Schulz v Town Bd. of the Town of Queensbury

[*1] Schulz v Town Bd. of the Town of Queensbury 2019 NY Slip Op 50256(U) Decided on February 25, 2019 Supreme Court, Warren County Muller, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 25, 2019
Supreme Court, Warren County

Robert L. Schulz, Plaintiff-Petitioner,

against

Town Board of the Town of Queensbury, John Strough, Supervisor, Defendants-Respondents.



65513



Robert L. Schulz, Queensbury, plaintiff-petitioner pro se

Miller, Mannix, Schachner & Hafner, LLC, Glens Falls (Jacqueline P. White of counsel), for defendants-respondents
Robert J. Muller, J.

Plaintiff-petitioner (hereinafter petitioner) commenced this action to challenge the establishment of a Sanitary Sewer District in the vicinity of Carey Road in the Town of Queensbury, Warren County (hereinafter the Carey Road District). Petitioner sought a declaratory judgment that defendants-respondents (hereinafter respondents) violated the State Environmental Quality Review Act (see ECL art 8 [hereinafter SEQRA]) and, further, violated his rights under the First Amendment of the United States Constitution by failing to respond to two separate petitions for redress of grievances presented to respondent Town Board of the Town of Queensbury (hereinafter the Town Board).

The action was dismissed by Decision and Judgment dated September 19, 2018, with the Court finding that petitioner's SEQRA claims should have been brought in the context of a CPLR article 78 proceeding and, as such, were time-barred (61 Misc 3d 1201[A], 2018 NY Slip Op 51328[U], *2 [Sup Ct, Warren County 2018]). The Court further found that petitioner was not entitled to a response to his petitions for redress of grievances under the First Amendment and his constitutional claims therefore failed to state a cause of action (id. at *3). Presently before the Court is (1) petitioner's motion for leave to reargue or, alternatively, for leave to renew relative to this Decision and Judgment; and (2) petitioner's motion by Order to Show Cause for a preliminary injunction. The motions will be addressed ad seriatim.

Motion for Leave to Reargue/Renew

Turning first to that aspect of the motion which seeks leave to reargue, to succeed on such [*2]a motion petitioner must demonstrate that the Court "overlooked significant facts or misapplied the law in its original decision" (Matter of Town of Poestenkill v New York State Dept. of Envtl. Conservation, 229 AD2d 650, 650 [1996]; see CPLR 2221[d]; Greene Major Holdings, LLC v Trailside at Hunter, LLC, 148 AD3d 1317, 1318-1319 [2017]; Matter of Ellsworth v Town of Malta, 16 AD3d 948, 949 [2005]).

Here, petitioner contends that the Court overlooked his claims that the short environmental assessment form (hereinafter EAF) contained fraudulent responses and, in so doing, erroneously found that his SEQRA claims should have been brought in the context of a CPLR article 78 proceeding. More specifically, petitioner contends as follows:

"Under the facts and circumstances of this case, which has more to do with the filing of a false instrument than with identifying and thoroughly analyzing relevant areas of environmental concern, a declaratory judgment action under CPLR 3001 to nullify the EAF and [the Town Board's] resolutions establishing the District was the proper context for [petitioner's] action, rather than a proceeding under CPLR [a]rticle 78."

This contention is without merit. In his amended complaint-petition, petitioner alleges that respondents fraudulently responded to question 13 (b) of part 1 of the EAF by indicating that the District would not physically alter or encroach into any existing wetland or water body. He further alleges that respondents fraudulently responded to question 7 (b) of part 2 of the EAF by indicating that the District would not impact any existing wastewater treatment utilities. The wastewater generated in the Town of Queensbury (hereinafter the Town) is treated by the City of Glens Falls (hereinafter the City) at its Wastewater Treatment Plant. According to petitioner, the City's Wastewater Treatment Plant "already frequently bypass[es] large volumes of existing domestic sewage and industrial wastewater to the Hudson River," and the problem "will only increase as sewer districts such as [the] Carey Road District . . . are developed for discharge of hundreds of thousands of additional gallons of domestic sewage and industrial wastewater to the [City's] Wastewater Treatment Plant."

Notably, petitioner does not allege that respondents lied or knowingly failed to disclose relevant information in the EAF. The record in fact suggests quite the opposite. Respondents were aware of the problem and took steps to remedy it, as the result of which they ultimately determined that the City's Wastewater Treatment Plant would be able to "accommodate the increased flow . . . result[ing] from the [Carey Road] District." Their responses to question 13 (b) of part 1 of the EAF and question 7 (b) of part 2 of the EAF reflect this determination. In sum, notwithstanding petitioner's use of the word "fraudulent," his allegations amount to nothing more than a disagreement with respondents as to the potential impact of the Carey Road District on the environment.

