Historic Albany Found., Inc. v Raymond Joyce

[*1] Historic Albany Found., Inc. v Raymond Joyce 2010 NY Slip Op 50200(U) [26 Misc 3d 1221(A)] Decided on February 10, 2010 Supreme Court, Albany County Platkin, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 February 10, 2010
Supreme Court, Albany County

Historic Albany Foundation, Inc.; MARYLEIGH MADDEN and WILLIAM J. RUSCH, , Petitioners,

against

Raymond Joyce, Jr., CHAIRMAN; CYRIL CLAYTON; RYAN HANCOX; MARCUS PRYOR; and EDWARD R. TRANT, constituting THE PLANNING BOARD OF THE CITY OF ALBANY and THE FORT ORANGE CLUB, Respondents.



434-10



APPEARANCES:Boise, Schiller & Flexner, LLP

Attorneys for Petitioners

(George F. Carpinello, of counsel)

10 North Pearl Street, 4th Floor

Albany, New York 12207

Whiteman, Osterman & Hanna, LLP

(Robert L. Sweeney, of counsel)

Attorneys for Respondent Fort Orange Club

One Commerce Plaza

Albany, New York 12260

John J. Reilly, Corporation Counsel

Attorney for Planning Board Respondents

(Jeffery V. Jamison, of counsel)

City Hall

Albany, New York 12207

Richard M. Platkin, J.

Petitioners Historic Albany Foundation, Inc., Maryleigh Madden and William J. Rusch bring this proceeding pursuant to CPLR article 78 "challenging the decision of Respondent Planning Board of the City of Albany made on January 21, 2010 to grant a permit to the Fort Orange Club to demolish the historic premises located at 118-120 Washington Avenue in the City of Albany" (Verified Petition ¶ 1). Petitioners allege that the challenged determination was arbitrary and capricious, inconsistent with a recently adopted local ordinance establishing the standards for issuance of a demolition permit, and undertaken without the preparation of a full environmental impact statement ("EIS"), allegedly in violation of the State Environmental Quality Review Act ("SEQRA"). For the reasons that follow, the Court concludes that principles of ripeness compel the dismissal of the Verified Petition.

THE CHALLENGED DETERMINATION

In or about March 2008, respondent Fort Orange Club ("the Club") submitted an expansion proposal to respondent Planning Board of the City of Albany ("Planning Board") for site plan approval. The Club proposed to expand its main structure to add athletic facilities, upgrade and expand available parking, and demolish two buildings located at 118-120 Washington Avenue ("the Subject Properties"). Included in the Club's application was an environmental assessment form ("EAF").

On May 15, 2008, the Planning Board took several SEQRA actions. First, with the consent of several other City agencies, the Planning Board designated itself as lead agency. Second, the Planning Board adopted the EAF submitted by the Club. Third, the agency found that the proposed "expansion of a parking area for 22 vehicles, which will require the demolition of [the Subject Properties]," was a Type I action under SEQRA. Finally, after claiming to have taken the requisite "hard look" at potential adverse environmental impacts associated with the proposed project, including impacts from the planned demolition of the Subject Properties, the Planning Board issued a negative declaration of environmental significance.

On September 30, 2008, prior to receiving site plan approval from the Planning Board, the Club withdrew "its applications for a parking lot permit and fence height variance . . . , thereby eliminating the proposed Washington Avenue streetscape changes . . . ." (Robert L. Sweeney Letter of September 30, 2008). The Club submitted to the Planning Board an amended EAF reflecting the more limited scope of the project.

On October 9, 2008, the Planning Board revisited its May 15, 2008 SEQRA determinations on the basis of "the modified site plan and additional information provided by the [Club] regarding the approval of the City Archeologist of a project work plan." The Planning Board found that these developments "did not result in any new significant adverse environmental impacts or require a change to the Planning Board's prior determination." On that basis, the Planning Board reaffirmed, ratified and found "no potential adverse impacts from the project, as modified". At the same meeting, the Planning Board issued site plan approval for the modified project.

In or about October 2009, the Club sought to move forward with demolition of the Subject Properties. It contacted the City's Department of Building and Codes ("DBC") relative to obtaining the required permit for demolition. The Club was advised of certain pre-demolition procedures that needed to be completed prior to the issuance of such a permit. The Club allegedly complied with these requirements and submitted a permit application to DBC on November 6, 2009. [*2]

The Director of Buildings referred the pending demolition application to the Planning Board to obtain its input regarding the architectural and historic significance of the Subject Properties. At the time, there was no legal requirement for this referral. However, during the pendency of the Club's application, the City of Albany Common Council passed an ordinance establishing new procedures for obtaining a demolition permit (City of Albany Ordinance 68.102.09 ["Demolition Ordinance"]). The new law took effect on November 25, 2009.

