighbors (petition, exhibits A-Q).

The gravamen of the petition is that the Building Inspector erred in his review of the Revised Plan by failing to appreciate the import of the basement revision. More specifically, they assert that, because the basement revision added a full bathroom and either two or three additional bedrooms to the Premises, the previously approved septic system was not adequate. They insist that a review of the revised plans should have been made by WCDOH, and a SSDS with increased capacity should have been mandated by WCDOH and properly installed at the Premises prior to the issuance of a C/O. The result of the Building Inspector's failure to insist on an adequate SSDS, was, and is, according to petitioners, to cause flooding, environmental injury, and other adverse consequences to the safety, health and welfare of the neighborhood.Referring to the guidelines for houses in Westchester County served by septic systems, Louise Carosi Doyle, P.E., Associate Engineer, WCDOH, Bureau of Environmental Health, in a letter dated August 23, 2000, advised all building departments in the county as to the regulations pertaining to septic tank capacity. The letter states, in relevant part, that:

"septic sizing is determined by the number of bedrooms and not by bathrooms," and that "the definition of a bedroom for WCD[O]H purposes is Privacy and reasonable access to a full bath.' Therefore rooms such as dens, offices, libraries, exercise rooms, studies, bonus/unfinished rooms, etc. may be considered as bedrooms, and each will be reviewed on a case by case basis by the Department"

(petition, exhibit N). Annexed to the August 23, 2000 letter is a copy of the "Rules & [*8]Regulations for the Design and Construction of Residential Subsurface Sewage Treatment Systems and Drilled Wells in Westchester County New York, effective January 1, 2002" (Rules and Regulations) which provides a table specifying appropriate septic tank capacities based upon the number of bedrooms in a house, inclusive of rooms considered by WCDOH to be "bedrooms" regardless of the owner's use. According to the Rules and Regulations table, one to three bedrooms should have a 1,000 gallon tank, four bedrooms should have a 1,240 gallon tank, five bedrooms should have a 1,500 gallon tank, and six bedrooms should have a 2,000 gallon tank.

Petitioners assert that, because the basement level of the house contains a full bath, the finished rooms adjacent to the bathroom must be considered bedrooms for the purpose of determining septic tank capacity, as does a "bonus/rec room" located on the second floor. From this, petitioners draw the following conclusions: (1) the Building Inspector's failure to count the additional rooms as bedrooms for septic tank capacity purposes constitutes a failure on his part to perform an adequate investigation of the Premises; (2) inasmuch as it was the Building Inspector's responsibility to confirm that the Premises, as constructed, was in compliance with Building Permit 16174, prior to issuing the C/O, his issuance of the C/O without confirming that the Premises had adequate septic sewage capacity was an egregious error; (3) the ZBA's refusal to order the revocation of the C/O, which had not been properly issued, was arbitrary, capricious, unjust, contrary to the applicable laws, rules and regulations, and constituted an abuse of its discretion; and (4) the failure of the Town, the ZBA, the Building Inspector and WCDOH to perform the duties enjoined upon them in their respective capacities, and to, effectively, rubber stamp each other's approvals and endorsements, has jeopardized the neighboring residents and the environment.

In their joint dismissal motion, the County and WCDOH offer boilerplate allegations that the petition fails to state a cause of action and is untimely, and they advance the well settled proposition that a court may not substitute its judgment for that of the agency responsible for making the challenged determination, "but must only ascertain whether there is a rational basis for the decision or whether it was arbitrary and capricious" (County/WCDOH Reply Aff, ¶ 14).They support their motion with Kunny's sworn affidavit in which he recounts the steps he took with respect to approving the SSDS for the subject property. Kunny states that he reviewed the February 12, 2012 plan (submitted on February 24, 2012) and that on May 9, 2012, he approved the proposed SSDS for the planned three bedroom house (County/WCDOH notice of motion, exhibit C, exhibit 3). He states that, on January 4, 2013, WCDOH received a letter from the architect advising it that there was a change in the house design, but that the house would still only have three bedrooms and the location and condition of the septic system would not be changed. The letter was accompanied by a copy of the Revised Plan with architectural drawings depicting a finished basement with delineated media, recreation, furnace, and storage rooms, a wine cellar, and a bathroom (id. at exhibit C, exhibits 4, 5). Kunny avers that he reviewed the documentation provided and then determined that the finished basement did not include any additional bedrooms or require a new permit. Accordingly, on January 9, 2013, he approved the Revised Plan with a 1,000 gallon SSDS for the proposed three bedroom house (County/WCDOH repy aff, Kunny aff, exhibit 6).

