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.

In re Wir Associates, LLC

Supreme Court of New York, Third Department

January 4, 2018

In the Matter of WIR ASSOCIATES, LLC, Appellant,
v.
TOWN OF MAMAKATING et al., Respondents, et al., Respondents.

          Calendar Date: November 13, 2017

          Wilson Elser Moskowitz Edelman & Dicker LLP, White Plains (John M. Flannery of counsel), for appellant.

          Jacobwitz and Gubits, LLP, Walden (J. Benjamin Gailey of counsel), for respondents.

          Before: McCarthy, J.P., Egan Jr., Lynch, Devine and Pritzker, JJ.

          MEMORANDUM AND ORDER

          Devine, J.

         Appeal from a judgment of the Supreme Court (McGuire, J.), entered July 7, 2016 in Sullivan County, which, in a combined proceeding pursuant to CPLR article 78 and action for declaratory judgment, granted certain respondents' motion to dismiss the petition/complaint.

         Petitioner owns approximately 530 acres of real property (hereinafter the subject property) in the Town of Mamakating, Sullivan County that lie between the shores of Yankee Lake and the town line. In 2001, respondent Town Board of Town of

         Mamakating adopted a comprehensive plan finding that the subject property, which was vacant and enjoyed easy access to State Route 17, would be appropriate for mixed use resort development. The Town Board simultaneously enacted a zoning law that placed the subject property within a planned resort-office (hereinafter PRO) district where such a use was authorized.

         The comprehensive plan and zoning law were revisited on occasion, but nothing of substance occurred until after it was revealed that a large residential and commercial development project involved the subject property. The Town Board, in early 2014, imposed a one-year moratorium on residential development while it "consider[ed] changes to [respondent Town of Mamakating's] comprehensive plan and... land use regulations." A 2015 report studied whether the zoning law was consistent with the comprehensive plan and proposed various zoning amendments that would purportedly bring the two into alignment, including one to rezone the subject property as Mountain Greenbelt (hereinafter MG) that would effectively prohibit the proposed development. Following an environmental review of the proposed zoning changes pursuant to the State Environmental Quality Review Act (see ECL art 8 [hereinafter SEQRA]), the Town Board issued a negative declaration. Zoning amendments, including one to rezone the subject property as MG, were then adopted in August 2015.

         Petitioner commenced this combined CPLR article 78 proceeding and declaratory judgment action against, in relevant part, the Town and Town Board (hereinafter collectively referred to as respondents). Petitioner sought to annul the rezoning of the subject property on the grounds that it conflicted with the comprehensive plan and occurred after a deficient SEQRA review, requested a declaration that the rezoning constituted illegal spot zoning and demanded damages pursuant to 42 USC § 1983 for a purported regulatory taking wrought by the rezoning. Respondents moved to dismiss the petition/complaint on various grounds. Supreme Court granted the motion, prompting this appeal by petitioner.

         Supreme Court found that some of petitioner's claims were not ripe for judicial review and, with respect to petitioner's regulatory taking claim made pursuant to 42 USC § 1983, we agree. The claim rests upon provisions of the Federal and State Constitutions "requir[ing] that owners receive just compensation when private property is taken for public use" (520 E. 81st St. Assoc. v State of New York, 99 N.Y.2d 43, 47 [2002]; see U.S. Const, 5th Amend; NY Const, art I, § 7 [a]). A takings claim is therefore not justiciable until "the governmental entity charged with implementing the regulations has rendered a final decision regarding the application of the regulations to the property, and... the landowner has availed itself of the procedures provided by [s]tate law to obtain just compensation" (Town of Orangetown v Magee, 88 N.Y.2d 41, 50 [1996] [emphasis added]; see Suitum v Tahoe Regional Planning Agency, 520 U.S. 725, 733-734 [1997]). Petitioner did not allege that it sought just compensation for the purported taking and, as a result, its takings claim was unripe (see Matter of Ken Mar Dev., Inc. v Department of Pub. Works of City of Saratoga Springs, 53 A.D.3d 1020, 1024 [2008]).

