E. Pine Apartments v. Vill. of Cambridge Planning Bd.

• Decision Date: 25 October 2022
• Docket Number: Index No. EC2021-33496
• Parties: East Pine Apartments, LLC, Petitioner-Plaintiff, v. Village of Cambridge Planning Board, VILLAGE OF CAMBRIDGE MAYOR CARMAN BOGLE, VILLAGE OF CAMBRIDGE VILLAGE CLERK AND VILLAGE OF CAMBRIDGE ZONING ENFORCEMENT OFFICER, Respondents-Defendants.
• Court: Washington Supreme Court

2022 NY Slip Op 51051(U)

East Pine Apartments, LLC, Petitioner-Plaintiff, v. Village of Cambridge Planning Board, VILLAGE OF CAMBRIDGE MAYOR CARMAN BOGLE, VILLAGE OF CAMBRIDGE VILLAGE CLERK AND VILLAGE OF CAMBRIDGE ZONING ENFORCEMENT OFFICER, Respondents-Defendants.

Index No. EC2021-33496

Supreme Court, Washington County

October 25, 2022

Unpublished Opinion

Jones Steves, LLP, Saratoga Springs (Justin M. Grassi of counsel) for petitioner-plaintiff.

Johnson & Laws, LLC, Clifton Park (April J. Laws of counsel), for respondents-defendants.

ROBERT J. MULLER, J.S.C.

On July 22, 2020, petitioner-plaintiff (hereinafter petitioner) purchased certain premises located at 51 South Park Street in the Village of Cambridge, Washington County, which it operates as the "Motel Cambridge." As relevant here, on August 5, 2016 petitioner's predecessor in title applied to respondent-defendant Village of Cambridge Planning Board (hereinafter the Planning Board) for a Special Use Permit authorizing use of the premises as a motel. The application described the premises as including "12 unit motel rooms" and "5 unit efficiency apartment[s]." The "current use" of the premises is described in the application as "motel as its been," and the "proposed use" described as "same as always." On August 8, 2016, the Planning Board unanimously voted to approve the application and granted the Special Use Permit, with the minutes from the meeting stating as follows:

"The Board reviewed the application. The property was formally [sic] used as a motel with efficiency rooms, however it has been closed for a couple of years now. Mr. Alexander stated that he wanted to use the [property] as a motel without efficiency rooms."

After purchasing the motel, petitioner installed kitchenettes in each of the motel rooms and allegedly began advertising them as efficiency rooms or one-room apartments available for longer stays. On February 3, 2021, respondent-defendant Village of Cambridge Zoning Enforcement Officer (hereinafter ZEO) sent correspondence to the Village of Cambridge Board of Trustees and the Planning Board advising that he "received several complaints regarding the Cambridge [M]otel property[, with a]ll complaints stat[ing] the property [is not] following the special use permit as described [in] the Planning Board application dated 8/5/2016." The ZEO thereafter contacted petitioner and scheduled an inspection of the property for April 7, 2021.

On March 31, 2021, petitioner made a Freedom of Information Law (see Public Officers Law art 6 [hereinafter FOIL]) request to the Village of Cambridge Clerk to obtain copies of, inter alia, the complaints made to the ZEO. Petitioner received certain documents in response to this request on April 2, 2021, but was apparently unsatisfied and made several subsequent requests. The impetus for these requests appears to be petitioner's belief that "the genesis of the entire investigation and proceeding against [it] was concepted by [respondent-defendant] Village of Cambridge Mayor" Carman Bogle. ^[1]

On June 21, 2021, the ZEO served petitioner with a notice of violation pursuant to § 10.03 (E) of the Village of Cambridge Zoning Law (hereinafter the Zoning Law), which provides that "[a]ny violation of the conditions of a special use permit... shall be deemed a violation of this Local Law and shall be subject to [an] enforcement action." The notice of violation stated, in pertinent part:

"Please be advised 51 South Park Street is in violation of the 2016 Special Use Permit. Specifically, the 2016 Special Use Permit approved the property to be used as a 12-room motel along with 5 efficiency rooms. Upon investigation, all rooms visited were configured with efficiency apartments which is in violation of the 2016 Special Use permit....

"You are directed to bring your business into compliance within 30 days."

Petitioner - through counsel - sent correspondence to the ZEO on July 6 2021, inquiring what precisely was required to bring the motel into compliance with the Special Use Permit. In this regard, petitioner noted that the Special Use Permit authorized use of the premises as a motel, with a motel defined in § 1.01 of the Village Zoning Law as

"[a] lodging facility offering accommodations to the general public, including buildings designed as tourist courts, overnight cabins, housekeeping units/cottages and similar facilities, and providing additional customary uses such as, but not limited to, restaurants, meeting rooms playgrounds, game rooms, snack bars and recreational facilities or activities used primarily for patrons including tennis courts, swimming or bathing, golf or convention facilities, excluding water-based motorized vehicles."