Sections one and two of the Demolition Ordinance establish detailed procedures generally governing the review and granting of demolition permits. According to respondents, these provisions were intended to apply to demolition applications filed after the new law's effective date and do not govern the Club's pending application. It is respondents' position that the Planning Board's review of the proposed demolition is governed by Section 4 of the Demolition Ordinance, which provides as follows:

. . . Any application for a demolition permit pending from the date of enactment of this provision until its effective date shall be referred to the Planning Board for final action before any demolition permit shall be granted by the Commission of Buildings. In reviewing any such application, the Planning Board shall not authorize the demolition of a building found to have significant architectural, archeological or historic importance unless the Board determines that there is any immediate threat to the public health and safety or that there would be any economic hardship that is not self-created that would result from any delay in demolition pending the effective date of this ordinance.

Following the referral by the Director of Buildings, the Planning Board received written submissions concerning the proposed demolition, held an open meeting on December 30, 2009 at which it received public comment, and thereafter received additional written submissions.

In a decision issued on January 21, 2010, the Planning Board authorized the Director of Buildings to issue a permit for the demolition of the Subject Properties, subject to three conditions that must be satisfied prior to demolition: (1) the applicant shall obtain all required approvals from the Board of Zoning Appeals ("BZA"); (2) the applicant shall obtain a Certificate of Appropriateness from the Historic Resources Commission for the proposed streetscape design; and (3) the applicant shall obtain Site Plan Approval from the Planning Board. In rendering the foregoing determination, the Planning Board applied the standard set forth in Section 4 of the Demolition Ordinance, finding that the broader amendments set forth in the first two sections of the new law were not applicable to the Club's pending application. Despite taking the position the latter provisions were inapplicable, the Planning Board's decision purported to address the factors set forth in Section 375-40 (H) (1) (a-f) of the Demolition Ordinance.

At the same meeting, the Planning Board reaffirmed and ratified its prior negative declaration under SEQRA. The Planning Board's determination recited that the May 15, 2008 negative declaration had been made based upon a review of a substantially similar project plan and that it had not received any new information concerning adverse environmental impacts that had not already been considered and/or addressed in its prior determination. In this connection, the Planning Board noted that the issue of the proximity of the Subject Properties to an historic district was previously examined and addressed in the May 15, 2008 determination.

THIS LITIGATION

By Order to Show Cause ("OTSC") dated January 22, 2010, petitioners moved for a [*3]preliminary injunction restraining respondents from demolishing, or taking any steps to demolish, the premises known as 118-120 Washington Avenue pending final determination of this proceeding. The OTSC signed by the Court (Devine, J.) includes a temporary restraining order ("TRO") issued without notice to respondents. The OTSC initially was made returnable on January 29, 2010.

On January 27, 2010, the Club filed a cross-motion to dismiss the petition, claiming, among other things, that petitioners' claims are not yet ripe, the SEQRA challenge is time barred as a result of petitioners' failure to challenge the May 15, 2008 negative declaration, and the Planning Board did not abuse its discretion or commit an error of law in applying SEQRA and the Demolition Ordinance. The Club further moved to vacate the TRO and opposed petitioners' motion for a preliminary injunction. The respondent Planning Board and its members (collectively "the Planning Board") filed papers in opposition to petitioners' motion for a preliminary injunction and in support of the Club's application to vacate the TRO.

At a conference held on January 28, 2010, the Court extended petitioners' time to oppose the Club's cross-motion until February 3, 2010, with respondents having until February 5, 2010 to reply. Oral argument was held on February 8, 2010, and this Decision, Order and Judgment follows.

ANALYSIS

A.Procedural Issues

As an initial matter, it appears that this proceeding was not properly commenced. Pursuant to CPLR 7804 (c), a proceeding shall be commenced by service of a notice of petition unless "the court grants an order to show cause to be served in lieu of a notice of petition." The record does not establish service of a notice of petition, and the OTSC obtained by petitioners refers only to their motion for provisional injunctive relief and does not specify the time and place of the hearing of the petition (see Matter of Lincoln Plaza Tenants Corp. v Dinkins, 171 AD2d 577 [1st Dept 1991]; Matter of Lamb v Mills, 296 AD2d 697, 698 [3d Dept 2002]). However, respondents did not move for dismissal of the petition or otherwise raise an objection on this ground. Insofar as this non-prejudicial error may be waived by respondents or disregarded or excused by the Court, it hereby is. To the extent that lack of compliance with CPLR 7804 (c) constitutes a jurisdictional bar to adjudication, it simply provides an alternative basis for dismissal of the petition.

