| Matter of Sullivan Farms IV, LLC v Village of Wurtsboro |
| 2015 NY Slip Op 09157 [134 AD3d 1275] |
| December 10, 2015 |
| Appellate Division, Third Department |
[*1]
| In the Matter of Sullivan Farms IV, LLC, et al., Appellants, v Village ofWurtsboro et al., Respondents. |
Whiteman Osterman & Hanna, LLP, Albany (John J. Henry of counsel), forappellants.
Lewis & McKenna, Saddle River, New Jersey (Alyse D. Terhune of counsel),for respondents.
Devine, J. Appeal from an order and judgment of the Supreme Court (McGuire, J.),entered October 22, 2014 in Sullivan County, which, in a combined proceeding pursuantto CPLR article 78 and action for declaratory judgment, granted respondents' motion todismiss the amended petition/complaint.
Petitioner Sullivan Farms II, Inc. owned approximately 54 acres of real property inthe Village of Wurtsboro, Sullivan County and 31 acres of adjoining property in theTown of Mamakating, Sullivan County. In 2009, Sullivan Farms II obtained conditionalfinal site plan and subdivision approval from respondent Village of Wurtsboro PlanningBoard for the development and construction of a 72-unit townhouse residential clusterdevelopment known as "Kaufman Farms West" (see Village Law§ 7-738 [1] [a]; Village of Wurtsboro Zoning Law § 5.19).The approval lapsed due to inactivity, prompting petitioner Sullivan Farms IV, LLC, thesuccessor-in-interest to Sullivan Farms II, to seek approval in 2011. The Planning Boardagain gave its imprimatur for the project and, in 2012, the subdivision plat for the projectwas signed by the Planning Board chairperson and filed with the Sullivan County Clerk.Meanwhile, in June 2012, petitioner Kaufman Farms, LLC submitted a site plan/specialuse application with the Planning Board for a separate residential cluster development,known as "Kaufman Farms East," on nearby property that it owned.[FN1]
[*2] The Planning Board revisited its approval of theKaufman Farms West project in 2013. During the pendency of that review, respondentVillage of Wurtsboro Board of Trustees adopted Local Law No. 1 of the Village ofWurtsboro (2014) and Local Law No. 2 of the Village of Wurtsboro (2014). The twolocal laws amended the Village's subdivision regulations and zoning laws to, amongother things, alter the methodology for calculating the number of allowable building lotsor dwelling units for a residential cluster subdivision within the Village. The PlanningBoard thereafter rescinded its prior approval for Kaufman Farms West in May 2014,finding that the approval conflicted with applicable state and local laws and was void abinitio.
Petitioners thereafter commenced this hybrid CPLR article 78 proceeding anddeclaratory judgment action interposing 12 causes of action challenging the adoption ofthe subject local laws and the determination by the Planning Board to rescind thesubdivision and site plan approvals for Kaufman Farms West. Petitioners subsequentlyfiled an amended petition/complaint adding two additional causes of action. Respondentsfiled a pre-answer motion to dismiss, arguing that the amended petition/complaint wasdeficient in various respects. Supreme Court agreed and determined that, as is relevanthere, the amended petition/complaint failed to state a cause of action. Petitioners nowappeal.
"In assessing the adequacy of a complaint under CPLR 3211 (a) (7), the court mustgive the pleading a liberal construction, accept the facts alleged in the complaint to betrue and afford the plaintiff 'the benefit of every possible favorable inference' "(J.P. Morgan Sec. Inc. vVigilant Ins. Co., 21 NY3d 324, 334 [2013], quoting AG Capital Funding Partners, L.P.v State St. Bank & Trust Co., 5 NY3d 582, 591 [2005]). Nevertheless,"allegations consisting of bare legal conclusions as well as factual claims flatlycontradicted by documentary evidence are not entitled to any such consideration"(Maas v Cornell Univ., 94 NY2d 87, 91 [1999] [internal quotation marks andcitation omitted]; accord Simkinv Blank, 19 NY3d 46, 52 [2012]; see Matter of Conners v Town of Colonie, 108 AD3d 837,839 [2013]). Supreme Court correctly determined that such was the case presented hereand, as such, we affirm.
Turning first to the rescission of the subdivision and site plan approval, the PlanningBoard was empowered to rescind an approval that was issued in excess of legal authorityand void ab initio (see Matter of Reiss v Keator, 150 AD2d 939, 941 [1989]; see also Town of Amherst vRockingham Estates, LLC, 98 AD3d 1241, 1242 [2012]). Moreover, "[d]espitethe lack of statutory authority, a planning board may reconsider a determination if therehas been a material change of circumstances since its initial approval of the plat or newevidence is presented" (Matter of 1066 Land Corp. v Planning Bd. of Town ofAusterlitz, 218 AD2d 887, 887 [1995]; see Matter of Lynn v Planning Bd. of the Town of E. Hampton,89 AD3d 1028, 1028 [2011], lv denied 18 NY3d 807 [2012]). The questionis accordingly not whether the Planning Board had the power to act in the way it did, butwhether it abused its discretion in doing so (see Matter of Center of Deposit, Inc. v Village of Deposit, 108AD3d 851, 853 [2013]; Matter of Lynn v Planning Bd. of the Town of E.Hampton, 89 AD3d at 1028).
