| Matter of Shepherd v Maddaloni |
| 2013 NY Slip Op 01275 [103 AD3d 901] |
| February 27, 2013 |
| Appellate Division, Second Department |
| In the Matter of Elizabeth Shepherd et al., Appellants, etal., Petitioners/Plaintiffs, v Louis Maddaloni et al.,Respondents. |
—[*1] Farrell Fritz, P.C., Uniondale, N.Y. (Anthony S. Guardino and Rachel A. Scelfo ofcounsel), for respondents/defendants-respondents Louis Maddaloni and LauraMaddaloni. Anthony B. Tohill, P.C., Riverhead, N.Y., for respondents/defendants-respondentsVillage of Head of the Harbor, Village of Head of The Harbor Planning Board, andVillage of Head of the Harbor Zoning Board of Appeals.
In a hybrid proceeding pursuant to CPLR article 78, inter alia, to review adetermination of the respondent/defendant Village of Head of the Harbor Planning Boarddated January 11, 2011, which, after a hearing, granted the application of therespondents/defendants Louis Maddaloni and Laura Maddaloni for site plan approval forthe construction of a new single-family residence, and action, inter alia, for a judgmentdeclaring, inter alia, that certain variances purportedly necessary for the constructionproject may not be issued as a matter of law, the petitioners/plaintiffs Elizabeth Shepherdand Peter Shepherd appeal, as limited by their notice of appeal and brief, from so muchof an order of the Supreme Court, Suffolk County (Pastoressa, J.), dated September 6,2011, as granted those branches of the motion of the respondents/defendants Village ofHead of the Harbor, Village of Head of the Harbor Planning Board, and Village of Headof the Harbor Zoning Board of Appeals, and the separate motion of therespondents/defendants Louis Maddaloni and Laura Maddaloni, which were pursuant toCPLR 3211 (a) to dismiss the second, third, and fourth causes of action insofar asasserted against each of them.
Ordered that the notice of appeal from so much of the order as granted thosebranches of the separate motions which were to dismiss the second and third causes ofaction is deemed to be an application for leave to appeal from those portions of the order,and leave to appeal from those portions of the order is granted (see CPLR 5701[c]); and it is further,
Ordered that the order is modified, on the law, by deleting the provisions thereofgranting those branches of the separate motions which were to dismiss the second causeof action, and substituting therefor provisions denying those branches of the separatemotions; as so modified, [*2]the order is affirmed insofaras appealed from, without costs or disbursements, and the matter is remitted to theSupreme Court, Suffolk County, for further proceedings consistent herewith, and thetime for the respondents/defendants to serve and file an answer to the second cause ofaction is extended until 20 days after service upon them of a copy of this decision andorder (see CPLR 7804 [f]).
Louis Maddaloni and Laura Maddaloni own a parcel of residential property abuttingStony Brook Harbor and located in the Village of Head of the Harbor (hereinafter theVillage). In 2007, the Maddalonis submitted a site plan application to the Village for thedemolition of the existing residence on the property and the construction of a newsingle-family residence with a pool and pool house. In accordance with the Code of theVillage of Head of the Harbor (hereinafter the Village Code), the site plan applicationwas reviewed by the Joint Village Coastal Management Commission (hereinafter theJCC), a body created by the Village and the Village of Nissequogue to review municipalactions for consistency with their adopted Local Waterfront Revitalization Program(hereinafter LWRP) (see Village Code §§ 81-1, 81-36). The JCC,acting in an advisory capacity (see Village Code § 81-18), found that thesite plan was inconsistent with the LWRP.
The Village Planning Board, the agency responsible for making a finding as to thesite plan's consistency with the LWRP (see Village Code §§ 81-14[A]; 81-15 [A]), disagreed with the JCC's finding of inconsistency. Pursuant to VillageCode § 81-30 (H), this disagreement caused "the matter [to] be referred to theVillage Board of Trustees for final resolution." At a meeting on October 13, 2010, theBoard of Trustees adopted a resolution determining that the site plan was consistent withthe LWRP.
Thereafter, the Planning Board held a public hearing on the Maddalonis' site planapplication. At a meeting on January 11, 2011, the Planning Board granted site planapproval. By letter dated January 25, 2011, the Chairman of the Planning Boardinformed Louis Maddaloni that the Planning Board approved the site plan, subject to 11enumerated conditions. A copy of the letter was filed with the Village Clerk on January31, 2011.