The Court further notes that on February 5, 2010, the Club filed an answer to the petition. Given the pendency of its motion to dismiss, the Court concludes that this filing was premature (see CPLR 7804 [f]).

B.First Cause of Action: Challenge to Demolition Authorization

For their first cause of action, petitioners complain that "the action of the Planning Board in granting the demolition permit is arbitrary and capricious because the Board did not take into account the factors listed in the Demolition Ordinance . . . . " (Verified Petition ¶ 28). However, as respondents observe, the Planning Board did not grant the Fort Orange Club a demolition permit. Rather, local law in effect prior to and following the adoption of the Demolition Ordinance establishes that the issuance of a permit for demolition falls squarely within the jurisdiction of the Director of Buildings, a non-party to this action. The challenged Planning Board authorization merely allows the Director of Buildings to consider the Club's application for a demolition permit.

Thus, in response to the Club's application of November 6, 2009, the Director of [*4]Buildings determined, in the exercise of his discretion, to refer the application to the Planning Board to obtain its views on the architectural and historic issues raised by the proposed demolition. Then, upon the effectiveness of Section 4 of the Demolition Law, such a referral, and the Planning Board's authorization of the demolition, became conditions precedent to the Director of Building's approval of the Club's application, which remains pending before him.

And while the Planning Board's determination of January 21, 2010 did authorize the Director of Buildings to issue a permit for the demolition of the Subject Properties, the Board conditioned its approval on the Club obtaining approvals from two other City agencies, the Board of Zoning Appeals ("BZA") and the Historic Resources Commission. The challenged determination further requires the Club to return to the Planning Board to obtain site plan approval before the Director of Buildings can even entertain the Club's pending application.

"The concept of ripeness' holds that a controversy cannot be ripe if the claimed harm may be prevented or significantly ameliorated by further administrative action or by steps available to the complaining party'" (Federation of Mental Health Ctrs. v DeBuono, 275 AD2d 557, 561-562 [3d Dept 2000], quoting Church of St. Paul & St. Andrew v Barwick, 67 NY2d 510, 520 [1986], cert denied 479 US 985]). "A claim contingent on events which may not occur should be dismissed as non-justiciable" (Federation of Mental Health Center, supra; see Matter of New York State Inspection, Sec. & Law Enforcement Empls, Dist. Coucil 82,AFSCME, AFL-CIO v Cuomo, 64 NY2d 233, 240 [1984]).

In considering whether agency action is ripe for judicial review, courts ordinarily employ a two-step analysis. "The first step, which is the appropriateness inquiry', involves an analysis of the completeness of the agency's action to decide if it inflicts actual and concrete injury, or whether the agency's action, despite being final, awaits consideration of extraneous factors as yet unknown" (Matter of Rushin v Commissioner of the NY State Dept. of Correctional Servs., 235 AD2d 891 [3d Dept 1997] [internal quotations omitted]). "The second step of the analysis involves a consideration of the effect on the parties if judicial review is declined. If the anticipated harm is insignificant, remote or contingent, or if it may be prevented or ameliorated by further agency action or steps available to the complainant, the controversy will not be deemed ripe for review" (id.).

It is apparent that petitioners here have not sustained an actual and concrete injury from the determination that they seek to challenge. The harm alleged in the Verified Petition arises from the issuance of a demolition permit for the Subject Properties. No such permit has been issued. The Club's application for permission to demolish the Subject Properties remains pending before the responsible City official. And before the Director of Buildings can even consider exercising his discretion to grant such a permit, the approvals of the two other City agencies and an additional approval of the Planning Board are necessary preconditions.

Thus, the harm of which petitioners complain is speculative and may or may not come to pass, depending on whether the conditions established by the Planning Board are satisfied and the Director of Buildings thereafter determines to grant the Club's application for a demolition permit. Until such time, petitioners will not have suffered an actual and concrete injury arising from the challenged Planning Board determination. Rather, petitioners' disagreement with the Planning Board's assessment of the historic and architectural significance of the Subject Pproperties remains an abstract one, devoid of tangible legal consequences to them, unless and until a demolition permit ultimately is issued by the Director of Buildings.