The number of building lots or dwelling units in a cluster development "shall in nocase exceed the number which could be permitted, in the planning board's judgment, ifthe land were subdivided into lots conforming to the minimum lot size and densityrequirements of the zoning local law applicable to the district or districts in which suchland is situated" (Village Law § 7-738 [3] [b]). Kaufman Farms West waslocated in a district zoned for cluster developments and, using a formula provided by theVillage of Wurtsboro Zoning Law, the 85 acres encompassing the development wasmore than sufficient to permit the proposed 72 dwelling units.
That being said, the documents submitted in support of the applications for approval[*3]demonstrate that 31 acres of the subdivision werelocated outside the Village limits in the Town of Mamakating, SullivanCounty.[FN2] Thiswas no revelation to the Planning Board, as the acreage was included in the subdivisionplan upon the expectation that the land would be annexed from the Town ofMamakating. Annexation never occurred, however, and the 54 acres actually locatedwithin the Village were inadequate to support the scope of the proposed subdivision.Inasmuch as the Planning Board had no jurisdiction over property outside the Villagelimits (see e.g. Village Law § 7-700; Matter of Golden vPlanning Bd. of Town of Ramapo, 30 NY2d 359, 369-370 [1972]; Matter of Village of ChestnutRidge v Town of Ramapo, 45 AD3d 74, 88 [2007], lvs dismissed 12NY3d 793 [2009], 15 NY3d 817 [2010]), and the land within the Village did not permita project of the scope proposed under the terms of the local zoning regulations, thePlanning Board rationally determined that its final approval of the Kaufman Farms Westproject violated state and local law and must be rescinded.[FN3]
Petitioners further asserted a claim alleging that they had obtained vested rights inthe Kaufman Farms West development based upon the Planning Board's approval of thesubdivision. It is true that "a vested right can be acquired when, pursuant to a legallyissued [subdivision approval], the landowner demonstrates a commitment to the purposefor which the [approval] was granted by effecting substantial changes and incurringsubstantial expenses to further the development" (Town of Orangetown v Magee,88 NY2d 41, 47 [1996]; seeMatter of Waterways Dev. Corp. v Town of Brookhaven Zoning Bd. of Appeals,126 AD3d 708, 711 [2015], lv denied 25 NY3d 909 [2015]; Matter ofPete Drown, Inc. v Town Bd. of Town of Ellenburg, 229 [*4]AD2d 877, 878 [1996], lv denied 89 NY2d 802[1996]). The critical point was that subdivision approval here was not legallygranted in the first instance and, thus, Sullivan Farms never had a valid approval fromwhich vested rights could flow (see Matter of Lamar Adv. of Penn, LLC v Pitman, 9 AD3d734, 736 [2004]; Incorporated Vil. of Asharoken v Pitassy, 119 AD2d 404,416 [1986], lv denied 69 NY2d 606 [1987]).
Petitioners next contend that Supreme Court erred in dismissing its StateEnvironmental Quality Review Act (hereinafter SEQRA) challenges to the PlanningBoard's rescission of subdivision approval. Petitioners alleged that the Planning Boardfailed to make any findings pursuant to SEQRA when it rescinded the subdivisionapproval, but that claim was rendered academic by the Planning Board's adoption of arevised determination that made the requisite findings (see Matter of City ofGloversville v Town of Johnstown, 210 AD2d 760, 761-762 [1994]; Matter ofWeinstein Enters. v Town of Kent, 171 AD2d 874, 875 [1991]; compare Matter of City of GlensFalls v Town of Queensbury, 90 AD3d 1119, 1120-1121 [2011]). The PlanningBoard correctly noted in its revised determination that it "was merely performing theministerial function of rescinding an approval that was void ab initio" and, as a result,was not performing an "action" so as to trigger the requirements of SEQRA (Matterof Reiss v Keator, 150 AD2d at 942 [emphasis omitted]; see ECL 8-0105 [4],[5] [ii]).
With regard to the adoption of the local laws, the Board of Trustees correctlydesignated them as "unlisted" actions because, instead of changing the allowable useswithin a zoning district, they only amended the procedures to be employed in assessingproposed subdivisions and cluster developments (see 6 NYCRR 617.2 [ak];compare 6 NYCRR 617.4 [b] [2]; Centerville's Concerned Citizens v Town Bd. of Town ofCenterville, 56 AD3d 1129, 1130 [2008]). Respondents submitted documentaryproof demonstrating that, as is appropriate for unlisted actions, a short environmentalassessment form for each local law was submitted "to assist [the Board of Trustees] indetermining the environmental significance or non-significance of actions" (6 NYCRR617.2 [m]; see 6 NYCRR 617.6 [a] [3]; Matter of Ellsworth v Town of Malta, 16 AD3d 948, 949[2005]). The Board of Trustees then made "negative declaration[s] as to whether theproposed action[s] will have a significant effect on the environment" (Matter ofCathedral Church of St. John the Divine v Dormitory Auth. of State of N.Y., 224AD2d 95, 99 [1996], lv denied 89 NY2d 802 [1996]; see Matter of Ellsworthv Town of Malta, 16 AD3d at 949).
