| Matter of Youngewirth v Town of Ramapo Town Bd. |
| 2012 NY Slip Op 06029 [98 AD3d 678] |
| August 22, 2012 |
| Appellate Division, Second Department |
| In the Matter of Elizabeth Youngewirth, Appellant, v Townof Ramapo Town Board et al., Respondents. |
—[*1] Michael L. Klein, Town Attorney, Suffern, N.Y. (Janice Gittelman of counsel), forrespondents Town of Ramapo Town Board and Town of Ramapo. Rice & Amon, Suffern, N.Y. (Terry Rice of counsel), for respondent Scenic Development,LLC.
In a proceeding pursuant to CPLR article 78 to review three determinations of the TownBoard of the Town of Ramapo, all dated January 25, 2010, resolving to approve a findingsstatement pursuant to the State Environmental Quality Review Act (ECL article 8) in connectionwith a proposed development project, to amend the Comprehensive Plan of the Town of Ramaposo as to permit the development project, and to rezone the real property on which thedevelopment project is proposed to be constructed, respectively, the petitioner appeals from anorder and judgment (one paper) of the Supreme Court, Rockland County (Jamieson, J.), datedOctober 18, 2010, which granted those branches of the motion of the Town of Ramapo and TownBoard of the Town of Ramapo, and the separate motion of Scenic Development, LLC, whichwere pursuant to CPLR 3211 (a) (3) and 7804 (f) to dismiss the petition, and dismissed theproceeding for lack of standing and on the merits.
Ordered that the order and judgment is modified, on the law, by deleting the provisionsthereof granting those branches of the separate motions which were pursuant to CPLR 3211 (a)(3) and 7804 (f) to dismiss the first, third, fourth, fifth, and sixth causes of action and dismissingthose causes of action for lack of standing and on the merits, and substituting therefor provisionsdenying those branches of the separate motions; as so modified, the order and judgment isaffirmed, without costs or disbursements, the first, third, fourth, fifth, and sixth causes of actionare reinstated, and the matter is remitted to the Supreme Court, Rockland County, for furtherproceedings on those causes of action consistent herewith, and the respondents' time to serve andfile an answer to those causes of action and the time of the Town of Ramapo and the Town Boardof the Town of Ramapo to file the complete administrative record are extended until 20 daysafter service upon them of a copy of this decision and order (see CPLR 7804 [e], [f]).
Scenic Development, LLC (hereinafter Scenic), is the owner of certain real property knownas Patrick Farm (hereinafter the site), located in the Town of Ramapo. In 2008, Scenic applied tothe Town Board of the Town of Ramapo (hereinafter the Town Board) for amendments to theTown's zoning map and Comprehensive Plan to permit the development of multifamilyresidential units on a portion of the site. In January 2010, the Town Board enacted Local LawNo. [*2]1 (2010) of Town of Ramapo (hereinafter the Local Law)to amend to Town's zoning map, changing the zoning designation of a certain parcel on the sitefrom R-40 residential to MR-8 multifamily residential.
In May 2010, the petitioner, who lives across the street from the site, commenced thisproceeding pursuant to CPLR article 78 to review the Town Board's determinations leading up tothe enactment of the Local Law. In her first and second causes of action, the petitioner allegedcertain procedural infirmities in the adoption of the Local Law, in violation of the MunicipalHome Rule Law. In addition, the petitioner claimed, in her third and fourth causes of action, thatthe zoning change violated Town Law § 262 and constituted illegal spot zoning,respectively. The fifth and sixth causes of action centered upon the Town Board's alleged failureto comply with the requirements of the State Environmental Quality Review Act (ECL article 8[hereinafter SEQRA]). Prior to answering the petition, the Town Board and the Town moved,and Scenic separately moved, inter alia, pursuant to CPLR 3211 (a) (3) and 7804 (f) to dismissthe petition for lack of standing. The Supreme Court granted those branches of the motions, anddismissed the proceeding both for the petitioner's lack of standing and on the merits. Thepetitioner appeals, and we modify.
