Opinion
2018-50607
08-23-2018
In the Matter of the Application of PRESTIGE PETROLEUM CORP. and Wappingers Properties, LLC, Petitioners-Plaintiffs, For a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules, and Declaratory Judgment, v. VILLAGE OF WAPPINGERS FALLS; Village of Wappingers Falls Zoning Board of Appeals; Gas Land Petroleum, Inc.; and Route 9D Holdings, Inc., Respondents-Defendants. In the Matter of the Application of Prestige Petroleum Corp. and Wappingers Properties, LLC, Petitioners-Plaintiffs, For a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules, and Declaratory Judgment, v. Village of Wappingers Falls; Village of Wappingers Falls Zoning Board of Appeals; Village of Wappingers Falls Planning Board; Gas Land Petroleum, Inc., and Route 9D Holdings, Inc., Respondents-Defendants.
CATANIA, MAHON, MILLIGRAM & RIDER, PLLC, Attorneys for Petitioners-Plaintiffs, One Corwin Court, P.O. Box 1479, Newburgh, New York 12550 LISA M. COBB, ESQ., WALLACE & WALLACE, LLP, Attorneys for Defendants-Respondents VILLAGE OF WAPPINGERS FALLS and VILLAGE OF WAPPINGERS FALLS ZONING BOARD OF APPEALS, 85 Civic Center Plaza, Suite LL3, Poughkeepsie, New York 12601 JOSEPH F. CASTIGLIONE, ESQ., YOUNG, SOMMER, WARD, RITZENBERG, BAKER & MOORE, LLC, Attorneys for Defendants-Respondents GAS LAND PETROLEUM, INC. and ROUTE 9D HOLDINGS, INC., 5 Palisades Drive, Albany, New York 12205
CATANIA, MAHON, MILLIGRAM & RIDER, PLLC, Attorneys for Petitioners-Plaintiffs, One Corwin Court, P.O. Box 1479, Newburgh, New York 12550
LISA M. COBB, ESQ., WALLACE & WALLACE, LLP, Attorneys for Defendants-Respondents VILLAGE OF WAPPINGERS FALLS and VILLAGE OF WAPPINGERS FALLS ZONING BOARD OF APPEALS, 85 Civic Center Plaza, Suite LL3, Poughkeepsie, New York 12601
JOSEPH F. CASTIGLIONE, ESQ., YOUNG, SOMMER, WARD, RITZENBERG, BAKER & MOORE, LLC, Attorneys for Defendants-Respondents GAS LAND PETROLEUM, INC. and ROUTE 9D HOLDINGS, INC., 5 Palisades Drive, Albany, New York 12205
James D. Pagones, J.
Respondents/Defendants Village of Wappingers Falls, Village of Wappingers Falls Zoning Board of Appeals and Village of Wappingers Falls Planning Board (hereinafter "Wappingers") move for an order, pursuant to CPLR 3211 and CPLR § 7804(f), dismissing the above captioned petitions. Respondent/Defendant Route 9D Holdings, Inc. (hereinafter "9D") also moves for an order, pursuant to CPLR 3211(a)(3),(7), CPLR § 7801(1) and CPLR § 7804(f) dismissing the petitioners'/plaintiffs' claims against it.
The following papers were read:
Notice of Petition-Complaint-Exhibits A-I 1-11
So-Order Stipulation 12
Notice of Motion-Memorandum of Law-Affirmation 13-18
Exhibits A-C
Notice of Motion-Affirmation-Exhibits A-B-Affidavit 19-34
Exhibits 1-9-Memorandum of Law-Exhibit 1
Affirmation-Exhibits A-D-Exhibits A-F-Affidavit 35-48
Memorandum of Law-Affidavit
Affidavit-Exhibits A-D-Memorandum of Law 49-54
Memorandum of Law 55
Plan Sheets/Maps 56
Initially, the Court would note that the parties stipulated to and the Court "so-ordered" the consolidation of these actions for trial purposes. Additionally, the "so-ordered" stipulation required that the respondents/defendants only respond to the second petition/complaint pending under Index No. 2018-50933. Further, any claims or causes of action against respondent/defendant Gas Land Petroleum, Inc. were discontinued.
By way of background, this is a hybrid special proceeding commenced pursuant Article 78 of the CPLR and CPLR § 3001. Petitioners-Plaintiffs request that this Court review and determine, on the law and on the facts, the issues of whether Wappingers Code Enforcement Officer or the Zoning Administrator failed to perform their duties under the law; whether they proceeded without or in excess of their jurisdiction; whether Wappingers determination(s) in ultimately granting the variances and site plan approval was in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion; and whether the determinations were supported by substantial evidence. Petitioners-Plaintiffs also seek declaratory relief; specifically, a finding that the determinations made by Wappingers were invalid, null and void and reverse the same.
