Opinion
No. 2022-50335
01-03-2023
In the Matter of the Application of LANDMARK PROPERTIES OF SUFFOLK, LTD., PB DEVELOPERS, INC. and THE PRESERVE AT LAKES KILL, LLC, Petitioners-Plaintiffs, v. TOWN OF RED HOOK and TOWN BOARD OF The TOWN OF RED HOOK, Respondents-Defendants, . For a judgment pursuant to Article 78 of the Civil Practice Law and Rules and related declaratory relief,
Unpublished Opinion
To commence the 30-day statutory time period for appeals as of right (CPLR 5513 [a]), you are advised to serve a copy of this order, with notice of entry, upon all parties.
DECISION AND ORDER
CHRISTI J. ACKER, J.S.C. NYSCEF Documents numbered 15, 17-32 and 35-40 were read on the motion of Respondents Town of Red Hook and the Town Board of the Town of Red Hook ("Respondents"), for an Order pursuant to CPLR 3211(a)(2), (a)(3) and (a)(7) dismissing the Amended Petition Complaint of Petitioners Landmark Properties of Suffolk LTD. ("Landmark"), PB Developers Inc. ("PB Developers") and The Preserve at Lakes Kill,'LLC ("The Preserve") (hereinafter referred to collectively as "Petitioners").
Petitioners commenced this hybrid special proceeding and plenary action pursuant to Article 78 of the CPLR and CPLR §3001, seeking judgment (a) annulling and voiding Town Board Resolution No. 50 of 2021 and Local Law No. 3 of 2021 which adopted an extension of a moratorium on highway work permits in the Town ("Moratorium Extension Law"); (b) declaring the Moratorium Extension Law to be illegal, unauthorized, ultra vires, invalid, null, void and of no effect; (c) declaring Town Supervisor Robert McKeon ("McKeon") and Town Board Member William Hamel ("Hamel") to be impermissibly biased and conflicted and disqualified from acting with respect to all matters pertaining to Petitioners, Petitioners' subdivision and Petitioners' proposed residential development, and ordering adjudging and declaring that McKeon and Hamel must recuse themselves from all present and future matters pertaining to Petitioners and Petitioners' proposed residential development and (d) awarding Petitioners their costs, disbursements and reasonable attorneys' fees in this proceeding. '
Background .
In 2016, The Preserve acquired ownership of three parcels of property in the Town which together consist of 100.45 acres and is referred to as "The Preserve Property." On December 7, 2015, the Town Planning Board adopted a "Resolution Granting Final Subdivision Approval to Preserve at Lakes Kill Subdivision," which granted, upon several conditions, "final approval to the subdivision plat for the Preserve at Lakes Kill." One of the conditions required the receipt of a road opening permit from the Town Highway Department for a curb cut on Feller Newmark Road. In furtherance of this condition, on September 22, 2020, Petitioners' counsel provided the . Town's attorney with a revised "Application and Permit for Improvements to Town Streets and Highways Regarding Approved Subdivision Plat" ("Road Opening Permit Application"). After being advised that the Town Attorney had no further comment on the Application, Petitioners' legal counsel submitted the Road Opening Permit Application to the Town Highway Superintendent for approval on November 27, 2020. The Town Highway Superintendent acknowledged the submission of the Road Opening Permit Application and approved the design of the proposed road work on December 18, 2020. However, on December 23, 2020, the Town Highway Superintendent advised that the issuance of the road opening permit remained under review by the Town Attorney and Town Engineer.
According to the Petition, Parcels 1 and 2 were previously owned by Petitioner Landmark and Parcel 3 was previously owned by Petitioner PB Developers.
At a February 9, 2021 meeting of the Town Board, Supervisor McKeon presented a proposed Resolution No. 14 to set a public hearing on Local Law A (Proposed) of 2021 -Moratorium on Road Opening Permits, which proposed a 6-month moratorium on the issuance of permits within the right-of-way of a Town highway while the Town considered amendments to its highway specifications. According to Petitioners, at this meeting, the Town Board acknowledged receipt of correspondence from the Town Highway Superintendent opposing the proposed moratorium. It also acknowledged receipt of an e-mail from The Preserve's legal counsel objecting to the moratorium on a number of grounds, including that McKeon and Hamel had conflicts of interest. The Town Board thereafter passed a resolution which scheduled a public hearing for February 24, 2021. .
