Oyster Bay Assoc. Ltd. Partnership v Town Bd. of the Town of Oyster Bay
Annotate this CaseDecided on June 11, 2007
Supreme Court, Suffolk County
Oyster Bay Associates Limited Partnership and WPIX, INC, Petitioners,
against
The Town Board of the Town of Oyster Bay and The Town Environmental Quality Review Commission, Respondents.
2001-16830
Weber Law Group, LLP
Attorneys for Petitioners
201 North Service Road, Suite 300
Melville, New York 11747
Berkman Henoch Peterson & Peddy, PC
Attorneys for Respondent TOWN OF OYSTER BAY
100 Garden City Plaza
Garden City, New York 11501
Certilman Balin Adler & Hyman, LLP
Attorneys for Intervenors-Respondents
900 Merrick Road
East Meadow, New York 11554
Jeffrey Arlen Spinner, J.
ORDERED, that the application of Intervenors (006), is hereby denied in all respects; the application of Respondents (005), is hereby denied, generally, as disposed of by the further decision of this Court regarding the application of Petitioners; and the application of Petitioners (004) is hereby granted solely to the very limited extent set forth herein below.
Petitioners move this Court (004) for an Order directing Respondent TOWN BOARD OF THE TOWN OF OYSTER BAY (TOWN BOARD) to issue Petitioner OYSTER BAY ASSOCIATES LIMITED PARTNER-SHIP (PARTNERSHIP) a special use permit and site plan approval for its proposed shopping mall.
Respondents move this Court (005) for an Order, pursuant to CPLR 3211 and 7804[f]:
1.Denying Petitioners' purported Motion for contempt;
[*2]
2.Dismissing and denying the Motion brought by Order to Show Cause of October 30, 2006 (Spinner,J) purportedly in the above-encaptioned Article 78 proceeding;
3.Summarily dismissing what purports to be a new proceeding brought pursuant to CPLR Article 78, to mandamus relief, but using the index number from the prior "Article 78 proceeding" which was completed and terminated with the entry of a final judgment which was affirmed on appeal, upon the grounds that:
a.The Court has no jurisdiction to entertain the Motion for contempt, and the allegations in support of the motion do not support the request for relief as a matter of law;
b.The Court is without subject matter jurisdiction or personal jurisdiction over Respondents to mandamus relief;
c.In filing initiatory papers, and then serving them upon Respondents, without first purchasing a new index number and paying the required fee, Petitioners' Order to Show Cause, and the purported service of these papers upon Respondents, is a nullity;
d.The Order to Show Cause, brought under the old index number, is fatally defective, for that proceeding was concluded with a final judgment, and terminated for all purposes;
e.Although the Appellate Division remitted this matter back to the Town Board for review of Petitioners' concession of further mitigation of adverse environmental impacts, Petitioner now seeks what is essentially an Order of mandamus, directing a final determination on Petitioners' application for a special use permit from the Town Board, without first complying with the Town Board's demand for a letter of conversion, revised site plans and SEIS;
f.Petitioners' claims accrued in September of 2003, with the Town Board's decision and demand, made over two years ago, and is now time barred by an applicable four-month Statute of Limitations;
g.Mandamus does not lie to compel the performance of an act by a municipal agency, the exercise of which is entirely discretionary;
h.In as much as Petitioners have admittedly failed to comply with the Town Board's demand for a letter of conversion, revised site plans and an SEIS, the Petitioners' claim is not ripe, and they have not exhausted their remedies within the primary jurisdiction of the Town Board, which has yet to reach a final determination; the Court has no authority, in violation of the doctrine of separation of powers, to interpose its own judgment for the discretionary will of the Town Board;
I.In as much as the Appellate Division has affirmed the final judgment in the prior Article 78 proceeding (under the above Index Number), which remitted the matter back to the Town Board for the precise purpose of reviewing Petitioners' conceded offer of further mitigation, Petitioners' present demand is barred as a matter of law under the doctrines of res judicata, issue preclusion and collateral estoppel.
Intervenors move this Court (006) for an Order:
1.Recusing Judge Jeffrey Arlen Spinner from presiding over this matter; and
2.Randomly reassigning this matter to another Justice of the Supreme Court of the State of New York.