On March 10, 2011, three neighbors who own property adjacent to or across thestreet from the Maddalonis' property, and Elizabeth Shepherd and Peter Shepherd, whoreside one half mile away from the Maddalonis on property located on Stony BrookHarbor, commenced this hybrid proceeding and action, among other things, to review thePlanning Board's determination to grant site plan approval. The petitioners/plaintiffsalleged, in their second cause of action, that the site plan approval was arbitrary andcapricious because the proposed construction project violated Village Code provisionsconcerning setback requirements and vegetation-clearing limitations. In their third causeof action, they challenged the finding of consistency with the LWRP. As a fourth causeof action, they sought a judgment declaring that the Maddalonis were not entitled tocertain variances from the setback requirements and clearing limitations purportedlynecessary for the construction project. Prior to answering the petition/complaint, theVillage, the Planning Board, and the Village Zoning Board of Appeals (hereinaftercollectively the Village respondents) moved, and the Maddalonis separately moved, interalia, pursuant to CPLR 3211 (a) (3), (5) and (7) to dismiss the petition/complaint for lackof standing, as time-barred, and for failure to state a cause of action. The Supreme Courtgranted, inter alia, those branches of the motions which were to dismiss the second, third,and fourth causes of action, and the Shepherds appeal.
The Supreme Court properly granted that branch of the separate motions which wasto dismiss the third cause of action, which sought review of the finding of consistencywith the LWRP, as time-barred by the applicable four-month statute of limitations(see CPLR 217 [1]). The consistency determination of the Board of Trusteespursuant to Village Code § 81-30 (H), made on October 13, 2010, was a final andbinding determination that began the running of the four-month limitations period (see Matter of Best Payphones, Inc.v Department of Info. Tech. & Telecom. of City of N.Y., 5 NY3d 30, 34[2005]; Matter of Lagin vVillage of Kings Point Comm. of Architectural Review, 62 AD3d 709, 710[2009]). Accordingly, the third cause of action, commenced on March 10, 2011, wasuntimely.[*3]
Furthermore, the Supreme Court properly grantedthat branch of the separate motions which was to dismiss, as unripe, the fourth cause ofaction, which was for a judgment declaring that the Maddalonis are not entitled to certainvariances purportedly necessary for the construction project. "The 'justiciablecontroversy' upon which a declaratory judgment may be rendered requires. . . that the controversy involve present, rather than hypothetical,contingent or remote, prejudice to plaintiffs" (American Ins. Assn. v Chu, 64NY2d 379, 383 [1985], cert denied 474 US 803 [1985]). "In order to beamenable to declaratory relief, '[t]he dispute must be real, definite, substantial, andsufficiently matured so as to be ripe for judicial determination' " (Matter of Enlarged City SchoolDist. of Middletown v City of Middletown, 96 AD3d 840, 841 [2012], quotingWaterways Dev. Corp. vLavalle, 28 AD3d 539, 540 [2006]). In general, "[t]he doctrine of exhaustion ofadministrative remedies applies to actions for declaratory judgments" (Town of Oyster Bay vKirkland, 81 AD3d 812, 815 [2011], affd 19 NY3d 1035 [2012]). Here,the Maddalonis have not made an application for variances, and the Village ZoningBoard of Appeals has not issued a final determination on any variance application withrespect to the proposed construction project. Thus, the claim is not ripe for judicialreview, and there is no justiciable controversy upon which the court may properly rendera declaratory judgment (see Matter of Enlarged City School Dist. of Middletown vCity of Middletown, 96 AD3d at 842; Matter of Town of Riverhead v Central Pine Barrens Joint Planning& Policy Commn., 71 AD3d 679, 680-681 [2010]; Ashley Bldrs. Corp. v Town ofBrookhaven, 39 AD3d 442, 443 [2007]; Waterways Dev. Corp. vLavalle, 28 AD3d at 540-541).
However, the Supreme Court improperly granted that branch of the separate motionswhich was to dismiss, as time-barred, the second cause of action, which sought review ofthe Planning Board's determination to grant site plan approval. Pursuant to Village Law§ 7-725-a (11), a proceeding pursuant to CPLR article 78 to challenge a planningboard's decision on a site plan application must be commenced "within thirty days afterthe filing of a decision by such board in the office of the village clerk." Contrary to thecontentions of the Village respondents and the Maddalonis, the letter informing LouisMaddaloni that the Planning Board approved the site plan, filed with the Village Clerkon January 31, 2011, does not constitute a decision for purposes of the 30-day statute oflimitations (see Matter of Sullivan v Dunn, 298 AD2d 974, 975 [2002];Matter of Allens Cr./Corbett's Glen Preserv. Group v Town of Penfield PlanningBd., 249 AD2d 921, 922 [1998]). The letter, which did not indicate the vote of thePlanning Board's members, "was merely notice that a decision had been made"(Matter of Sullivan v Dunn, 298 AD2d at 975; see Matter of AllensCr./Corbett's Glen Preserv. Group v Town of Penfield Planning Bd., 249 AD2d at922).
