O'Neill Group-Dutton, LLC v Town Bd. of the Town of Poughkeepsie
Annotate this CaseDecided on July 17, 2017
Supreme Court, Dutchess County
The O'Neill Group-Dutton, LLC, Petitioner,
against
Town Board of the Town of Poughkeepsie, Respondent.
0585/2017
HERODES & MOLÉ, P.C.
Attorneys for Petitioners
888 Route Six
Mahopac, New York 10541
RONALD C. BLASS, JR., ESQ.
VAN DEWATER AND VAN DEWATER, LLP
Attorneys for Respondent
85 Civic Center Plaza, Suite 101
P.O. Box 112
Poughkeepsie, New York 12602
James D. Pagones, J.
Petitioner, the O'Neill Group-Dutton, LLC., seeks a judgment pursuant to Article 78 Civil Practice Law and Rules (CPLR): (1) annulling Respondent Town Board of the Town of Poughkeepsie's (hereinafter "the Town Board") November 16, 2016 resolution, which denied petitioner's application to re-zone its parcel of land as part of the Waterfront Housing Overlay District (hereinafter "WHOD"); (2) compelling the Town Board to grant Petitioner's application, which would designate its parcel of real property as part of the WHOD; and, (3) awarding costs and disbursements, including reasonable attorney's fees. Respondent moves for an order, pursuant to CPLR 3211(a)(1), (a)(7), (c) and CPLR §7804(f), dismissing the verified petition.
The following papers were read:
Notice of Petition-Verified Petition-Exhibits A-S- 1-23
Memorandum on Behalf of Petitioner-Affidavit of
Service
Notice of Motion-Affirmation-Certification (2)- 24-36
Exhibits A-H-Affidavit of Service
Respondent's Memorandum of Law-Affidavit of Service 37-38
Petitioner's Memorandum of Law in Opposition to 39
Respondent's Motion to Dismiss
Affidavit in Opposition to Defendant's Motion 40-42
to Dismiss-Exhibits A-B
Affidavit of Service 43
Respondent's Reply Memorandum-Affidavit of Service 44-45
By way of background, the petitioner purchased the property in question in 2002, with the intention of developing a mixed use residential and commercial project site. The property consists of 3.8 acres in the Town of Poughkeepsie and 11.33 acres in the City of Poughkeepsie. The property in the town was to be developed with 84 residential units and the property in the City was to be developed with a mix of commercial and residential uses. On December 28, 2016, the New York State Department of Environmental Conservation (NYSDEC) issued petitioner a Certificate of Completion for the remedial efforts made on the site; however, before moving forward with the site plan, the town board required that the site be re-zoned.
In order for the petitioner to make an application to re-zone the property, the respondent needed to create a designation for the new zone. On December 19, 2012, the respondent amended Article IV, Chapter 210 of the Town Code of Poughkeepsie. Respondent created §210-21A, known as the Waterfront Housing Overlay District (hereinafter "WHOD"). Following the amendment, the petitioner applied to change its property designation from Heavy Industrial (I-H) to WHOD. Re-zoning the property would allow the petitioner's site plan to move forward.
In order for a parcel to be re-zoned with a WHOD designation, the Town Board must first create "...a Zoning Map amendment subject to such additional terms and the amendment allows for a WHOD designation" (Town of Poughkeepsie Town Code §210-21A). This amendment to the Zoning Map is to be enacted "...at the sole discretion of the Town Board...." (id.) The language of the WHOD provides the Town Board with broad discretion to legislate zoning.
While the petitioner waited for a response from the Town of Poughkeepsie, it sought approval from the City of Poughkeepsie for the portion of the site located within the City. On April 21, 2015, petitioner received tentative approval from the City of Poughkeepsie, on the condition that the Town and City enter into an inter-municipal agreement (IMA) for ownership and maintenance of the "Greenway Trail" portion of the site.
On September 23, 2014, the Town Planning Board issued a positive recommendation for the project. Following the recommendation from the Planning Board, the Town Board adopted Resolution 5:4 - No.5 of 2016 on May 4, 2016. This resolution served as acceptance of the site plan. However, on June 21, 2016, the Town Board rescinded its acceptance in Town Board Resolution 6:21 - #1 of 2016. The Town Board set a public hearing on the application for October 19, 2016. The Town Board proceeded to close the public hearing and adjourned the matter to November 16, 2016 for its final determination. At the November 16, 2016 meeting, the Board ultimately decided to deny the petitioner's application. The Town Board outlined its reasoning for the denial in its November Denial Resolution.
The Town Board cited the following reasons for its denial: (1) the proposed project is not consistent with the purposes of the WHOD; (2) the proposed density for the 84 residential units is too high for the amount of land available; (3) the proposed project is devoid of any on-site recreational amenities for residents; (4) the project lacks sufficient parking for residents and visitors; (5) the proposed driveway aisle width of 24 feet is too narrow; and, (6) the project layout does not provide sufficient room for snow storage.
