Schulz v. Town Bd. of the Town of Queensbury

• Decision Date: 24 October 2019
• Docket Number: 527707
• Citation: 178 A.D.3d 85,111 N.Y.S.3d 732
• Parties: Robert L. SCHULZ, Appellant, v. TOWN BOARD OF the TOWN OF QUEENSBURY et al., Respondents.
• Court: New York Supreme Court — Appellate Division

178 A.D.3d 85

111 N.Y.S.3d 732

Robert L. SCHULZ, Appellant,

v.TOWN BOARD OF the TOWN OF QUEENSBURY et al., Respondents.

527707

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

Calendar Date: September 3, 2019

Decided and Entered: October 24, 2019

Robert L. Schulz, Queensbury, appellant pro se.

Miller, Mannix, Schachner & Hafner, Glens Falls (Jacquelyn P. White of counsel), for respondents.

Before: Egan Jr., J.P., Lynch, Clark, Mulvey and Pritzker, JJ.

OPINION AND ORDER

Mulvey, J. Appeals (1) from a judgment of the Supreme Court (Muller, J.), entered September 20, 2018 in Warren County, which, among other things, granted defendants' cross motion to dismiss the amended complaint, and (2) from an order of said court, entered February 26, 2019 in Warren County, which, among other things, upon reargument, adhered to its prior decision granting defendants' cross motion to dismiss.

In 2013, the Town of Queensbury, Warren County began considering the establishment of a sanitary sewer district to serve a certain portion of the Town. In September 2016, defendant Town Board of the Town of Queensbury completed its review under the State Environmental Quality Review Act (see ECL art 8 [hereinafter SEQRA] ), issued a negative declaration stating that the proposed sewer district would have no significant environmental impacts, and approved a resolution to establish the sewer district. Plaintiff, who did not participate in the public hearing, attended a Town Board meeting in October 2016 where he read aloud and submitted to the Town Board a document he labeled "Petition for the Redress of Grievances Regarding the Proposed [sewer district]." The Town Board did not respond to this document. In November 2017, after receiving approval from the State Comptroller (see Town Law § 209–f ), the Town Board adopted a final order establishing the sewer district. On June 4, 2018, plaintiff read and submitted to the Town Board a petition labeled the same as his October 2016 document. On July 2, 2018, the Town Board accepted a bid to commence construction on the sewer project.

That same day, plaintiff commenced this action against the Town Board and defendant John Strough, the Town Supervisor, seeking declaratory and injunctive relief, including a temporary restraining order. Defendants cross-moved to dismiss the complaint. Supreme Court, among other things, granted the cross motion and dismissed the complaint on the bases that plaintiff's SEQRA claims were time-barred and his constitutional claims failed to state a cause of action ( 61 Misc.3d 1202[A], 2018 WL 4496090 [Sup. Ct., Warren County 2018] ). Plaintiff then moved to reargue and renew. Although the court stated that it was denying his motion ( 62 Misc.3d 1225[A], 2019 WL 1088021 [Sup. Ct., Warren County 2019] ), we view the decision as essentially granting reargument but adhering to the court's prior determination (see Galway Co–op.com, LLC v. Niagara Mohawk Power Corp., 171 A.D.3d 1283, 1284, 97 N.Y.S.3d 754 [2019] ; Flisch v. Walters, 42 A.D.3d 682, 683, 839 N.Y.S.2d 602 [2007] ). Plaintiff appeals from the judgment dismissing his complaint and from the order upon reconsideration.

Plaintiff does not have standing to raise the SEQRA claims. "In land use matters especially, [the Court of Appeals] ha[s] long imposed the limitation that the plaintiff, for standing purposes, must show that [he or she] would suffer direct harm, injury that is in some way different from that of the public at large [and][t]his requirement applies whether the challenge to governmental action is based on a SEQRA violation, or other grounds" ( Society of Plastics Indus. v. County of Suffolk, 77 N.Y.2d 761, 774, 570 N.Y.S.2d 778, 573 N.E.2d 1034 [1991] [internal citations omitted]; see Matter of Save the Pine Bush, Inc. v. Common Council of City of Albany , 13 N.Y.3d 297, 304, 890 N.Y.S.2d 405, 918 N.E.2d 917 [2009] ; Matter of Clean Water Advocates of N.Y., Inc. v. New York State Dept. of Envtl. Conservation , 103 A.D.3d 1006, 1007, 962 N.Y.S.2d 390 [2013], lv denied 21 N.Y.3d 862, 2013 WL 4516420 [2013] ). Plaintiff does not reside in the Town. Although his homestead apparently straddles the Town line such that 1.2 acres of his land is situated in the Town, his property is located outside of – and approximately 15 miles away from – the sewer district. Moreover, plaintiff's status as a taxpayer, by itself, does not grant him standing to challenge the establishment of the sewer district (see Tilcon N.Y., Inc. v. Town of New Windsor, 172 A.D.3d 942, 944, 102 N.Y.S.3d 35 [2019] ; Matter of Kopald v. Supervisor & Town Bd. of Town of Highlands, 34 A.D.3d 810, 810, 823 N.Y.S.2d 901 [2006] ). As plaintiff has not alleged that the Town Board's SEQRA determination and approval of the sewer district created a direct harm to him that is different from that of the public at large, he does not have standing to challenge these actions (see Matter of Clean Water Advocates of N.Y., Inc. v. New York State Dept. of Envtl. Conservation, 103 A.D.3d at 1007–1009, 962 N.Y.S.2d 390 ).

