The opinion of the court was delivered by: Hon. Norman A. Mordue, D.J.
MEMORANDUM-DECISION AND ORDER
Presently before the Court are two motions. Defendants move (Dkt. No. 7) to dismiss the complaint on the grounds of collateral estoppel and failure to state a claim. Plaintiff cross-moves (Dkt. No. 10) for leave to serve an amended complaint and for summary judgment.
Plaintiff Lamar Advertising of Penn, LLC ("Lamar"), a company engaged in outdoor advertising, sought a building permit to remove an existing billboard on property it leased in the Village of Marathon ("Village") and to install a new billboard for purposes of off-premises advertising. The Village Code Enforcement Officer, defendant Derek Raimo, granted the building permit on June 28, 2002.
Lamar removed the old sign and began work on the new sign. On April 1, 2003, defendant John Pitman, Mayor of the Village, executed a stop work order. By letter of April 10, 2003, the Village attorney advised Lamar that the sign "exceeds the permitted height for a sign in the Village" and that "the apparent face of the sign exceeds the square footage permitted for a sign in the Village[.]"
Lamar commenced a state court proceeding pursuant to Article 78 of New York's Civil Practice Law and Rules seeking a vacatur of the stop work order and a declaration that the building permit was valid. On August 27, 2003, Hon. Phillip R. Rumsey, Supreme Court, Cortland County, dismissed the proceeding, holding that Lamar had acquired no vested right in the building permit and that the proposed billboard clearly exceeded the Village ordinance restrictions governing height and sign face size. On plaintiff's appeal, the Appellate Division, Third Department, affirmed. Matter of Lamar Advertising of Penn, LLC, 780 N.Y.S. 2d 233 (3d Dep't 2004).
On December 8, 2003, Lamar applied to the Village Zoning Board of Appeals ("ZBA") for an area variance. On April 28, 2004, after two public hearings, the ZBA denied the application.
Lamar then brought a second Article 78 proceeding challenging on a number of grounds the denial of its application for an area variance. During the course of the proceeding the Village acknowledged that it had not submitted Lamar's variance application to the Cortland County Planning Board as required by section 239-m of the New York's General Municipal Law. On September 14, 2004, Justice Rumsey held that this failure constituted "a jurisdictional defect invalidating the challenged determination" and annulled the denial of the variance without reaching other issues raised by Lamar. Justice Rumsey added:
In light of the need for further Board action, one other matter warrants comment. In the court's view, the Board Chairman's statement [on April 19, 2004, during a public hearing on Lamar's application for an area variance] that Board members had gotten "a very good picture from the community," through conversations conducted with
Village residents "in their living rooms" or "over coffee" is exceedingly troubling. If there is any possibility that any Board member actually based his or her decision to deny the variance on such "conversations" or on other evidence outside the record, the substance of which was not disclosed, allowing petitioner no opportunity to respond -- and it appears, at this juncture, that this may in fact have occurred -- that would also require annulment of the determination. (Case citation and citation to Article 78 record omitted.)
Lamar appealed.In its memorandum decision, dated December 15, 2005, the Third Department affirmed, noting that Justice Rumsey had not reached the merits but rather had annulled the ZBA determination on jurisdictional grounds. Matter of Lamar Advertising of Penn, LLC, 805 N.Y.S. 2d 495 (3d Dep't 2005). The Third Department added:
Supreme Court also noted that if there were any truth to the allegations that the ZBA improperly considered material outside of the record, this would be an alternative basis to annul the determination ...