As part of its motion, County/WCDOH asserts that the petition is untimely because [*9]Kunny's approval was given on January 9, 2013, and petitioners did not commence the proceeding until on or about February 27, 2015. Given that the special proceeding was commenced well past the four months (120 days) from the time Kunny issued the approval, it is time-barred.

Next, County/WCDOH asserts that judicial deference must be given to Kunny's determination, and it points to a statement made by Building Inspector Maskiell to the effect that, if Kunny had not made a determination as to the number of bedrooms, he himself would have determined that the proposed number of bedrooms was three. They conclude that, because the County has the discretion to determine the number of bedrooms on a given property, and because "such determination can not be overturned simply because reasonable minds can disagree on the finding," (id. at ¶ 12), there is a rational basis for the determination, and it is neither arbitrary nor capricious.

Arguing in the alternative, County/WCDOH contends that, even if there should have been a reevaluation of the SSDS capacity calculation, based on changes to the original plan and a finding by the Building Inspector that there were more than three bedrooms, the failure of the Building Inspector to refer the matter back to them relieves them of charges that they failed to act in compliance with the law.

As indicated above, the Town moves for a dismissal of the petition based on documentary evidence, a lack of subject matter jurisdiction and laches. The Town supports its motion with reference to many of the documents annexed to the petition, and by the two sworn affidavits of Building Inspector Maskiell, one annexed to the Town's notice of motion, and the other annexed to the Town's supplemental affidavit in support of motion to dismiss. In these affidavits, Building Inspector Maskiell avers, in relevant part, that because:

"the Revised Basement Plan that was contained in the Town Building Department's files establish that the WCDOH did in fact review and approve the Revised Basement Plan to determine whether the bedroom count increased as a result of the finished basement and that no change to the SSDS Permit was required," there was no need for him, as the Building Inspector, to refer it back to WCDOH for reconsideration prior to issuing the C/O (Town notice of motion, ¶ 27). He acknowledges that he "initially relied on WCDOH's determination with respect to the number of bedrooms," and explains that in his experience "WCDOH considers a room to constitute a bedroom when it offers privacy and close proximity to a full bathroom, i.e., a bathroom having a sink, toilet and shower/tub" (Town supplemental aff, ¶¶ 4, 5). Building Inspector Maskiell also states that "based upon [his] experience, it was also [his] opinion that the residence, as depicted on the August 27, 2013 plans, only had three bedrooms. . . . [N]either of the rooms in the finished basement constituted bedrooms because they lacked sufficient privacy to be considered bedrooms" (id. at ¶ 6). And finally, "if the plans had come in without a signature from [WCDOH], he . . . would have made the determination that it is a three bedroom house and would not have sent it back to [WCDOH]" (Town notice of motion, Maskiell aff, ¶ 29).

For their part, the Colacos claim to be innocent homeowners who were entitled to rely on their municipality's issuance of a C/O for a residential house that does not violate local zoning laws. They maintain that the Premises were properly deemed to be a three bedroom house, and that, because WCDOH's criteria for deeming a room to be a bedroom are "[p]rivacy and [*10]reasonable access to a full bath" (petition, exhibit N, Doyle letter), and the media room has no door or window, and the bathroom has a shower, rather than a tub, the media room cannot be considered a bedroom and the bathroom cannot be considered a "full bath." The Colacos also argue that the petition is barred by the equitable doctrine of laches because petitioners unreasonably delayed in challenging the Town and WCDOH's actions to their (Colacos) detriment. As a result, the petition, which lacks merit, should be dismissed.

In their opposition to respondents' papers and most pointedly, to respondents' insistence that Kunny's affidavits constitute conclusive evidence that the changes made to the originally approved plans for the Premises did not require an adjustment to the SSDS, petitioners argue that there is discord between Kunny's determination and the Rules and Regulations promulgated by WCDOH, as they were explained by Doyle P.E. in her memorandum letter of August 23, 2000 (petition, exhibit N). They note as a discrepancy, the fact that the finished basement, consistent with the Revised Plan, has structurally defined rooms adjacent to a full bathroom, which are not being counted as bedrooms, while the Rules and Regulations make it clear that this type of room configuration mandates that the adjacent rooms be considered bedrooms for the purpose of calculating SSDS capacity, regardless of their use, or how they are denominated on the Revised Plan.

