| Town of Huntington v Beechwood Carmen Bldg. Corp. |
| 2011 NY Slip Op 02651 [82 AD3d 1203] |
| March 29, 2011 |
| Appellate Division, Second Department |
| Town of Huntington, Appellant, v Beechwood CarmenBuilding Corp. et al., Respondents. |
—[*1] Rosenberg Calica & Birney LLP, Garden City, N.Y. (Robert M. Calica and Judah Serfaty ofcounsel), for respondents Beechwood Carmen Building Corp., Mile Development Corp., doingbusiness as The Beechwood Organization and Beechwood Carmen Building Corp., and OriskaInsurance Company. Harras Bloom & Archer LLP, Melville, N.Y. (John A. Harras and Kenneth A. Brown ofcounsel), for respondent S.B.J. Associates, LLC.
In an action, inter alia, to compel the defendants to construct a pool and community center ona parcel of real property designated as lot 73 at a development known as Country Pointe at DixHills, the plaintiff appeals, as limited by its brief, from so much of an order of the SupremeCourt, Suffolk County (Baisley, Jr., J.), entered January 8, 2010, as granted that branch of themotion of the defendant S.B.J. Associates, LLC, which was pursuant to CPLR 3211 (a) (5) todismiss the complaint insofar as asserted against it and granted that branch of the separate motionof the defendants Beechwood Carmen Building Corp., Mile Development Corp., doing businessas the Beechwood Organization and Beechwood Carmen Building Corp., and Oriska InsuranceCompany which was for summary judgment dismissing the complaint insofar as asserted againstthem.
Ordered that the order is affirmed insofar as appealed from, with one bill of costs payable tothe defendants appearing separately and filing separate briefs.
This appeal involves the zoning of one portion of a 382-acre parcel of real property, locatedin the Town of Huntington, formerly occupied by a State of New York facility. During the 1990s,the property was zoned "R-80," which, with certain exceptions not relevant here, permits onlysingle-family dwellings. In October 1999 the State of New York sold the entire parcel of realproperty to the defendant S.B.J. Associates, LLC (hereinafter SBJ). Thereafter, SBJ proposed aproject on one portion of the property, to consist of a senior residential community, known as theGreens at Half Hollow, and a community of single-family homes, known as Country Pointe atDix Hills (hereinafter Country Pointe). Accordingly, SBJ applied to amend the Zoning chapter ofthe Code of the Town of Huntington (hereinafter the Town Code) to create a residential plannedunit development and to change the zoning of the subject property from R-80 to "R-PUD."[*2]
In September 2000 the Town passed a resolutionapproving the enactment of Town Code § 198-21.2, which created the "R-PUD TheGreens at Half Hollow Planned Unit Development District." Town Code § 198-21.2provides, inter alia, that buildings within the single-family portion of that district, in whichCountry Pointe is situated, were to be used only for detached single-family dwellings, accessoryuses and activities, and a community building not to exceed 5,000 square feet (see TownCode § 198-21.2 [E] [1]). Town Code § 198-21.2 (E) (2) (c) specifically permits theconstruction of swimming pools in the single-family dwelling portion of the district. Also byresolution, the Town Board adopted the final generic environmental impact statement(hereinafter the FGEIS) prepared in connection with the master development plan, whichindicates, in relevant part, that SBJ proposed a recreation area including a community center andswimming pool for inclusion in the single-family dwelling portion of the district.
As discussions and plans surrounding Country Pointe progressed, SBJ proposed that a lotwithin the development site, designated as lot 73, would instead be used as a recreational facility,including such amenities as tennis courts and a children's playground. The final subdivision map,approved by the Town of Huntington Planning Board in March 2002, contains the followingnotation on lot 73: "Future Community Recreation Facility, Common Area." Ultimately, thedefendant Beechwood Carmen Building Corp. purchased the vacant land from SBJ anddeveloped a community recreation area on lot 73, consisting of a playground, a tennis court, anda gazebo.
In June 2006 the Town commenced an action against, among others, SBJ, BeechwoodCarmen Building Corp., and Oriska Insurance Company, alleging causes of action arising fromthe Country Pointe development, including allegations that Town Code § 198-21.2required the construction of the subject swimming pool and community center (Town ofHuntington v SBJ Assocciates, LLC, Sup Ct, Suffolk County, index No. 06/14517). In June2008 the Town stipulated to discontinue the action with prejudice against SBJ, while certaincauses of action, including those related to the community center, were severed and continuedwith respect to Beechwood Carmen Building Corp. and Oriska Insurance Company.
