Mattia v. Vill. of Pittsford Planning & Zoning Bd. of Appeals
| Decision Date | 05 December 2017 |
| Docket Number | 17/7421 |
| Citation | 61 Misc.3d 592,83 N.Y.S.3d 409 |
| Parties | David MATTIA, and Tina Mattia, Petitioners, v. The VILLAGE OF PITTSFORD PLANNING AND ZONING BOARD OF APPEALS, Respondent. |
| Court | New York Supreme Court |
Donald W. O'Brien, Esq., Rochester, Attorney for Petitioners
Mindy L. Zoughlin, Esq., Attorney for Respondent
J. Scott Odorisi, J.
This second Civil Practice Law and Rules ("CPLR") Article 78 special proceeding arises out of a dispute over a new home project in the historic Village of Pittsford. Pending before this Court is: (1) a Verified Petition seeking to annul Respondent's decision to classify the project a State Environmental Quality and Review Act ("SEQRA") Type I Action, with a Positive Declaration requiring Petitioners to complete a Draft Environmental Impact Assessment ("DEIS"); and, (2) Respondent's dismissal motion.
Based upon a review of: the Notice of Petition, dated July 18, 2017, and the Verified Petition, with exhibits, dated July 18, 2017 - both submitted in support of the proceeding; the Verified Answer, dated, September 11, 2017, the Notice of Motion, dated September 12, 2017, the Attorney Affirmation of Mindy L. Zoughlin, Esq., with an exhibit, dated September 11, 2017, and the four-volume Administrative Return - all submitted in opposition to the proceeding and in support of Respondent's motion; as well as upon oral argument heard at court, this Court hereby: (1) GRANTS the Verified Petition; and, (2) DENIES Respondent's motion - both for the reasons set forth hereinafter.
On or about July 22, 2015, David and Tina Mattia ("Petitioners") bought 44 Sutherland Street in the Village of Pittsford (the "Village") - a brick, single family home built around 1947 with the intent to renovate it. In support of their original renovation plan, Petitioners hired architect R. Jon Schick ("Architect Schick") who undertook a complete inspection. Unfortunately, the inspection revealed a critical mold contamination problem that rendered a renovation infeasible. In light of this discovery, Petitioners changed their initial plans and intended to apply to Village officials to demolish the existing home and replace it with a new 2-story, 3-car garage, wood-framed 3400' house.
This Court is well acquainted with the sixteen-month long demolition application saga before the Village of Pittsford Architectural and Preservation Review Board ("APRB"), so it will not re-state of all the same, with the exception of noting that the APRB, on October 5, 2015, indicated that it would seek SEQRA lead agency status and that the project was a Type I Action - which Petitioners disputed [Ver. Pet., Ex. # 1, pp. 6-7]. During a later e-mail exchange between attorneys, the APRB's counsel - Jeffery Turner - confirmed with the DEC that the matter was in fact a Type II Action as Petitioners contended [Ex. # 2]. At the August 31, 2016, APRB Meeting, the project was formally re-designated a Type II Action per Section 617.5 (c) (2) [Ex. # 3, p. 1]. This designation was later confirmed via another attorney e-mail exchange, but adding citation to Section 617.5 (c) (9) [Ver. Pet., Ex. # 5]. Demolition permission was finally bestowed in December of 2016, but work was contingent upon the APRB and Respondent Pittsford Planning and Zoning Board of Appeals ("PZBA") approving the plans for the new home [Ex. # 4].1
After the APRB approved demolition, Petitioners on January 19, 2017, applied to the PZBA for a site plan review [Ex. # 6; R. 1-2, 13]. The first PZBA Meeting was held on February 27, 2017, whereat the PZBA's lawyer - Mindy Zoughlin - noted a need for a SEQRA classification [Ex. # 7, p. 13; R. 52]. The next day, Ms. Zoughlin and Petitioners' previous attorney - Betsy Brugg - discussed the SEQRA classification, and Ms. Brugg later supplied Ms. Zoughlin with the same materials she gave to Mr. Turner supporting the Type II classification. After reviewing Ms. Brugg's memorandum, Ms. Zoughlin indicated a conflict between SEQRA classification provisions, noting that the historic site made it an automatic Type I Action, and she asked for case-law from Ms. Brugg [Ex. # 8]. On March 2nd, Ms. Brugg e-mailed back disputing the conflict as the historic district section applied only to Unlisted Actions, which this was not.
At the April 4th PZBA Meeting, it was resolved that the matter was a Type I Action per 6 NYCRR § 617.4 (b) (9) [Ex. # 10; R. 60-69]. In its resolution, the PZBA found that the APRB did not take the proper steps for lead agency status - as it did not respond to the PZBA's inquiry - nor did it explain its change in position on the Action type [R. 62-63, 479]. Another meeting was held on April 17th, at which Ms. Brugg contested the Type I classification [R. 75-76].