The Village respondents have not submitted a document that could be construed asthe Planning Board's decision itself (cf. Matter of Rose Woods, LLC v Weisman, 85 AD3d 801,803 [2011]; Matter of ArrandaleCivic Assn. v Zoning Bd. of Appeals of Vil. of Great Neck, 27 AD3d 732,732-733 [2006]; Matter ofRamapo Homeowners Assn. v Planning & Zoning Bd. of Town of Ramapo, 2 AD3d530, 530 [2003]; Matter of Bauman, Taub & Von Wettberg v Village ofHamilton Zoning Bd. of Appeals, 202 AD2d 840, 841 [1994]). The only documentin the record that could constitute the Planning Board's decision is the minutes from themeeting on January 11, 2011, which contains the text of the resolution approving the siteplan application and indicates that the resolution was unanimously adopted by the Boardmembers present (see Matter of Kennedy v Zoning Bd. of Appeals of Vil. ofCroton-on-Hudson, 78 NY2d 1083, 1084-1085 [1991]; Matter of King vChmielewski, 76 NY2d 182, 186 [1990]; Matter of 92 MM Motel, Inc. v Zoning Bd. of Appeals of Town ofNewburgh, 90 AD3d 663, 664 [2011]; Matter of Mosher [Town of Southport Zoning Bd. of Appeals],5 AD3d 840, 841 [2004]; Matter of Casolaro v Zoning Bd. of Appeals of Vil. ofElmsford, 200 AD2d 742, 742 [1994]). Since there is no indication on the copy ofthe minutes in the record as to when, or even if, it was filed with the Village Clerk, andthe Village respondents have offered no evidence by way of affidavit indicating when orif the minutes were filed, the 30-day limitations period did not begin to run before thismatter was commenced on March 10, 2011. Accordingly, the second cause of action isnot time-barred by Village Law § 7-725-a (11).
Furthermore, the Supreme Court erred in determining that the Shepherds lackedstanding to challenge the site plan approval. Contrary to the contention of the Villagerespondents and the Maddalonis, the Shepherds are not precluded from challenging thesite plan approval on the ground that they did not actively participate in theadministrative proceeding. The objections to the [*4]Planning Board's determination that they raise in this matterwere specifically advanced by an attorney representing the three otherpetitioners/plaintiffs during the administrative proceeding (see Matter of Youngewirth v Townof Ramapo Town Bd., 98 AD3d 678, 680-681 [2012]; Matter of Shapiro v Town ofRamapo, 98 AD3d 675, 678 [2012]; cf. Matter of Miller v Kozakiewicz,300 AD2d 399, 400 [2002]; Matter of Schodack Concerned Citizens v Town Bd. ofTown of Schodack, 148 AD2d 130, 135 [1989]; Aldrich v Pattison, 107AD2d 258, 267-268 [1985]). Moreover, the Shepherds established their standing tochallenge the site plan approval by alleging "direct harm, injury that is in some waydifferent from that of the public at large" (Society of Plastics Indus. v County ofSuffolk, 77 NY2d 761, 774 [1991]). Their allegations that the approved constructionproject will harm their regular use, enjoyment, and interest in protecting the ecologicalhealth of Stony Brook Harbor, which is adjacent to their property, are sufficient to conferstanding (see Matter of Save thePine Bush, Inc. v Common Council of City of Albany, 13 NY3d 297, 304-306[2009]).
Moreover, the second cause of action was sufficiently pleaded (see CPLR3211 [a] [7]).
To the extent that the Supreme Court, as an alternative ground for dismissal, reachedthe merits of the Shepherds' challenge to the site plan approval before therespondents/defendants served and filed an answer to this cause of action, this wasimproper (see CPLR 7804 [f]). On the appellate record before us, it cannot besaid that "the facts are so fully presented in the papers of the respective parties that it isclear that no dispute as to the facts exists and no prejudice will result from the failure torequire an answer" (Matter of Nassau BOCES Cent. Council of Teachers v Board ofCoop. Educ. Servs. of Nassau County, 63 NY2d 100, 102 [1984]; see Matter ofYoungewirth v Town of Ramapo Town Bd., 98 AD3d at 681; cf. Matter of Shellfish, Inc. v NewYork State Dept. of Envtl. Conservation, 76 AD3d 975, 978-979 [2010]; Matter of Laurel Realty, LLC, vPlanning Bd. of Town of Kent, 40 AD3d 857, 860 [2007]).
The parties' remaining contentions are either academic in light of our determinationor without merit.
Accordingly, the matter must be remitted to the Supreme Court, Suffolk County, fora determination on the merits of the second cause of action after therespondents/defendants serve and file their answers to this cause of action. Mastro, J.P.,Angiolillo, Chambers and Cohen, JJ., concur.