| Matter of Saratoga Springs Preserv. Found. v Boff |
| 2013 NY Slip Op 06924 [110 AD3d 1326] |
| October 24, 2013 |
| Appellate Division, Third Department |
| In the Matter of Saratoga Springs Preservation Foundationet al., Appellants, v Joe Boff et al., Respondents. |
—[*1] Ianniello Anderson, PC, Clifton Park (Matthew I. Mazur of counsel), for Joe Boff,respondent. Joseph C. Scala, City Attorney, Saratoga Springs (Anthony J. Izzo of counsel), forCity of Saratoga and others, respondents.
Stein, J. Appeal from a judgment of the Supreme Court (Nolan Jr., J.), entered March18, 2013 in Saratoga County, which, among other things, dismissed petitioners'application, in a proceeding pursuant to CPLR article 78, to, among other things, reviewa determination of the Saratoga Springs Design Review Commission authorizingdemolition of a certain structure.
Petitioner Saratoga Springs Preservation Foundation (hereinafter Foundation) is anot-for-profit organization that has a primary goal of preserving the historic structureslocated within the City of Saratoga Springs, Saratoga County. In September 2008,respondent Joe Boff purchased property, which included a residence—known asthe Winans-Crippen House—in the historic Franklin Square District in the City.The Winans-Crippen House is generally recognized as a historic structure and is listed onthe National Register of Historic Places and included on the City's list of landmarks andhistoric districts. Within months after he purchased the property, Boff filed anapplication with the Saratoga Springs Design Review Commission (hereinafter [*2]DRC[FN1]) for a permit to demolish theWinans-Crippen House as an unsafe structure pursuant to Code of City of SaratogaSprings former § 240-7.10 (F) (1) (a). The DRC declared itself the lead agency forenvironmental review under the State Environmental Quality Review Act (seeECL art 8 [hereinafter SEQRA]), ruled that the proposed demolition was a type I action,issued a positive declaration of environmental significance and required Boff to submit adraft environmental impact statement. Boff submitted the draft environmental impactstatement in June 2012 and, after receiving various inspections and structural reports andconducting a public hearing, the DRC voted to accept the final environmental impactstatement as complete in November 2012.
In December 2012, the Foundation, along with four individual members, commencedthis CPLR article 78 proceeding against respondent City of Saratoga Springs, Boff andcertain individual members of the DRC, challenging the DRC's SEQRA determinationand seeking an order enjoining the demolition of the structure.[FN2] Shortly thereafter, the DRC voted to approve Boff's application for a demolition permitand petitioners subsequently filed an amended petition adding a cause of actionchallenging that determination. After notifying the parties that it intended to treat theproceeding as an application for summary judgment, Supreme Court dismissed theamended petition. Upon petitioners' appeal, we now affirm.
Initially, we reject petitioners' contention that the demolition application submittedby Boff did not comply with the requirement set forth in the City Code that suchapplication include postdemolition development plans (see Code of City ofSaratoga Springs former § 240-7.10 [F] [3]).[FN3] In Boff's application and at subsequent meetings of the DRC, he represented that hispostdemolition proposed site plan was to grade the lot, plant grass and maintain theproperty, but that he did not have immediate plans to begin construction on the site.Although the DRC recognized that it "typically requires a more extensive developmentplan in connection with an application for demolition," it determined that, under thecircumstances presented, including "the current uncertain real estate market and theuniquely deteriorated condition of the structure, it [did] not seem unreasonable to seek todemolish the unsafe structure prior to developing construction plans." The DRC alsonoted that any future construction plans on the site would require its full review andapproval. In addition, the record contains evidence that the DRC has acceptedcomparable postdemolition plans with respect to other applications. Under these [*3]circumstances, the DRC's determination that Boff'sdemolition application complied with the City Code was not arbitrary and capricious(compare Historic Albany Found. v Coyne, 159 AD2d 73 [1990]).