On February 19, 2021, the Town Highway Superintendent issued a road opening permit for the Petitioners' subdivision. On February 24, 2021, the Town Board held a public hearing on the proposed adoption of the moratorium. Despite acknowledging receipt of an e-mail from Petitioners' counsel calling for McKeon and Hamel to recuse themselves, the Board passed -Resolution No. 16 and on March 1, 2021, Local Law No. 1 of 2021 (Initial Moratorium) was filed with the Secretary of State.
At the August 10, 2021 meeting of the Town Board, Supervisor McKeon introduced proposed Resolution No. 49 to set a public hearing on Local Law No. C (Proposed) of 2021, which was to extend the Initial Moratorium through February 28, 2022. After the public hearing was closed on August 25, 2021, the Town Board passed the Moratorium Extension Law. This Law took effect upon its filing with the Secretary of State on October 1,2021 and, pursuant to its terms, expired on February 28, 2022. .
Petitioners filed the instant proceeding on or about February 1, 2022, 27 days before the Moratorium Extension Law expired. The affidavits of service demonstrate that Respondents were served on February 14, 2022. In accordance with the parties' stipulation dated March 24, 2022, Respondents 'filed the certified record and moved to dismiss the action on May 27, 2022. Petitioners then filed an Amended Verified Petition-Complaint ("Amended Petition) on June 27, 2022 and the instant motion to dismiss ensued.
Respondents' Motion to Dismiss .
Respondents move to dismiss the Amended Petition in its entirety on the following grounds: (1) Petitioners' alleged case or controversy, and consequently the sought relief, is moot due to the expiration of the complained of legislation; (2) the Amended Petition was premature as Petitioners failed to exhaust available administrative remedies prior to instituting the instant proceeding while the legislation was still in effect; and (3) that the sought declaration against any future participation by the Town Supervisor and a Town Board member in any official matters before the Town Board relating to the Petitioners is beyond the power of this Court to grant and would be inappropriate for this matter in particular.
Relief as to the Moratorium Extension Law ,
Petitioners' First Claim and Cause of Action seeks a judgment annulling and invalidating the Moratorium Extension Law. Their Second Cause of Action seeks, inter alia, a declaration that the Moratorium Extension Law was illegal, improper, unauthorized, ultra vires, unconstitutional, invalid, null and void and of no force or effect. It is uncontested that the Moratorium Extension Law expired on February 28, 2022 (Certified Record, p. 171), In addition, according to Respondents, the Moratorium Extension Law has not been further extended or reenacted, nor are there any pending or proposed resolutions or local laws before the Town Board to do so.
"'It is a fundamental principle of our jurisprudence 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' [citations omitted]." Bd. of Managers of Van Wyck Glen Condo, v. Van Wyck at Merritt Park Homeowners Ass'n, Inc., - A.D.3d -, 2022 WL 17660405 [2d Dept. 2022]. Courts are generally precluded "from considering questions which, although once live, have become moot by passage of time or change in circumstances [citations omitted]." Id. "Courts are prohibited from rendering advisory opinions." C.F. v. New York City Dep't of Health &Mental Hygiene, 191 A.D.3d 52, 61 [2d Dept. 2020], .
The Court finds that the expiration of the Moratorium Extension Law has rendered the relief that Petitioners seek regarding said Law moot and/or academic. The Court cannot annul a law that has expired and a declaration by this Court as to the legality of Moratorium Extension Law would be academic because the Law no longer exists. See Dering Point Assocs., LLC v. Inc. Vill. of Dering Harbor, 199 A.D.3d 913 [2d Dept. 2021].
Petitioners argue that their action constitutes an exception to the mootness doctrine because McKeon and Hamel's alleged conflicts of interest and biases continue to exist and the Town Board retains a supervisory role over Petitioners' Project. However, this argument fails because Petitioner have not established that this issue is likely to recur and evade review and that the issue presented is significant and has not been dispositively addressed. See e.g. C.F. v. New York City Dep't of Health &Mental Hygiene, supra. Therefore, Respondents' motion to dismiss that portion of the action that seeks to annul and/or declare illegal the Moratorium Extension Law is h • granted.