Plaintiff's SEQRA challenge is also time-barred. Regardless of how a plaintiff may label or style his or her claim, courts must look to the core of the underlying claim and the relief sought and, if the claim could have been properly addressed in the context of a CPLR article 78 proceeding, a four-month statute of limitations will apply (see Northern Elec. Power Co., L.P. v. Hudson Riv.-Black Riv. Regulating Dist. , 122 A.D.3d 1185, 1187–1188, 997 N.Y.S.2d 793 [2014] ; Bango v. Gouverneur Volunteer Rescue Squad, Inc., 101 A.D.3d 1556, 1557, 957 N.Y.S.2d 769 [2012] ). Thus, even though plaintiff couched his requested relief in the form of a declaratory judgment action, his allegations of SEQRA violations are subject to a four-month statute of limitations (see Matter of Young v. Board of Trustees of Vil. of Blasdell, 89 N.Y.2d 846, 848, 652 N.Y.S.2d 729, 675 N.E.2d 464 [1996] ; Matter of Save the Pine Bush v. City of Albany, 70 N.Y.2d 193, 203, 518 N.Y.S.2d 943, 512 N.E.2d 526 [1987] ; Matter of Village of Woodbury v. Seggos, 154 A.D.3d 1256, 1260, 65 N.Y.S.3d 76 [2017] ). Although plaintiff asserts that the SEQRA violations arose, at least in part, due to the Town Board providing knowingly false answers on the environmental assessment form, the complaint does not contain a separate fraud cause of action that would be governed by a longer statute of limitations; neither does plaintiff assert that he was prevented from filing suit earlier due to the allegedly false answers. Considering that the Town Board completed its SEQRA review and issued a negative declaration in September 2016 and gave final approval to the sewer project in November 2017, plaintiff's challenges thereto in his July 2018 complaint were untimely.

Supreme Court did not err in concluding that plaintiff's constitutional allegations failed to state a cause of action. Plaintiff alleged that the Town Board was constitutionally obligated to respond to his petitions for redress of grievances. Both the State and Federal Constitutions prohibit the government from making any law that abridges the right of the people "to petition the [g]overnment for a redress of grievances" (U.S. Const, First Amend; see N.Y. Const., art. I, § 9 [stating "(n)o law shall be passed abridging the rights of the people ... to petition the government, or any department thereof"] ). However, the Supreme Court of the United States has stated that "[n]othing in the First Amendment or in this Court's case law interpreting it suggests that the rights to speak, associate, and petition require government policymakers to listen or respond to individuals' communications on public issues" ( Minnesota State Bd. for Community Colleges v. Knight , 465 U.S. 271, 285, 104 S.Ct. 1058, 79 L.Ed.2d 299 [1984] ; see Smith v. Arkansas State Highway Empls., Local 1315, 441 U.S. 463, 465, 99 S.Ct. 1826, 60 L.Ed.2d 360 [1979] ; accord Knight First Amendment Inst. at Colombia Univ. v. Trump, 302 F Supp 3d 541, 576 [S.D. N.Y.2018], affd 928 F.3d 226 [2d Cir.2019] ). Stated otherwise, the First Amendment does not "guarantee[ ] a citizen's right to receive a government response to or official consideration of a petition for redress of grievances" ( We the People Found., Inc. v. United States, 485 F.3d 140, 141 [D.C. Cir.2007], certs denied 552 U.S. 1102, 128 S.Ct. 939, 169 L.Ed.2d 733 [2008] ).

Plaintiff attempts to distinguish between petitions...