| Matter of Land Master Montg I, LLC v Town of Montgomery |
| 2008 NY Slip Op 06643 [54 AD3d 408] |
| August 19, 2008 |
| Appellate Division, Second Department |
| In the Matter of Land Master Montg I, LLC, et al.,Respondents-Appellants, v Town of Montgomery et al., Appellants-Respondents, et al.,Respondents. (Matter No. 1.) In the Matter of Roswind Farmland Corp. et al.,Respondents-Appellants, v Town of Montgomery et al., Appellants-Respondents, et al.,Respondents. (Matter No. 2.) |
—[*1] Jacobwitz and Gubits, LLP, Walden, N.Y. (J. Benjamin Gailey of counsel), forrespondents-appellants (one brief filed).
In related hybrid proceedings, inter alia, pursuant to CPLR article 78 to review a resolutionof the Town Board of the Town of Montgomery dated July 29, 2004, adopting a ComprehensivePlan for the Town of Montgomery, and actions, among other things, for a judgment declaringthat Local Laws Nos. 4 and 5 (2004) of the Town of Montgomery are unconstitutional asexclusionary zoning, the Town of Montgomery, Town Board of the Town of Montgomery,Planning Board of the Town of Montgomery, Susan I. Cockburn, Carol Jennings, Daniel S.Dempsey, Jr., Mark W. Hoyt, Anthony Trapini, Jeffery Crist, Carl Helstrom, William Kelley, Jr.,Rose Pennings, Gregory Schloemer, Harry Mills, Comprehensive Plan Special Committee of theTown of Montgomery, Richard Montemarano, John Schmoll, and Joan Elliott appeal from somuch of a judgment of the Supreme Court, Orange County (Owen, J.), entered May 8, 2007, as,upon a decision of the same court dated March 28, 2007, and upon an order of the same courtdated September 18, 2006, among other things, denying their cross motions for summaryjudgment dismissing the [*2]complaints in matter No. 1 andmatter No. 2 and declaring that the Comprehensive Plan for the Town of Montgomery adoptedJuly 29, 2004, and Local Laws Nos. 4 and 5 (2004) of the Town of Montgomery are valid andconstitutional, and granting the motions of the petitioners/plaintiffs in matter No. 1 and matterNo. 2 for summary judgment declaring that the Comprehensive Plan for the Town ofMontgomery adopted July 29, 2004, and Local Laws Nos. 4 and 5 (2004) of the Town ofMontgomery are null and void, declared, among other things, that the Comprehensive Plan forthe Town of Montgomery adopted July 29, 2004, and Local Laws Nos. 4 and 5 (2004) are nulland void and unconstitutional as exclusionary zoning, granted the petitions, annulled theresolution dated July 29, 2004, for failure to comply with the State Environmental QualityReview Act, reinstated the petitioners/plaintiffs' land-use applications, directed the PlanningBoard of the Town of Montgomery to review those land-use applications subject to the zoninglaws in effect prior to July 29, 2004, and awarded the petitioners/plaintiffs an attorney's fee in theprincipal sum of $463,162.74, and the petitioners/plaintiffs cross-appeal from so much of thejudgment, as, upon so much of the order as granted those branches of the cross motions whichwere for summary judgment dismissing the causes of action to recover damages for thedeprivation of rights secured by the federal and state constitutions, the Federal Housing Act, andthe General Municipal Law, is in favor of the Town of Montgomery, Town Board of the Town ofMontgomery, Planning Board of the Town of Montgomery, Susan I. Cockburn, Carol Jennings,Daniel S. Dempsey, Jr., Mark W. Hoyt, Anthony Trapini, Jeffery Crist, Carl Helstrom, WilliamKelley, Jr., Rose Pennings, Gregory Schloemer, Harry Mills, Comprehensive Plan SpecialCommittee of the Town of Montgomery, Jeffrey Crist, Richard Montemarano, John Schmoll, andJoan Elliott, and against them dismissing those causes of action. The notice of appeal and thenotice of cross appeal from the order are deemed to also be a notice of appeal and a notice ofcross appeal from the judgment, respectively (see CPLR 5501 [c]).
