| Matter of Oakwood Prop. Mgt., LLC v Town ofBrunswick |
| 2013 NY Slip Op 01310 [103 AD3d 1067] |
| February 28, 2013 |
| Appellate Division, Third Department |
| In the Matter of Oakwood Property Management, LLC,Appellant, v Town of Brunswick et al., Respondents. |
—[*1] Tuczinski, Cavalier, Gilchrist & Collura, PC, Albany (Andrew Gilchrist of counsel),for respondents.
Egan Jr., J. Appeal from an order and judgment of the Supreme Court (Devine, J.),entered January 23, 2012 in Albany County, which, in a combined proceeding pursuantto CPLR article 78 and action for declaratory judgment, among other things, grantedrespondents' cross motion for summary judgment and dismissed the petition/complaint.
Petitioner operates a landscaping and mulching business in the Town of Brunswick,Rensselaer County. In April 2002, petitioner obtained site plan approval from thePlanning Board of respondent Town of Brunswick to operate its business on a five-acreparcel of land zoned for industrial use. Shortly thereafter, petitioner purchased anadjoining 43-acre parcel that fell within a "Schools and Cemeteries" zone as depicted onthe Town's zoning map[FN1]and, in 2004, [*2]acquired an abutting 26-acre parcelzoned for agricultural use. As each parcel was acquired, petitioner expanded itsoperations accordingly and, as the business grew, neighboring property owners began tocomplain of noise and other issues.
In June 2007, respondent John Kreiger, the Town's Code Enforcement Officer, sent aletter to petitioner expressing concern that petitioner's business had expanded beyond thescope of the original site plan. No response from petitioner apparently was forthcoming,prompting Kreiger to advise petitioner in July 2008 that it was in violation of itsapproved site plan and directing petitioner to submit an amended application with respectthereto. Petitioner submitted the requested application in October 2008 and, when thePlanning Board convened in November 2008, the application was adjourned atpetitioner's request to allow petitioner to compile "additional information."[FN2]The matter thereafter was tabled several times and, in January 2009, was "adjournedwithout date[ ] pending further research regarding zoning compliance matters."
In June 2010, Kreiger issued a notice of violation alleging that petitioner wasconducting operations on the 43- and 26-acre parcels without the required approvals and,further, had exceeded the bounds of the 2002 site plan approval with respect to theoriginal five-acre parcel. Petitioner appealed that notice of violation to respondent Townof Brunswick Zoning Board of Appeals (hereinafter ZBA) and, while that appeal waspending, Kreiger issued a second notice alleging various violations of the Town's zoningordinance. Petitioner appealed that notice of violation as well, and the appeals wereconsolidated for purposes of the public hearing conducted by the ZBA in August2011.[FN3]At the conclusion of that hearing, the ZBA issued a detailed decision sustaining thenotices of violation and dismissing petitioner's appeals.
Petitioner thereafter commenced this combined CPLR article 78 proceeding andaction for declaratory judgment seeking, among other things, to annul the ZBA'sdetermination and a declaration that the "Schools and Cemeteries" designation asdepicted on the Town's zoning map was unconstitutionally vague. Following interimmotions not at issue here, respondents answered and counterclaimed to permanentlyenjoin petitioner's operations. Petitioner then moved for, among other things, summaryjudgment on its declaratory judgment claims and dismissal of respondents' counterclaim,and respondents cross-moved for, among other things, [*3]summary judgment and dismissal of the petition/complaint.Supreme Court denied petitioner's motion, granted respondents' cross motion anddismissed the petition/complaint. This appeal by petitioner ensued.
