Gondolfo v. Town of Carmel

• Decision Date: 24 June 2022
• Docket Number: Index No. 501385/2020
• Citation: 76 Misc.3d 521,174 N.Y.S.3d 197
• Parties: Jessica GONDOLFO, Robert Cavallaro, Todd McCormack, Edward Wechsler, Joseph Armisto, and Gerard Hanrahan, Petitioners-Plaintiffs, v. TOWN OF CARMEL, Town of Carmel Town Board Town of Carmel Planning Board, Town of Carmel Zoning Board of Appeals, Michael Carnazza, in His Official Capacity as Town of Carmel Building Inspector New York Smsa Limited Partnership d/b/a/ Verizon Wireless, Homeland Towers, LLC and Maple Hill Estates Homeowners Association, Inc., Respondents-Defendants.
• Court: New York Supreme Court

76 Misc.3d 521
174 N.Y.S.3d 197

Jessica GONDOLFO, Robert Cavallaro, Todd McCormack, Edward Wechsler, Joseph Armisto, and Gerard Hanrahan, Petitioners-Plaintiffs,
v.
TOWN OF CARMEL, Town of Carmel Town Board Town of Carmel Planning Board, Town of Carmel Zoning Board of Appeals, Michael Carnazza, in His Official Capacity as Town of Carmel Building Inspector New York Smsa Limited Partnership d/b/a/ Verizon Wireless, Homeland Towers, LLC and Maple Hill Estates Homeowners Association, Inc., Respondents-Defendants.

Index No. 501385/2020

Supreme Court, Putnam County, New York.

Decided on June 24, 2022

174 N.Y.S.3d 202

Knauf Shaw LLP (Jonathan Ross Tantillo, Esq.) Rochester, for Petitioners/Plaintiffs

Costello & Folchetti LLP (Gregory Larkin Folchetti, Esq.) Carmel, for Town Respondents/Defendants

Snyder & Snyder, LLP (Douglas W. Warden, Esq.) Tarrytown, for Cell Tower Respondents/Defendants

Handel & Carlini, LLP (Anthony Carlos Carlini, Esq.) for HOA Respondent/Defendant

Thomas R. Davis, J.

174 N.Y.S.3d 203

76 Misc.3d 527

In a dispute over the construction of a cell tower — permission for which was given by the Town Board of the Town of Carmel in a consent order to settle litigation in Federal Court — Petitioners question the authority of the Town Board to enter into the settlement given that the Zoning Board of Appeals and Planning Board never voted on the issue. The Court finds that the Town Board overstepped its authority in agreeing to allow the cell tower to be built without Zoning Board of Appeals or Planning Board review or vote.

This Decision and Order determines the Petition/Complaint (Motion Seq. No.1), the Plaintiffs’-Petitioners’ motion for a preliminary injunction (Motion Seq. #2) and the motion by the Defendants, New York SMSA Limited Partnership d/b/a Verizon Wireless and Homeland Towers, LLC, to dismiss the Petition/Complaint (Motion Seq. #3).

BACKGROUND

This is a hybrid CPLR Article 78 proceeding and CPLR § 3001 declaratory judgment action, challenging the issuance of a Building Permit for the construction of a 140-foot cell phone tower at or near Walton Drive in the Town of Carmel, New York. The Building Permit was issued pursuant to a "Stipulation of Settlement and Consent Order" dated May 20, 2020 in an action that was pending in the United States District Court for the Southern District of New York, bearing Docket No. 19-cv-10793 (PMH) (JCM) (hereinafter, "the Federal Action"). The Federal Action was brought by New York SMSA Limited Partnership d/b/a Verizon Wireless (hereinafter "Verizon") and Homeland Towers, LLC (hereinafter "Homeland"), as Plaintiffs, against the Town of Carmel, the Town of Carmel Town Board, the Town of Carmel Planning Board, the Town of Carmel Zoning Board of Appeals, the Town of Carmel Environmental Conservation Board and Michael Carnazza, the Town of Carmel Building Inspector, as Defendants.

In the Federal Action, which was commenced on November 21, 2019, Verizon and Homeland contended that the Town of Carmel Planning Board and Zoning Board of Appeals ("ZBA") wrongfully denied Verizon and Homeland's applications for site

76 Misc.3d 528

plan approval, a special use permit and variances relating to Verizon and Homeland's proposals to build two cell phone towers, one each at 254 Croton Falls Road in the Town of Carmel (the "Casse Property") and 36 Dixon Road in the Town of Carmel (the "Dixon Property").

Six months after commencement of the Federal Action, a "Stipulation of Settlement and Consent Order" (hereinafter, the "Federal Consent Order") was executed in the Federal Action, settling the action. The settlement was "so-ordered" by United States District Magistrate, Hon. Philip M. Halpern. Under the terms of the Federal Consent Order, Verizon and Homeland agreed, among other things, to withdraw their application for a cell tower at the Casse Property, while the Town Defendants agreed, among other things, to issue a Building Permit for the cell tower at the Dixon Property and also for a cell tower at an entirely separate location on Walton Drive in the Town of Carmel ("Walton Drive cell tower"). No Planning Board or

174 N.Y.S.3d 204

ZBA review (for site plan, special use permit or variances) had been undertaken for a cell tower at the Walton Drive location prior to the Consent Order being executed, nor any vote taken by the respective boards.