We are also unpersuaded by petitioners' claim that the DRC impermissiblysegmented its SEQRA review of Boff's demolition application. "Segmentation is 'thedivision of the environmental review of an action such that various activities or stagesare addressed [for purposes of environmental quality review] as though they wereindependent, unrelated activities, needing individual determinations of significance' " (Matter of Friends of StanfordHome v Town of Niskayuna, 50 AD3d 1289, 1290 [2008], lv denied 10NY3d 716 [2008], quoting 6 NYCRR 617.2 [ag]; see Matter of Concerned Citizensfor Envt. v Zagata, 243 AD2d 20, 22 [1998], lv denied 92 NY2d 808[1998]). Such division is impermissible when the environmental review of an action isdivided into smaller stages in order to avoid the detailed review called for under SEQRA(see Matter of Concerned Citizens for Envt. v Zagata, 243 AD2d at 22).Conversely, segmentation is "allowed when the agency conducting environmental reviewclearly sets forth the reasons supporting segmentation and 'demonstrate[s] that suchreview is clearly no less protective of the environment' " (Matter of DefreestvilleArea Neighborhoods Assn. v Town Bd. of Town of N. Greenbush, 299 AD2d 631,634 [2002], quoting 6 NYCRR 617.3 [g] [1]; see Matter of Concerned Citizens forEnvt. v Zagata, 243 AD2d at 22).
Here, during the SEQRA review process, Boff represented that he had no immediateintention of developing the property following demolition. The DRC determined that thestructure was unsafe, considered Boff's postdemolition plan of keeping the property cleanand fenced and clearly explained its reasons for not requiring Boff to submit additionalpostdemolition plans. Moreover, any future construction plans would require DRCreview and, therefore, the environment would not be less protected. Under thesecircumstances, we are satisfied that no impermissible segmentation occurred (seeMatter of Concerned Citizens for Envt. v Zagata, 243 AD2d at 23; compareMatter of Defreestville Area Neighborhoods Assn. v Town Bd. of Town of N.Greenbush, 299 AD2d at 634-635).
Nor do we find any merit to petitioners' challenge to the DRC's findings that thestructure was unsafe and could not be preserved. Pursuant to the City Code, the DRCwas required to determine whether the structure was "a danger to the health, safety andwelfare of the public" and whether it could "reasonably be repaired in such a way [as] toremove the unsafe condition" (Code of City of Saratoga Springs former § 240-7.10[F] [1] [a]). In addition, Boff's demolition application was required to show "good cause"as to why the structure could not be preserved (Code of City of Saratoga Springs former§ 240-7.10 [F] [2]). Here, in determining that the structure was a danger to thepublic, the DRC relied upon, among other things, a June 2009 report issued by the City'sAssistant Building Inspector which declared the building to be an unsafe structure asdefined in the Property Maintenance Code of New York State, as well as the fact that, in2010, the City's Code Enforcement Officer had sought a demolition order based upon itsunsafe condition.[FN4] The DRC also considered various documents prepared by the City's Code EnforcementOfficer, Fire Chief and retired Assistant Fire Chief, as well as an engineer hired by [*4]Boff, all of whom reflected their opinions that the buildingwas unsafe. The DRC took note that certain improvements to stabilize the structure hadbeen made, but concluded, based upon the opinions of various City officials, that thestructure remained unsafe despite those improvements.[FN5] Notwithstanding the contrary evidence submitted by petitioners, including reports froman engineer and architect who concluded that the structure was safe, we are unpersuadedthat the DRC's reliance on those public employees charged with protecting the health,safety and welfare of the City's inhabitants was arbitrary and capricious (see Matter ofHistoric Albany Found. v Fisher, 209 AD2d 135, 138 [1995]).
Turning to the required showing of good cause as to why the structure could not bepreserved, petitioners argue that the DRC improperly found that Boff established goodcause based upon the economic unfeasibility of renovation.[FN6] In this regard, the DRC noted that the structure was one of hundreds of contributingbuildings in the Historic District and weighed the "value of possible future restoration ofthe structure, particularly in light of significant structural and financialobstacles,[FN7] with the possibility of damage to property or personal injury or death." Considering theDRC's balanced analysis, we find its determination to be reasonable and supported by therecord, and we discern no basis to disturb it.[FN8]
Petitioners' argument that the DRC's determinations should be invalidated becauseone of the four voting members had a disqualifying conflict of interest pursuant to theCity's Code of Ethics (see Code of City of Saratoga Springs §§ 13-2,13-3 [A], [B] [2]) is similarly unavailing.[FN9] Questions of conflict of interest must be determined on a case-by-case basis and "[t]hemere fact of employment or similar financial interest does not mandate disqualification ofthe public official involved in every instance" (Matter of Schupak v Zoning Bd. of Appeals of Town of [*5]Marbletown, 31 AD3d 1018, 1020-1021 [2006],lv dismissed and denied 8 NY3d 842 [2007] [internal quotation marks andcitations omitted]; see Matter ofEadie v Town Bd. of Town of N. Greenbush, 47 AD3d 1021, 1024 [2008]).
