Historic Hornell, Inc. v City of Hornell Planning Bd.
Annotate this CaseDecided on March 21, 2008
Supreme Court, Steuben County
Historic Hornell, Inc., Mildred A. McAnany, Patricia L. Piper, and W. Stephen Piper, Petitioners,
against
City of Hornell Planning Board, Dennis O'Brien in his capacity as City of Hornell Code Enforcement Officer, and NYDH, LLC, Respondents.
96,220
Remington, Gifford, Williams & Colicchio, LLP,
Rochester (Robert B. Koegel of counsel), for Petitioners
Joseph G. Pelych, City Attorney, Hornell, for City of Hornell Planning Board and Dennis O'Brien, Respondents
Davidson & O'Mara, Elmira (Ransom Reynolds of counsel), for
NYDH, LLC, Respondent
Marianne Furfure, J.
This matter comes before the Court on petitioners' Article 78 proceeding for a judgment to annul and vacate a demolition permit granted, but not issued, to respondent property owner NYDH, LCC (NYDH) by the Hornell Planning Board and the Code Enforcement Officer (CEO). The permit was granted to allow demolition of the Adsit House, a property listed on the Register of Historic Places and located in the City of Hornell Neighborhood Overlay District. Petitioners allege that the permit must be vacated because the Planning Board and Hornell City Code Enforcement Officer (collectively "the municipal respondents") failed to comply with the requirements of the Hornell City Code (Code), the provisions of the New York State Environmental Quality Review Act (SEQRA), and the General Municipal Law. Respondent NYDH opposed petitioners' application and filed a counterclaim seeking a court order directing the CEO to issue the demolition permit on the grounds that the permit is not subject to the Code or laws cited by petitioners.
Prior to the return date of the petition, the City Attorney advised the Court in a letter that [*2]the Common Council for the City had passed a resolution which specifically "(did) not authorize the expenditures of taxpayers' funds to defend the (Historic Hornell) matter," and therefore, the City did not intend to appear in the proceeding. However, the City Attorney indicated a willingness to appear in court, if the court wished. After oral argument by counsel for petitioners and NYDH the Court ordered the municipal respondents to file and serve an answer and a certified transcript of the proceedings, gave petitioners and NYDH ten days to respond to the municipal respondents' answer, and reserved decision on the petition and counter claim. The City Attorney filed an answer by "the Respondent, City of Hornell" together with a copy of the record. Thereafter, petitioners filed a motion for a default judgment, claiming that the demolition permit must be annulled based on the municipal respondents' default in answering the petition. Respondent NYDH opposed the default motion. The City Attorney did not file a response to the motion.
Petitioners claim that the municipal respondents are in default because the Answer was submitted by the City Of Hornell and not the City Planning Board and CEO, the municipal respondents named in the caption. Petitioners' motion for default judgment is denied. Although the City of Hornell is admittedly not a party to this proceeding, the City Attorney has been actively involved in this matter since the proceeding was initiated. When petitioners commenced this proceeding by order to show cause, they included a stipulation between petitioners and the City Attorney on behalf of the "City Respondents" agreeing to a temporary restraining order prohibiting all respondents from taking any actions or steps to demolish the Adsit House pending the hearing and determination of the Article 78 proceeding. The letter in which the City Attorney indicated that the City of Hornell would not be appearing in the action referenced the proceeding as "Historic Hornell, Inc. vs. City of Hornell." The answer which the City Attorney submitted did not dispute any of the facts alleged in the petition and set forth a legal defense which could have been asserted by the Planning Board and CEO.
Under the Hornell City Charter, the City Attorney is the official legal advisor for the Planning Board and other officers of the City (Hornell City Charter Section C-54). The City Attorney has been the only attorney with whom petitioners have dealt regarding either the interests of the City, the municipal respondents, or both. When the City Attorney entered into the stipulation on behalf of the municipal respondents at the outset of the proceeding, he had the apparent authority to continue to bind them in this proceeding (Matter of Haberman v. City of Long Beach, 9 NY3d 269, 276 [2007]). Although the answer was filed by "The City", and the City was not a named party in the proceeding, there is nothing to suggest that the position taken by the City in the answer was different from the position of the City Planning Board or CEO. Therefore, the answer submitted by "The City" shall be deemed to have been submitted by the Planning Board and the CEO. The cases cited by petitioners do not require a different result. As neither the Planning Board nor the Code Enforcement Officer have the power to vary the City's zoning ordinances, as does the Zoning Board of Appeals, cases which speak of the need to consider a Zoning Board of Appeals as a separate entity in a law suit are inapplicable to the facts presented here.