Briefly, even if the Court had erred in finding that petitioner's SEQRA claims were barred by the statute of limitations, they would nonetheless be subject to dismissal because petitioner is without standing to assert them. "[T]he conferral of standing to challenge governmental actions involving land use, on SEQRA grounds or otherwise, requires a showing that the challenger will suffer direct harm, that is, injury which is in some way different from that of the public at large" (Matter of Schulz v New York State Dept. of Envtl. Conservation, 186 AD2d 941, 942 [1992], lv denied 81 NY2d 707 [1993]; see Matter of Save the Pine Bush, Inc. v. Common Council of City of Albany, 13 NY3d 297, 304-306 [2009]; Society of Plastics Indus. v County of Suffolk, 77 [*3]NY2d 761, 774-779 [1991]; Matter of O'Brien v New York State Commr. of Educ., 112 AD3d 188, 194 [2013]). Here, petitioner does not and cannot claim an injury that is in some way different from that of the public at large. He does not own property within the Carey Road District nor does he reside within the Town.[FN1]

Petitioner next contends that the Court misapplied the law in dismissing his constitutional claims. Specifically, petitioner contends that the cases relied upon by the Court in dismissing the claims are inapposite because his petitions for redress of grievances "were not garden variety 'speech petitions' merely seeking to influence government 'policy making'" but were "proper [p]etitions . . . calling out and seeking to remedy [respondents'] oppressive violations of existing law."

This contention is without merit as well. Nowhere does petitioner cite — nor was the Court able to locate — any case law drawing a distinction between petitions for redress of grievances which seek to shape policy and those which allege violations of existing law. In fact, in We the People Found., Inc. v United States (485 F 3d 140 [DC Cir 2007]) — which dealt with a petition for redress of grievances relative to the government's alleged "'violation of the taxing clauses of the Constitution' and 'violation of the war powers, money and privacy clauses of the Constitution'" (id. at 141 [internal quotation marks omitted]) — the District of Columbia Court of Appeals expressly found that the First Amendment does not encompass "a citizen's right to receive a government response to or official consideration of a petition for redress of grievances" (id. at 141).

While the Court agrees with petitioner's spirited arguments emphasizing the citizenry's fundamental right to petition the government, with soundings as deep as Federalist Papers No. 18, adherence to such truths is not inconsistent with a majority view of numerous tribunals as have weighed the issue and repeatedly concluded — as does this Court — that "[n]othing in the First Amendment or in [the] case law interpreting it suggests that the rights to speak, associate, and petition require government policymakers to listen or respond to individuals' communications on public issues" (Minnesota State Bd. for Community Colls. v Knight, 465 US 271, 285 [1984]; see Knight First Amendment Inst. at Columbia Univ. v Trump, 302 F Supp 3d 541, 576 [SD NY 2018]).

Finally, petitioner contends that the Court misapplied the law in stating as follows:

"Insofar as petitioner claims that the bid for construction approved by the Town Board on July 2, 2018 was based upon specifications and drawings which did not comport with the [Map, Plan and Report (MPR) prepared by Chazen Companies], . . . such claims [are] raised for the first time in his reply papers and, as such, [are] not properly before the Court" (2018 NY Slip Op 51328[U], at *4 n 2).

Specifically, petitioner contends that "the subject of the [MPR] was first raised . . . by [respondents] in support of [their] motion [to dismiss]" and he was therefore "within his rights to reply as he did."

This contention is unavailing. The MPR was one of many documents mentioned by [*4]respondents in their discussion of the procedure followed by the Town in establishing the Carey Road District. Respondents made no arguments relative to the MPR. More significantly, however, the MPR was filed with the Town Clerk for public inspection in August 2016 and was available to petitioner for review well before he commenced this action. As such, any allegations that the bid for construction approved by the Town Board did not comport with the MPR could and should have been included in his initial pleadings. Alternatively, petitioner could have made a motion to amend the pleadings so as to include these allegations (see CPLR 3025).

Based upon the foregoing, the aspect of petitioner's motion seeking leave to reargue is denied.

With respect to the aspect of the motion which seeks leave to renew, to succeed on such a motion petitioner must "provide new facts that would change the prior determination as well as a justifiable excuse for not providing such facts earlier" (Hurrell—Harring v. State of New York, 112 AD3d 1217, 1218 [2013]; see CPLR 2221[e]).

Here, petitioner has submitted (1) a document entitled "Sewage Discharge Notifications," apparently printed from the website maintained by the Department of Environmental Conservation; and (2) an undated email to him including what appears to be an October 2, 2018 article entitled "Heavy rains cause combined sewer overflows in Glens Falls, Ticonderoga."

