| Matter of City of Glens Falls v Town of Queensbury |
| 2011 NY Slip Op 08704 [90 AD3d 1119] |
| December 1, 2011 |
| Appellate Division, Third Department |
| In the Matter of City of Glens Falls, Appellant, v Town ofQueensbury, Respondent. |
—[*1] Miller, Mannix, Schachner & Hafner, L.L.C., Glens Falls (Mark J. Schachner of counsel), forrespondent.
Peters, J. Appeal from a judgment of the Supreme Court (Aulisi, J.), entered January 7, 2010in Warren County, which, in a combined proceeding pursuant to CPLR article 78 and action fordeclaratory judgment, granted respondent's motion to dismiss the petition.
Petitioner owns several parcels of land within respondent's borders, approximately 855 acresof which are the subject of this proceeding (hereinafter the property). Prior to November 2004,the property was zoned as Parkland Recreation 10-Acre (hereinafter PR-10A), which required 10acres of developable land for every principal use or structure. On November 1, 2004, respondentenacted Local Law No. 10 (2004) of the Town of Queensbury, which amended its zoning law tochange the zoning designation of all PR-10A property to Parkland Recreation 42-Acre(hereinafter PR-42A), which requires 42 acres of land per every principal use or structure.Petitioner then commenced this combined proceeding pursuant to CPLR article 78 and action fordeclaratory judgment alleging, among other things, that respondent failed to comply with theState Environmental Quality Review Act and various other laws in enacting Local Law No. 10,and that such local law effected an unconstitutional taking of property. Thereafter, in April 2005,the parties entered into a stipulation to adjourn the litigation subject to certain conditions.Approximately four years later, with the matter still pending, respondent passed a resolution[*2]enacting Local Law No. 3 (2009) of the Town of Queensbury,which repealed and replaced the zoning law then in effect. Local Law No. 3, among other things,continued the zoning designation of petitioner's property as PR-42A.
Shortly thereafter, petitioner commenced a proceeding challenging respondent's enactment ofLocal Law No. 3.[FN*]Respondent then moved to dismiss the petition in this proceeding, arguing that the enactment ofLocal Law No. 3 rendered petitioner's challenges to Local Law No. 10 moot. Supreme Courtagreed and dismissed the petition, prompting this appeal by petitioner.
A proceeding will not be considered moot where "the rights of the parties will be directlyaffected by the determination of the [proceeding] and the interest of the parties is an immediateconsequence of the judgment" (Matter of Hearst Corp. v Clyne, 50 NY2d 707, 714[1980]; accord Wisholek v Douglas, 97 NY2d 740, 742 [2002]; Matter of King v Jackson, 52 AD3d974, 975 [2008]). Here, although Local Law No. 3 repealed and replaced the zoning law as itexisted under Local Law No. 10, it contains the same PR-42A designation of the property asapplied under Local Law No. 10. A declaration that the original designation of the property asPR-42A constitutes an unconstitutional regulatory taking speaks to the legality of the property'scurrent zoning designation—which respondent has separately challenged—and thuswould have a direct effect on the rights of the parties (see Matter of Westbury Trombo vBoard of Trustees of Vil. of Westbury, 307 AD2d 1043, 1045 [2003]; see generallySaratoga County Chamber of Commerce v Pataki, 100 NY2d 801, 812 [2003], certdenied 540 US 1017 [2003]; Matter of Johnson v Pataki, 91 NY2d 214, 222 [1997];compare Matter of Spaziani v City of Oneonta, 302 AD2d 846, 847 [2003]). Moreover,as previously noted, petitioner's challenges to Local Law No. 3 are the subject of a separateproceeding currently pending before Supreme Court (Krogmann, J.) and, as the parties haveacknowledged, the invalidation of Local Law No. 3 would, by operation of law, revive LocalLaw No. 10 (see Matter of New York City Coalition to End Lead Poisoning v Vallone,100 NY2d 337, 350 [2003]). Under these circumstances, we cannot say that petitioner'schallenges to Local Law No. 10 are moot.
Finally, we note that given that this proceeding and the proceeding challenging Local LawNo. 3 involve, at the very least, a common question of law (see CPLR 602 [a]; Matter of Powers v De Groodt, 43AD3d 509, 512 [2007]; Guasconi vPohl, 2 AD3d 1202, 1203 [2003]), consolidation of the two proceedings in the interestof judicial economy may be appropriate upon remittal.
Mercure, J.P., Malone Jr., Kavanagh and Stein, JJ., concur. Ordered that the judgment isreversed, on the law, without costs, motion denied and [*3]matterremitted to the Supreme Court to permit respondent to serve an answer within 20 days of the dateof this Court's decision.
Footnote *: *The proceeding challengingLocal Law No. 3 remains pending before Supreme Court, Warren County (Krogmann, J.).According to petitioner, the court in that proceeding denied its motion to consolidate theproceedings in light of Supreme Court's decision in this proceeding dismissing the petition asmoot.