In addition to the grant of the Building Permits for those two locations, the Federal Consent Order provided, at paragraph 6 thereof:

"[Town] Defendants shall issue a certificate of compliance within 15 days of Plaintiffs’ [Verizon and Homeland's] request (including, third-party inspection reports, engineering reports evidencing compliance with the prescribed manner of construction, as-built drawings, elevation certificate showing compliance with height limitations and such other documents as may be reasonably requested by Defendants) for such issuance and upon proper and complete construction of each of the Facilities. Upon issuance of the certificate of compliance, each of the Facilities shall be deemed a permitted use as if it had all necessary permits required by the Town. Other than a Building Permit no other Town permits or approvals shall be required. " [Emphasis added.]

Neither the Town of Carmel Planning Board nor the Town of Carmel ZBA met or voted on whether to agree to the terms of the Federal Consent Order, whether to settle the Federal Action or whether to bypass all review of a cell tower on Walton Drive. In fact, the evidence indicates that neither the Planning Board

76 Misc.3d 529

nor ZBA considered the Federal Consent Order at all. Instead, only the Town Board met and voted to settle the Federal Action pursuant to the terms set forth in the Federal Consent Order.

A Building Permit for the Walton Drive tower was issued on July 23, 2020.

The Petitioners-Plaintiffs in the instant action ("the Petitioners") are all residents who reside either on Walton Road or a neighboring road alleged to be in close proximity to the proposed cell tower. They commenced the instant proceeding/action on October 14, 2020. In their Notice of Petition, they seek CPLR Article 78 relief and CPLR § 3001 relief. Through the Article 78, they seek to, "vacate[ ], annul[ ], and declar[e] illegal, unconstitutional, invalid, null and/or void any approvals purportedly issued" for the cell tower on Walton Drive, as well as an order that if Verizon and Homeland ("the Wireless Defendants") wish to proceed with the development of the cell tower on Walton Drive, they must first obtain the necessary approvals from the Town of Carmel Planning Board and ZBA. Through CPLR § 3001, they seek a judgment declaring that the Town Defendants were without power to enter into the Federal Consent Order, that the cell Tower on Walton Drive lacks the necessary approvals and that no construction can proceed on that cell tower until all necessary approvals are granted.

Shortly after this action/proceeding was commenced, the Petitioners sought in this Court a preliminary injunction to prevent any construction on the Walton Drive cell tower site until final determination of this proceeding. Before the order to show cause on that application was signed, the Wireless Defendants removed this action/proceeding to federal court on October 29, 2020, alleging that the action involved questions of federal law. On motion of the Petitioners, the federal court remanded the action back to state court by Opinion and Order dated February 8, 2021.

This Court (Hon. Gina C. Capone, J.S.C.) then signed the Petitioners’ pending order to show cause with a temporary restraining order on March 3, 2021.

174 N.Y.S.3d 205

The Town Defendants filed an Amended Answer on March 10, 2021 and their Certified Return on March 17, 2021. The Wireless Defendants filed a motion to dismiss the Petition/Complaint on May 17, 2021. By mid-June 2021, all parties had submitted their respective supporting and opposition papers, including

76 Misc.3d 530

memoranda of law, on the order to show cause for a preliminary injunction, the motion to dismiss and the Article 78 proceeding.

However, on July 22, 2021, the Wireless Defendants filed a motion for a stay of proceedings in this Court based on the Petitioners having brought a Rule 60(b) motion in federal court for relief from the Federal Consent Order. The motion for a stay of proceedings in this Court was granted by Decision and Order dated September 15, 2021 (Hon. Gina C. Capone, J.S.C.)

The federal court denied the Petitioners’ Rule 60(b) motion by Memorandum Opinion and Order dated March 1, 2022. Upon motion by the Wireless Defendants to lift this Court's stay, this Court issued an Order on May 10, 2022 lifting the stay, at which time the pending order to show cause for a preliminary injunction, motion to dismiss the Petition/Complaint and the Petition/Complaint were deemed fully submitted. Those motions and the Petition/Complaint are now decided as follows:

THE WIRELESS DEFENDANTS’ MOTION TO DISMISS (MOTION # 3)

The Wireless Defendants have moved to dismiss the Petition/Complaint for failure to state a cause of action. Each basis they assert in support of their motion is discussed as follows:

Standing

The Wireless Defendants assert that the Petitioners lack standing because they do not allege that they suffered or will suffer any special damages. They further allege that the Petitioners are not entitled to a specific view and that interference with views and/or light and air are insufficient bases to establish standing.

Petitioners assert that they do not have to allege special damages to establish their standing. They assert that if they reside in close enough proximity to the proposed site such that under the local zoning and planning laws they would be entitled to receive notice of the project, and if the types of harm they allege are within the zones of interest of the statutes under which they are suing, their standing is presumed. They allege that they meet this standard.

In particular...