INTERVENORS' MOTION:
First, this Court must address Intervenors' Motion (006) seeking an Order for me to recuse myself. [*3]The basis for this Motion is that, on February 27, 2007, upon returning from a three week illness, I erroneously executed an Order of Recusal in this matter, along with other matters possessing the wrong caption, which also had to be corrected. As is the practice of my staff with all Orders of this Court, a courtesy copy of said Order was immediately forwarded to all parties by mail. Realizing the error, and before said Order was filed, I recalled it and executed another Order on March 13, 2007 vacating the prior recusal. Thereafter, the parties indicated they wished to have a conference to discuss these two Orders.
On March 28, 2007, a conference was held with all parties present, wherein I explained the mistake, and the fact that it was nothing more than a mistake, which I had taken the necessary action to correct. Thereafter, Peter Sullivan, Counsel for Respondents, turned to Counsel for all other parties and asked if anyone had any objections or further concerns, and none did. M. Allan Hyman, Counsel for Intervenors, was one of those attorneys present who expressed that he had no objections or further concerns. All present further expressed that they were satisfied with the Court's explanation. My Law Clerk was present for the entire conference. Some six weeks thereafter, just as the time was ripe for issuance of a ruling by this Court, it was learned this Order to Show Cause had been sought, and was being forwarded to me for consideration. In order to correct erroneous information submitted herein, this Court points out that at NO time was it ever stated that the Recusal Order was prepared by my Law Clerk, as proffered in Respondents' Memorandum of Law signed by Peter Sullivan.
The Court notes that, in Intervenors' Reply, Attorney Hyman states "...we do not suggest that there is any impropriety here...". In fact, nowhere in any of the papers submitted in support of this Motion do any of the parties claim any of the necessary elements in order to have a member of the judiciary recuse themselves. As well stated in Petitioners' Opposition papers, "There is no dispute that with regard to the instant action, Justice Spinner is not a party, has not been attorney or counsel, has no personal interest, and is not related within six degrees to any party...".
Intervenors argue that this Court lacked the jurisdiction to vacate the Order of Recusal, once it had been signed but not filed, but the caselaw they cite does not support their position, or is irrelevant. In fact, in the first case cited, People v Bell, 3/1/2001 NYLJ 21 (col. 6) [2 Jud Dept, 2001], the actual language of the Court therein speaks against their argument:
"Judiciary Law 14, as is relevant, states: "A judge shall not sit as such in, or take any part in the decision of, an action claim, matter, motion or proceeding to which he is a party, or in which he has been attorney or counsel, or in which he is interested, or if he is related by consanguinity or affinity to any party to the controversy within the sixth degree." There is no claim in this case that the Judge/Justice was related to any party by affinity within the sixth degree. A court is not a party or counsel in a criminal proceeding no matter what the claim. The interest indicated in Judiciary Law 14 is a pecuniary or property interest in the proceeding or motion (People v. Capuano, 68 Misc 2d 481, 484; People v. McDonald, supra , 8 Misc 2d, at 52; see also, Matter of Hancock, 91 NY 284). In this case none of the disqualifications apply and the court does not have a state of mind to preclude from considering the motion.".
A further citation, Johnson v Hornblass, 93 AD2d 732, 461 NYS2d 277 [1 Dept, 1983], in fact has nothing to do with a prior recusal by a jurist, and instead the Appellate Division therein determines [*4]that, although there is the potential for the jurist to be called as a witness, there is no statutory disqualification under Judiciary Law § 14, and therefore recusal is within the discretion of the jurist, and not a matter of law.
Having failed to present substantive, factual or statutory corroboration for recusal, Intervenors, with the support of Respondents, proffer the argument that this Court should grant an Order of Recusal because of the potential appearance of impropriety that the membership of Intervenor civic associations, or the general public, may somehow perceive, because of the prior Order and vacatur thereof, and once again nothing of substance is offered in support thereof.