Petitioners advise the Court that the discrepancy was not properly addressed by the ZBA because, although they had made multiple timely requests to the Building Department and to WCDOH for the Rules and Regulations documents, it was not until after the ZBA had closed its public hearings that the County Attorney's Office, on October 16, 2014, finally complied and provided copies of the requested documents. Petitioners assert that they tried to bring the Rules and Regulations and Doyle P.E.'s memorandum letter to the ZBA's attention on October 28, 2014, and again at the ZBA hearing on January 28, 2015, but that the ZBA refused to consider the documents on the basis that they had not been timely submitted.

Next, petitioners seek to discredit the Colacos' claim of innocence based on their placement of visible signage advising potential purchasers to speak with the neighbors (petitioners) prior to purchasing, and their decision to ignore the ZBA proceedings which had been commenced prior to the closing (petition, exhibit Q). Petitioners also dispute the Colacos' definition of a room and full bath. While the Colacos describe a bathroom containing a sink, toilet and shower as a three quarter bathroom, rather than a full bath, and insist that the media room can not be considered a bedroom for SSDS capacity purposes because the architect's drawings do not show a door or window, petitioners maintain that the inclusion of a shower renders it a "full bath," and point out that many of the upstairs rooms, including bathrooms and bedrooms, are also depicted without doors in the architect's drawings. Petitioners advance a similar argument with respect to a room on the second floor, designated on the architect's plan as a 13' x 19' "bonus room/rec room," which appears to be adjacent to both a powder room and a full bathroom, with tub.

During a series of court conferences, counsel for the respective parties attempted to settle the matter, as well as address the Court's questions and concerns. Despite their efforts, the parties did not come to a resolution, and some of the Court's questions remain unanswered. These questions include: (1) whether the bathroom, which has a toilet, sink and shower, but no tub, is a "full bath" within the meaning of the Rules and Regulations; (2) does a Building [*11]Inspector have an obligation, prior to issuing a C/O, to confirm, by personal inspection of the site, the accuracy of plans submitted to the Building Department and to WCDOH with respect to SSDS capacity; (3) on what basis must a Building Inspector accept WCDOH's approval as final if it is premised on inaccurate facts; (4) if, as the ZBA indicated in the Resolution, it lacks authority to revoke a C/O based on an inadequate SSDS, or due to a lack of compliance with other WCDOH regulation, who, or what agency or board has that authority; (5) under what circumstances, if any, can the Building Department/Building Inspector refer an SSDS matter back to WCDOH; (6) is there a written code, regulation or otherwise which is relied upon by WCDOH and/or the Building Inspector for determining whether a room adjacent to a full bathroom has "sufficient privacy" to be deemed a room for SSDS capacity purposes; (7) must interested persons, such as petitioners, who post signs, and on a timely and ongoing basis voice their environmentally-based concerns verbally and in writing to the relevant Town and County office holders, boards and departments, commence actual legal proceedings in order to avoid the equitable defense of laches; (8) what was the criteria relied upon by WCDOH in determinating that the rooms in the finished basement and bonus/rec room on the second floor are not counted as bedrooms for calculating SSDS capacity; and (9) why, if the ZBA is aware that there may be an issue with a particular SSDS, due to improper design or a failure to comply with technical requirements, it would not be a valid basis to nullify a C/O.

It is undisputed that, when WCDOH granted the SSDS permit, it pertained to a 3,000 square foot, three bedroom single family house, but that the house constructed at 1 Woods Witch Lane is approximately 60% larger. As built, the Premises has structurally delineated rooms and a bathroom with a toilet, sink and shower in the basement, as well as a bonus/rec room on the second floor.

It is also undisputed that the Premises were constructed on land that is adjacent to wetlands. The parties also do not meaningfully dispute that an inadequate SSDS might cause contaminated groundwater and other environmental injury, and that under such circumstances, there is a heightened need for an accurate assessment of SSDS capacity. What they dispute are the premises from which certain conclusions were drawn, and the assessment was made.

An examination of the record, including the Resolution and sworn affidavits, fails to reveal sufficient information to answer the Court's basic questions, and a judicial determination as to whether the Resolution is arbitrary and capricious, contrary to law, or an abuse of discretion, requires answers to these questions.

