| Matter of Rossi v Town Bd. of Town of Ballston |
| 2008 NY Slip Op 02740 [49 AD3d 1138] |
| March 27, 2008 |
| Appellate Division, Third Department |
| In the Matter of Frank Rossi et al., Appellants, v Town Board of theTown of Ballston et al., Respondents. |
—[*1] Peterson & Thomas, P.C., Round Lake (Thomas W. Peterson of counsel), for Town Board ofthe Town of Ballston, respondent. Stockli, Greene & Slevin, L.L.P., Albany (Mary Elizabeth Slevin of counsel), for Wal-MartStores, Inc., respondent.
Kavanagh, J. Appeal from a judgment of the Supreme Court (Williams, J.), entered March 5,2007 in Saratoga County, which, in a combined proceeding pursuant to CPLR article 78 andaction for a declaratory judgment, among other things, granted a motion by respondent TownBoard of the Town of Ballston to dismiss the petition/complaint.
This is the third legal proceeding commenced within the past four years that involves theseparties and the proposed construction of a Wal-Mart Supercenter on property owned bypetitioners within the Town of Ballston, Saratoga County. Petitioners have claimed throughoutthese proceedings that respondent Town Board of the Town of Ballston has used the enactmentof local laws within this period as a pretext to bar the construction of this store within the town.The Town Board claims that the actions challenged by petitioners have all been designed toallow the Town Board additional time to review and revise existing land use measures to ensurethat they continue to serve the community interest and its long-term needs. Since each of these[*2]legal proceedings have sought to address issues which havebeen raised in this appeal, some review of what has previously transpired is in order.
On November 5, 2003, petitioners applied for subdivision approval for a large parcel of realproperty they owned in the town. That application was still pending when more than one yearlater, on March 1, 2005, the Town Board enacted Local Law No. 2 (2005) of the Town ofBallston (hereinafter Local Law No. 2), which imposed a moratorium on the construction of alllarge scale commercial and residential projects within the town.[FN1]The stated purpose for the moratorium was to limit residential and commercial developmentwithin the town while the Town Board considered comprehensive changes to its zoningordinance. The moratorium was to last six months and it would not apply to any site planapplication that had been received prior to February 2, 2005.[FN2]
Two weeks after the moratorium took effect, respondent Wal-Mart Stores, Inc. (hereinafterWal-Mart), with petitioners' written approval, filed with the Town Board a document entitled"Application for Sketch Plan Conference" which was dated February 14, 2005. Simultaneously,petitioners filed an application seeking to amend their pending subdivision proposal so as toinclude within it fewer, but albeit larger, lots to be developed for commercial use. On March 4,2005, the Town's Building Inspector denied Wal-Mart's application finding that it was a newapplication, not an amendment to petitioners' November 2003 application for a subdivision, andtherefore barred by the existing moratorium. Wal-Mart did not appeal that decision.
Instead, petitioners commenced a combined proceeding pursuant to CPLR article 78 andaction for declaratory judgment, seeking to annul the local law establishing the moratorium and,in the alternative, asking that a declaration be issued to the effect that Wal-Mart's application wasin fact part of petitioners' original subdivision proposal, and therefore not barred by themoratorium. Petitioners argued that Local Law No. 2 should be annulled because it was enactedfor the sole purpose of preventing the construction of a Wal-Mart store within the town and notbecause of any legitimate concern regarding land use. The Town Board contended that LocalLaw No. 2, and the six-month moratorium, was necessary to give it time to assess the impact on[*3]the surrounding community of numerous large scaledevelopments that had recently been proposed for construction within the town.[FN3] In a decision dated May 12, 2005, Supreme Court (Nolan, J.) declared Local Law No. 2 valid andenforceable and dismissed the proceeding/action brought by petitioners challenging it. No appealwas taken from this determination.
