Shapiro v Town of Ramapo

[*1] Shapiro v Town of Ramapo 2010 NY Slip Op 51915(U) [29 Misc 3d 1220(A)] Decided on October 18, 2010 Supreme Court, Rockland County Jamieson, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 18, 2010
Supreme Court, Rockland County

Dr. Sonya Shapiro and MILTON H. SHAPIRO, Petitioners,

against

Town of Ramapo, Respondent, Town of Clarkstown and SCENIC DEVELOPMENT, LLC, Nominal Respondents.



5195/2010



Susan H. Shapiro, Esq.

Attorney for Petitioners

21 Perlman Drive

Spring Valley, NY 10977

Rice & Amon

Attorneys for Scenic

4 Executive Blvd., Suite 100

Suffern, NY 10901

Michael L. Klein

Town of Ramapo

237 Route 59

Suffern, NY 10977

Town of Clarkstown

10 Maple Ave.

New City, NY 10956

Linda S. Jamieson, J.

The following papers numbered 1 to 9 were read on the petition and cross-motions:

[*2]PaperNumber

Notice of Petition, Petition, Affidavit and Exhibits [FN1]1

Notice of Cross-Motion, Affidavits, Affirmation and Exhibits2

Memorandum of Law3

Exhibits4

Notice of Cross-Motion, Affirmation and Exhibit5

Answer, Affirmation in Opposition and Exhibits6

Affirmation and Exhibits in Opposition7

Errata8

Reply Memorandum of Law9

Petitioners seek to annul certain determinations made by the Town Board of the Town of Ramapo which (1) adopted and issued a Written Findings Statement dated January 25, 2010 with respect to the Final Environmental Impact Statement relating to an application for a zone change submitted by Scenic Development, LLC ("Scenic") to change the zoning district from R-40 to MR-8 for the property situated on the south side of Route 202 and the west side of Route 306 in the Town of Ramapo ("Ramapo"), designated on the Tax Map as Section 32.11-1-2, Section 32.11-1-3, Section 32.11-1-4, Section 32.11-1-12, Section 32.11-1-13, Section 32.11-1-14, Section 32.11-1-15, and Section 32.11-1-16 and adopted as Resolution No. 2010-98; (2) adopted an amendment to the Ramapo Comprehensive Plan, which amendment applies only to the properties owned by Scenic and known as Section 32.11-1-2, Section 32.11-1-3, Section 32.11-1-4, Section 32.11-1-12, Section 32.11-1-13, Section 32.11-1-14, Section 32.11-1-15, and Section 32.11-1-16 and adopted as Resolution No. 2010-99; (3) granted the Petition submitted by Scenic for an amendment to the Ramapo Zoning Map to change the zone from R-40 to MR-8 for the property situated on the south side of Route 202 and the west side of Route 306, designated on the Tax Map as a portion of Section 32.11-1-2, Section 32.11-1-3, Section 32.11-1-4, Section 32.11-1-123, Section 32.11-1-13, Section 32.11-1-14, Section 32.11-1-15, and Section 32.11-1-16 and 32.14-2-3; and (4) adopted and enacted Local Law No. 1 of 2010 of Ramapo amending said Zoning Map.

The cross-motion by Scenic seeks to dismiss the petition pursuant to CPLR §§ 3211(a)(7) and 7804(f). The cross-motion by Ramapo seeks to dismiss the petition pursuant to CPLR § [*3]3211.