Conspicuously absent from the municipal respondents' submissions, including Kunny's affidavits, is any indication that the Rules and Regulations, or any of the information contained in Doyle P.E.'s memorandum letter, were either rescinded or superceded. Also absent from Kunny's affidavits is a recognized definition of a "full bath," or an explanation, rationally based or otherwise, as to why any of the rooms in the finished basement and/or the second floor bonus/rec room were not classified as "bedrooms" for the purpose of calculating adequate septic capacity. Similarly concerning is Building Inspector Maskiell's failure to offer a statute, regulation or code provision which directs him to rely solely on the approval stamp of WCDOH, without personally inspecting the Premises to confirm that WCDOH's assessment was correct. Conversely, petitioners cite to Town Code § 102A-1, which requires the Building Inspector to make sure that all SSDS's in the Town of New Castle are properly "inspected and, where necessary, maintained [*12]or rehabilitated' to ensure that such system "operate and be maintained in a manner that will prevent, to the extent possible, hazards to the public health and to protect the drinking water of the Town of New Castle and drinking water supplies which pass through the Town of New Castle."

To the extent that the municipal respondents assert that they are entitled to use their discretion in making decisions and that such decisions are entitled to judicial deference, their use of discretion must be rationally based and their decisions must be made with regard to the facts (Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, 231 [1974]). CPLR 7803 (4) requires that a decision be "supported by substantial evidence," and the Court of Appeals has defined "substantial evidence" as "such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact" (Matter of Ridge Rd. Fire Dist. v Schiano, 16 NY3d 494, 499 [2011]).

Here, the municipal respondents cannot foreclose a challenge to a determination merely by claiming "discretion" without articulating a factual and rational basis for the particular decision. Also inadequate is the municipal respondents' reliance on the Building Inspector's assertion that, had WCDOH not made a determination as to the number of bedrooms, he would have determined that the Premises had three. This belated assessment constitutes little more than surmise and conjecture, and does not substitute for substantial evidence or a rational basis.

Finally, addressing respondents' claims of timeliness and laches, it is undisputed that petitioners did not commence this legal proceeding until after the Premises had been constructed. CPLR 217 (1) provides that an Article 78 proceeding "must be commenced within four months after the determination to be reviewed becomes final and binding upon the petitioner." Petitioners commenced this Article 78 proceeding by filing less than 30 days after the determination being challenged, namely, the Resolution, was voted on the ZBA on January 28, 2015, and filed on February 3, 2015. The petition is therefore timely. The fact that the Resolution involves determinations made by the municipal respondents on various other dates, does not alter or otherwise effect, the statutory four month limitations period.

With respect to respondents' claims of laches, it is well settled that "a municipality . . . is not estopped from enforcing its zoning laws either by the issuance of a building permit or by laches" (Matter of Parkview Assoc. v City of New York, 71 NY2d 274, 282 [1988], cert denied 488 US 801 [1988]). Given the environmental injury which could result from an inadequate SSDS, and the multiple timely efforts of petitioners to convince the municipal respondents to enforce compliance with local regulations prior to the completion of the Premises and the issuance of a C/O, this Court cannot find, as a matter of law, that such efforts must be wholly disregarded and the petition dismissed based solely on claims of unreasonable delay and prejudice by parties who had notice of the issues.

Contrary to respondents' assertions, the petition adequately states a cause of action (CPLR 3211 [a] [7]), and is not subject to dismissal on the balance of the CPLR 3211 and/or CPLR 7804 grounds asserted.

For the reasons set forth above, the Court remains troubled by the manner in which the municipal respondents dismissed the environmental and health concerns raised by petitioners, and by the tendency of the same parties to shift responsibility in order to avoid answering the serious questions raised. However, given the inability of the Court to issue a judicial [*13]determination as to whether the Resolution is arbitrary and capricious, contrary to law, or an abuse of discretion as a matter of law, due to the lack of sufficient information on which to base the determination, the petition can be neither granted nor denied at this juncture.

Accordingly, it is

ADJUDGED that the petition is granted to the extent of remanding this matter to respondents for further clarification and reconsideration of the Resolution consistent with this decision.

This constitutes the decision and judgment of the Court.

Dated:White Plains, New York

January 15, 2016

_______________________________

HON. DAVID F. EVERETT, A.J.S.C.

Footnotes

Footnote 1:By deed dated May 7, 2013, and recorded in the Office of the Westchester County Clerk on May 16, 2013, the property passed from the Caesars to nonparty Tavo Realty LLC (Colaco supp aff, exhibit B).