At this point, the Court is confronted with questioning the real purpose of this Motion, especially in light of the timing, and the six week lapse in action by movants. There is no question but that this Motion is a colossal waste of time and resources. That having been stated, the Court is left to ponder whether, as Petitioners complain, this is nothing more than an ill-conceived litigation strategy to delay, prolong and frustrate the prosecution of this matter, and the consideration of Petitioners' grievances. Members of the public might also be confronted by the potential that there may be validity to this complaint, when Herbert M. Balin, a member of the law firm representing Intervenors herein, is quoted in The Metropolitan Section of the New York Times, on Sunday, May 13, 2007, several days after this Motion had been instituted, making a public statement that, "I've never seen one go on this long... And we're still way, way away from this being over - another four or five years minimum".
This Court has determined that, far more important than whether there is a strategy to delay herein, and even more important than the potential someone might suffer an unsubstantiated an appearance of impropriety in the lawfully based determinations rendered by this Court herein, the overriding concern of this Court is that, in granting Intervenors' request for recusal without any substantiative, factual or statutory justification for same, this Court may set a precedent creating an atmosphere that endorses forum shopping, as well as delay tactics, whether by strategy or circumstance, and this Court will not allow itself to be so engaged.
Therefore, the Motion for recusal must be denied in all respects, and this Court moves forward to decide the underlying Motions.
STATEMENT OF FACTS:
In the interests of brevity, and in order to minimize further waste of judicial resources, the facts as set forth in the decision of Justice James M. Catterson, in his decision dated July 8, 2002 (the 2002 Decision), an objective source, are hereby incorporated by reference.
Justice Catterson's 2002 Decision clearly vacated the June 12, 2001 determination of Respondent TOWN BOARD (denying Petitioner's application for a special use permit to construct a retail fashion mall on the site of the former Cerro Wire and Cable Company, in the Hamlet of Syosset, Town of Oyster Bay, County of Nassau, State of New York), and took great pains to set forth, with great specificity, the short comings of said determination, and what was necessary to correct it. It is indisputable that, at the very core of the 2002 decisions were requirements that any further actions [*5]by Respondents, and any pursuit of additional analysis by Petitioners, would require clear and specific identification of each issue, in detail, to enable:
Respondents to meet the standards required of them by SEQRA;
Petitioners to respond to any further demands (such as a Supplemental Environmental Impact Statement, IF determined to be necessary by identified additional information Respondents claimed to be in possession of) to mitigate impacts; and
the Court to properly review any determinations subsequent thereto in an informed manner, within the parameters of applicable law.
Particularly, the final full paragraph of the 2002 Decision contains three very specific, and exceedingly clear, instances of instructive language to all parties:
1."...not one of these submissions was specifically referred to in the Decision... such an anonymous reference simply cannot constitute substantive basis for a finding. It is equivalent to no basis as it does not supply the Court with any content to review. The Court is left to speculate as to what expert evidence, if any, the Town Board relied upon...";
2."...IF these subsequent submissions are good cause for the Board to deviate from it's Commission's original recommendations, THEN such evidence requires that the Town Board continue with the SEQRA process in the form of a supplemental EIS.", (emphasis added);
3"Accordingly, for ALL of the above reasons, the Town Board's Decision denying the special use permit is vacated and the matter is remitted for further proceedings NOT INCONSISTENT with this decision in regards to the application AS IT STANDS AND AS MITIGATED by the petitioners' most recent proposal to reduce the square footage to 750,000 square feet.", (emphasis added).
The 2002 Decision was affirmed by the Appellate Division, Second Department, in a decision dated March 3, 2003 (the Appellate Decision). This Court notes that nowhere therein is an appeal referenced, nor language included overturning, that portion of Justice Catterson's decision retaining jurisdiction over this matter. It is further noted that the Appellate Decision not only concurred that Justice Catterson properly determined Respondent TOWN BOARD's denial of Petitioners' application was arbitrary and capricious, possessing insufficient evidence to support deviation from Respondent TEQRC's initial SEQRA determination, but further that Respondent TOWN BOARD also abused its discretion by failing to consider Petitioners' offer to mitigate impacts.