Petitioners Lack Standing

It is well-settled that "challenges to zoning determinations may only be made by aggrieved' persons." Sun-Brite Car Wash, Inc. v. Board of Zoning and Appeals of Town of North Hempstead, 69 NY2d 406, 515 NYS2d 418 (1987). "Aggrievement warranting judicial review requires a threshold showing that a person has been adversely affected by the activities of defendants . . . or - put another way - that it has sustained special damage, different in kind and degree from the community generally. Traditionally, this has meant that injury in fact must be pleaded and proved." Id. That means that to establish standing in a CPLR article 78 proceeding, a petitioner must demonstrate "that the administrative action will in fact have a harmful effect on the petitioner and that the interest asserted is arguably within the zone of interest to be protected by the statute." Legacy at Fairways, LLC v. McAdoo, 76 AD3d 786, 906 NYS2d 668 (4th Dept. 2010). See also Rediker v. Zoning Bd. of Appeals of Town of Philipstown, 280 AD2d 548, 721 NYS2d 77 (2d Dept. 2001) ("Where a claim of standing is based upon the adverse impact of challenged administrative action, a petitioner must show that he or she will suffer a harm that is in some way different from that suffered by the public at large and that the alleged injury falls within the zone of interest sought to be promoted or protected by the statute under which the government agency has acted."). The harmful effect on petitioners must be "direct injury different from that suffered by the public at large." Riverhead PGC, LLC v. Town of Riverhead, 73 AD3d 931, 905 NYS2d 595 (2d Dept. 2010).

The Rediker case, 280 AD2d 548, 721 NYS2d 77, is instructional. In that case, there were two petitioners challenging a zoning permit to allow a cell phone tower pole. One of them, who lived approximately a third of a mile from the exact site of the pole (or 1,760 feet) was found to live too far from the pole to be "entitled to an inference of injury." The other petitioner's property was literally adjacent to the site of the pole. The Court found that "[a]s an owner of adjacent land the intervenor-petitioner is entitled to a presumption that he will be adversely affected in a manner different from the public at large." Yet even with that presumption, the Court was "not persuaded that even the intervenor-petitioner truly will suffer any greater or different impacts than the public at large." The Court thus found that neither petitioner had standing, and dismissed the action.

The same result is appropriate here. Although petitioners' property is across the street from the edge of the land in question, their home is not adjacent to that portion of the property actually affected by the zoning change. Petitioners complain of the zoning change from R-40 to MR-8, which, significantly, affects only part of the site. As Ramapo, Scenic and the exhibits submitted by the parties make clear, the portion that was changed from R-40 to MR-8 is not at the edge of the parcel, but in the middle of it. The Findings Statement itself clearly states that the zoning change only affects "the central portion of the site." It further states that the "single family component would remain in the R-40 zone." Put another way, the land across the street from petitioners would not contain the re-zoned multi-family housing that forms the crux of petitioners' complaint,[FN2] but would simply have single-family homes on one-acre lots. Moreover, [*4]although the distance between petitioners' property and the re-zoned portion, as the crow flies, is a little over 1,000 feet (which some courts have found to be too far away), significantly, there are no roadways between petitioners' parcel and the portion affected by the zoning change. That means that to reach the re-zoned portion of the property from petitioners' land would necessitate a journey of nearly one mile. The Court, thus finds that the distance between petitioners' home and the re-zoned land is too far and is " insufficient, without more, to confer standing; actual injury must be shown." Many v. Village of Sharon Springs Bd. of Trustees, 218 AD2d 845, 629 NYS2d 868 (3d Dept. 1995) (although petitioner could not rely on the proximity argument to convey standing, court found that he did have standing because he would suffer actual injury, in that he had demonstrated that runoff water from the site would directly affect his well water).

Here, petitioners have shown no actual injury to them, different from any injury to the community at large. Harris v. Town Bd. of Town of Riverhead, 73 AD3d 922, 905 NYS2d 598 (2d Dept. 2010) (denying standing because "petitioners failed to demonstrate that the alleged increased traffic congestion and negative effects on the businesses along the Route 58 corridor are injuries specific to them and distinguishable from those suffered by the public at large."). Petitioners' opposition papers claim that they will suffer by the increased density ("10 fold"), "dramatically changing the character of the rural neighborhood through destruction of the natural vegetation and dramatic re-grading of the majority of the site thereby endangering a New York State protected single source primary water supply acquifer . . . and decreasing our ability [sic] peacefully and quietly enjoying our property." None of these alleged harms are specific to petitioners. In fact, their petition states only that "Petitioners have standing and capacity to bring this proceeding/action [sic] was they live 500 feet from the subject property and are residents of . . . Ramapo. Their neighboring lots are either R-50 or R-40." Accordingly, the Court holds that as a matter of law, petitioners have not demonstrated that they will suffer any specific injury distinguishable from that suffered by the public at large, and dismisses the petition for lack of standing.

