Shumaker v. Town of Cortlandt

• Decision Date: 02 February 1987
• Docket Number: No. 1,No. 2,1,2
• Citation: 124 A.D.2d 129,511 N.Y.S.2d 351
• Parties: Charles SHUMAKER, Jr., et al., Appellants, v. TOWN OF CORTLANDT, et al., Defendants-Respondents, Joseph Bilotta, Respondent-Defendant-Respondent. (Matter) SANDPORT SUPPLY CORP., et al., Respondents, v. TOWN OF CORTLANDT, et al., Defendants. (Matter)
• Court: New York Supreme Court — Appellate Division

Page 351

511 N.Y.S.2d 351

124 A.D.2d 129

Charles SHUMAKER, Jr., et al., Appellants, v. TOWN OF CORTLANDT, et al., Defendants-Respondents, Joseph Bilotta, Respondent-Defendant-Respondent. (Matter No. 1)

SANDPORT SUPPLY CORP., et al., Respondents, v. TOWN OF CORTLANDT, et al., Defendants. (Matter No. 2)

Supreme Court, Appellate Division Second Department.

Feb. 2, 1987.

Walter I. Seligsohn, Croton-on-Hudson, for appellants.

Richard C. Fields, P.C., Pearl River, for respondent-defendant-respondent Joseph Bilotta in Action No. 1 and respondents Sandport Supply Corp. and Joseph Bilotta in Action No. 2.

Before MANGANO, J.P., and BRACKEN, BROWN and EIBER, JJ.

MANGANO, Justice Presiding.

The zoning ordinance of the Town of Cortlandt Town was first adopted in October 1951. Cortlandt Town Code § 88.21(A)(4), a provision of that zoning ordinance, enumerates the uses permitted within M-1 light industrial districts. Those uses include:

"Any manufacturing or other industrial operation from which no dust, smoke fumes, gas, noxious odor or other atmospheric pollutant is disseminated beyond the boundaries of the M-1 District in which such use is located and which produces no noise or vibration exceeding in intensity at the boundary of such M-1 District the average intensity of noise or vibration at that point resulting from other causes. The Planning Board, after public hearing and approval by the Town Board in each case, shall, by resolution, establish and from time to time revise a list of uses conforming to the foregoing standards, including any conditions to which any of such uses shall be subject in order to assure such conformity".

On May 4, 1982, the town board adopted a resolution scheduling a public hearing for the purpose of considering the proposed establishment by the town board of a list of permitted uses in M-1 districts pursuant to Cortlandt Town Code § 88.21(A)(4). Upon the request of Montrose Concrete Products Corp. (hereinafter Montrose), the list of permitted uses was to include an "[a]sphalt manufacturing plant (blacktop batching plant) to be located on property designated on Tax Maps of the Town of Cortlandt as Section 14, Block 1, Lots 16 [124 A.D.2d 131] and 17" (see, Matter of Augenblick v. Town of Cortlandt, 104 A.D.2d 806, 807, 480 N.Y.S.2d 232). Pursuant to this resolution, a public hearing was conducted by the town board. At the conclusion of the hearing, Resolution 206-82 was adopted by the town board authorizing the establishment of a list of permitted uses in light industrial districts pursuant to Cortlandt Town Code § 88.21(A)(4) which list would include an asphalt manufacturing or blacktop batching plant situated on the designated property. On June 23, 1982, the town planning board adopted Resolution 24-82, which established a list of permitted uses in M-1 light industrial districts, specifically including the subject facility.

Thereafter, certain owners and residents of property in close proximity to the proposed use commenced a proceeding to review the determinations of the town board and the town planning board. These petitioners argued that the actions of the two Boards conferred "a discriminatory benefit upon respondent Montrose in violation of the requirements of uniformity and comprehensive planning" and constituted improper spot zoning (Matter of Augenblick v. Town of Cortlandt, supra, at p. 808, 480 N.Y.S.2d 232).

By judgment dated November 18, 1982, Special Term dismissed the proceeding on the merits, finding that "the Town Board and Town Planning Board had acted in accordance with powers validly granted to them by the Town Law and the Town of Cortlandt Zoning Ordinance" (Matter of Augenblick v. Town of Cortlandt, supra, at p. 808, 480 N.Y.S.2d 232).

On appeal, a majority of this court, by order dated October 1, 1984, affirmed Special Term's dismissal of the proceeding on the merits, finding that (1) the town board was authorized to allow the planning board to create a list of permissible uses pursuant to Town Law article 16, (2) the challenged resolutions did not violate the uniformity requirement of Town Law § 262 which mandates uniformity of use within zoning districts, and (3) the challenged resolutions did not constitute impermissible spot zoning (Matter of Augenblick v. Town of Cortlandt, supra, at pp. 806-811, 480 N.Y.S.2d 232).

