Sunrise Development, Inc. v. Town of Huntington
| Decision Date | 03 February 1999 |
| Docket Number | No. CV 98-3336(ADS).,CV 98-3336(ADS). |
| Citation | 62 F.Supp.2d 762 |
| Parties | SUNRISE DEVELOPMENT, INC., "XYZ, Inc.," and "John Doe" Nos. 1 through 76, Plaintiffs, v. The TOWN OF HUNTINGTON, NEW YORK, Frank P. Petrone, as Town Board of the Town of Huntington, New York, Steven Israel, Mark Cuthbertson, Marlene L. Budd and Susan Scarpati-Reilly as Members of the Twon Board of the Town of Huntington, New York, Defendants. |
| Court | U.S. District Court — Eastern District of New York |
Bleakley Platt & Schmidt, White Plains, NY, William P. Harrington, of counsel, for plaintiffs.
Cullen and Dykman, Garden City, NY, James G. Ryan, of counsel, for defendants.
By an Order dated October 8, 1998, this Court referred the following motions to United States Magistrate Judge Victor V. Pohorelsky pursuant to 28 U.S.C. § 636(b)(1) for a report and recommendation: the plaintiffs' motion for a preliminary injunction; the defendants' cross-motion to dismiss the complaint; and the plaintiffs' request for attorneys' fees.
The plaintiffs moved for a preliminary injunction pursuant to Rule 65 of the Federal Rules of Civil Procedure ("Fed.R.Civ. P."), and requested that the defendants be prohibited from subjecting the plaintiffs' real estate development project to the provisions of a recently enacted amendment to the zoning law of the Town of Huntington. The plaintiffs also moved for attorneys' fees incurred in connection with their motion for a preliminary injunction under the provisions of 42 U.S.C. § 1988. In addition, the defendants made a cross-motion to dismiss pursuant to Rule 12(b)(6) based on their contentions that the plaintiffs' complaint was not ripe for adjudication and that the plaintiffs lacked standing under their New York State Quality Review Act claim. N.Y. Envtl. Conserv.Law § 8-0101 et seq. ("SEQRA").
On January 7, 1999, Judge Pohoreslky issued a Report recommending: (1) that the preliminary injunction motion should be granted because the plaintiffs met their burden of demonstrating irreparable harm and substantial likelihood of success on the merits of their claims; (2) that the defendants' motion to dismiss on ripeness grounds should be denied; (3) that the defendants' unopposed motion to dismiss the SEQRA claim for lack of standing should be granted; and (4) that the plaintiffs' motion for attorneys' fees should be denied as premature because there has been no final determination on the merits.
The Magistrate Judge recommended that the preliminary injunction require the Town of Huntington: (1) to reinstate the plaintiffs' application to the Town's Board of Appeals for Zoning; (2) to schedule a public hearing on the application as soon as its feasible; and (3) to render a decision on the plaintiffs' application for a special use permit under the law that existed prior to March 3, 1998. In addition, the Magistrate Judge recommended that the Town's Board of Appeals for Zoning decision on the application be published to the parties but that the district court expressly order that the decision not be considered "final and binding" upon the plaintiffs, for the purposes of triggering limitations of time applicable to commencement of an Article 78 proceeding under New York Law, until the district court renders a final decision in this action.
On January 18, 1999, the plaintiffs filed a limited objection to the Report and Recommendation contending that the Magistrate Judge incorrectly ruled that the plaintiffs, Sunrise Development and XYZ, Inc., as distinct from the John Doe plaintiffs, did not suffer irreparable harm. In addition, the plaintiffs claim that they should have been awarded attorneys fees in connection with the preliminary injunction. The defendants filed their objections to the Report and Recommendation on January 25, 1999. The defendants argue that the Magistrate Judge erred when he recommended that the Court grant the plaintiffs' motion for preliminary injunction and when he failed to recommend that their motion to dismiss be granted.
Pursuant to 28 U.S.C. § 636(b)(1), any party may file written objections to the Report and Recommendation of the Magistrate Judge within ten days after being served with a copy. See also Fed. R.Civ.P. 72(a). Once objections are filed the district court is required to make a de novo determination as to those portions of the Report and Recommendation to which objections were made. see 28 U.S.C. § 636(b)(1); Grassia v. Scully, 892 F.2d 16, 19 (2d Cir.1989). Although the district court may "receive further evidence or recommit the matter to the magistrate with instructions" (28 U.S.C. § 636[b][1]), a de novo determination does not require the recalling of witnesses. See United States v. Raddatz, 447 U.S. 667, 676, 100 S.Ct. 2406, 2412, 65 L.Ed.2d 424 (1980). Rather, in making such a determination, the district court may, in its discretion, review the record and hear oral argument on the matter. See Pan Am. World Airways, Inc. v. International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of Am., 894 F.2d 36, 40 n. 3 (2d Cir.1990).
