Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

SUNRISE DEVELOPMENT, INC. v. TOWN OF HUNTINGTON

February 3, 1999

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.



The opinion of the court was delivered by: Spatt, District Judge.

  MEMORANDUM OF DECISION AND ORDER

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.

FACTUAL BACKGROUND

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.*fn1 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 Avenue in an R-40 zone within the Town as a suitable location for its proposed CCF. At that time, the Town Zoning Code (the "Code") permitted a CCF as an "as of right" use in an R-40 zoning district upon the issuance of a special use permit by the Town's Board of Appeals for Zoning ("BZA"). See Bert Aff. ¶ 2. The Code requires the BZA to issue the special use permit upon an applicant's compliance with certain requirements.

Sunrise issued a letter of intent to the property's owner expressing its intention to purchase the Deer Park Avenue property, and in April 1997 the property owner and Sunrise signed a Purchase Agreement. Sunrise then retained experts to assist it with the process of obtaining the special use permit required before a CCF could be built on the parcel. In July or August 1997, Sunrise submitted its initial application for the special use permit to the Town.

From the time of submission until September 1997, the Town conducted the required review process and Sunrise submitted plans and various documents as periodically requested by the Town. During this review period, the Town advised Sunrise to meet with a neighborhood association to discuss the proposed CCF. According to Sunrise, it was with some difficulty that it arranged a meeting for November 24, 1997. During the meeting, the association's president was openly hostile to, and the association expressed contempt for, the proposed CCF. After the meeting, the association voted to oppose construction of the Sunrise CCF.

In addition to the application, the Code requires that a public hearing be held on the proposed project prior to the issuance of a special use permit. Such a hearing on Sunrise's proposed CCF was initially scheduled for November 20, 1997. Sunrise contends, and the Town disputes, that on October 15, 1997, Richard Machtay, Planning Director of the Town, requested that Sunrise adjourn its public hearing to give him time to complete his review of the additional information. Noone Aff. ¶ 16. Although it believed its application to be complete, Sunrise agreed to this adjournment because, in general, it tries to accommodate local zoning officials and because, in particular, it wanted a negative declaration under New York State's Quality Review Act ("SEQRA").*fn2 N.Y. Envtl. Conserv.Law, § 8-0100 et seq. Machtay had informed Sunrise that he was considering recommending a positive declaration to the BZA, which would add significant expense and approximately six months to the application process. Sunrise hoped that upon reflection Machtay would recommend a negative declaration.*fn3 Noone Aff. ¶ 16. After Sunrise requested the adjournment, the BZA set a new date of February 5, 1998 for the public hearing on Sunrise's application, presumably the next available date.

Meanwhile, in November 1997, the CAC submitted its report to the Town concerning its study of land use on Deer Park Avenue. The report recommended only limited regulation of CCFs, nursing homes, sanatoriums, and convalescent homes on Deer Park Avenue. In December 1997, shortly after the CAC report was issued, Town employees again asked Sunrise for additional information and, according to Sunrise, advised it to seek an adjournment of the hearing because review of the information was expected to require thirty days after its submission to the Town. Noone Aff. ¶ 17. Sunrise again agreed to this adjournment because it hoped to resolve the outstanding issues on the application before the public hearing. Id. A new hearing date was set for April 2, 1997. The defendants admit that Sunrise's "application to build a conforming [CCF] was . . . fully submitted [by] February 27, 1998," Def's. Mem. Opp'n at 4-5, and they do not contest the plaintiffs' contention that as early as February 9, 1998, an application was submitted that met "every provision of the then-existing Zoning Code and requirements for issuance of a special permit." Noone Aff. ¶ 21; see Noone Reply Aff. ¶ 5; Machtay Reply Aff. ¶¶ 7-8.

On February 10, 1998, the Town adopted a resolution which scheduled a public hearing on a proposed Local Law entitled "A Local Law to Consolidate Certain Senior Citizen Uses" ("Local Law"). On March 3, 1997, before the public hearing on Sunrise's CCF could be held and before the BZA had reached a determination on Sunrise's application, the Town held the required public hearing on the proposed Local Law. The Town asserts that it sought to enact the Local Law merely to consolidate land uses in fewer zoning districts in conformity with the "1993 Comprehensive Plan Update" (the "Comprehensive Plan") for the Town. Machtay Aff. ¶ 26. The proposed law eliminated CCFs as an "as of right" use in all zoning districts within the Town except in R-RM zoning districts; vested approval of CCFs with the Town Board, versus the old law which vested this authority with the BZA; and imposed certain new dimensional requirements which, according to the plaintiffs, were more rigorous than the old law and which the Town knew Sunrise could not satisfy. Noone Aff. ¶ 18. Finally, and at the heart of the dispute here, the new law grandfathered (i.e., left the old law applicable to) only those special use permit applications that were pending when the new law was enacted and on which a public hearing had already been held.

At the public hearing on the Local Law, Town residents expressed what the plaintiffs contend are discriminatory views of the elderly and disabled. For example, one resident who would live near the proposed facility expressed her concern for her home's "value decrease" if the Sunrise CCF was permitted. Hearing Tr. at 45:11.*fn4 Another resident stated that the Local Law was "to prevent inundation by congregate care facilities whose appearance and activity would alter the residential character of Dix Hills." Id. at 47:10-14. One resident read from an editorial appearing in a local newspaper which referred to Deer Park Avenue as "Senior Alley." Id. at 51:9. In addition, a general view was expressed at the meeting that the CCF would be a drain on community resources such as fire and rescue services. Id. at 51-52.

Residents who spoke in favor of the CCF were cut short in their remarks with defendant Petrone telling one resident to "think of one more thing and then give up," id. at 97:22-23, because he would "be ready for congregate care" soon. Id. at 98:2-3. The meeting also included a somewhat heated interchange between the Board members and John Noone, the vice president of Sunrise. When Noone suggested that the decision to pass the Local Law had been made before the hearing, the defendant Israel informed Noone that "you are not coming before us to question our motives." ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.