         In contrast, petitioner "need not have first sought and been denied any [relief] prior to filing [its] facial challenge[s]" to the rezoning (Lamar Advertising of Penn, LLC v Town of Orchard Park, N.Y., 356 F.3d 365, 374 [2d Cir 2004]; see Nicholson v Incorporated Vil. of Garden City, 112 A.D.3d 893, 893-894 [2013], appeal dismissed 23 N.Y.3d 947');">23 N.Y.3d 947 [2014], lv denied 24 N.Y.3d 936');">24 N.Y.3d 936 [2014]; Trustees of Union Coll. v Members of Schenectady City Council, 230 A.D.2d 17, 21 [1997], affd 91 N.Y.2d 161');">91 N.Y.2d 161 [1997]). Those claims are accordingly ripe, but respondents also assert that they fail to state a cause of action. The question accordingly turns to whether, after "treating all allegations in the [petition/complaint] as true and affording [petitioner] every possible favorable inference, " petitioner advances any cognizable legal theory to support its claims (American Economy Ins. Co. v State of New York, 30 N.Y.3d 136, 149 [2017]; accord Leon v Martinez, 84 N.Y.2d 83, 87-88 [1994]). Notwithstanding this liberal standard, we are not obliged to accept "allegations consisting of bare legal conclusions [or] factual claims flatly contradicted by documentary evidence" as the basis for a valid claim (Maas v Cornell Univ., 94 N.Y.2d 87, 91 [1999] [internal quotation marks and citation omitted]; see Sullivan Farms IV, LLC v Village of Wurtsboro, 134 A.D.3d 1275, 1277 [2015]).

         A municipality is free to alter its zoning regulations, but must do so in a manner that comports with its comprehensive plan (see Town Law § 263; Matter of Birchwood Neighborhood Assn. v Planning Bd. of Town of Colonie, 112 A.D.3d 1184, 1185 [2013]). Petitioner alleges that rezoning the subject property as MG clashed with the comprehensive plan, pointing to language in the plan finding it suitable "for potential large-scale nonresidential development" that would spur economic growth. The plan states that the large vacant parcels and easy access to a nearby highway made the area appropriate for "low impact resort-related activities as well as limited non-residential uses, " including tourist-related activities, resort development and a planned resort community. Petitioner alleges in its petition/complaint - and the documentary evidence reflects - that a planned resort community is permitted in a PRO district but is not in a MG district. Petitioner asserts, as a result, that the Town Board's decision to rezone the subject property arbitrarily disregarded the comprehensive plan's finding that a planned resort community was appropriate for the subject property. The 2015 report proposed the rezoning in order to address changed conditions in keeping with the spirit of the comprehensive plan, and it is debatable whether petitioner can ultimately "establish[] by competent evidence that the Town Board's decision to... change its zoning ordinance as it affects [the subject] property was arbitrary and unreasonable" (Matter of Rossi v Town Bd. of Town of Ballston, 49 A.D.3d 1138, 1143-1144 [2008]; see Matter of Birchwood Neighborhood Assn. v Planning Bd. of Town of Colonie, 112 A.D.3d at 1185-1186). Nevertheless, accepting the allegations in the petition/complaint as true, and noting the absence of documentary proof conclusively establishing a defense to them (see Leon v Martinez, 84 N.Y.2d at 87-88), petitioner articulated a cognizable claim.

         Petitioner also alleges that the subject property was "arbitrarily singled out for different, less favorable treatment than neighboring properties in a manner that was inconsistent with a well-considered land-use plan" so as to constitute discriminatory reverse spot zoning (Nicholson v Incorporated Vil. of Garden City, 112 A.D.3d at 895; see Matter of C/S 12th Ave. LLC v City of New York, 32 A.D.3d 1, 9 [2006]; Peck Slip Assocs. LLC v City Council of City of N.Y., 26 A.D.3d 209, 210 [2006], lv denied7 N.Y.3d 703');">7 N.Y.3d 703 [2006]). Petitioner alleges, for the reasons noted above, that rezoning the subject property as MG was "inconsistent with the well-considered land-use plan for the area" set forth in the comprehensive plan (Peck Slip Assoc. LLC v City Council of City of N.Y., 26 A.D.3d at 210). Petitioner further alleges, with record support, that the Town Board rejected recommendations to rezone other property in a PRO district as MG and, without explanation, ...


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.