We affirm. Initially, we reject petitioner's assertion that respondents are estoppedfrom prohibiting it from conducting grinding and mulching operations on the subjectparcels. The crux of petitioner's argument on this point is that respondents not only werewell aware that petitioner had expanded its operations to the 43- and 26-acre parcels but,more to the point, actively encouraged petitioner to do so. It is well settled, however, thatestoppel cannot be invoked against a municipality to either (1) prevent it fromdischarging its statutory duties, (2) ratify administrative errors, or (3) preclude it fromenforcing its zoning laws (see Matter of Parkview Assoc. v City of New York,71 NY2d 274, 282 [1988]; Matter of Village of Fleischmanns [Delaware Natl. Bank ofDelhi], 77 AD3d 1146, 1148 [2010]; Van Kleeck v Hammond, 25 AD3d 941, 942 [2006]).Although an estoppel defense may lie where the municipality engages in "fraud,misrepresentation, deception, or similar affirmative conduct" upon which there is"reasonable reliance" (Town ofCopake v 13 Lackawanna Props., LLC, 99 AD3d 1061, 1064 [2012] [internalquotation marks and citations omitted], lv denied 20 NY3d 857 [2013]; accord Matter of County of Orange[Al Turi Landfill, Inc.], 75 AD3d 224, 238 [2010]; see Matter of Village ofFleischmanns [Delaware Natl. Bank of Delhi], 77 AD3d at 1148), the conductalleged here, in our view, does not rise to that level.[FN4]Accordingly, Supreme Court properly rejected petitioner's estoppel claim.
We reach a similar conclusion with respect to respondents' asserted violation of theOpen Meetings Law (see Public Officers Law art 7). Upon determining that apublic body has failed to comply with the provisions of the Open Meetings Law, a "courtshall have the power, in its discretion, upon good cause shown, to declare. . . the action taken in relation to such violation void, in whole or in part"(Public Officers Law § 107 [1]; see New Yorkers for Constitutional Freedoms v New York StateSenate, 98 AD3d 285, 296 [2012], lv denied 19 NY3d 814 [2012];Matter of Ireland v Town of Queensbury Zoning Bd. of Appeals, 169 AD2d 73,76 [1991]). Thus, even assuming that the ZBA violated the Open Meetings Law by,among other things, going into executive session during its December 5, 2011 meetingwithout stating—with sufficient particularity—a valid reason for doing so(see Public Officers Law § 105), its actions with respect to petitioner'sappeals are "not void but, rather, voidable" (Matter of Ireland v Town of QueensburyZoning Bd. of Appeals, 169 AD2d at 76) upon good cause shown (seePublic Officers Law § 107 [1]). In light of the substantial public input at theAugust 2011 hearing and the parties' extensive documentary submissions, and in thecorresponding absence of any indication that the ZBA intentionally violated the OpenMeetings Law, we find that petitioner [*4]failed toestablish good cause warranting the exercise of our discretionary power to invalidate theZBA's determination (see generally New Yorkers for Constitutional Freedoms v NewYork State Senate, 98 AD3d at 296-297; McGovern v Tatten, 213 AD2d778, 780-781 [1995]; Matter of Malone Parachute Club v Town of Malone, 197AD2d 120, 124 [1994]; compare Matter of Gordon v Village of Monticello, 207AD2d 55, 59 [1994], revd on other grounds 87 NY2d 124 [1995]).
Nor are we persuaded that the ZBA's interpretation of the "Schools and Cemeteries"designation as depicted on the Town's zoning map is irrational or that such designation isunconstitutionally vague. As to the constitutional claim, "there is no requirement thatevery term in a statute [or zoning ordinance] be precisely defined; rather, a statute [orordinance] will pass constitutional muster so long as it provides persons of ordinaryintellect reasonable notice of the proscribed conduct" (Matter of Flow v Mark IVConstr. Co., 288 AD2d 779, 780 [2001] [internal quotation marks and citationomitted]; see Matter of GriffissLocal Dev. Corp. v State of N.Y. Auth. Budget Off., 85 AD3d 1402, 1403[2011], lv denied 17 NY3d 714 [2011]; Matter of Morrissey v Apostol, 75 AD3d 993, 996 [2010]).Here, we are satisfied that the average person is able to grasp the meaning of thedesignation "Schools and Cemeteries" as depicted on the Town's zoning map withoutresorting to guesswork and, further, that the common understanding of those words is notso expansive as to lead to arbitrary enforcement (see Matter of Flow v Mark IVConstr. Co., 288 AD2d at 780; Matter of Griffiss Local Dev. Corp. v State ofN.Y. Auth. Budget Off., 85 AD3d at 1404; Matter of Morrissey v Apostol,75 AD3d at 996). Accordingly, petitioner's constitutional claim must fail.
