Opinion
No. 20180124
05-15-2022
CIRCULAR ENERG, LLC and SENECA DEPOT, LLC, Petitioners-Plaintiffs, v. TOWN OF ROMULUS and TOWN OF ROMULUS TOWN BOARD, Respondents-Defendants,
Alan Knauf, Esq., Knauf Shaw, LLP for Petitioners-Plaintiffs Patrick J. Morrel, Esq., Patrick J Morrell Law Offices for Respondents-Defendants Willard R. Burns, Esq., Burns Law Firm, LLC, for Respondents-Defendants
Unpublished Opinion
Alan Knauf, Esq., Knauf Shaw, LLP for Petitioners-Plaintiffs
Patrick J. Morrel, Esq., Patrick J Morrell Law Offices for Respondents-Defendants
Willard R. Burns, Esq., Burns Law Firm, LLC, for Respondents-Defendants
DECISION, ORDER, AND JUDGMENT
THE HONORABLE DANIEL J. DOYLE JUSTICE
Petitioners-Plaintiffs Circular enerG, LLC and Seneca Depot, LLC ("Petitioners") commenced this combined Article 78, Declaratory Judgment and Plenary action asserting eleven causes of action arising out of the adoption of three resolutions by the Respondent-Defendant Town of Romulus Town Board ("Town Board"), which were adopted on April 18, 2018. Those three resolutions were: (1) that the Town Board be designated lead agency under SEQRA for purposes of a proposed zoning amendment (Town of Romulus Resolution #35-18); (2) adoption of a negative declaration under SEQRA for the proposed zoning amendment (Town of Romulus Resolution #36-18); and (3) adoption of the zoning amendment as Town of Romulus Local Law #3 (Town of Romulus Resolution #37-18). The Respondents previously moved pursuant to CPLR 3211 [a] [2] and CPLR 7804[f] to dismiss the action in its entirety. That motion was granted in part and the Tenth and Eleventh causes of action were dismissed in a Decision and Order dated April 4, 2019.
The Respondents then answered and filed a return. Thereafter, the Respondents moved to dismiss on the grounds of lack of standing and capacity to sue based upon the passage on May 24, 2019 of the Finger Lakes Community Preservation Act, which the Respondents contend "prohibits the permitting or siting of waste-to-energy facilities such as Petitioners' proposed Trash Incinerator within the Finger Lakes Watershed."
The Petitioners have cross-moved pursuant to CPLR 2221 for renewal based upon a change in law. Specifically, the Petitioners argue that the subsequent Supreme Court decision in Knick v Twp. of Scott, Pennsylvania, 139 S.Ct. 2162, 204 L.Ed.2d 558 [2019], which eliminated the requirement of litigating an inverse condemnation claim to conclusion prior to instituting a regulatory taking claim pursuant to 42 U.S.C. § 1983.
A. The Petitioners have standing and capacity to challenge the procedural aspects of the zoning amendments
The Respondents contend that the passage of the Finger Lakes Community Preservation Act deprives the Petitioners of the capacity and/or standing to challenge the zoning amendments. CPLR 3211 [a] [3] permits dismissal of an action where the party commencing the action lacks the legal capacity to sue. The Respondents appear to be using capacity interchangeably with standing, The Court of Appeals has observed that "the concept of capacity is often confused with the concept of standing, but the two legal doctrines are not interchangeable," and goes on to explain that capacity "concerns a litigant's power to appear and bring its grievance before the court"(Community Bd. 7 of Borough of Manhattan v. Schaffer, 84 N.Y.2d 148,155 [1994]). The Respondents have failed to demonstrate that the Petitioners lack capacity to maintain this action.
The Respondents also make the twofold argument that (1) the Finger Lakes Community Preservation Act renders any challenge to the zoning amendments non-justiciable; and (2) Circular Energ lacks standing to maintain this action. The Respondents do not argue that the Finger Lakes Community Preservation Act supercedes its zoning amendments and it would appear that the zoning amendments are broader than what is contained in the Finger Lakes Community Act, thus its enactment did not render the Petitioners procedural challenge to the zoning amendments non-justiciable. As to the standing of Circular enerG, the Respondents have not waived their defense of standing (see CPLR 3211 [e]). However, Circular Energ has established it has standing to maintain a procedural challenge to the zoning amendments (see Jones v Town of Carroll, 158 A.D.3d 1325, 1326 [4th Dept 2018]).