This case therefore is unlike Matter of O'Connell v Zoning Bd. of Appeals of Town of [*5]New Scotland (267 AD2d 742, 743-744 [3d Dept 1999]), upon which petitioners rely. In that case, "[t]he use variance granted to [the property owner] permits the continuation of his business that has been in existence for more than 28 years." And if the petitioners in Matter of O'Connell succeeded in their effort to overturn the challenged variance, it "might have forced [the property owner] to close or relocate this business" (id.). Thus, the determination at issue in Matter of O'Connell affected the legal rights and obligations of the property owner in an immediate and tangible manner.[FN1]

In seeking to establish an actual, concrete injury, petitioners further complain that the Club has engaged, and may continue to engage, in "steps to further impair the integrity of the subject buildings". The Court does not find this argument persuasive. Petitioners' contention rests on speculation and is unsupported by the record. Further, if the Club is at liberty to take these "steps" without the need for a demolition permit, then the alleged harm does not flow, even indirectly, from the challenged determination. And to the extent that these "steps" do require a City permit that has not been issued, petitioners' concern is more appropriately directed to code enforcement officials of the City of Albany.

Given that the only cognizable harm complained of by petitioners would arise, if at all, from a determination of the Director of Buildings to issue a demolition permit, that such a determination could only be made following the approvals of two other City agencies and an additional site plan approval by the Planning Board, and that the challenged determination does not carry any independent legal consequences that work an actual and concrete injury upon petitioners, the Court holds that petitioners' first cause of action is not yet ripe for judicial review .

In reaching this conclusion, the Court notes that following the Club's pre-answer motion to dismiss the petition on this ground, extensive briefing by the parties on the issue, and almost two hours of oral argument on the parties' cross-motions, the Club's counsel purported to withdraw the issue of ripeness from the Court's consideration in a desire to have the merits of this proceeding resolved expeditiously. The Court is unable to accept counsel's belated concession, however. The issue of ripeness goes to the subject matter jurisdiction of a court, and it may be considered sua sponte at any time, even on appeal (333 Cherry LLC v Northern Resorts, Inc., 66 AD3d 1176, 1178 n3 [3d Dept 2009]; see also Matter of Grand Jury Subpoena for Locals 17, 135, 257 and 608 of United Bhd. of Carpenters and Joiners of Am., AFL-CIO, 72 NY2d 307, 311 [1988], cert denied 488 US 966). Further, lack of subject matter jurisdiction [*6]may not be waived by the parties (Davis v State of New York, 64 AD3d 1197, 1197 [4th Dept 2009]; Signature Health Ctr., LLC v State of New York, 42 AD3d 678, 679 [3d Dept 2007]).

C.Second Cause of Action: SEQRA

Similar considerations compel the dismissal of petitioner's second cause of action, which alleges a failure to prepare a full environmental impact statement in accordance with SEQRA. Petitioners allege that the proposed demolition of the Subject Properties may have significant environmental impacts and, therefore, preparation of a full environmental impact statement was required under SEQRA.

In contending that this cause of action is time barred, the Club argues that petitioners' SEQRA claim accrued on May 15, 2008, when the Planning Board evaluated the potential environmental impact of the demolition of the Subject Properties, determined that the demolition would not implicate a significant adverse environmental impact, and issued a negative declaration on that basis (see Stop-The-Barge v Cahill, 1 NY3d 218 [2003]). The Club further argues that the Planning Board's January 21, 2010 reaffirmance of its May 15, 2008 negative declaration cannot revive petitioners' time-barred claims (see Matter of Schulz v State, 274 AD2d 615, 618 [3d Dept 2000]).

The flaw in the Club's argument, however, is that it voluntarily narrowed the scope of its proposal before the Planning Board on September 30, 2008 to eliminate the demolition of the Subject Properties. At that time, the Club withdrew from the Planning Board's consideration its application for additional parking — the stated rationale for the demolition of the Subject Properties — and represented to the Planning Board that it had eliminated the proposed changes to the Washington Avenue streetscape necessitated by the demolition. Further, the Club filed an amended EAF with the Planning Board reflecting the project's more limited scope. On the basis of the Club's modified submissions, the Planning Board issued an amended negative declaration on October 9, 2008 that did not purport to address the potential adverse environmental impacts associated with the proposed demolition.