Petitioners, based on their interpretation of the Appellate Decision, sought and were granted Judgment by Justice Catterson, in a decision dated November 25, 2003, but same was thereafter reversed by the Appellate Division, in a further decision dated September 12, 2005. Nothing in therein disturbed their prior determination affirming the 2002 Decision, nor Justice Catterson's retention of jurisdiction. Respondents and Intervenors time to appeal the issue of retaining jurisdiction has long since passed. Nothing further about the November 25, 2003 and September 12, 2005 decisions is of importance to the considerations in the Motion at hand.
[*6]COMPLIANCE WITH THE COURT'S DECISION OF JULY 8, 2002:
Seven months after the Appellate Decision affirming the 2002 Decision, then Counsel for Respondents sent a letter to Counsel for Petitioners, dated September 30, 2003. While noting that it is well settled in New York that a Town Board can only take "action" by enactment of a formal instrument, such as a resolution, it is not unreasonable to request proper submissions requisite to determine such "action". That being said, the Court notes and addresses the following specific contents of said letter, and its compliance, or lack thereof, with the 2002 Decision:
1."First, submit a letter converting the application to one at 750,000 square feet...":
Having already been stated by Petitioners, not only in communications to Respondents, but also in Court documents, the request in and of itself is not unreasonable, although its timing (seven months late), might support Petitioners' contention of stalling tactics;
2."Second, submit the required site plans, making all the required showings for the 750,000 square feet.":
Clearly, if this request were pertinent to a final determination of approval or denial of the application, it would be proper, but in light of the Court's directive (IF there was good cause to deviate from TEQRC's initial findings, THEN a supplemental EIS would be required) this request is premature, absent a formal determination by the Town Board, in the form of a detailed resolution;
3."Third, submit a Supplemental Environmental Impact Statement covering any issues not previously resolved, as Supreme Court noted...":
Alas, this statement in and of itself belies Respondents failure to comply with the 2002 Decision. So as to leave nothing to interpretation, the last paragraph relevant hereto, rather than ALL the voluminous precise language throughout the 2002 Decision (wherein Justice Catterson repeatedly makes himself clear on these issues), is re-quoted for Respondents' benefit, in order to assist their comprehension of what they must do in order to comply:
"...not one of these submissions was specifically referred to in the Decision... such an anonymous reference simply cannot constitute substantive basis for a finding. It is equivalent to no basis as it does not supply the Court with any content to review. The Court is left to speculate as to what expert evidence, if any, the Town Board relied upon...".
The Court wonders how Respondents think their demand comports with the unequivocal language of the 2002 Decision, where this matter was remitted to them to formally determine and CLEARLY and SPECIFICALLY identify any "substantive basis" demonstrating "IF these subsequent submissions are good cause for the Board to deviate from it's Commission's original recommendations...", AFTER which "...THEN such evidence requires that the Town Board continue with the SEQRA process in the form of a supplemental EIS.".
4."...note that an as of right conversion project (Bloomfield Development Corp.) Of 200,000 square feet at or near your clients' project is pending now and must be addressed in your S.E.I.S. submission.":
Expanding upon the Court's analysis immediately herein above, Petitioners' argument that this is already covered by their FEIS is noted and the Court, simply to forestall any further delay, finds [*7]justification for this thirteenth hour inclusion suspect, since pursuant to the requirements of SEQRA, such an "as of right conversion" would have to have been covered by the FEIS. If it were not, it was requisite of Respondents to request same before the initial findings of Respondent TEQRC.
In sum, Respondents have done nothing to comply with the 2002 Decision, as affirmed by the Appellate Decision. Indisputably, Justice Catterson's 2002 Decision is the law of the case, and Respondents need only specifically follow the precise language thereof in order to comply, without further delay.