B. The record establishes a violation of GML § 239-m
General Municipal Law § 239-m requires a town to, among other things, refer to its county planning agency certain proposed actions, including the "amendment of a zoning ordinance" (GML § 239-m[3] [a] [ii]). The failure of a town to comply with GML § 239-m is not a mere procedural irregularity; rather it is "a jurisdictional defect involving the validity of a legislative act" rendering it null and void (Fichera v New York State Dept. of Envtl. Conservation, 159 A.D.3d 1493,1495 [4th Dept 2018]).
The Petitioners contend that though the Town did send zoning amendment to the Seneca County Planning Board on or about March 1, 2018, the Town subsequently amended portions of the zoning ordinance on March 8, 2018 and those amendments were not sent to the Seneca County Planning Board. The Respondents admit that GML § 239-m was applicable to its zoning amendment, but argues that a new referral was not required because the amendments made on March 8, 2018 were embraced in the original referral which was received by the Seneca County Planning Board or were otherwise not substantial.
Contrary to the Respondents' argument, the March 8, 2018 amendments are neither embraced in the original referral nor insubstantial. The March 8thamendments added several definitions not found in the original referral, including "Clean Energy Production," "Clean Energy Production - Large Scale," and "Natural Gas," and several definitions were substantially amended, including "Energy Production -Natural Gas - Large Scale," and "Waste." It cannot be said that the changes were insubstantial when the changes literally added matters of substance to the zoning ordinance, and, thus, a new referral under GML § 239-m was required (Calverton Manor, LLC v Town of Riverhead, 160 A.D.3d 842, 845 [2d Dept 2018] (law passed by town contained substantial modifications that warranted a new referral under GML 239-m)).
The Respondents also argue that since the Seneca County Planning Board failed to act within 30 days of the March 1, 2018 referral, it was permitted to act without the recommendation of the Seneca County Planning Board. Going further, the Respondents argue that even had the Seneca County Planning Board recommended disapproval of the zoning amendments, it would not have mattered because the Town of Romulus Town Board passed the zoning amendments with a "majority plus one" vote (GML § 239-m[5]). Though it is true that the Seneca County Planning Board failed to act within the requisite time period, that did not entitle the Respondents to enact the zoning amendments that were different in a material way from the zoning amendments that were sent to the Seneca County Planning Board. Thus, the Petitioners are entitled to the annulment of the zoning amendments passed by the Town of Romulus Town Board as Local Law #3.
C. The annulment of Local Law #3 renders several causes of action either non-justiciable or not ripe for review
It is fundamental that the "power of a court to declare the law only arises out of, and is limited to, determining the rights of persons which are actually controverted in a particular case pending before the tribunal" (Boggs v New York City Health and Hosps. Corp., 70 N.Y.2d 972, 974 [1988]) Thus, in order for a court to properly exercise jurisdiction, there must be a justiciable controversy between the parties (Rubin v New York State Educ. Dept., 210 A.D.2d 550, 551 [3d Dept 1994]). As a court must rule upon only justiciable controversies, it ought "not give advisory opinions" as the "giving of such opinions is not the exercise of the judicial function"(New York Pub. Interest Research Group, Inc. v Carey, 42 N.Y.2d 527, 529-30 [1977]).
Beginning with the Petitioner's SEQRA challenge, the Court of Appeals has held that before an administrative determination may be, "the agency action must be final and binding upon the petitioner" and that "the ripeness doctrine is closely related to the finality requirement, and in order for an administrative determination to be final, and thus justiciable, it must be ripe for judicial review" (Matter of Ranco Sand and Stone Corp, v Vecchio, 27 N.Y.3d 92, 98 [2016]). The Court of Appeals has held that in the SEQRA process, finality occurs when a concrete injury occurs and no "concrete injury was inflicted until the rezoning was enacted" (Matter of Eadie v Town Bd. of Town of N. Greenbush, 7 N.Y.3d 306, 316 [2006]). As the Court has annulled Local Law #3, the Petitioners challenges to the SEQRA process are no longer ripe for judicial review.