As the Planning Board no longer had a proposal before it on October 9, 2008 to demolish the Subject Properties and it issued a revised negative declaration on that date "for the modified application [which] did not include demolition of the two buildings in question" (Affidavit of Jeffrey V. Jamison ¶ 15, dated November 12, 2009), the Court is not persuaded that petitioners could have obtained judicial review of the May 15, 2008 negative declaration as it pertains to the demolition. Any such challenge would necessarily have been denied as academic following the Planning Board's action upon an amended project plan and amended EAF that did not encompass the demolition (see id. at ¶¶ 13-14).[FN2]

Accordingly, this is not a case where the May 15, 2008 negative declaration remained in effect through the entire process, and the Planning Board simply reaffirmed its prior determination on January 21, 2010 in light of information received in the interim. Rather, given the elimination of the demolition from the proposal before the Planning Board and the agency's issuance of an amended negative declaration that did not purport to address the impacts of such [*7]demolition, the January 21, 2010 negative declaration must be treated, for purposes of accrual, as a de novo determination with respect to the issues arising from the demolition of the Subject Properties.

Having concluded that petitioners may challenge the January 21, 2010 negative declaration with respect to the proposed demolition, the Court concludes that the ripeness principles outlined above compel the dismissal of this cause of action under the particular facts and circumstances of this case, which include: (a) the Planning Board having rendered the challenged SEQRA determination and the challenged Demolition Ordinance determination at the same time on the same administrative record as part of an integrated process; (b) the condition in the challenged determination requiring the Club to return to the Planning Board to obtain site plan approval before a demolition permit can even be considered, thereby creating the prospect that harm complained of by petitioners may be ameliorated by further administrative action by the SEQRA lead agency;[FN3] and (c) the commonality of issues between the petitioners' two claims, which both turn on the architectural and historic significance of the Subject Properties (see Matter of North Country Citizens for Responsible Growth, Inc. v Town of Potsdam Planning Bd., 39 AD3d 1098, 1103 [3d Dept 2007]; see also Matter of Eadie v Town Bd. of Town of N. Greenbush, 7 NY3d 306, 317 [2006]; Matter of Basha Kill Area Assn. v Planning Bd. of Town of Mamakating, 46 AD3d 1309, 1312, n 2 [3d Dept 2007]).

CONCLUSION

Based on the foregoing, the Court concludes that petition is not yet ripe for judicial review. Upon issuance of a demolition permit by the Director of Buildings, petitioners may pursue their claims raised herein.

Accordingly, it is

ORDERED that the Fort Orange Club's motion to dismiss the Verified Petition is granted in accordance with the foregoing; and it is further

ORDERED, ADJUDGED and DECREED that the Verified Petition is dismissed; and it is further

ORDERED that the temporary restraining order set forth in the Court's Order to Show Cause dated January 22, 2010 is hereby vacated; and it is further

ORDERED that petitioners' motion for a preliminary injunction is denied as academic.

This constitutes the Decision, Order and Judgment of the Court. The original Decision, Order and Judgment is being returned to counsel for the Fort Orange Club; all other papers are being transmitted to the Albany County Clerk. The signing of this Decision, Order and Judgment shall not constitute entry or filing under CPLR Rule 2220, and counsel is not relieved from the applicable provisions of that Rule.

Dated: Albany, New York

February 10, 2010

Richard M. Platkin

A.J.S.C. Footnotes

Footnote 1:Petitioners also rely upon Matter of Long Is. Pine Barren Socy. v Planning Bd. of Town of Brookhaven (78 NY2d 608 [1992]). The determination at issue in that case, a preliminary subdivision approval, was held to constitute a final administrative determination subject to judicial review because it had the legal effect of fixing the basic components of the proposed subdivision, and it could not be modified or rejected through further administrative proceedings except on the basis of newly discovered information (id. at 614-615). Here, the Planning Board's authorization to demolish the Subject Properties in no way ties the hands of the Director of Buildings with respect to his ultimate determination to grant or deny a permit in the event that the additional approvals of the BZA, Historic Resources Commission ("HRC") and the Planning Board are forthcoming. Nor does the challenged determination tie the hands of the BZA, HRC or Planning Board with respect to their subsequent determinations.

Footnote 2: The foregoing is true even if petitioners' challenge to the May 15, 2008 determination was time barred on September 30, 2008 under the SEQRA accrual rule set forth in Stop-the-Barge, supra. As with ripeness, the duty of a court to decide only live controversies goes to its subject matter jurisdiction and cannot be waived or disregarded.

Footnote 3:As explained above, the harm alleged by petitioners also is contingent upon additional approvals by the BZA and the Historic Resources Commission and the granting of a demolition permit by the Director of Buildings, any of which may not come to pass.