Oakwood Prop. Mgmt., LLC v. Town of Brunswick

• Decision Date: 28 February 2013
• Citation: 103 A.D.3d 1067,960 N.Y.S.2d 535,2013 N.Y. Slip Op. 01310
• Parties: In the Matter of OAKWOOD PROPERTY MANAGEMENT, LLC, Appellant, v. TOWN OF BRUNSWICK et al., Respondents.
• Court: New York Supreme Court — Appellate Division

103 A.D.3d 1067

960 N.Y.S.2d 535

2013 N.Y. Slip Op. 01310

In the Matter of OAKWOOD PROPERTY MANAGEMENT, LLC, Appellant,

v.TOWN OF BRUNSWICK et al., Respondents.

Supreme Court, Appellate Division, Third Department, New York.

Feb. 28, 2013.

Whiteman, Osterman & Hanna, LLP, Albany (John J. Henry of counsel), for appellant.

Tuczinski, Cavalier, Gilchrist & Collura, PC, Albany (Andrew Gilchrist of counsel), for respondents.

Before: MERCURE, J.P., STEIN, McCARTHY and EGAN JR., JJ.

EGAN JR., J.

Appeal from an order and judgment of the Supreme Court (Devine, J.), entered January 23, 2012 in Albany County, which, in a combined proceeding pursuant to CPLR article 78 and action for declaratory judgment, among other things, granted respondents' cross motion for summary judgment and dismissed the petition/complaint.

Petitioner operates a landscaping and mulching business in the Town of Brunswick, Rensselaer County. In April 2002, petitioner obtained site plan approval from the Planning Board of respondent Town of Brunswick to operate its business on a five-acre parcel of land zoned for industrial use. Shortly thereafter, petitioner purchased an adjoining 43–acre parcel that fell within a “Schools and Cemeteries” zone as depicted on the Town's zoning map ¹ and, in 2004, acquired an abutting 26–acre parcel zoned for agricultural use. As each parcel was acquired, petitioner expanded its operations accordingly and, as the business grew, neighboring property owners began to complain of noise and other issues.

In June 2007, respondent John Kreiger, the Town's Code Enforcement Officer, sent a letter to petitioner expressing concern that petitioner's business had expanded beyond the scope of the original site plan. No response from petitioner apparently was forthcoming, prompting Kreiger to advise petitioner in July 2008 that it was in violation of its approved site plan and directing petitioner to submit an amended application with respect thereto. Petitioner submitted the requested application in October 2008 and, when the Planning Board convened in November 2008, the application was adjourned at petitioner's request to allow petitioner to compile “additional information.” ² The matter thereafter was tabled several times and, in January 2009, was “adjourned without date[ ] pending further research regarding zoning compliance matters.”

In June 2010, Kreiger issued a notice of violation alleging that petitioner was conducting operations on the 43– and 26–acre parcels without the required approvals and, further, had exceeded the bounds of the 2002 site plan approval with respect to the original five-acre parcel. Petitioner appealed that notice of violation to respondent Town of Brunswick Zoning Board of Appeals (hereinafter ZBA) and, while that appeal was pending, Kreiger issued a second notice alleging various violations of the Town's zoning ordinance. Petitioner appealed that notice of violation as well, and the appeals were consolidated for purposes of the public hearing conducted by the ZBA in August 2011. ³ At the conclusion of that hearing, the ZBA issued a detailed decision sustaining the notices of violation and dismissing petitioner's appeals.

Petitioner thereafter commenced this combined CPLR article 78 proceeding and action for declaratory judgment seeking, among other things, to annul the ZBA's determination and a declaration that the “Schools and Cemeteries” designation as depicted on the Town's zoning map was unconstitutionally vague. Following interim motions not at issue here, respondents answered and counterclaimed to permanently enjoin petitioner's operations. Petitioner then moved for, among other things, summary judgment on its declaratory judgment claims and dismissal of respondents' counterclaim, and respondents cross-moved for, among other things, summary judgment and dismissal of the petition/complaint. Supreme Court denied petitioner's motion, granted respondents' cross motion and dismissed the petition/complaint. This appeal by petitioner ensued.

We affirm. Initially, we reject petitioner's assertion that respondents are estopped from prohibiting it from conducting grinding and mulching operations on the subject parcels. The crux of petitioner's argument on this point is that respondents not only were well aware that petitioner had expanded its operations to the 43– and 26–acre parcels but, more to the point, actively encouraged petitioner to do so. It is well settled, however, that estoppel cannot be invoked against a municipality to either (1) prevent it from discharging its statutory duties, (2) ratify administrative errors, or (3) preclude it from enforcing its zoning laws ( see Matter of Parkview Assoc. v. City of New York, 71 N.Y.2d 274, 282, 525 N.Y.S.2d 176, 519 N.E.2d 1372 [1988];Matter of Village of Fleischmanns [Delaware Natl. Bank of Delhi], 77 A.D.3d 1146, 1148, 909 N.Y.S.2d 564 [2010];Van Kleeck v. Hammond, 25 A.D.3d 941, 942, 811 N.Y.S.2d 452 [2006] ). Although an estoppel defense may lie where the municipality engages in “fraud, misrepresentation, deception, or similar affirmative conduct” upon which there is “reasonable reliance” ( Town of Copake v. 13 Lackawanna Props., LLC, 99 A.D.3d 1061, 1064, 952 N.Y.S.2d 780 [2012] [internal quotation marks and citations omitted], lv. denied20 N.Y.3d 857, 959 N.Y.S.2d 692, 983 N.E.2d 771 [Jan. 15, 2013];accord Matter of County of Orange [Al Turi Landfill, Inc.], 75 A.D.3d 224, 238, 903 N.Y.S.2d 60 [2010];see Matter of Village of Fleischmanns [Delaware Natl. Bank of Delhi], 77 A.D.3d at 1148, 909 N.Y.S.2d 564), the conduct alleged here, in our view, does not rise to that level.⁴ Accordingly, Supreme Court properly rejected petitioner's estoppel claim.