As the Court has annulled Local Law #3, the Petitioners' challenges that the zoning amendments are arbitrary and capricious and that the zoning amendments are preempted are not ripe for review since "until the statute or ordinance is passed, a declaratory judgment would be premature" (New York Pub. Interest Research Group, Inc. v Carey, 42 N.Y.2d 527, 531 [1977]).
D. Even if violations of Open Meetings Law Occurred the Petitioners have failed to establish good cause for annulling the SEQRA resolutions
The Petitioners claim that the Respondents violated the Open Meetings Law in two ways: (1) by not posting the three resolutions it voted on prior to the Town Board's meeting on April 18, 2018; and (2) by having a closed-door private meeting with its attorneys prior to voting on the resolutions on April 18, 2018 without following the procedures for going into executive session pursuant to Public Officers Law § 103.
The Fourth Department has held that Open Meetings Law does not apply when a public body engages in "matters made confidential by federal or state law" (Public Officers Law § 108 [3]) and that communication between an attorney and client are confidential (Brown v Feehan, 125 A.D.3d 1499,1501 [4th Dept 2015] (citing CPLR 4503)). Other courts have come to a similar conclusion (see Shibley v Miller, 212 A.D.2d 799, 799 [2d Dept 1995]; Young v Bd. of Appeals of Inc. Vil. of Garden City, 194 A.D.2d 796, 798 [2d Dept 1993]). The Fourth Department held that when an exemption under section 108 applies, the Open Meetings Law does not apply, and the requirements that would operate with respect to executive sessions are not in effect" (Brown v Feehan, 125 A.D.3d at 1501). Thus, the Respondents would not have violated Open Meetings Law if it met privately with its attorneys prior to the April 18, 2018 vote.
The record as fully developed as is it, does not controvert the Respondents claim that the meeting it held was with its attorneys and was for the purposes of obtaining legal advice. Moreover, there is no requirement that the Town Board go into executive session in order to obtain legal advice from its attorneys (Brown v Feehan, 125 A.D.3d at 1501). Therefore, the Petitioners have not established an Open Meetings Law violation occurred. Even assuming arguendo that the Town Board's meeting with its attorneys was a violation of Open Meetings Law, good cause is not established when the resolutions at issue were adopted at a meeting that was open to the public, which occurred after two prior public hearings (see Chestnut Ridge Assoc., LLC v 30 Sephar Lane, Inc., 169 A.D.3d 995, 998 [2d Dept 2019]).
The Petitioners also allege that the Respondents violated Open Meetings Law by failing to post the three resolutions voted on at the April 18, 2018 meeting. Public Officers Law § 103[e] provides in pertinent part:
If the agency in which a public body functions maintains a regularly and routinely updated website and utilizes a high speed internet connection, such records shall be posted on the website to the extent practicable as determined by the agency or the department, prior to the meeting (emphasis added).
Here, the Respondents explained that it was the town attorney who was responsible for drafting the resolutions and that he was unable to draft the resolutions prior to the meeting. Thus, the Respondents have established that it was not "practicable" to post the resolutions prior to the meeting.
E. Upon renewal the Respondents are entitled to dismissal of the Tenth Cause of Action
The Petitioners' Tenth Cause of Action is a litany of claims made pursuant to 42 U.S.C. § 1983, including claims for violations of Equal Protection and Substantive Due Process. These Constitutional claims flow essentially from a claim that the Respondent's zoning amendment constituted a regulatory taking of property without just compensation.