The Court has carefully reviewed Judge Pohorelsky's thoughtful, detailed and thorough Report and Recommendation, as well as all of the submissions and objections by the parties, and concurs with Judge Pohorelsky's recommendations for the reasons set-forth in his well-reasoned report.
Accordingly, it is hereby
ORDERED, that the defendants' motion to dismiss the entire complaint pursuant to Rule 12 of the Federal Rules of Civil Procedure is DENIED; but that the motion to dismiss the SEQRA claim on the grounds that the plaintiffs lack standing is GRANTED; and it is further
ORDERED, that the plaintiffs' motion for a preliminary injunction pursuant to Rule 65 of the Federal Rules of Civil Procedure is GRANTED to the extent that Town of Huntington is hereby ordered (1) to reinstate the plaintiffs' application to the Town's Board of Appeals for Zoning; (2) to schedule a public hearing on the application as soon as its feasible; and (3) to render a decision on the plaintiffs' application for a special use permit under the law that existed prior to March 3, 1998. In addition, the Town's Board of Appeals for Zoning decision on the application must be published to the parties but it is ordered that the decision not be considered "final and binding" upon the plaintiffs, for the purposes of triggering limitations of time applicable to commencement of an Article 78 proceeding under New York Law, until this Court renders a final decision in this action; and it is further
ORDERED, that the plaintiffs' motion for attorneys' fees pursuant to 42 U.S.C. § 1988 is DENIED; and it is further
ORDERED, that the plaintiffs' attorney shall serve copies of this Order on all counsel of record by certified mail, return receipt, within five (5) days of the date of this Order.
SO ORDERED.
REPORT AND RECOMMENDATION
Pending before the court is the plaintiffs' motion for a preliminary injunction pursuant to Rule 65 of the Federal Rules of Civil Procedure to bar the defendants from subjecting the plaintiffs' real estate development project to the provisions of a recently enacted amendment to the zoning law of the Town of Huntington. Also pending before the court is the defendants' cross-motion to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). Finally, the plaintiffs seek an award of attorneys' fees if they prevail on their motion. These motions have been referred to the undersigned magistrate judge pursuant to Title 28, Section 636(b)(1) of the United States Code for a report and recommendation. For the reasons that follow, the undersigned REPORTS and RECOMMENDS that the plaintiffs' motion for a preliminary injunction be granted, that their application for an award of attorneys' fees be denied with leave to renew upon a final disposition of this case, and that the defendants' motion to dismiss be granted in part and denied in part.
The plaintiff Sunrise Development, Inc. is a Virginia corporation authorized to do business in New York and engaged in the purchase and development of land on which it builds congregate care facilities ("CCFs"). A CCF is a housing facility which provides daily living assistance to its residents, most of whom are senior citizens and many of whom are disabled.1 A CCF is typically operated by a licensed home health care services agency which provides such services as assistance with bathing, dressing, bathroom usage, taking medicine and other similar daily living activities. Noone Aff. ¶ 6. Residents are provided three cooked meals and snacks each day. Id. Recreational and therapeutic programs are also included in the CCF's services. Id.
The plaintiff Sunrise has proposed to build a CCF on Deer Park Avenue within the defendant Town of Huntington. The plaintiff John Does # 1-76 are the unnamed future residents of the CCF. The plaintiff XYZ, Inc. is an as-yet unnamed licensed home health care services agency which will operate the CCF. The defendant Frank Petrone is the Town Supervisor and a Town Board Member. The remaining defendants — Steven Israel, Mark Cuthbertson, Marlene Budd, and Susan Scarpatti Reilly — represent the balance of the Town Board members.
Senior housing, the issue at the root of the present controversy, is and has been a matter of some concern to the Town. In November 1996, the Town established a Citizen's Advisory Committee ("CAC") which conducted a study and in 1997 made specific recommendations concerning housing for the elderly and disabled on Deer Park Avenue. At around the same time, in December 1996, Sunrise conducted extensive market research to determine whether there was a need for senior and handicapped housing in the Town and concluded that a shortage of this housing existed. Sunrise's research revealed a five-acre parcel of land on Deer Park...
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