In November 2008 the Town commenced the instant action against Beechwood CarmenBuilding Corp., Mile Development Corp., doing business as the Beechwood Organization andBeechwood Carmen Building Corp., and Oriska Insurance Company (hereinafter the Beechwooddefendants), and SBJ, inter alia, to compel them to construct a swimming pool and communitycenter on lot 73. SBJ moved to dismiss the complaint insofar as asserted against it, and theBeechwood defendants separately moved, inter alia, for summary judgment dismissing thecomplaint insofar as asserted against them. In an order entered January 8, 2010, the SupremeCourt, inter alia, granted the motions. We affirm the order insofar as appealed from.
"Under the doctrine of res judicata, a disposition on the merits bars litigation between thesame parties or those in privity with them of a cause of action arising out of the same transactionor series of transactions as a cause of action that either was raised or could have been raised inthe prior proceeding" (Goldstein v Massachusetts Mut. Life Ins. Co., 32 AD3d 821, 821[2006]; see Greenstone/Fontana Corp. v Feldstein, 72 AD3d 890, 893 [2010]). "Astipulation of discontinuance with prejudice without reservation of right or limitation of theclaims disposed of is entitled to preclusive effect under the doctrine of res judicata" (LibertyAssoc. v Etkin, 69 AD3d 681, 682-683 [2010]; see Greenstone/Fontana Corp. vFeldstein, 72 AD3d at 893). Here, the Town's current claims against SBJ were either raisedor could have been raised in the previous action which was discontinued with prejudice againstSBJ and, thus, the Town is precluded under principles of res judicata from litigating claimsagainst SBJ arising from the same transaction. Accordingly, the complaint was properlydismissed insofar as asserted against SBJ.
The Supreme Court also properly granted that branch of the Beechwood defendants' motionwhich was for summary judgment dismissing the complaint insofar as asserted against them.Contrary to the Town's contention, the plain language of the FGEIS as adopted by townresolution does not contain a mandate to construct a swimming pool and community center on lot73. In addition, Town Code § 198-21.2 did not require construction of a community centerand swimming pool on lot 73 or anywhere else on the portion of the development site on whichthe Country Pointe single-family [*3]dwellings are situated.Rather, the FGEIS merely permits the construction of those facilities.
Even if, as the Town contends, Town Code § 198-21.2 requires that development oflot 73 include a swimming pool and community center not to exceed 5,000-square feet, such aprovision would be ultra vires and void as a matter of law (see BLF Assoc., LLC v Town ofHempstead, 59 AD3d 51, 55-56 [2008]). Towns and municipal governments lack inherentpower to enact zoning or land use regulations and "exercise such authority solely by legislativegrant" (Matter of Kamhi v Planning Bd. of Town of Yorktown, 59 NY2d 385, 389[1983]; see Matter of Bayswater Realty & Capital Corp. v Planning Bd. of Town ofLewisboro, 149 AD2d 49, 52 [1989], mod 76 NY2d 460 [1990]). Through theenactment of Town Law article 16, the Legislature has conferred upon towns "a wide variety ofpowers to zone the town into districts to regulate its growth and development, to establishprocedures for adoption and modification of local zoning regulations, to review and enforcezoning decisions and to establish an official map" (Matter of Kamhi v Planning Bd. of Townof Yorktown, 59 NY2d at 389). While the enabling statutes in Town Law article 16 conferauthority upon a town to enact a zoning ordinance setting forth permitted uses, nothing in theenabling legislation authorizes the Town to enact a zoning ordinance which mandates theconstruction of a specific kind of building or amenity (see BLF Assoc., LLC v Town ofHempstead, 59 AD3d at 55; Blitz v Town of New Castle, 94 AD2d 92, 99 [1983]).Accordingly, the Beechwood defendants established their prima facie entitlement to judgment asa matter of law dismissing the complaint insofar as asserted against them, and the Town failed toraise a triable issue of fact in opposition.
We have not considered the Town's contention that Town Code § 198-21.2 is an"incentive zoning" provision enacted pursuant to Town Law § 261-b, as this contention isimproperly raised for the first time on appeal (see Matter of State Farm Mut. Auto. Ins. Co. vUrban, 78 AD3d 1064, 1066 [2010]; Matter of Castillo v Town of Oyster Bay, 70AD3d 939 [2010]). Angiolillo, J.P., Florio, Belen and Miller, JJ., concur.