| Jones v Town of Carroll |
| 2008 NY Slip Op 10262 [57 AD3d 1376] |
| December 31, 2008 |
| Appellate Division, Fourth Department |
| Donald J. Jones et al., Respondents, v Town of Carroll et al., Appellants.(Appeal No. 1.) |
—[*1] Cohen & Lombardo, P.C., Buffalo (Anthony M. Nosek of counsel), forplaintiffs-respondents.
Appeal from a judgment (denominated order) of the Supreme Court, Chautauqua County (TimothyJ. Walker, A.J.), entered August 10, 2007 in a declaratory judgment action. The judgment, inter alia,declared sections 2 and 3 of the Town of Carroll Local Law No. 1 of 2005 invalid as they relate toplaintiffs' property.
It is hereby ordered that the judgment so appealed from is unanimously modified on the law bydenying the motion and vacating the declaration and as modified the judgment is affirmed without costs.
Memorandum: In June 1984 plaintiff Donald J. Jones (hereafter, Jones) and his wife, plaintiff CarolL. Jones, purchased 50 acres of property in an agricultural/residential (AR-1) zoning district located indefendant Town of Carroll (Town). In 1989 the Town's Zoning Board of Appeals granted theapplication of Jones for a use variance permitting him to use the entire parcel as a construction anddemolition landfill (C & D landfill). Jones obtained a permit from the New York State Department ofEnvironmental Conservation (DEC) permitting him to use "less than two acres" of the property as a C& D landfill, and in 1996 he obtained another permit from the DEC permitting him to construct a "oneacre expansion." After defendants were informed that a potential buyer of plaintiffs' property hadapplied for a DEC permit to operate a landfill on the entire parcel, defendants enacted Local Law No.1 of 2005 (2005 Law). Section 1 of the 2005 Law states that its purpose is "to eliminate the operationof sanitary landfills/demolition landfills in the [Town's AR-1] zoning district," and section 2 states thatsection 406-C of the Town's Zoning Law is amended to provide that "[s]anitary landfill/demolitionlandfill is eliminated as a use allowed by special use permit." Section 3 provides that sanitary landfills ordemolition landfills "operating under a permit issued by the [DEC] shall be allowed to continue withoutexpansion[, but a]bsolutely no expansion of any landfill beyond the area and scope allowed under theoperator[']s permit from the DEC as of the date of th[e] Local Law shall be allowed."[*2]
Although plaintiffs commenced a CPLR article 78 proceedingto challenge the 2005 Law, Supreme Court previously converted that proceeding to a declaratoryjudgment action and declared sections 2 and 3 of the 2005 Law invalid as applied to plaintiffs'property. On defendants' appeal from that judgment, we modified the judgment by vacating thedeclaration on the ground that neither plaintiffs nor defendants had been afforded an opportunity tomake a motion in the declaratory judgment action and thus "judgment was granted prematurely" (Jones v Town of Carroll, 32 AD3d1216, 1218 [2006]).
Following our decision, plaintiffs moved for summary judgment declaring the 2005 Law void.Alternatively, plaintiffs moved for partial summary judgment declaring that the 2005 Law effected aregulatory taking of their property without compensation, and they sought a plenary hearing todetermine their damages. Defendants cross-moved for, inter alia, summary judgment declaring that the2005 Law is valid. According to the court's decision on the motion and cross motion, "[p]laintiffsspecifically object[ed] to sections 2 and 3" of the 2005 Local Law. We now conclude that the courterred in granting judgment in favor of plaintiffs declaring sections 2 and 3 of the 2005 Law invalid asthey relate to plaintiffs' property. We therefore modify the judgment accordingly.