RESPONDENTS CROSS-MOTION:
As this Court has repeatedly stated in prior decisions, from the start it should be noted that it is well settled law in the State of New York that a Court may not substitute its own judgment for that of the reviewing board (see: Janiak v Planning Board of the Town of Greenville, 159 AD2d 574, 552 NYS2d 436 [2 Dept], appeal denied, 76 NY2d 707, 560 NYS2d 989, 561 NE2d 889 [1990]; Mascony Transport and Ferry Service v Richmond, 71 AD2d 896, 419 NYS2d 628 [2 Dept 1979], aff'd, 49 NY2d 969, 428 NYS2d 948, 406 NE2d 803 [1980]). Therefore, if the decision rendered by the reviewing board is within the scope of the authority delegated to it, the Court may not interfere and annul it, unless said decision is arbitrary, capricious or unlawful (see, Castle Properties Co. v Ackerson, 163 AD2d 785, 558 NYS2d 334 [3 Dept 1990]). That being said, the reviewing board must have rendered a decision, in order to enjoy application of this standard of review.
Respondents, with the assistance of Intervenors, have provided the Court with a plethora of collateral arguments that were highly unnecessary in addressing Petitioners' Order to Show Cause, and served no other purpose than to prolong the journey to a decision. The Court seeks to address Respondents Cross-Motion (005) as briefly as possible, corresponding by number and letter, as set forth herein above:
1.Although Petitioners did characterize Respondents conduct as contemptuous, they made no Motion for contempt, and therefore this point needs no further discussion. Intervenors referred to same as a Motion for Default Judgment, which was as accurate as Respondents claim of a purported Motion for contempt.
2.Contrary to Respondents' argument, this Motion was, in fact, brought pursuant to the above captioned Article 78 proceeding, and the substance of their request is addressed in the response to Petitioners' Order to Show Cause, herein below.
3.Contrary to Respondents' argument, this Motion does not purport to be a new proceeding, their requests for summary dismissal on various grounds being addressed herein individually:
a.Since the Court identifies no Motion for contempt, there can be no allegations in support of same;
b.Since the Court identifies no Motion for contempt, there can be no jurisdiction defect pursuant to Judiciary Law § 753(a)(3);
c.Since Petitioners seek relief herein pursuant to the 2002 Decision, wherein the Court maintained [*8]jurisdiction (a point uncontested on appeal by Respondents and/or Intervenors), said decision being affirmed by the Appellate Decision, pursuant to a request by Respondents and Intervenors for LEAVE to appeal (Appellate Division, Second Department, August 30, 2002) an interlocutory Order (given provisionally during the course of a legal action) of the Supreme Court, for which they would not have required leave if same had been a final determination, therefore neither the filing nor the service of the instant Motion is a nullity;
d.There was no defect in bringing this Motion under the existing Index Number of this action, and it is well founded that there is nothing unusual about the Supreme Court retaining jurisdiction over a proceeding when it remits the matter to the reviewing board (See, Ferruggia v Zoning Board of Appeals of Town of Warwick, 233 AD2d 505, 649 NYS2d 946 [2 Dept, 1996]; Seeler v Planning Board,53 AD2d 632, 384 NYS2d 207 [2 Dept, 1976]);
e.It is, in fact, Respondents who have failed to comply herein, specifically with the 2002 Decision, the issue of Petitioners' request herein being addressed in the response to Petitioners' Order to Show Cause, herein below;
f.Since it is well settled in New York that Towns take action by adoption of Resolutions, a letter from Respondents' Counsel to Petitioners Counsel, which in fact failed to meet the directives of the 2002 Decision, affirmed by the Appellate Decision, was in fact no action at all, and therefore the statute of limitations could not possibly even have began to run, this claim therefore having no merit;
g.Regarding mandamus, this issue is addressed in the response to Petitioners' Order to Show Cause, herein below;
h.The Court notes, with fascination, how Respondents claim, on the very same page of their Notice of Cross-Motion, that Petitioners are barred by the Statute of Limitations, and yet they have failed to exhaust administrative remedies because Respondents have not rendered a final determination, these issues being is addressed in the response to Petitioners' Order to Show Cause, herein below;
I.Petitioners' present demand might have been barred as a matter of law under the doctrines of res judicata, issue preclusion and collateral estoppel, IF Respondents had taken proper action when this matter was remitted to them for the purpose of reviewing Petitioners' offer of further mitigation, in compliance with the precise directives of the 2002 Decision of the Supreme Court.