Here, petitioners rely on the City's Code of Ethics, which prohibits a City officer oremployee from taking or failing to take "any action, in a manner which he or she knows,or has reason to know, may result in a personal financial benefit for . . . [a]customer or client" (Code of City of Saratoga Springs § 13-3 [A] [4]). Under theCity Code, that prohibition is limited to circumstances in which the City official knowsor has reason to know that his or her outside employer or business has supplied goods orservices that are valued at more than $1,000, during the previous 24 months (seeCode of City of Saratoga Springs § 13-2). The record reflects that DRC memberrespondent Richard Martin disclosed at a May 16, 2012 meeting that his constructionbusiness had been under contract with Boff on an unrelated project two years earlier, butdetermined that his recusal was not required.[FN10] Boff explained in an affidavit that he had hired a general contractor to performrestoration work on an unrelated property in the City and that his general contractor hadhired Martin's company to perform framing work. In his own affidavit, Martin averredthat his company had done work for Boff starting in 2009, which was completed in June2010. During the time that Boff's demolition application was pending until in or aboutMay 2012, neither Boff nor Martin knew of their business relationship. Nor is there anyevidence that they should have known about it. Therefore, any action taken by Martinduring that period was not in violation of the City Code. Further, any votes taken byMartin with regard to Boff's application after learning of their business relationshipoccurred more than two years after that relationship had ended.[FN11] Moreover, under the circumstances presented here, it is reasonable to conclude that thebusiness relationship between Boff and Martin was not such that Martin would bemotivated to favor Boff's position.[FN12] Accordingly, we cannot conclude that Martin's disqualification was required.
To the extent not specifically addressed herein, petitioners' remaining contentionshave been examined and found to be lacking in merit.
Lahtinen, J.P., Spain and Egan Jr., JJ., concur. Ordered that the judgment is affirmed,without costs.
Footnote 1: The DRC is "chargedwith the responsibilities of administering and carrying out of the intent, process andactions" of the Historic and Architectural Review sections of the City Code.
Footnote 2: We note that, inseparate proceedings regarding the property, Saratoga Springs City Court (Wait, J.) hadpreviously directed Boff to secure and stabilize the structure and Supreme Court hadenjoined Boff and the City from demolishing the property without, as pertinent here, theprior approval of the DRC.
Footnote 3: The applicableprovision of the City Code was superceded in September 2012. The new ordinance usessimilar language and contains the same requirements for postdemolition plans(see Code of City of Saratoga Springs § 7.4.11 [B] [5]).
Footnote 4: Although a demolitionorder was issued by Saratoga Springs City Court (Doern, J.) with Boff's consent, it wassubsequently vacated because of the proceedings that were pending before the DRC.
Footnote 5: Additionally, someDRC members inspected the property.
Footnote 6: Petitioners contend thatany financial hardship was self-created by Boff, due to his admitted failure to adequatelyinspect the structure before purchasing the property.
Footnote 7: The draft environmentalimpact statement contained an estimate for projected reconstruction or replication costsof approximately $1,600,000 at minimum, with additional expenses bringing the totalcost to more than $2,500,000. These costs were compared to a reconstructed fair marketvalue of "no more than $800,000."
Footnote 8: We reject petitioners'argument that Code of City of Saratoga Springs former § 240-7.6 required Boff toassert a claim of financial hardship before the Zoning Board of Appeals. That ordinanceprovides an avenue of relief when an application is denied by the DRC. It does not, aspetitioners suggest, prevent an applicant from raising the issue of hardship before theDRC in the first instance.
Footnote 9: The DRC consists ofseven members (see Code of City of Saratoga Springs § 19-1 [A]), four ofwhom are required to establish a quorum.
Footnote 10: We further note thatthe City's Ethics Board later concluded that there was insufficient information to supporta finding that Martin had engaged in prohibited conduct in connection with Boff'sapplication.
Footnote 11: The record does notreflect any vote by Martin in relation to the application from the time of his disclosureuntil November 2012.
Footnote 12: Notably, Martin alsodisclosed that his company is a member of the Foundation.