Matter of Oceanside Owners, LLC v Town Bd. of the Town of E. Hampton
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Matter of Oceanside Owners, LLC v Town Bd. of the Town of E. Hampton 2018 NY Slip Op 30495(U) March 12, 2018 Supreme Court, Suffolk County Docket Number: 003610-2017 Judge: John H. Rouse Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [* 1] INDEX NO. 003610-2017 SUPRE\1E COURT - STATE OF NEW YORK I.AS. PART 12- SUFFOLK COUNTY MOTION DATE: 12/13/2017 ADJ. DATE: 02/21/2018 PRESENT: Hon. John H. Rouse Acting Supreme Court Justice Mot. Seq. # 002-MG MOTION DATE: 08/11/2017 ADJ. DATE: 02/21/2018 Mot. Seq. # 003-Adj to 0411812018 In the Matter of the Application of OCEANSIDE OWNERS, LLC, Petitioner DECISION & ORDER -against- TOWN BOARD OF THE TOWN OF EAST HAMPTOI\ and TOWN Of EASTHAMPTON. Respondent TO: TWF/\NY SCAR LOTO, PLLC DEVrrr SJ::LLMAN BARRETT, LLP PO BOX 2600 45 DTVJSION STRF.r.T 50 ROUTE 111 SAG HARBOR, NY I 1963 SM ITHTOWN . NY 11787 631-724-8833 63 I -899- '-l!i99 Upon the reading and tiling of the following papers in this matter: (I )Notice of Petition , Summons, and Verified Petition/Complaint by Tiffany Scarlotto, Esq. For Petitioner, Verified by Jon Krasner. Managing Member of Oceanside Owners, LLC, with Exhibits 1\-H attached thereto~ (2)Notice of Motion by Respondent dated October 26. 2017. Affirmation in Support by John Denby. Esq. with Exhibits A-E attached thereto: (3) Ce11ificd Return b} John Denby, Esq. with Exhibits 1-6 attached thereto; (4) Affimiation in Opposition by Tiffany Scarlato, Esq. For Page 1 of 6 [* 2] Pt!titioner affirmed on January 23. 2018; (5) Repl) Affirmation by John Denby. Esq. For the Respondent affirmed on February 1. 2018. it is: ORDERED that the Respondenrs motion (Seq. #002) for summary judgment is granted in part and denied in part: and it is further ORDERED that Respondent is granted partial summary j udgment to the extent that: Petitioner's c laims founded upon 42 U.S.C. § 1983 are not ripe and are dismissed: the legal notice of the hearing for consideration of the adoption of Local Law # 15 was sufficient; the identification of Municipal Home Rule Law § I 0 as the source of Respondent 's a uthority for the Respondent to adopt the law was adequate ; and the proper purpose of the law was sufficiently identified; and it is further ORDERED that the Respondent's motion for summary judgment is denied to the extent that: the Petitioner does have standing to challenge whether the procedures and considerations required by the State Environmental Qua I ity Review Act were followed and there remains a question of fact and law with respect to whether the adoption o f Local Law #15 was Type 1 action and whether the Respondent engaged in the required review under the State Environmental Quality Review Act; and it is further ORDERED that the Court \viii conduct a conference with counsel in Pait 12, located on the Second Floor of the Annex to the Supreme Court at I Court Street, Riverhead, NY, on April 11, 2018 at 2:30 o'clock in the a fternoon to consider such schedule as may be required to hear and determine remaining questions of fact. and such other matters as may lead to the proper resolution of the petition: and it is further ORDERED that the Petition (Mot. Seq. 003) is adjourned until April 18, 2018. DECISION Petitioner in this hybrid proceeding brought by Verified Petition is aggrieved by the adoption of a local by Respondent that impaired its application for a specia l exception permit then pending heto rc the P lanning B ourd of the Town of East Hampton. Petitioner s..:rvcd a verified petition compriscu 01' seventy -two numb~red paragraphs which is un umulg,um ur ullcgations of fact and conclusions of lav,·. Tht! Respondent has attached to its motion for summary judgment a verified answer in whicl1 it only admits paragraphs L 3. I 3. and 15. Respondent admits: (I) that Petitioner is a limited liability compan) and o wns certa in real property; (3) Town of East Hampton is a municipal corporation; (I 3) it held a public hearing on June I. 2017 for the consideration of the adoption Local Law # 15; and ( 15) The Respondent, Town Board. by resolution adopted Local Law # 15. Page 2 of 6 [* 3] The gravamen of Petitioner's complaint is that it had s ubmitted an application to the East Hampton Town Planning Board for a special use pem1it 1 for a retail use by converting four motel units into a retail use and using the basement of the subject premises fo r back office operations. At the time this application was made to the Planning Board the proposed use was permitted by a special exception. Petitioner made several appearances before the Planning Board and had an application pending with the Suffolk County Department of Health Services. However, while Petitioner's application with the Planning Board was pending. the Town Board adopted a local law that, changed the existing definition in the zoning code for "f AST FOOD, RESTAURANT and DRIVE IN RESTAURANT'' and parsed it into two separately defined uses. The first: Restaurant, Fast-food or Restaurant, Drive-In. The second: Take-Out Food Store. Under the new law Restaurant, Fast-food or Restaurant, Drive-In regulates the sale of food exclusively for off premises consumption; and Take-Out food Store permits seating for up to sixteen people, but expressly excludes Take-Out Food Stores as a permitted use on property with either a use as a transient motel or a resort use, or as an accessory use to a transient motel or resort. This new law changed the use proposed by the Petitioner to the Planning Board for a use pem1itted by special exception to a prohibited use. PETITIONER'S CLAIMS Petitioner contends this law was adopted to specifically outlaw the special use it sought from the Planning Board, and further that the Planning Board has refused to process its application. Petitioner argues Local Law # 15 is invalid because: I. The Town Board failed to properly designate the proposed action as a Type I action; and 2. The Town Board failed lo conduct the required review under the State