On June 5, 2006, at the end of the moratorium, the Town Board enacted proposals whichsubstantially revised the Town's comprehensive plan and adopted a State Environmental QualityReview Act (see ECL art 8 [hereinafter SEQRA]) finding statement with a negativedeclaration as well as Local Law No. 5 (2006) of the Town of Ballston (hereinafter Local LawNo. 5) which revised its existing zoning ordinance. This law provided that any proposal for theconstruction of a building in the town with a footprint in excess of 90,000 square feet, or a lengthgreater than 300 linear feet, or any proposed development site greater than eight acres had toinclude an application for the creation of a Planned Unit Development District (hereinafterPUDD) that would be submitted to the Town Board for its approval.
One month later, Wal-Mart, with petitioners' written authorization, submitted an applicationfor the enactment of a PUDD on 30 acres of petitioners' property on which a 203,091 square-footWal-Mart Supercenter would be constructed. At a public meeting, on August 1, 2006, the TownBoard declined to forward Wal-Mart's application to the Town Planning Board for review andrecommendation on the grounds that the proposed structure was not consistent with the Town'scomprehensive plan and not in the public interest. Wal-Mart did not appeal that determination.
Petitioners claim that after Wal-Mart's application for a PUDD was denied, they learned thata private meeting attended by members of the Town Board had been held on May 15, 2006,before the Town Board denied Wal-Mart's application, and that the proposed construction of aWal-Mart store on petitioners' property was discussed. Claiming that this meeting violated theopen meetings provisions of the Public Officers Law, petitioners, by order to show cause datedSeptember 15, 2006, sought permission prior to commencing any action (see CPLR 3102[c]) to depose each member of the Town Board as to his or her attendance at this meeting and hisor her recollection as to what transpired and what had been discussed. By decision and orderdated October 2, 2006, Supreme Court (Williams, J.) denied this motion, expresslyfinding—based upon submissions received in connection with the motion—that themeeting was in fact a "political caucus" and, as such, not a violation of the Public Officers Law.Petitioners did not appeal that determination.
On October 10, 2006, petitioners commenced the instant (their second) combined proceedingpursuant to CPLR article 78 and action for a declaratory judgment against the Town Board,naming Wal-Mart as a necessary party. In its petition, petitioners sought to vacate and annul theTown Board's adoption of Local Law No. 5 as well as its denial of Wal-Mart's application for theestablishment of a PUDD on petitioners' property. Petitioners also sought a [*4]declaration that the meeting alleged to have been held on May 15,2006 and attended by members of the Town Board constituted a violation of the Public OfficersLaw, and that any actions subsequently taken by the Town Board that involved any mattersdiscussed at that meeting be vacated and annulled. The Town Board moved to dismiss thepetition and complaint pursuant to CPLR 7804 (f), 3211 and 3212 and petitioner cross-moved fordiscovery. Supreme Court granted the Town Board's motion to dismiss and denied petitioners'cross motion. We affirm.
Initially, we agree that petitioners do not have standing to contest the Town Board's denial ofWal-Mart's PUDD application. While petitioners own the property that was the subject ofWal-Mart's PUDD application and have a contract with Wal-Mart to allow the construction of astore assuming it successfully navigates the Town's permitting process, the fact remains that theapplication in question was Wal-Mart's and, as such, it is the party aggrieved by the TownBoard's decision to deny the application. Simply because petitioners gave Wal-Mart permissionto seek PUDD approval did not make petitioners a party to that proceeding, nor is there anyevidence suggesting that they in any way participated in it. As such, they do not have standing toappeal the denial of Wal-Mart's application for a PUDD.