Turning first to the Sewer Discharge Notifications document, petitioner contends that it includes a list of dates in 2015 and 2016 when untreated sewage bypassed the City's Wastewater Treatment Plant as a result of heavy rain and was discharged into the Hudson River and, as such, provides new facts. Petitioner further contends that he has a justifiable excuse for not providing the document earlier, namely that "[g]iven the common knowledge [relative to the bypasses, he] did not believe it was necessary to add . . . the information." He later realized it was necessary, however, when "[t]he Court . . . overlooked . . . the fact of its seriousness."

These contentions are without merit. The Sewer Discharge Notifications document does not change the Court's determination. Indeed, notwithstanding the information contained therein, petitioner's SEQRA claims are still time-barred and his constitutional claims still fail to state a cause of action. Further, petitioner's belief that it was not necessary to include the document in opposition to respondents' motion to dismiss does not constitute a justifiable excuse for his failure to do so. "[A] motion to renew is 'not a second chance to remedy inadequacies that occurred in failing to exercise due diligence in the first instance'" (Howard v Stanger, 122 AD3d 1121, 1123 [2014], lv dismissed 24 NY3d 1210 [2015], quoting Onewest Bank, FSB v Slowek, 115 AD3d 1083, 1083 [2014] [internal quotation marks and citation omitted]).

Turning now to the October 2, 2018 article, petitioner contends that it provides new facts because it demonstrates that the bypasses continue to occur notwithstanding the improvements made to the City's Wastewater Treatment Plant. He further contends that he has a justifiable excuse for not providing the article earlier, namely that it was not published until after issuance of the Decision and Judgment.

While petitioner perhaps has a justifiable excuse for not providing the article earlier, the article — much like the Sewer Discharge Notifications document — does not change the Court's determination. It must also be noted that the article has questionable value, as it is entirely unclear where it was published.

Based upon the foregoing, the aspect of petitioner's motion seeking leave to renew is also [*5]denied.

Motion for Preliminary Injunction

To the extent that petitioner's motion for leave to reargue or, alternatively, for leave to renew is denied, his motion for a preliminary injunction must also be denied.

Therefore, having considered the Affidavit of Robert L. Schulz, sworn to October 9, 2018, submitted in support of motion for leave to reargue; Affidavit of Robert L. Schulz with exhibits attached thereto, dated October 9, 2018, submitted in support of motion for leave to renew;[FN2] Memorandum of Law of Robert L. Schulz, dated October 9, 2018, submitted in support of motion for leave to reargue/renew; Affidavit of Robert L. Schulz, sworn to October 9, 2018, submitted in support of motion for preliminary injunction; Brief of Robert L. Schulz, dated October 9, 2018, submitted in support of motion for preliminary injunction; Memorandum of Law of Jacquelyn P. White, Esq., dated October 18, 2018, submitted in opposition to motion for leave to reargue/renew and motion for preliminary injunction; Affidavit of Christopher Harrington, sworn to October 18, 2018, submitted in opposition to motion for leave to reargue/renew and motion for preliminary injunction; and Affidavit of Robert L. Schulz, sworn to October 23, 2018, submitted in further support of motion for leave to reargue/renew and motion for preliminary injunction; Memorandum of Law of Robert L. Schulz, dated October 9, 2018, submitted in further support of motion for leave to reargue/renew and motion for preliminary injunction;[FN3] and correspondence of Robert L. Schulz dated February 16, 2019, submitted in further support of motion for leave to reargue/renew and motion for preliminary injunction, and oral argument having been heard on February 15, 2019 with petitioner Robert L. Schulz appearing pro se and Jacquelyn P. White, Esq. appearing on behalf of respondents, it is hereby

ORDERED that petitioner's motion for leave to reargue or, alternatively, for leave to renew is denied; and it is further

ORDERED that petitioner's motion for a preliminary injunction is denied; and it is further

ORDERED that any relief not specifically addressed has nonetheless been considered and is expressly denied.

The original of this Decision and Order has been filed by the Court together with the Notice of Motion for Leave to Reargue and Renew dated October 9, 2018 and the submissions enumerated above. Counsel for respondents is hereby directed to obtain a filed copy of the Decision and Order for service with notice of entry in accordance with CPLR 5513.

Dated: February 25, 2019

Lake George, New York

ROBERT J. MULLER, J.S.C. Footnotes

Footnote 1:Petitioner resides in the Town of Fort Ann, Washington County. While he owns approximately one acre of vacant land in the Town, this land is located 15 miles from the Carey Road District.

Footnote 2:The Court notes that this affidavit was not sworn to before a Notary Public nor was it signed.

Footnote 3:It appears that this Memorandum of Law was erroneously dated.