In granting judgment in favor of plaintiffs, the court determined that they had engaged in substantialconstruction and demolition activities over a long period of time that "manifested an intent toappropriate the entire 50-acre parcel to the particular business of a Land Fill," and the court thusdetermined that "the protection of this non-conforming use must extend to the boundaries of this entireparcel." We agree with defendants, however, that they "rationally exercised [their] police power anddetermined that a change in the zoning was required for the well-being of the community" (Matter ofGernatt Asphalt Prods. v Town of Sardinia, 87 NY2d 668, 684 [1996]). Further, "[b]ecausenonconforming uses are viewed as detrimental to zoning schemes, public policy favors their reasonablerestriction and eventual elimination . . . Accordingly, municipalities may adopt measuresregulating nonconforming uses and may, in a reasonable fashion, eliminate them" (Matter of 550 Halstead Corp. v Zoning Bd. ofAppeals of Town/Vil. of Harrison, 1 NY3d 561, 562 [2003]; see Matter of SyracuseAggregate Corp. v Weise, 51 NY2d 278, 286-287 [1980]). We thus conclude with respect to thefirst and sixth causes of action that defendants rationally exercised their police power in determining thatlandfills in AR-1 zoning districts should be eliminated and that sections 2 and 3 of the 2005 Law arereasonable measures to regulate and eventually to eliminate nonconforming uses.
We further agree with defendants that the court, in its decision, misapplied the holding ofSyracuse Aggregate Corp. (51 NY2d 278 [1980]) by concluding with respect to the secondcause of action that plaintiffs' nonconforming use extended over plaintiffs' entire parcel. "[T]he right tomaintain a nonconforming use does not include the right to extend or enlarge that use" (Matter ofMcDonald v Zoning Bd. of Appeals of Town of Islip, 31 AD3d 642, 642-643 [2006]), and "theperson claiming the right must demonstrate that the property was indeed used for the nonconformingpurpose, as distinguished from a mere contemplated use, at the time the zoning ordinance becameeffective" (Syracuse Aggregate Corp., 51 NY2d at 284-285). It is undisputed that, when the2005 Law was enacted, plaintiffs had a valid DEC permit authorizing the operation of a C & D landfillon only three acres of their property, and defendants established that any expansion of the existinglandfill was at most "a mere contemplated use" (id. at 284).
Contrary to plaintiffs' contention with respect to the fifth cause of action, defendants complied witharticle 8 of the Environmental Conservation Law (State Environmental Quality Review Act [SEQRA])in issuing the negative declaration pursuant to SEQRA. Where, as here, "the proposed action wouldhave only beneficial environmental effects, the [defendants'] issuance of a negative declaration wasappropriate and an Environmental Impact Statement was [*3]unnecessary" (Matter of Philger Realty Corp. v Town Bd. of Town ofE. Hampton, 262 AD2d 564, 565 [1999]). Furthermore, the mere fact that the review processwas completed quickly does not establish that defendants failed to " 'ma[k]e a thorough investigation ofthe problems involved [or] reasonably exercise [their] discretion' " (Matter of Har Enters. v Townof Brookhaven, 74 NY2d 524, 530 [1989]; see also Gernatt Asphalt Prods., 87 NY2d at689). Indeed, defendants established that they took the requisite hard look at the areas ofenvironmental concern and set forth a reasoned elaboration of the basis for their determination withrespect to those areas (see Gernatt Asphalt Prods., 87 NY2d at 689-690; HarEnters., 74 NY2d at 530; Matter of Jackson v New York State Urban Dev. Corp., 67NY2d 400, 417 [1986]).
With respect to the fourth cause of action, alleging a regulatory taking of plaintiffs' property, weconclude that neither plaintiffs nor defendants were entitled to summary judgment. There are issues offact whether the 2005 Law is " 'so onerous that its effect is tantamount to a direct appropriation orouster' " (Consumers Union of U.S., Inc. vState of New York, 5 NY3d 327, 357 [2005]; see de St. Aubin v Flacke, 68 NY2d66, 77 [1986]), and whether plaintiffs' property is suitable for any other economically valuable use(see generally Spears v Berle, 48 NY2d 254, 262 [1979]). We note that neither plaintiffs nordefendants have briefed any issues concerning the third cause of action, which alleges that the 2005Law "impair[s] existing contracts in violation of State and Federal Law," and thus any issues withrespect to that cause of action are deemed abandoned (see Ciesinski v Town of Aurora, 202AD2d 984 [1994]). Present—Martoche, J.P., Smith, Centra, Peradotto and Pine, JJ.