Petitioner argued that the Village Zoning Law does not define efficiencies, nor does it indicate that a motel may only have a certain number of rooms with efficiencies. Petitioner also filed an appeal of the ZEO's notice of violation with the Village of Cambridge Zoning Board of Appeals (hereinafter the ZBA) on July 7, 2021, with § 14.02 (A) of the Village Zoning Law providing that "[a]n appeal from an action omission, decision or rule by the [ZEO] regarding a requirement of this Local Law may be made only to the Zoning Board of Appeals." The ZBA, however, did not consider the appeal.

Instead, at the conclusion of the 30-day period the matter was referred to the Planning Board, with a hearing scheduled for September 22, 2021 on the issue of whether the Special Use Permit should be revoked. In this regard, § 10.03 (D) of the Village Zoning Law provides that "[a] special use permit may be revoked by the Planning Board if the conditions of the special use permit are violated."

At the beginning of this hearing the Mayor stated as follows: "[O]ur zoning person officer is... away on vacation... and according to our zoning if our... zoning person officer is absent then it automatically falls to the Mayor[, s]o I am filling in for him tonight." ^[2] The Mayor then proceeded to present evidence and witnesses in support of petitioner's alleged violation of the Special Use Permit, and petitioner was given an opportunity to oppose. Both parties had counsel present for the hearing. The Planning Board then met on October 12, 2021 without petitioner present and voted unanimously to revoke the Special Use Permit. This determination was sent to petitioner on October 18, 2021, with correspondence advising that "[p]ursuant to [§] 12.04 of the Village's Zoning Law, [it] could be appealed to the [ZBA]."

On November 3, 2021, petitioner submitted an appeal to the Village of Cambridge Clerk relative to the responses to his several FOIL requests, contending that certain records were intentionally omitted. Petitioner thereafter filed an appeal of the revocation of the Special Use Permit with the ZBA on November 15, 2021, simultaneously commencing this combined CPLR article 78 proceeding and declaratory judgment action. The ZBA has apparently tabled that appeal pending the outcome of this lawsuit. Petitioner alleges seven causes of action:

(1) the Planning Board's revocation of the Special Use Permit was not based upon substantial evidence, constituted an error of law and was arbitraryand capricious;

(2) the Planning Board exceeded its jurisdiction in conducting the hearing and revoking the Special Use Permit;

(3) the ZEO's failure to provide the requested clarification relative to the notice of violation and the ZBA's failure to consider the appeal of the notice of violation constitute an abuse of discretion and an error of law;

(4) petitioner is entitled to counsel fees because respondents-defendants (hereinafter respondents) acted with gross negligence, in bad faith, and with malice, particularly with respect to the Mayor acting as ZEO during the hearing before the Planning Board;

(5) respondents failed to provide adequate responses to petitioner's FOIL requests;

(6) petitioner is entitled to a declaratory judgment that the current use of the motel complies with the Special Use Permit; and

(7) petitioner's constitutional rights have been violated under 42 USC § 1983 as a result of respondents' actions.

Presently before the Court is respondents' pre-answer motion seeking to dismiss the verified petition and complaint in its entirety.

At the outset, respondents contend that petitioner's first, third, fifth, and sixth causes of action must be dismissed for lack of standing and ripeness. Turning first to the issue of standing, "[a]n individual challenging an administrative determination in a land-use matter must show that he or she 'would suffer direct harm, injury that is in some way different from that of the public at large'" (Matter of Barnes Rd. Area Neighborhood Assn. v Planning Bd. of the Town of Sand Lake, 206 A.D.3d 1507, 1508 [2022], quoting Matter of Ziemba v City of Troy, 37 A.D.3d 68, 71 [2006] [internal quotation marks and citations omitted], lv denied 8 N.Y.3d 806 [2007]; see Matter of Basha Kill Area Assn. v Planning Bd. of Town of Mamakating, 46 A.D.3d 1309, 1310-1311 [2007], lv denied 10 N.Y.3d 712 [2008]). Here, petitioner - the sole owner of the motel - is unquestionably suffering a direct harm entirely different from that of the public at large. To that end, the Court finds respondents' contention that petitioner is without standing to be wholly without merit.

With respect to the issue of ripeness, "'[a] determination as to whether a controversy is ripe for review requires a court 'first to determine whether the issues tendered are appropriate for judicial resolution, and second to assess the hardship to the parties if judicial relief is denied'" (Sullivan v New York State Joint Commn on Pub. Ethics, 207 A.D.3d 117, 130-131 [2022], quoting Church of St. Paul & St. Andrew v Barwick...