Env ironmental Quality Review Act (SEQRA) in the adoption of the Local Law; and J. The Town Board failed to give adequate notice to the public of the content of Local Law #15 of 2017; and 4. The Town Board failed to identify the proper stacuto ry a uthority for enacting zoning legislation; and 5. The Town Board failed to articulate any substantial relation to the requirements of Town Law Section 264 to the police power objective of promoting the public heal th. safety, morals or general welfare in Local Law#JS Page 3 of 6 [* 4] RESPONDENT'S MOTION TO DISMISSS Respondent moves tn dismiss the petition upon its contention that: A. The matter is not ripe for review; and B. The Petitioner l. lacks standing to contest the Town's determination as it does not complain of an environmental injury: and 2 . The Respondent conduded the required review. C. The recorJ reflects that proper notice of the public hearing was puhlished: and D. The Town, in adopting its local law, referenced Municipal Home Rule Law § I 0 as its authority to adopt the law. A. Respondent's Contention the Proceeding is Not Ripe Respondent argues that Petitioner's failure to exhaust administrative remedies in that Petitioner could have and Petitioner has not applied for a use variance . Ci1ing Dick's Quany, Inc. v. Town o.f Warwick, 293 A.D.2d ./45 (211<1 Depl. 2002). In Dick's Quarry the s ingle claim by Plaintiff was that it was deprived of its "reasonable and legitimate investment expectations" in violation of its constitutional due process rights by the Town's preclusion of the recommencement of mining activities. Respondent is correct that Petitioner-Plaintiff has not exhausted its administrative remedies with respect to its claims that the action of the Town Board denied it of a constitutional rights under color of law, as asserted in Plaintiff's 42 U SC § l 983 claim. These claims are not ripe for consideration and are dismissed. However, the Petitioner's claims with respect to the final action of the Town Board in adopting Local Law# 15 are ripe for consideration. B. 1. SEQR- Standing Respondent contends that Petitioner has no standing to contest the S EQR process fo llowed because it makes no claim of an environmental injury by the adoption of the subject zoning law. This contention is without me1it. As a property owner subject to the zoning change does have standing. Gernatl Asphalt Prods. v. Town o.fSardinia, 8 7 N.Y.2d 668 ( 1996). The Petitioner, at the time the Local Law was being considered had an application pending before the Planning Page 4 of 6 [* 5] Board for the very use now prohibited by the local Jaw that is lhe subject of this proceeding. The ownership of property subje<..:t to the lnw together with a pending application for a use that became prohibited under the lav.: constitutc::s a concrete plan that is within the zone of interests protected by the courts. Matter ofAssocialionfor a Better Lo11g Is., Inc. \'. New York State Depl. ofEnvtl. Conservulion, 23 N.Y.3d I (2014). The Petitioner has standing with respect to its claims that it has been injured by the Respondent's alleged vio lation of SEQR in the adoption of this local law. B. 2. SEQR-Yiolation Petitioner-Plaintiff alleges the Respondent Town erred when it classified the adoption of this zoning law as an Unlisted Action when, in fact, it was a Type I action. Petitioner argues that under 6 NYCRR § 6 I 7.4(b)(2) "the adoption olchllnges in the all011·ah/e uses within any zoning district. qfjecting 25 or more acres ofthe district" are Type I actions and alleges this law satisfies that criterion. The Respondent in its answer denied this allegation and accordingly, this remains a question of fact. C. Public Notice for Hearing Was Sufficient. The Respondent published a Notice of Public Hearing, and there is not contention that this notice was not properly published as required by law. Instead, Petitioner contends the substance of the notice of insufficient. See Munic:ipal Home Rule Lmr § 20: Exhibil D to petition. The notice advised the publit'. that the proposed local law was to amend the cmrent definition of"FAST FOOD, RESTAURANT and DRIVE IN RESTAURANT" and created two new definitions for the purpose of pe1111itting a retail store that operates as a fast-food store to have limited seating for up to sixteen people. Petitioner contends the failure to include in the notice the fact that it was eliminating the Petitioner's use which was then subject of a pending application before the Planning Board was an act of legislative legerdemain calculated to thwart Petitioner's pending application without proper notice. The notice published by the Respondent put the public in general, and petitioner in particular, on notice that Respondent was considering a local law that would aftect these uses, and advised that the specific text of tl1e local law was available for inspection was a\'ailable at the Office of the Town Clerk. The Petitioner attended the public h.:aring and the nutict: served its purpose. At:t:un.lingly, the court concludt:s as a muttl:r t )f law the notice requirement was fu lfilled. D. Respondent Identified Municipal Home Rule La\-v § 10 as the Source for Its Authority to Adopt the Law The Petiti oner contends that Respondent incorrectly cites the Municipal Home Rule Law as the source of its authority to adopt the zoning law at issue in this case, and should have identified Town Law § 264 as the source of its legal authority. Municipal Home Rule Law § l 0 identifies the broad authority vested in the Respondent to adopt the local zoning law and reference to this law was con-ect. The Petitioner's demand that Rl.!spondent more :-;pecifically identify the source Page 5 of 6 [* 6] of its authority as Town Law§ 264. While more precise a11d helpful , Respondent's reference to the Mt1nicipal Home Rule Law§ 10, under the limited circumstances present, was sufficient. The foregoing shall constitute the decision and order of the court. Dated : March 12, 2018 .S.C. NON FINAL DJSPOSITION Page 6 of 6
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