Respondents' Cross-Motion, standing in and on its own, is denied generally, as the ultimate relief requested is addressed and disposed of in the decisions of this Court rendered herein below, specifically addressing the Order to Show Cause brought by Petitioners.
PETITIONERS ORDER TO SHOW CAUSE:
Moving on to the final lap, Petitioners request(004) for an Order directing issuance of a special use permit and site plan approval for its proposed shopping mall, the Court notes that Petitioners ask too much of the Court, in the form of this request.
In Joy Builders, Inc v Ballard, 20 AD3d 534, 799 NYS2d 256 [2 Dept, 2005], a case sited by Counsel for Respondents, the Appellate Division, Second Department clearly set forth that:
"The remedy of mandamus is available to compel the performance of a ministerial, nondiscretionary act where there is a clear legal right to the relief sought' (Matter of Savastano v Prevost, 66 NY2d 47, 50 [1985]; see CPLR 7803 [1]; Matter of Legal Aid Socy. of Sullivan County v Scheinman, 53 NY2d 12, 16 [1981]). Mandamus, however, will not be awarded to compel an act in respect to which the officer may exercise judgment or discretion' (Klostermann v Cuomo, 61 NY2d 525, 539 [1984] [internal quotation marks omitted]; see People ex rel. Hammond v Leonard, 74 NY 443, 445 [1878])".
Furthermore, in as much as this Court has stated that the 2002 Decision is in the law of this case, it is abundantly clear that said decision, as well as the Appellate Decision affirming same, contain specific language that Petitioners seem to attempt to ignore or explain away, unsuccessfully.
First, the prior Supreme Court decision states: "...the matter is remitted for further proceedings Not inconsistent with this decision in regards to the application as it stands and AS MITIGATED BY THE PETITIONERS' MOST RECENT PROPOSAL TO REDUCE THE SQUARE FOOTAGE TO 750,000 SQUARE FEET.", (emphasis added). Second, in affirming same, the Appellate Division decision states: "...the Supreme Court properly determines that the Town Board abused its discretion in failing to consider THE PETITIONERS' OFFER OF MITIGATION...", (emphasis added).
Therefore, while Respondents have failed to comply with the 2002 Decision, Petitioners cannot be granted the relief of an Order directing issuance of a special use permit for an 860,000 square foot shopping mall. There must be follow through on the offer to mitigate impacts by reducing the application to 750,000 square feet, as noted in those prior Court Orders, and while Respondents' prior denial was annulled as arbitrary and capricious, the point has not been reached where this Court has jurisdiction to mandamus relief.
For all the reasons stated herein above and in the totality of the papers submitted herein, it is, therefore,
ORDERED, that the application of Intervenors (006) for an Order recusing Justice Spinner from this matter, and randomly reassigning it to another Justice, is hereby denied in all respects; and it is further
ORDERED, that the application of Respondents(005) for an Order:
1.Denying Petitioners' purported Motion for contempt;
2.Dismissing and denying the Motion brought by Order to Show Cause in the above-encaptioned matter;
3.Summarily dismissing this matter upon a variety of grounds;
is hereby denied, generally, as the ultimate relief requested is addressed and disposed of in the decisions of this Court rendered immediately herein below; and it is further.
ORDERED, that the application of Petitioners (004) for an Order directing issuance of a special use permit and site plan approval for its proposed shopping mall, is hereby granted solely to the very limited extent that this matter is re-remitted to Respondents for proper action, in specific compliance with the prior Order of this Court issues by Justice James M. Catterson; dated July 8, 2002, as set [*9]forth herein above in the body of this decision, within 90 days of service of a copy of this Order, with Notice of Entry, as set forth herein below; and it is further
ORDERED, that this Court hereby retains jurisdiction over this proceeding, for all purposes; and it is further
ORDERED, that Counsel for Petitioner is hereby directed to serve a copy on this Order, with Notice of Entry, upon Counsel for all other parties, within 20 days of entry of this Order by the Suffolk County Clerk.
Dated:Riverhead, New York
June 11, 2007
____________________________________
HON. JEFFREY ARLEN SPINNER, J.S.C.
FINAL DISPOSITION NON-FINAL DISPOSITION
SCANDO NOT SCAN
TO:
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