The Supreme Court erred in granting those branches of the separate motions which werepursuant to CPLR 3211 (a) (3) and 7804 (f) to dismiss, for lack of standing, the causes of actionalleging illegal spot zoning, a violation of Town Law § 262, and a failure to comply withthe requirements of SEQRA. Since the petitioner lives in close proximity to the portion of thesite that is the subject of the challenged determinations, she did not need to show actual injury orspecial damage to establish standing (see Matter of Gernatt Asphalt Prods. v Town ofSardinia, 87 NY2d 668, 687 [1996]; Matter of Sun-Brite Car Wash v Board of Zoning &Appeals of Town of N. Hempstead, 69 NY2d 406, 409-410, 413-414 [1987]; Matter of Village of Chestnut Ridge vTown of Ramapo, 45 AD3d 74, 89-90 [2007]; Matter of Ontario Hgts. Homeowners Assn. v Town of Oswego PlanningBd., 77 AD3d 1465, 1466 [2010]). Further, the injuries alleged by the petitioner fellwithin the zone of interests to be protected by SEQRA and the Town's zoning laws (seeSociety of Plastics Indus. v County of Suffolk, 77 NY2d 761, 772-775 [1991]; Matter of Bloodgood v Town ofHuntington, 58 AD3d 619, 621 [2009]; Matter of Village of Chestnut Ridge v Townof Ramapo, 45 AD3d at 94; Matter of McGrath v Town Bd. of Town of N.Greenbush, 254 AD2d 614, 616 [1998]). Moreover, the petitioner had standing to assert hercause of action alleging a violation of Municipal Home Rule Law § 20 (see Matter ofVillage of Chestnut Ridge v Town of Ramapo, 45 AD3d at 87).
However, the second cause of action was properly dismissed for lack of standing, since thepetitioner failed to demonstrate that she was harmed by the adoption of the Local Law in theabsence of a mandatory referendum, in alleged violation of Municipal Home Rule Law §23 (2) (f) (see New York State Assn. ofNurse Anesthetists v Novello, 2 NY3d 207, 211 [2004]; Society of Plastics Indus. vCounty of Suffolk, 77 NY2d at 773; cf. Matter of Gizzo v Town of Mamaroneck, 36 AD3d 162,166-168 [2006]).
Contrary to the respondents' contention, they failed to meet their burden of establishing thatthe petitioner was precluded from maintaining this proceeding on the ground that she did notactively participate in the underlying administrative proceeding. The petitioner alleged, in hersubmissions to the Supreme Court, that the objections to the Town Board's determinations thatshe raises in this proceeding were fully and specifically advanced by others at a public hearingconducted by the Town Board or in written comments timely submitted to the Town Board(see generally Stop-the-Barge v Cahill, 298 AD2d 817 [2002], affd 1 NY3d 218[2003]). Since the respondents failed to file the record of the administrative proceeding with theSupreme Court, the issues presented by the parties in connection with the respondents' contentionthat the petitioner is precluded from maintaining this proceeding could not be resolved on therespondents' motion. Consequently, the Supreme Court should have denied that branch of therespondents' motion which was to dismiss the petition based on the petitioner's alleged failure toactively participate in the underlying administrative proceeding.
Moreover, it was error for the Supreme Court, as an alternative ground for dismissal, to reachthe merits of the petitioner's SEQRA claims prior to service of the respondents' answers and thefiling of the complete administrative record (see CPLR 7804 [e], [f]). On the appellaterecord [*3]before us, it cannot be said that "the facts are so fullypresented in the papers of the respective parties that it is clear that no dispute as to the facts existsand no prejudice will result from the failure to require an answer" (Matter of Nassau BOCESCent. Council of Teachers v Board of Coop. Educ. Servs. of Nassau County, 63 NY2d 100,101 [1984]; see Matter of Bill's TowingServ., Inc. v County of Nassau, 83 AD3d 698, 699-700 [2011]; cf. Matter of Shellfish, Inc. v New YorkState Dept. of Envtl. Conservation, 76 AD3d 975, 978-979 [2010]; Matter of Laurel Realty, LLC, v PlanningBd. of Town of Kent, 40 AD3d 857, 860 [2007]).
The petitioner's remaining contentions need not be reached in light of our determination.
Accordingly, the matter must be remitted to the Supreme Court, Rockland County, forfurther proceedings on the first, third, fourth, fifth, and sixth causes of action, after therespondents serve and file their answers and the Town Board and the Town file the completeadministrative record. Florio, J.P., Lott, Sgroi and Miller, JJ., concur.