The petitioner alleges that the Town Board's denial was not supported by substantial evidence in the record and the cited reasoning is invalid. It contends that it relied on the positive input and recommendations of the Town Board to complete the site plan and that the site plan adhered to the criteria for the WHOD; therefore, it alleges that the decision was arbitrary and capricious and an abuse of discretion.
In response to the petitioner's allegations, the respondent argues that the Article 78 petition should be dismissed. The respondent raises a compelling argument that a Town Board's decision to re-zone an area is a legislative act, and as such, resists an Article 78 petition. The [*2]relief that the petitioner seeks is for this Court to annul the Town Board's denial and to compel the Town Board to re-zone the property, providing it with the WHOD designation it needs to move forward. The respondent maintains that the petitioner's request is that the Town Board legislate on its behalf. The respondent contends that an Article 78 petition is not an appropriate means for relief and that the petitioner should be requesting declaratory relief instead.
In a case analogous to this one, Todd Mart, Inc., brought forth an Article 78 proceeding to annul the Town Board of the Town of Webster's decision to deny its application to re-zone land, so that it could construct a shopping center (see Todd Mart, Inc. V. Town Bd. Of Webster, 49 AD2d 12 [4th Dept. 1975]). One area of contention in this case was whether the Webster Town Board's denial was an administrative or legislative determination (id.) If the decision was administrative, an Article 78 petition would be appropriate; however, if it was legislative, the proper mode of relief would be a declaratory judgment (id.). As the court in Todd Mart, Inc. pointed out, this distinction is insignificant since the courts "...may review challenged zoning determinations even though the improper procedural form has been employed...." (id.).
Although a court is free to review challenged zoning determinations regardless of which procedural form is employed, the proper standard for judicial review hinges on whether the action was administrative or legislative. If it is administrative, a court is limited to determining whether the decision is "...contrary to local standards, arbitrary, capricious, discriminatory, an abuse of discretion, or supported by substantial evidence." (Todd Mart, Inc. V. Town Bd. Of Webster, 49 AD2d 12 [4th Dept 1975]). If, however, the decision was legislative, judicial review is even more constrained. This Court's discretion would be limited to "...ascertain[ing] whether the local legislative body had authority to act as it did under its zoning enabling statues..." (id.). The standard of review for zoning legislation must address "...whether its [the Town Board's] determination is an unreasonable exercise of the zoning police powers" (id.).
Generally, if a legislature's decision is "fairly debatable," the Court defers to the legislature's determination (see Rodgers v. Village of Tarrytown, 302 NY 115 [1951]). This means that if the ordinance in question is "...'subject to controversy or contention,' or 'open to question or dispute,'" the legislature's determination will stand (American Petroleum Equip. & Constr. v. Francher, 708 So. 2d 129 [Sup Ct of Alabama 1997]). This allows a legislative entity, such as a Town Board, broad discretion to approve or deny re-zoning applications.
In general, zoning is a legislative act (see Mattocks v. Town Bd., 1996 NY Misc LEXIS 66 [Sup Ct Erie County 1996]). Similarly, an intent to re-zone is also considered a legislative act that is reserved for the Town Board (see Todd Mart, Inc. V. Town Bd. Of Webster, 49 AD2d 12 [4th Dept 1975]).
When the Town Board amended its Town Code to allow for the potential of a WHOD, it provided that applications to re-zone only be permitted "...at the sole discretion of the Town Board...subject to such additional terms and conditions as the Town Board may require..." (Town of Poughkeepsie Town Code §210-21A). This language of the zoning amendment further emphasizes the Town Board's broad authority to approve or deny the petitioner's application to re-zone.
The rationale behind this broad discretion is most cogently expressed in Euclid v. Ambler Realty, in which the court held that if "...the validity of the legislative classification for zoning purposes be fairly debatable, the legislative judgment must be allowed to control." (Euclid v. Ambler Realty, 272 US 365 [1926]). The Town Board's decision to deny the petitioner's application is an area of contention among the two parties and certainly fairly debatable. The Town Board is uniquely positioned to consider such applications in "...connection with the circumstances and the locality...." (id.) Therefore, this Court will refrain from substituting its own judgment for that of the legislature.
Based upon the foregoing, the O'Neill Group - Dutton, LLC's petition seeking to: (1) nullify the respondent Town Board of Poughkeepsie's denial of its re-zoning application, (2) compel respondent to grant petitioner's application to re-zone, and (3) award costs and disbursements to petitioner is dismissed. The Town Board is a legislative entity with broad [*3]discretion to approve or deny requests to legislate zoning. As discussed earlier, if the Town Board's decision is "fairly debatable," the Court will defer to the Board's legislative decision.As stated above, the petition is hereby dismissed. The foregoing constitutes the decision, order and judgment of the Court.
Dated: July 17, 2017
Poughkeepsie, New York
ENTER
________________________________
HON. James D. Pagones, A.J.S.C.
071717 decision,order & jdgmnt
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