Petitioner's related assertion—that the ZBA impermissibly created a userestriction with respect to the 43-acre parcel that does not otherwise exist in the Town'szoning ordinance—is equally unpersuasive. Section 2 of the Town of BrunswickZoning Ordinance divides the Town into 10 enumerated zoning districts; "Schools andCemeteries"—the zone within which the 43-acre parcel lies—is not listed asone of those districts. Similarly, the accompanying Schedule of Regulations, which isexpressly incorporated into and made a part of the zoning ordinance (see Townof Brunswick Zoning Ordinance § 6 [1958]), makes no mention of the permitteduses within the "Schools and Cemeteries" zone. However, section 3 of the ordinancestates that the zoning districts "are bounded and defined as indicated on [the Town'szoning] map . . . which accompanies and which, with all explanatory matterthereon, is hereby made a part of this ordinance" (Town of Brunswick Zoning Ordinance§ 3 [1958]).[FN5]
To be sure, the Town's zoning ordinance could have been drafted with greater clarityand, as the interpretation thereof presents a purely legal question, we agree withpetitioner that no deference to the ZBA's determination is required (see Matter of Subdivisions, Inc. vTown of Sullivan, 92 AD3d 1184, 1185 [2012], lv denied 19 NY3d 811[2012]; Matter of Shannon vVillage of Rouses Point Zoning Bd. of Appeals, 72 AD3d 1175, 1177 [2010]).In reviewing the ordinance, however, we must "read[ ] all of its parts together," construeany unambiguous language contained therein in such a fashion as to "give effect to itsplain meaning" and avoid a construction that "render[s] any of [the] language [employed]superfluous" (Matter of ErinEstates, Inc. v McCracken, 84 AD3d 1487, 1489 [2011] [internal quotationmarks and citation [*5]omitted]). Although petitionerargues that, in the absence of an express list of permitted or prohibited uses, theordinance "does not impose any land use restrictions on property in a 'Schoolsand Cemeteries' zone," such an interpretation would render the inclusion of the "Schoolsand Cemeteries" zone on the Town's zoning map meaningless and would ignore what wealready have determined to be the commonly understood meaning of those words. Forthese reasons, the ZBA rationally and properly concluded that petitioner's commercialmulching operation is not a permitted use on the 43-acre parcel lying within the "Schoolsand Cemeteries" zone.
We reach a similar conclusion regarding the ZBA's determination that petitioner's useof the 26-acre parcel for the production, storage and distribution of mulch/topsoil is notpermitted within the agricultural district in which that parcel lies.[FN6]Pursuant to the Town's Schedule of Regulations, permitted uses within an agriculturaldistrict include, insofar as is relevant here, "[f]arms" and "[f]orestry and [n]urseryoperations." Without repeating the reasoned analysis undertaken by the ZBA, we aresatisfied—upon reviewing the definition of the terms "farm" (see Town ofBrunswick Zoning Ordinance § 1 [1958]), "farm product" (see Agricultureand Markets Law § 2 [5]), "farm operation" (see Agriculture and MarketsLaw § 301 [11]), "forestry" (seehttp://www.merriam-webster.com/dictionary/forestry) and "nursery" (see http://www.merriam-webster.com/dictionary/nursery)—that petitioner's commercial mulching operation is notencompassed by any of those terms and, as such, is not a permitted use within anagricultural district. In short, as the ZBA's determination on this point is rational, it willnot be disturbed.
Petitioner's remaining contentions do not warrant extended discussion. Contrary topetitioner's assertion, the Planning Board's failure to render a decision on petitioner'sOctober 2008 amended site plan application did not result in a default approval thereofas there is nothing in the record to suggest that petitioner ever tendered a "completedapplication" (Town of Brunswick Site Plan Review Act § 4 [D]; see note2, supra). Petitioner's related assertion—that the ZBA erred in sustainingthe underlying notices of violation—is unpersuasive. The ZBA's conclusion thatpetitioner violated the Town's Site Plan Review Act by conducting operations on the 43-and 26-acre parcels without the required approvals and exceeding the scope of the 2002site plan approval issued with respect to the five-acre parcel finds ample support in therecord,[FN7]as does—for the reasons already discussed—the ZBA's resolution of theunderlying zoning violations.