Petitioners argue that, even if the Court accepts the answer filed by the City, the answer does not dispute any of the allegations contained in the petition. Consequently, petitioners argue that their allegations are deemed admitted, and petitioners are entitled to the relief they seek. This argument is also without merit. There is a strong public policy favoring resolving these [*3]types of cases on their merits (Castell v City of Saratoga Springs, 3 AD3d 774 [3rd Dept, 2004]). Although the municipal respondents' answer did not controvert the claims made in the petition, co-respondent NYDH's answer did. The facts have been fully presented by these two parties and it is clear from the papers presented that there is no dispute as to the facts. No prejudice will result from the municipal respondents' failure to fully participate in the proceeding. As the issues raised by NYDH assert the same issues which could have been raised by the municipal respondents, the court can make a determination on the merits with or without the answer by the municipal respondents. Co-respondent's answer is sufficient to put the controversy before the Court and preclude the entry of a default judgment (Tanalski v. New York State Division of Human Rights, 262 AD2d 117, 118 [1st Dept. 1999]).
Therefore, petitioners' motion for a default judgment is denied.
Petitioners also contend that, contrary to the municipal respondents' affirmative defense, petitioners need not exhaust their administrative remedies before bring the instant action. First, petitioners argue that General City Law Section 81-c authorizes an aggrieved person to file an Article 78 proceeding without the need for exhausting administrative remedies. Second, petitioners claim they need not exhaust their administrative remedies, if the dispute is based on statutory interpretation, or resort to administrative remedies would be futile. Co-respondent NYDH agrees with petitioners, but for different reasons.
Petitioners' assertion that resort to administrative remedies in this case would be futile is persuasive and resolves the issue of the municipal respondents' affirmative defense. General City Law Section 81-a(6) provides that an appeal filed with the zoning board of appeals stays all proceedings in furtherance of the action appealed from with certain exceptions which do not apply to the facts of this case. However, case law has interpreted identical provisions under Village and Town Law to hold that the automatic stay provision governing appeals to a Zoning Board of Appeals does not apply if it is a third party, rather than the petitioner or respondent, who files the appeal (Matter of Mamaroneck Beach & Yacht Club, Inc. v. Fraioli, 24 AD3d 669, 671 [2nd Dept. 2005]; Bonded Concrete v. Town of Saugerties, 282 AD2d900, 903 [3rd Dept. 2001]. Petitioners correctly argue that, without the automatic stay provisions available to parties who wish to challenge the determination of a code enforcement officer or planning board, the only protection petitioners had against immediate destruction of the Adsit house was the temporary restraining order available to them in an Article 78 proceeding. That being the case, petitioners were not required to exhaust their administrative remedies before filing the instant proceeding. As a result, petitioners' application to dismiss the municipal respondents' affirmative defense is granted.
Petitioners next claim that the Planning Board and CEO failed to comply with Hornell City Code Section 315-25, New York State Environmental Quality Review Act, and General Municipal Law Section 239-m and, therefore, erred in granting the demolition permit. NYDH claims that issuance of the demolition permit is a non-discretionary, ministerial act which the CEO must perform, if all of the City's requirements for a demolition permit have been met. NYDH claims that it has met the requirements for a demolition permit, the permit must be issued, and the permit is not subject to the Code or laws cited by petitioners.
Section 315-25 of the Hornell City Code is entitled "Neighborhood Overlay District." Its stated purpose is to protect and enhance properties which the City has determined " . . . [*4]contribute to the historic and attractive character of particular neighborhoods in the city and to the overall health, safety and welfare of the community. Efforts to protect and enhance these properties can foster civic pride, can maintain the attractiveness of neighborhoods and can help ensure harmonious and orderly growth and development." (Hornell City Code Section 315-25[B])
The Code provides that, prior to the demolition of any principal use structure proposed as part of a new construction or as part of the conversion of an existing use to a new principal use, or prior to the issuance of any site plan permit, the Building Inspector, with the advice of the Planning Board, must determine if the proposed activity is compatible within the Neighborhood Overlay District. That determination is to be based on four factors: (1) the general design and character of the proposal, (2) the scale of the proposal, (3) the similarity of building materials to be used, and (4) visual compatibility to surrounding properties (Hornell City Code Section 315-25[C][1]).
NYDH claims that, because it has no intention of either building a new structure or converting the Adsit House into a new principal use at this time, the City Code compatibility review requirement does not apply to NYDH's demolition permit. Petitioners argue that the compatibility review set forth in Code Section 315-25 must be applied to the issuance of the demolition permit, even if there are no plans to rebuild because, unless so interpreted, the entire historic district could be razed without oversight. NYDH argues that, if the City had meant to require a compatibility review prior to the issuance of any demolition permit, it could have plainly stated so in the Code. NYDH claims that the purpose of the Code is not to prevent old buildings from being razed, but rather to ensure that all new structures within the Overlay District are harmonious and compatible with the Planning Board's vision for the District.