Ordered that the judgment is affirmed, without costs or disbursements.
The appeal and cross appeal from the intermediate order must be dismissed because the rightof direct appeal therefrom terminated with the entry of judgment in the proceedings and actions(see Matter of Aho, 39 NY2d 241, 248 [1976]; Matter of Land Master Montg I, LLCv Town of Montgomery, 54 AD3d — [2008] [decided herewith]).
The petitioners/plaintiffs established their entitlement to judgment as a matter of law as totheir causes of action seeking a declaration that the Comprehensive Plan for the Town ofMontgomery adopted July 29, 2004 (hereinafter the Comprehensive Plan), and Local Laws Nos.4 and 5 (2004) of the Town of Montgomery (hereinafter the Local Laws) are unconstitutional bysubmitting evidence demonstrating that new zoning restrictions, enacted pursuant to theComprehensive Plan and the Local Laws, which eliminated the multifamily (RM-1) zoningdistrict, constituted exclusionary zoning (see generally Alvarez v Prospect Hosp., 68NY2d 320, 324 [1986]; see also Berenson v Town of New Castle, 38 NY2d 102, 110[1975]; Continental Bldg. Co. v Town of N. Salem, 211 AD2d 88 [1995]; FreshMeadow Country Club v Village of Lake Success, 158 AD2d 581, 582 [1990]; Blitz vTown of New Castle, 94 AD2d 92, 94-96 [1983]; Berenson v Town of New Castle,67 AD2d 506 [1979]). Since, in response, the respondents/defendants failed to raise a triableissue of fact with respect to whether or not the challenged zoning was enacted without givingproper regard to local and regional housing needs and that it has an exclusionary effect (seeRobert E. Kurzius, Inc. v Incorporated Vil. of Upper Brookville, 51 NY2d 338, 344 [1980],cert denied 450 US 1042 [1981]), summary judgment was properly awarded to thepetitioners/plaintiffs on their cause of action [*3]based uponallegations of exclusionary zoning.
Furthermore, the Supreme Court correctly annulled the resolution of the Town Board of theTown of Montgomery (hereinafter the Town Board) approving the Comprehensive Plan and theLocal Laws, as violative of the State Environment Quality Review Act (ECL art 8 [hereinafterSEQRA]). The adoption of a comprehensive plan and related zoning laws is a "Type I Action"pursuant to SEQRA, thus presumptively having a significant effect on the environment(see 6 NYCRR 617.2 [a]; 617.4 [a] [i] [I]; Matter of Village of Chestnut Ridge v Town of Ramapo, 45 AD3d74, 78 [2007]). The Town Board's determination that the adoption of the ComprehensivePlan and the Local Laws would not have a significant effect on the environment, and that it couldthus forego the preparation and circulation of an environmental impact statement, was based onits failure to take the requisite hard look at anticipated environmental impacts, and was thusarbitrary and capricious and affected by an error of law (see CPLR 7803 [3]; ChineseStaff & Workers Assn. v City of New York, 68 NY2d 359, 363-364 [1986]; Matter ofJackson v New York State Urban Dev. Corp., 67 NY2d 400, 416-417 [1986]).
However, on their cross motions for summary judgment dismissing the remaining causes ofaction in the complaints, the respondents/defendants met their burden of establishing theirentitlement to judgment as a matter of law on the causes of action to recover damages for, interalia, alleged violations of rights secured by the federal and state constitutions, the FederalHousing Act, and the General Municipal Law, and the petitioners/plaintiffs failed to raise atriable issue of fact in opposition. Accordingly, the court properly dismissed thepetitioners/plaintiffs' remaining causes of action (see Alvarez v Prospect Hosp., 68 NY2d320, 324 [1986]).
The parties' remaining contentions are without merit. Mastro, J.P., Spolzino, Dickerson andLeventhal, JJ., concur.