The record demonstrates that, in so doing, the Board of Trustees "identified therelevant areas of environmental concern, took a 'hard look' at them, and made a 'reasonedelaboration' of the basis for its determination[s]" (Matter of Jackson v New YorkState Urban Dev. Corp., 67 NY2d 400, 417 [1986], quoting Aldrich vPattison, 107 AD2d 258, 265 [1985]; accord Matter of Friends of the Shawangunks, Inc. v Zoning Bd. ofAppeals of Town of Gardiner, 56 AD3d 883, 884-885 [2008]). The short formenvironmental assessment forms made clear that the local laws would have noenvironmental impacts and, indeed, were intended to recognize that cluster developmentswere more environmentally beneficial than subdivisions in that they utilized a smallerportion of a proposed site. In furtherance of that recognition, the local laws authorized"the Planning Board to modify the minimum lot area, lot width, setback and frontagerequirements as applied to cluster developments," and harmonized the Village'ssubdivision regulations and zoning law with regard to calculating the maximum numberof dwelling units permitted in a cluster development. Moreover, the public was givennotice of the proposed amendments to the local laws, and petitioners were given anopportunity to offer comments and address the potential adverse environmental impactsat a public hearing. Given the content of the local laws and the documented efforts of theBoard of Trustees to discern their environmental impact, we agree with Supreme Courtthat the Board of Trustees took the requisite hard look at [*5]the environmental impacts and made a sufficientelaboration of the basis of its negative declarations (see Matter of Gernatt AsphaltProds. v Town of Sardinia, 87 NY2d 668, 689-690 [1996]; Matter of Gabrielli v Town of NewPaltz, 116 AD3d 1315, 1318 [2014]).
Petitioners lastly contend that Supreme Court erred in dismissing their claims that thesubject local laws were unconstitutionally vague insofar as they provided the PlanningBoard with unfettered discretion to determine the number of dwelling units permitted ona given property. "[I]t is incumbent on the challenging parties to demonstrate that thestatutory language is so indefinite that they could not have reasonably understood it"(Clements v Village of Morristown, 298 AD2d 777, 778 [2002] [internalquotation marks and citations omitted]; see Matter of Gabrielli v Town of NewPaltz, 116 AD3d at 1319). A specific methodology is set forth in the local laws fordetermining the maximum number of dwelling units in a proposed cluster subdivisionand, suffice it to say, this patently clear language invites neither misunderstanding by aperson of ordinary intelligence nor arbitrary enforcement by the Planning Board (compare Matter of Turner vMunicipal Code Violations Bur. of City of Rochester, 122 AD3d 1376,1377-1378 [2014]). Petitioners' constitutional claims are therefore belied by the plainlanguage of the local laws, and Supreme Court properly dismissed them (see Matterof Burke v Denison, 218 AD2d 894, 896 [1995]).
Petitioners' remaining contentions, to the extent that they are not rendered academicin light of the foregoing, have been examined and found to be lacking in merit.
McCarthy, J.P., Rose and Clark, JJ., concur. Ordered that the order and judgment isaffirmed, without costs.
Footnote 1:The record indicates thatno further action has occurred with regard to the application for Kaufman Farms East.
Footnote 2:These documentsconclusively contradict the assertion of petitioners that an "alternative" densitycalculation was used that relied in whole upon property within the Village that laterbecame the subject of the proposed Kaufman Farms East subdivision. Indeed, anengineering review that cited this alternative acknowledged that the proposal before thePlanning Board involved land within the Town of Mamakating, and that preliminaryplans for Kaufman Farms East must be developed "before considering [the alternative] asa solution . . . with regard to density calculations." No effort was made toobtain subdivision approval for Kaufman Farms East until after approvals had beengranted for Kaufman Farms West, and the record leaves no doubt that the PlanningBoard did not rely upon the alternative calculation.
Footnote 3:Estoppel may notgenerally be invoked against the Planning Board to prevent it from rescinding anerroneously issued permit, and petitioners have alleged no facts that could potentiallyallow an estoppel argument to be made (see Matter of Parkview Assoc. v City of NewYork, 71 NY2d 274, 282 [1988], appeal dismissed and cert denied 488 US801 [1988]; Matter of OakwoodProp. Mgt., LLC v Town of Brunswick, 103 AD3d 1067, 1069 [2013], lvdenied 21 NY3d 853 [2013]). Nor is there any basis for the application of VillageLaw § 7-740, which establishes a statute of limitations for those who wishto challenge a determination of the Planning Board in a CPLR article 78 proceeding andhas no applicability to the inherent authority of the Planning Board to revisit its priordeterminations.