In his dissent, former Justice Lazer opined that by virtue of the challenged resolutions (1) "the zoning power was illegally delegated" by the town board to the planning board, (2) "uniformity of zoning requirements in the M-1 district was illegally violated" and (3) the town board and planning board had engaged in improper spot zoning (Matter of Augenblick v. Town of Cortlandt, supra, at p. 811, 480 N.Y.S.2d 232).

Three weeks after this court's decision in Matter of Augenblick v. Town of Cortlandt (supra ) and in what is conceded to be reliance thereon, Joseph Bilotta purchased that portion of the Montrose property which was the subject of the challenged zoning resolutions of the town board and planning board of the Town of Cortlandt.

On January 22, 1985, Sandport Supply Corp. (hereinafter Sandport), of which Bilotta was president, applied to the planning board for site plan approval of an asphalt plant on his property. On February 26, 1985, the petitioners in Matter of Augenblick v. Town of Cortlandt (supra ) served a copy of this court's order with notice of entry on Montrose and the Town of Cortlandt and filed a notice of appeal to the Court of Appeals.

At the hearing conducted on March 12, 1985, upon Sandport and Bilotta's application for site plan approval of an asphalt plant, Bilotta's attorney informed the town planning board that his client was aware that an appeal by the petitioners in Matter of Augenblick v. Town of Cortlandt (supra ) was pending in the Court of Appeals. The petitioners in Matter of Augenblick v. Town of Cortlandt who attended the town planning board's hearing on Sandport and Bilotta's application for site plan approval, did not voice any objections at the hearing. However, on April 1, 1985, the attorney for the petitioners in Matter of Augenblick v. Town of Cortlandt (supra ) wrote a letter to the Town Director of Planning, Town Engineer, and Town Building Inspector, with a copy to Sandport, stating as follows:

"Gentlemen:

"As you know, the above special proceeding has been appealed by the petitioners to the Court of Appeals of the State of New York. Briefs will shortly be filed and the matter will undoubtedly be heard by the Court later this year.

"It has come to our attention that a portion of the property has been transferred to Sandport Supply Corp. and that Sandport has applied to the Planning Board for site plan approval and that such approval has been granted. We raise no objection to the Planning Board action inasmuch as there is no reason why the owner cannot get preliminary administrative matters out of the way while the appeal is pending.

"A different situation would be presented if the owner applied for zoning and building permits. Obviously, construction should not begin, nor final approval for construction be given until the Court has ruled.

"Therefore, I request that you advise me if and when applications for zoning and building permits are filed and, especially, if and when such permits are granted."

On May 17, 1985, the petitioners in Matter of Augenblick v. Town of Cortlandt (supra ) served and filed their brief in the Court of Appeals.

On July 2, 1985, the Town of Cortlandt granted a zoning and building permit and on July 3, 1985, it granted a building permit for the construction of an asphalt plant. Contrary to the request contained in the petitioners' attorney's letter dated April 1, 1985, no notice of the applications for the permits or of the issuance of the permits was given to any of the petitioners in Matter of Augenblick v. Town of Cortlandt (supra ). Approvals were also obtained from the New York State Department of Environmental Conservation and the Westchester County Health Department. Thereupon, Bilotta invested $1,500,000 in construction of the plant, and virtually completed construction of the plant before Matter of Augenblick v. Town of Cortlandt (supra ) was argued in the Court of Appeals in October 1985. During the argument before the Court of Appeals, the attorney for Montrose stated that the asphalt plant had been built. On October 9, 1985, the attorney for the petitioners in Matter of Augenblick v. Town of Cortlandt (supra ) again wrote to the town Director of Planning, the Town Engineer and the Town Building Inspector, with a copy to Sandport, stating as follows:

"The appeal in the above matter was argued before the New York Court of Appeals on October 8, 1985. During argument, Mr. Donald Tirschwell, attorney for Montrose Concrete Products, stated to the Court that the asphalt plant had already been built.

"Therefore, I am writing to ask that you let me know whether zoning and building permits or a Certificate of Occupancy have been applied for or granted with respect to an asphalt plant on the land now or formerly of Montrose Concrete Products. I would also appreciate it if you will let me know whether, according to your information, such a plant has been constructed".

On November 12, 1985, the Court of Appeals reversed the order of this court, and granted the petition "for the reasons stated in the dissenting memorandum by Justice Leon D. Lazer at the Appellate Division" (Matter of Augenblick v. Town of Cortlandt, 66 N.Y.2d 775, 777, 497 N.Y.S.2d 363, 488 N.E.2d 109).

In December 1985, i.e., after the decision of the Court of Appeals in Matter of Augenblick v. Town of Cortlandt (supra ), Bilotta requested that the Town of Cortlandt issue a Certificate of Occupancy and Zoning Compliance which was needed to commence operations at the plant. The application was denied by the Director of Planning on February 11, 1986, "per Court of Appeals decision in ...