Moreover, as a case cited by petitioners makes clear, the decision by Ramapo "is entitled to the strongest possible presumption of validity." Albright v. Town of Manlius, 34 AD2d 419, 312 NYS2d 13 (4th Dept. 1970) ("the Town Board [] is on the scene, knows the needs and wishes of the people and is charged by the electorate with the responsibility for legislating and conducting governmental affairs of the community in accordance with the best interests thereof; and the courts may not lightly overrule its legislative acts."). Put another way, a "zoning board's determination shall be upheld if it is rational and not arbitrary and capricious." Caspian Realty, Inc. v. Zoning Bd. of Appeals of Town of Greenburgh, 68 AD3d 62, 886 NYS2d 442 (2d Dept. 2009). Given the extensive debate, analysis, and the requisite studies that occurred before the zoning change here, the Court finds that the decision here was rational and not arbitrary or capricious.

The Land Was Not Parkland

Nor is the petition saved by petitioners' claim that the land is parkland, and that the approval of the Legislature was required. "It is well settled that parkland is inalienable, held in [*5]trust for the public, and may not be sold without the express approval of the State Legislature. . . . To establish that property has been dedicated for public use, there generally must be an unequivocal express or implied offer by the owner and, where required, an express or implied acceptance by the public. . . . The burden of proof rests on the party asserting that the land has been dedicated for public use." Angiolillo v. Town of Greenburgh, 290 AD2d 1, 735 NYS2d 66 (2d Dept. 2001) (finding that parklike land was for parkway use, and not public park, and thus no approval was needed). Petitioners have not met this burden. Having reviewed the parties' recitations of the history of the project through the various iterations over the years, the Court finds that at no time did Clarkstown designate or dedicate the parcel to the public trust. While Clarkstown did take certain preliminary steps towards creating a golf course, it never undertook any act to dedicate the land to the public trust. Given the prior use of this land as farmland, there were a number of environmental, legal, financial and logistical hurdles that Clarkstown would have had to have overcome before this parcel could have become a golf course. Indeed, it was these significant hurdles that caused Clarkstown to abandon the project as simply not feasible.

None of the cases cited by petitioners are on point. In Kenny v. Board of Trustees of Inc. Village of Garden City, 289 AD2d 534, 735 NYS2d 606 (2d Dept. 2001), for example, the Court found that the property was held in the public trust because "is undisputed that the property was utilized for recreational purposes." Similarly, in Village of Croton-On-Hudson v. Westchester Co., 38 AD2d 979, 331 NYS2d 883 (2d Dept. 1972), where the land in question had been used as parkland for over 45 years, the "long- continued use of the land for park purposes constitutes a dedication and acceptance by implication." See also Gewirtz v. City of Long Beach, 69 Misc 2d 763, 330 NYS2d 495 (Sup. Ct. Nassau Co. 1972) (property was parkland where it had been public beach, pursuant to local law, for decades). Because the parcel in question here was never designated as parkland, nor ever used as a park in any way, Legislative approval was never needed at any time.

Finally, the Court finds that if it were improper for Clarkstown to have sold the land to a private developer in violation of the public trust, petitioners' cause of action would have accrued six years after the sale in 2001. Because petitioners did not commence this action until 2010, four years after the Statute of Limitations ran, it is untimely, and should be dismissed for that reason as well.

The Court need not address any other arguments raised by petitioners. The petition is dismissed.

The foregoing constitutes the decision and order of the Court.

Dated:New City, New York

October 18, 2010

____________________________

HON. LINDA S. JAMIESON

Justice of the Supreme Court Footnotes

Footnote 1:Exhibits must be tabbed. Counsel are directed to review the Part Rules. Voluminous untabbed exhibits are very difficult for the Court to sort through.

Footnote 2:Petitioners do complain that the single-family homes, with as many as 4-5 bedrooms, could contain 10-12 people each and thereby increase the population density and school population, among other evils. But since there are not that many single family homes proposed (approximately 8 across the street from petitioners, and another 87 elsewhere), the impact is not terribly significant.