Finally, petitioner takes issue with the ZBA's determination that petitioner's use of anexisting private road, which extends over the five- and 43-acre parcels, to access the26-acre parcel violates the Town's zoning ordinance. "Generally, [u]se of land in onezoning district for an access road to another zoning district is prohibited where the roadwould provide access to [*6]uses that would themselvesbe barred if they had been located in the first zoning district" (Matter of BBJ Assoc., LLC vZoning Bd. of Appeals of Town of Kent, 65 AD3d 154, 162 [2009] [internalquotation marks and citations omitted]). Stated another way, the use to which the accessroad leads must be permitted in the zoning district(s) over which it extends (see e.g.City of Yonkers v Rentways, Inc., 304 NY 499, 503-504 [1952]; Korcz v Elhage, 1 AD3d903, 904-905 [2003]; Matter of Partition St. Corp. v Zoning Bd. of Appeals ofCity of Rensselaer, 302 AD2d 65, 67 [2002], lv denied 99 NY2d 511[2003]). As noted previously, the five-acre parcel is zoned for industrial use, the 43-acreparcel is zoned "Schools and Cemeteries" and the 26-acre parcel is zoned for agriculturaluse. Inasmuch as farming is not a permitted use in either an industrial or a "Schools andCemeteries" zone, the ZBA rationally concluded that petitioner's use of the private roadacross the five- and 43-acre parcels to access its "farming" operations on the 26-acreparcel violates the Town's zoning ordinance. Petitioner's remaining contentions,including its assertion that Supreme Court erred in granting respondents summaryjudgment on their counterclaim, have been examined and found to be lacking in merit.
Mercure, J.P., Stein and McCarthy, JJ., concur. Ordered that the order and judgmentis affirmed, without costs.
Footnote 1: Prior to expanding itsoperations to this parcel, petitioner performed certain fill work on the property andobtained permits from the Town in 2002 and 2004 for that purpose. Although petitionerpoints to these permits as evidence of the Town's awareness that petitioner was using the43-acre parcel for its landscaping/mulching business, each of the permits identifies thefive-acre parcel as the location of the property/work.
Footnote 2: The record does notdisclose the substance of the additional information sought or requested, nor does itreflect that such information ever was tendered to the Planning Board.
Footnote 3: In the interim, the Townapparently suggested that petitioner either obtain a use variance, pursue a zoning changeor apply for designation as a planned development district. Petitioner initially pursued thelatter option but, in October 2010, entered into a memorandum agreement with Kreigerand respondent Town of Brunswick Town Board in an effort to resolve the outstandingzoning issues between the parties. Ultimately, the agreement did not achieve its desiredgoals and, in June 2011, petitioner effectively terminated the agreement, withdrewcertain of its site plan and rezoning applications and indicated its intent to, among otherthings, pursue its appeals before the ZBA.
Footnote 4: The conduct cited bypetitioner includes a conversation with respondent Phil Herrington, the Town Supervisor,who allegedly encouraged one of petitioner's representatives to purchase the 43-acreparcel for use in petitioner's existing operations, as well as the issuance of the relevantfill permits (see note 1, supra), a building permit and certificate ofoccupancy for a structure built on the five-acre parcel, resolutions supporting theinclusion of two of the parcels in a New York State Empire Zone and various inspectionsof petitioner's properties by Town officials.
Footnote 5: A 1964 amendment tothe zoning ordinance modified this provision only to the extent of reflecting the dateupon which the zoning map was adopted.
Footnote 6: There is someindication that petitioner is raising beef cattle on this parcel as well, the propriety ofwhich does not appear to be in dispute at this time.
Footnote 7: While petitioner'sappeals were pending, the Planning Board—consistent with the requirements ofsection 12 (C) of the Town of Brunswick Zoning Ordinance—issued an advisoryopinion documenting petitioner's violations of the Town's Site Plan Review Act.