We reach a similar conclusion with respect to respondents' asserted violation of the Open Meetings Law ( see Public Officers Law art. 7). Upon determining that a public body has failed to comply with the provisions of the Open Meetings Law, a “court shall have the power, in its discretion, upon good cause shown, to declare ... the action taken in relation to such violation void, in whole or in part” (Public Officers Law § 107[1]; see New Yorkers for Constitutional Freedoms v. New York State Senate, 98 A.D.3d 285, 296, 948 N.Y.S.2d 787 [2012],lv. denied19 N.Y.3d 814, 955 N.Y.S.2d 552, 979 N.E.2d 813 [2012];Matter of Ireland v. Town of Queensbury Zoning Bd. of Appeals, 169 A.D.2d 73, 76, 571 N.Y.S.2d 834 [1991] ). Thus, even assuming that the ZBA violated the Open Meetings Law by, among other things, going into executive session during its December 5, 2011 meeting without stating—with sufficient particularity—a valid reason for doing so ( seePublic Officers Law § 105), its actions with respectto petitioner's appeals are “not void but, rather, voidable” ( Matter of Ireland v. Town of Queensbury Zoning Bd. of Appeals, 169 A.D.2d at 76, 571 N.Y.S.2d 834) upon good cause shown ( seePublic Officers Law § 107[1] ). In light of the substantial public input at the August 2011 hearing and the parties' extensive documentary submissions, and in the corresponding absence of any indication that the ZBA intentionally violated the Open Meetings Law, we find that petitioner failed to establish good cause warranting the exercise of our discretionary power to invalidate the ZBA's determination ( see generally New Yorkers for Constitutional Freedoms v. New York State Senate, 98 A.D.3d at 296–297, 948 N.Y.S.2d 787;McGovern v. Tatten, 213 A.D.2d 778, 780–781, 623 N.Y.S.2d 370 [1995];Matter of Malone Parachute Club v. Town of Malone, 197 A.D.2d 120, 124, 610 N.Y.S.2d 686 [1994];compare Matter of Gordon v. Village of Monticello, 207 A.D.2d 55, 59, 620 N.Y.S.2d 573 [1994],revd. on other grounds87 N.Y.2d 124, 637 N.Y.S.2d 961, 661 N.E.2d 691 [1995] ).

Nor are we persuaded that the ZBA's interpretation of the “Schools and Cemeteries” designation as depicted on the Town's zoning map is irrational or that such designation is unconstitutionally vague. As to the constitutional claim, “there is no requirement that every term in a statute [or zoning ordinance] be precisely defined; rather, a statute [or ordinance] will pass constitutional muster so long as it provides persons of ordinary intellect reasonable notice of the proscribed conduct” ( Matter of Flow v. Mark IV Constr. Co., 288 A.D.2d 779, 780, 733 N.Y.S.2d 751 [2001] [internal quotation marks and citation omitted]; see Matter of Griffiss Local Dev. Corp. v. State of N.Y. Auth. Budget Off., 85 A.D.3d 1402, 1403, 925 N.Y.S.2d 712 [2011],lv. denied17 N.Y.3d 714, 2011 WL 5041564 [2011];Matter of Morrissey v. Apostol, 75 A.D.3d 993, 996, 906 N.Y.S.2d 639 [2010] ). Here, we are satisfied that the average person is able to grasp the meaning of the designation “Schools and Cemeteries” as depicted on the Town's zoning map without resorting to guesswork and, further, that the common understanding of those words is not so expansive as to lead to arbitrary enforcement ( see Matter of Flow v. Mark IV Constr. Co., 288 A.D.2d at 780, 733 N.Y.S.2d 751;Matter of Griffiss Local Dev. Corp. v. State of N.Y. Auth. Budget Off., 85 A.D.3d at 1404, 925 N.Y.S.2d 712;Matter of Morrissey v. Apostol, 75 A.D.3d at 996, 906 N.Y.S.2d 639). Accordingly, petitioner's constitutional claim must fail.

Petitioner's related assertion—that the ZBA impermissibly created a use restrictionwith respect to the 43–acre parcel that does not otherwise exist in the Town's zoning ordinance—is equally unpersuasive. Section 2 of the Town of Brunswick Zoning Ordinance divides the Town into 10 enumerated zoning districts; “Schools and Cemeteries”—the zone within which the 43–acre parcel lies—is not listed as one of those districts. Similarly, the accompanying Schedule of Regulations, which is expressly incorporated into and made a part of the zoning ordinance ( see Town of Brunswick Zoning Ordinance § 6 [1958] ), makes no mention of the permitted uses within the “ Schools and Cemeteries” zone. However, ...