However, petitioners have standing not only to challenge the process used by the TownBoard that led to the enactment of Local Law No. 5, but also the manner in which it employedSEQRA to revise the Town's comprehensive plan and change its zoning ordinance.[FN4] Where a party owns property that falls within an area affected by the regulation in question, it ispresumed to have been adversely affected by the change in the zoning law and have standing tocontest it (see Matter of Sun-Brite Car Wash v Board of Zoning & Appeals of Town of N.Hempstead, 69 NY2d 406, 414 [1987]; Matter of Schulz v Lake George ParkCommn., 180 AD2d 852, 855 [1992]). As petitioners are owners of property that is locatedwithin one of the zoning districts to which the new zoning law applies and, as a result, the zoningscheme for their property has been changed, they "would suffer direct harm, injury that is in someway different from that of the public at large" (Society of Plastics Indus. v County ofSuffolk, 77 NY2d 761, 774 [1991]; see Matter of Piela v Van Voris, 229 AD2d 94,95 [1997]). Moreover, petitioners have standing to challenge the SEQRA process as they have aspecific noneconomic environmental injury that falls within the zone of interest sought to beprotected by that statute (see Matter of Gernatt Asphalt Prods. v Town of Sardinia, 87NY2d 668, 687 [1996]; Matter of Mobil Oil Corp. v Syracuse Indus. Dev. Agency, 76NY2d 428, 433 [1990]).
The Town Board contends that even if petitioners have standing, they should be precludedfrom litigating many of the issues raised in this proceeding because each was, in effect, raised bypetitioners' prior challenge to the moratorium contained in Local Law No. 2, and their failure toappeal the dismissal of those matters precludes petitioners from relitigating those same issues inthis proceeding.[FN5][*5]
"Application of the doctrine of collateral estoppel islimited to issues that have been clearly raised and specifically decided in a prior proceeding" (Matter of Powers v De Groodt, 43AD3d 509, 512 [2007] [citations omitted]; see Matter of Ziemba v City of Troy, 37 AD3d 68, 72 n 1 [2006],lv denied 8 NY3d 806 [2007]). While many of petitioners' present claims mirror thoseraised in prior proceedings involving these same parties, the laws that have been challenged(Local Law No. 2 and Local Law No. 5) are very different. Local Law No. 2 was essentially atemporary measure which sought to delay large scale commercial and residential developmentwithin the town while the Town Board considered whether its comprehensive plan and zoningscheme needed to be revised to address the demands that would be placed upon the communityby such development. The actions of the Town Board that are being challenged in thisproceeding involve the process employed in its SEQRA review that led to permanent revisions inthe Town's comprehensive plan and its zoning ordinance. While petitioners once again claim thatthe Town Board is using its legislative authority as a pretext to prevent the construction of aWal-Mart store within the town, the local laws that have been challenged in these proceedingsare by their terms very different and have had a very different impact upon petitioners' property.One imposed a moratorium of limited duration on the construction of large commercial andresidential projects while the other enacted substantial changes to the Town's zoning ordinanceand, in effect, worked a marked change in the zoning as it affected petitioners' property.Therefore, while the claims being made by petitioners are in many ways the same as those theymade in prior proceedings, these claims target very different legal pronouncements and, as such,petitioners are not estopped from making them in this proceeding (cf. Korbel v Zoning Bd. of Appeals ofTown of Horicon, 28 AD3d 888 [2006]).
While petitioners have standing and are not necessarily precluded from making claims theyhave made in prior proceedings, they have the burden of establishing by competent evidence thatthe Town Board's decision to revise its comprehensive plan and change its zoning ordinance as itaffects petitioners' property was arbitrary and unreasonable (see e.g. Matter of Baumgarten v Town Bd. of Town of Northampton, 35AD3d 1081 [2006]; Matter of Boyles v Town Bd. of Town of Bethlehem, 278 AD2d688, 690 [2000]; Matter of Save Our Forest Action Coalition v City of Kingston, 246AD2d 217, 221 [1998]). We cannot conclude that Local Law No. 5 is anything "other than part ofa well-considered and comprehensive plan calculated to serve the general welfare of thecommunity" (Matter of Boyles v Town Bd. of Town of Bethlehem, 278 AD3d at 690[internal quotation marks and citation omitted]). To satisfy the statutory requirement that zoninglegislation be in accord with a comprehensive plan, respondents need only show that the zoningamendment was adopted for "a legitimate governmental purpose" and is unreasonable if"arbitrary, that is, if there is no reasonable relation between the end sought to be achieved by theregulation and the means used to achieve that end" (Fred F. French Inv. Co. v City of NewYork, 39 NY2d 587, 596 [1976]; see Interlaken Homeowners' Assn. v City of SaratogaSprings, 267 AD2d 842, 845 [1999]).