At the May 8th PZBA Meeting, and given the Type I Action classification, the PZBA undertook a Part 2 Long-Form Environmental Assessment Form review to determine any potential negative impacts. Based upon that review, the PZBA found four (4) areas of concern, namely: (1) impact of aesthetic resources [Question # 9]; (2) impact on historic and archeological resources [Question # 10]; (3) consistency with community plans [Question # 17]; and, (4) consistency with community character [Question # 18] [Ex. # 12, pp. 6-7, 10; R. 33-34, 37-39, 79-85].
At the May 22nd PZBA Meeting, Petitioners were afforded the chance to rebut the findings, and their other attorney - Donald O'Brien - challenged the PZBA's authority in regard to the site plan review, specifically the already approved demolition by the APRB [Ex. # 11, pp. 4-16, 23-34, 40; R. 111-115, 302-305, 382-390]. Ms. Zoughlin responded that the SEQRA process had just begun [p. 34]. The PZBA Chair - Justin Vlietstra ("Vlietstra") - distinguished the 36 Sutherland Street project because it kept the overall historical value [p. 50]. Vlietstra also insisted that the DEC's guidelines provided that the demolition of a historical building was automatically a Type I Action [p. 56].
At the June 19th PZBA Meeting, the PZBA again confirmed that it was the lead agency given the APRB's failure to properly assume that role, and then it issued a Positive Declaration [Ex. # 13, pp. 1, 4, 7; R. 130-136, 160, 182-183]. The Declaration further distinguished this project from the 36 Sutherland Street home renovation project and the Pittsford Dairy project [pp. 11-18; R. 132]. This Declaration mandated that Petitioners pay for an environmental impact statement process, which starts with a DEIS [Ex. # 14; see also R. 131].
This special proceeding was timely commenced on July 18th, and it seeks to annul the PZBA's Positive Declaration, and substitute it with a Type II Action classification allowing the matter to go forward to final site plan approval without a DEIS - a claimed costly process with unnecessary delay.2 Petitioners challenge the determinations on the grounds that: the PZBA was not empowered to re-review the demolition which the APRB already approved; they run afoul of the SEQRA for a single, family residence replacement in kind; and, they are also discriminatory as other projects were given "free passes."
As to its Verified Answer, the PZBA alleges that the demolition cannot begin without it satisfying its legal obligations per SEQRA [Ver. Ans., ¶ 15 (f) ]. The PZBA denied that it improperly classified the project under SEQRA, and further denies discriminatory treatment [Ver. Ans., ¶¶ 28 (d) & 32 (a)-(c); 33-34]. In regard to its accompanying dismissal motion, the PZBA contends that Petitioners did not exhaust their administrative remedies, or in the alternative, their case does not have merit. See CPLR 3211 (a) (7) & 7801 (1). Also, the PZBA moves to strike materials from the Verified Petition.
Petitioners argue that the PZBA engages in bootstrapping to justify its erroneous Type I Action designation. As a Type II Action, Petitioners submit that a coordinated review with the APRB was not required for this replacement in kind project. Petitioners deny that an "exact replication" is needed to qualify for the Type II replacement in kind category, especially when the use is identical - here a continued single-family residence. Petitioners continue to fault the PZBA for not providing a rational explanation from treating them differently as their "excuses" are distinctions without a difference.
In regard to the strike request, Petitioners indicate that the e-mails between attorneys are relevant to the exact issues the PZBA decided, and thus were improperly excluded by the PZBA in its record submission. The same is purportedly true for the APRB communications. Additionally, Petitioners suggests that they are substantial questions as to the PZBA's motivations; thus, these items help expose the same.
As to the dismissal motion, Petitioners assert that their case is ripe for review given a legal exception to the normal Positive Declaration rule, namely that the PZBA did not have jurisdiction over the demolition and the project does not qualify for full SEQRA review.
The PZBA replies that Petitioners wrongly ask this Court to create a new exception to the ripeness doctrine concerning mere Positive Declarations.3
Petitioners are awarded Article 78 relief. See e.g. Pyramid Co. of Watertown v. Planning Bd. of Town of Watertown , 24 A.D.3d 1312, 1315, 807 N.Y.S.2d 243 (4th Dept. 2005) (). As in Pyramid Co. of Watertown , the present Petitioners are also entitled to have the PZBA's SEQRA decisions set aside. See also Kahn v. Pasnik , 90 N.Y.2d 569, 664 N.Y.S.2d 584, 687 N.E.2d 402 (1997) () [Respondents' MOL, p. 7]; Wellsville Citizens ex rel. Responsible Dev., Inc. v. Wal-Mart Stores, Inc. , 140 A.D.3d 1767, 1771, 33 N.Y.S.3d...
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