In a prior Decision and Order the Court dismissed the Tenth Cause of Action on the grounds the claim was not yet ripe. At the time of that Decision and Order the law required that in order to assert Constitutional claims for a regulatory taking under 42 U.S.C. § 1983 the Petitioners have to demonstrate that they: (1) received "a final decision regarding the application of the [challenged] regulations to the property at issue" from "the government entity charged with implementing the regulations" and; (2) sought "compensation through the procedures the state has provided for doing so" (Suitum v. Tahoe Regional Planning Agency, 520 U.S. 725, 734 [1997], quoting Williamson County Regional Planning Commn. v. Hamilton Bank of Johnson City, 473 U.S. 172,186,194 [1985]). In dismissing the Tenth Cause of Action, the Court held that it was not ripe because the Petitioners had not litigated an inverse condemnation claim to conclusion. After the Court rendered its Decision and Order, the Supreme Court decided the case of Knick v Twp. of Scott, Pennsylvania, 139 S.Ct. 2162, 204 L.Ed.2d 558 [2019], which eliminated the requirement of the litigation of an inverse condemnation claim to conclusion prior to instituting a regulatory taking claim pursuant to 42 U.S.C. § 1983.
As there was a change in law during the pendency of this action, the Petitioners were entitled to renewal (see CPLR 2221 [e] [2]). However, upon renewal, the Respondents remain entitled to dismissal on ripeness grounds. Though Knick eliminated the requirement of the litigation of an inverse condemnation claim, the requirement of finality remains (Knick v Twp. of Scott, Pennsylvania, 139 S.Ct. at 2169). Finality requires the Petitioners to seek a variance from the challenged zoning amendments, and, thus a regulatory taking claim was not ripe because the Petitioners "still had an opportunity to seek a variance from the appeals board, so any taking was therefore not yet final" (Knick v Twp. of Scott, Pennsylvania, 139 S.Ct. 2162, 2169, 204 L.Ed.2d 558 [2019]). The Petitioners never sought a variance under the zoning amendments, thus even with the change in law, its regulatory takings claim never ripened. The issue of ripeness affects the Court's subject matter jurisdiction. As the Fourth Department has held:
a court is without subject matter jurisdiction "when it lacks the competence to adjudicate a particular kind of controversy in the first place. As the Court of Appeals has observed, the question of subject matter jurisdiction is a question of judicial power: whether the court has the power, conferred by the Constitution or statute, to entertain the case before it. Moreover, subject matter jurisdiction requires that the matter before the court is ripe (State v Calhoun, 106 A.D.3d 1470, 1472 [4th Dept 2013] (internal citations and quotations omitted)).
As the regulatory takings claims are not ripe, the Court lacks subject matter jurisdiction over them. Therefore, the Respondents are entitled to dismissal of the Tenth Cause of Action (see 54 Marion Ave., LLC v City of Saratoga Springs, 162 A.D.3d 1341,1344 [3d Dept 2018]; Davis v State, 64 A.D.3d 1197 [4th Dept 2009]).
E. The Respondents are entitled to dismissal of the Ninth Cause of Action
Similar to the finality requirement of a regulatory takings claim, a claim for inverse condemnation when it is predicated upon a zoning ordinance, also requires the finality of a variance decision (see Peck Slip Assoc. LLC v City Council of City of New York, 26 A.D.3d 209, 211 [1st Dept 2006] Linzenberg v Town of Ramapo, 1 A.D.3d 321, 323 [2d Dept 2003]; Dick's Quarry, Inc. v Town of Warwick, 293 A.D.2d 445, 446 [2d Dept 2002]). Thus, the Respondents are entitled to dismissal of the Ninth Cause of Action.
Annulling Local Law #3 and the passage of the Finger Lakes Community Preservation Act provide additional bases for dismissal of the inverse condemnation claim.
Conclusion
Based upon the foregoing, it is hereby
ORDERED that the Petition/Complaint is granted in part, denied in part, and dismissed in part in accordance with this Decision, Order, and Judgment; and it is further
ORDERED, ADJUDGED, AND DECREED that the Third Cause of Action in the Petition/ Complaint is GRANTED and that Local Law #3 is annulled and the matter is remitted back to the Town of Romulus Town Board for compliance with General Municipal Law § 239-m; and it is further
ORDERED that the First, Second, Fourth, Fifth, Sixth, Seventh, Ninth, and Tenth Causes of Action are dismissed without prejudice in accordance with this Decision, Order, and Judgment; and it is further
ORDERED that the Eighth Cause of Action is denied and dismissed.