Generally, a statute is to be construed according to the ordinary meaning of its words (Schrader v. Carney, 180 AD2d 200, 205 [4th Dept. 1992]). If the language is clear, and its meaning evident, the court need look no further, and resort to extrinsic evidence is inappropriate (Matter of Ellington Constr. Corp. v. Zoning Bd. of Appeals of Inc. Village of New Hempstead, 77 NY2d 114, 121 [1990]). However, while statutory language may appear to be clear and certain, the absence of ambiguity on its face is never conclusive (New York State Bankers Assn. v. Albright, 38 NY2d 430, 434 [1975]). When the plain meaning of a statute leads to absurd, futile, or unreasonable results plainly at variance with the policy of the legislation, courts have used the rule of reasonable construction and followed the purpose of the statute, rather than its literal words (New York State Bankers Assn. v. Albright, Id. at page 437; Matter of Rosen v. City of Troy, 261 AD2d 9, 11-12 [3rd Dept. 1999]; Wolk v. Reisem, 67 AD2d 819 [4th Dept. 1979]).
In this case, the Neighborhood Overlay District Ordinance sets forth additional or supplemental requirements to the general zoning ordinance which are intended to protect and preserve the historic nature of the properties within that district. Without the requirement of a compatibility review prior to any demolition, it is conceivable that every historic building in the Neighborhood Overlay District could be demolished, and the land left vacant. It is fair to assume that this was not envisioned by the City Council when it adopted the ordinance. This is further supported by the City Council's subsequent expression of intent contained in Resolution HN-7-[*5]07 adopted on March 12, 2007. In this resolution the City Councilstated its position that the intent of City Code 315-25 is violated "if any approval and/or permit is granted for the demolition of any principal use structure in the Neighborhood Overlay District unless future development plans are considered and approved by the Building Inspector and the Planning Board."
To interpret the Code strictly and in the way advanced by respondent would lead to a result clearly at odds with the stated purpose of the ordinance, which is to protect and enhance those properties which "contribute to the historic and attractive character of the neighborhood." The record of the proceedings below contain no finding by the CEO or the Planning Board that the compatibility review was undertaken or considered before the demolition permit was granted. Absent this consideration, their approval of the demolition permit was arbitrary and capricious and in violation of the City Code. Therefore, petitioners' application to annul and vacate the demolition permit on this ground must be granted.
Petitioners also argue that the demolition permit must be annulled as the requirements of the State Environmental Quality Review Act (SEQRA) were not followed. NYDH argues that SEQRA does not apply in this case because issuance of the permit was a ministerial and nondiscretionary act to which SEQRA does not apply.
The requirements of SEQRA provide that an environmental impact statement is required any time an action which may have a significant effect on the environment is approved by a government agency (ECL Section 8-0109(2); Matter of Filmways Communications of Syracuse v. Douglas, 106 AD2d 185, 186 [4th Dept. 1985]). However, official acts which are ministerial in nature and involve no exercise of discretion are not considered actions under the mandates of SEQRA and, thus, do not require a SEQRA review (Matter of Filmways Communications of Syracuse v. Douglas, 106 AD2d 185, 186 [4th Dept. 1985]). Issuance of a building permit is purely ministerial and not subject to SEQRA, if the building inspector's decision is based on a predetermined set of statutory criteria and he has no latitude or discretionary authority to decide whether or not to approve a project (Ziemba v. City of Troy, 37 AD3d 68, 75 [3rd Dept. 2006]).
In this case, the issuance of the demolition permit was not a strictly ministerial act. The CEO had the authority to vary or impose conditions on the issuance of the permit because the property was within the boundaries of the Neighborhood Overlay District. Pursuant to Section 315-25[C][2] of the City Code, the building inspector, with the advice of the Planning Board, must conduct a compatibility review and determine whether to grant the demolition permit or place reasonable conditions on any future building. As the CEO had the authority to vary or impose conditions on a case-by-case basis, the function of issuing such a permit is not ministerial, but discretionary and subject to the requirements of SEQRA (Matter of Pius v. Bletsch, 70 NY2d 920, 922 [1987]). In this case, there is no indication that the CEO or the Board did comply with the SEQRA process before granting the permit. Therefore, issuance of the permit was in violation of the law and must be annulled for this reason as well.
Finally, petitioners contend that the municipal respondents failed to refer the proposed action to the Steuben County Planning Board in violation of General Municipal Law Section 239-m[3][iv]. The section relied upon by petitioners would require referral to the County Planning Board whenever an application for site plan approval has been submitted. In this case, there is no evidence that such an application was submitted by respondents. Therefore, petitioners' claim that the demolition permit was granted in violation of General Municipal Law [*6]Section 239-m must be denied.
Based on the above, petitioners are entitled to a judgment annulling the permit to demolish the Adsit House granted on February 13, 2007, and further enjoining respondents from taking any steps to demolish the structure pending issuance of a new permit in compliance with this decision.
Petitioners' counsel to submit Judgment.
Dated:
ENTER:
______________________________
Hon. Marianne Furfure
Acting Supreme Court Justice
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