Here, petitioners, by their affidavits, contend that the SEQRA process employed by the TownBoard was flawed in that it failed to conduct a public scoping session to be included in thegeneric environmental impact statement, it relied upon the revised comprehensive plan for manyof the conclusions contained in the generic environmental impact statement, the methodologyused to collect data for the survey conducted as part of the SEQRA process was unreliable, thesurvey was biased in its approach, and the revisions to the comprehensive plan and theamendment to the zoning ordinance were simply a pretext used by the Town Board to prevent theconstruction of a Wal-Mart Supercenter on property located within the town. In response, theTown Board submitted an expert affidavit that presented specific facts to support the conclusion[*6]that the process employed by the Town Board complied withSEQRA and that "[t]he planning and environmental review conducted in connection with the[c]omprehensive [p]lan, [f]indings and consequent zoning changes were made with extraordinarycare and thoroughness, and represent a balancing of interests by the Town of Ballston."Petitioners failed to submit any evidence in admissible form that took issue with the opinionsrendered by the Town Board's expert in his affidavit or any of the factual assertions that weremade therein to support those conclusions. Petitioners' proof is simply insufficient to overcomethe "strong presumption of validity" attached to the Town Board's adoption of Local Law No. 5(Matter of McGrath v Town Bd. of Town of N. Greenbush, 254 AD2d 614, 617 [1998],lv denied 93 NY2d 803 [1999]; see Matter of Save Our Forest Action Coalition vCity of Kingston, 246 AD2d at 221), and does not contain any evidence that would create anissue of fact as to any of the claims made in the petition.
Finally, petitioners claim that members of the Town Board conducted a secret meeting onMay 15, 2006 during which discussions were had as to Wal-Mart's application to build asupercenter on petitioners' property as well as proposals to change the Town's comprehensiveplan and its zoning ordinance. This claim is identical to the claims made by petitioners in theirSeptember 14, 2006 motion for preaction disclosure in which they sought judicial permission todepose each member of the Town Board regarding what transpired at this meeting, as well as foran order enjoining the destruction or deletion of any documents that may have been created as aresult of it. Petitioners did not appeal the denial of this motion (see CPLR 3102 [c];Matter of Byramain v Stevenson, 278 AD2d 619 [2000]; Matter of Labarbera v UlsterCounty Socy. for Prevention of Cruelty to Animals, 277 AD2d 672 [2000]), and offer nonew evidence that was not presented in that time that might provide a basis for reconsidering it.As a result, they are bound by Supreme Court's prior decision denying the motion for preactiondiscovery.
Accordingly, Supreme Court properly granted the Town Board's motion and dismissed thepetition and complaint.
Mercure, J.P., Spain, Carpinello and Rose, JJ., concur. Ordered that the judgment is affirmed,without costs.
Footnote 1: This was the third moratoriumthat the Town Board had enacted in a three-year period. On February 4, 2003, it enacted asix-month moratorium pursuant to Local Law No. 1 (2003) of the Town of Ballston to update itsexisting zoning scheme, and in October 2004 it approved Local Law No. 7 (2004) of the Town ofBallston that imposed another six-month moratorium so that the Town Board could study thedisposal of sewerage within the Ballston Lake Watershed.
Footnote 2: The law also provided that theTown Board could extend the moratorium for an additional six months without the necessity of apublic hearing.
Footnote 3: In addition to the Wal-MartSupercenter (a 203,091 square-foot facility on 32.5 acres of property), evidence submittedindicated that a second "big box" facility, as well as a 780 residential housing unit, were alsobeing proposed for a development on property located within the town.
Footnote 4: The Town Board conceded atoral argument that petitioners had standing to contest these actions as they affect petitioners'property.
Footnote 5: In fact, the petition as submittedin both matters contains identical language in the first 31 allegations contained in petitioners'complaint.