In the instant case, Petitioners did not commence an action to review the Initial Moratorium and waited to file the instant action until three weeks before the Moratorium Extension Law expired.
Conflict of Interest
Petitioners maintain that McKeon and Hamel are biased against Petitioners and the Project and have conflicts of interest because they both own property adjacent to Petitioners' Preserve Property. As such, Petitioners seek a blanket declaration that McKeon and Hamel are impermissibly biased, conflicted and disqualified from acting with respect to "all present and future matters" pertaining the Petitioners, Petitioners' subdivision and Petitioners' proposed residential development. Petitioners also seek a declaration that McKeon and Hamel must recuse themselves from any present and future matters involving Petitioners, Petitioners' subdivision and Petitioners' proposed residential development. In moving to dismiss, Respondents argue there is no actual case or controversy that warrants the relief Petitioners seek regarding McKeon and Hamel. The Court agrees.
Pursuant to CPLR 3001, this Court "may render a declaratory judgment having the effect of a final judgment as to the rights and other legal relations of the parties to a justiciable controversy whether or not further relief is or could be claimed." Nevertheless, "New York courts do not issue advisory opinions . . . [and] a declaratory judgment should only be granted when it will have a direct and immediate effect upon the rights of the parties." Enlarged City Sch. Dist. of Middletown v. City of Middletown, 96 A.D.3d 840, 841 [2d Dept. 2012], "In order to be amenable to declaratory relief,' [t]he dispute must be real, definite, substantial, and sufficiently matured so as to be ripe for judicial determination' [citations omitted]." Id. A "request for a declaratory judgment is premature 'if the future event is beyond the control of the parties and may never occur' [citations omitted] . . . The threat of a hypothetical, contingent, or remote prejudice to a party does not represent a justiciable controversy." Id.
Petitioners' Second Cause of Action maintains that a "justiciable controversy" exists as to the legality and propriety of the Moratorium Extension Law. Additionally, Petitioners contend that a justiciable controversy exists as to the legality and propriety of present and future Town Board actions concerning Petitioners where such actions involve the participation and influence of McKeon and Hamel.
However, these allegations do not constitute justiciable controversies that are amenable to declaratory judgment. As discussed above, any declaration that the Law was null and void because of the alleged conflicts of interest would be academic because the Moratorium Extension Law expired on February 28, 2022. Further, Petitioners' attempt to create a justiciable controversy based upon possible future "involvement" by McKeon and Hamel with respect to Petitioners' Project fails because such a claim is clearly hypothetical. More importantly, such a future "justiciable controversy" would be contingent upon McKeon and Hamel being presented with a situation in which their recusal was sought and/or mandated and they fail to do so. Based upon the foregoing, the Court finds that the declaratory relief sought by Petitioners in the Second Cause of Actions does not represent a current justiciable controversy within the meaning of CPLR §3001. Enlarged City Sch. Dist. of Middletown, supra; see also Bd. of Managers of Van Wyck Glen Condo., supra. Accordingly, Respondents' motion to dismiss the Second Claim and Cause of Action is granted. .
Indeed, the purported necessity for this blanket future relief is undermined by Petitioners' acknowledgement that both McKeon and Hamel have previously recused themselves from consideration of resolutions that directly involved Petitioners' subdivision. See Amended Petition, ¶60(k), (1) and (m). Moreover, it is well settled that the "[r]esolution of questions of conflict of interest requires a case-by-case examination of the relevant facts and circumstances [citation omitted]" Titan Concrete, Inc. v. Town of Kent, 202 A.D.3d 972, 974 [2d Dept. 2022].
The Court has considered the additional contentions of the parties not specifically addressed' herein and finds them unavailing. Any relief requested by either party which was not addressed by the Court is hereby denied. Now, it is hereby
ORDERED that Respondents' motion to dismiss the Amended Petition in its entirety is GRANTED; and it is further . .
ORDERED that the Amended Petition is denied and dismissed in its entirety.
The foregoing constitutes the Decision and Order of the Court.