Respondent/Defendant 9D is the owner of real property located at 2755 West Main Street, Wappingers Falls, New York. 9D recently sought and obtained certain approvals from Wappingers to operate a retail gasoline service station and convenience store. Petitioners/Plaintiffs own and operate a gas station and convenience store approximately one (1) mile from the 9D property.
For many years prior to acquisition of the property by 9D, it was used as a gasoline station, service shop and convenience store. The property was maintained as a lawful nonconforming use in the Village Mixed Use Zoning District, following a change to the village laws which removed a "gasoline convenience station" use from the permitted uses. In August of 2006 and in March of 2012, the New York State Department of Environmental Conservation (hereinafter "NYSDEC") issued Notice of Violations to the prior owner related to the release of petroleum from underground bulk storage tanks. In November of 2012, the NYSDEC prohibited further operation of a gasoline station at the property until petroleum-related issues were addressed to the satisfaction of the State of New York. The previous owner was unable to complete the remediation as required by the State and failed to pay the property taxes. 9D purchased the property with the intention of remediating the contamination to the satisfaction of the NYSDEC, and then rebuilding and reopening the gasoline/convenience station. 9D retained Christopher P. Lapine, P.E. of the Chazen Companies to consult with Wappingers regarding 9D's proposed remediation and reuse of the property. Mr. Lapine addressed a letter to the Village Mayor describing the property's status and outlining 9D's proposal. In response, on August 1, 2017, the Village Zoning Administrator issued a letter providing interpretation of several provisions of the Village Code pertaining to the nonconforming use. The Zoning Administrator, opined, among other things, that while the right to continue a nonconforming use will generally expire after that use has ceased for twelve (12) consecutive months, the Notice of Violations and related temporary use prohibition issued by the NYSDEC barred the landowner from continuing the preexisting nonconforming gas station use pending resolution of the violations. Therefore, the State-imposed bar on continuing the gas station use tolled the Village's requirement for continuing a nonconforming use. Based upon the Zoning Administrator's interpretation, 9D moved forward with having Chazen prepare formal plans for Wappingers' review and approval. On September 19, 2017, Chazen submitted an application to the Village Planning Board. The August 2017 letter from the Zoning Board Administrator was appended both to the cover letter on September 19, 2017 and as an attachment to the full SEQRA (State Environmental Quality Review Act) environmental assessment form. Multiple revisions were made, ultimately resulting in a revised form being submitted to the Planning Board in January of 2018. The plan as well as a number of area variances were approved by the respondents/defendants Wappingers.
Standing is a threshold determination that a person should be allowed access to the courts to adjudicate the merits of a particular dispute (see CPD NY Energy Corp. v. Town of Poughkeepsie Planning Bd. , 139 AD3d 942 [2nd Dept 2016] leave to appeal denied by 28 NY3d 903 ). The petitioners/plaintiffs have the burden of establishing both an injury-in-fact and that the asserted injury is within the zone of interests sought to be protected by the statute alleged to have been violated (id. ). In land use matters, petitioners/plaintiffs must show that they would suffer direct harm, injury that is in some way different from that of the public at large (see Association for a Better Long Island, Inc. v. New York State Dept. of Environmental Conservation , 23 NY3d 1 [2014] ; Penevan Corp. v. Town of Greenburgh , 144 AD3d 806 [2nd Dept 2016] ).
Here, the petitioners/plaintiffs have failed to substantiate any allegations of aggrievement beyond the threat of increased business competition and therefore they lack standing to bring this proceeding (see Matter of State Funding Corp v. Planning Bd, of Town of Poughkeepsie 147 AD2d 705 [2nd Dept 1989] ). The petitioners/plaintiffs operate a competing business approximately one mile away from the defendant proposed gas station/convenience store. It is well settled that mere competitive injury is not an interest protected by the zoning law (see Matter of Rockland Hospitality Assoc. v. Paris , 302 AD2d 597 [2nd Dept 2003] ; Scannell v. Town Bd. of Town of Smithtown , 250 AD2d 832 [2nd Dept 1998] leave to appeal denied by 92 NY2d 809 ).
Petitioners/Plaintiffs fail to identify any actual or alleged injury in the second petition/complaint. Further, the petitioners/plaintiffs fail to allege, or offer any proof, as to how they will suffer direct harm or injury that is in some way different from that of the public at large. The affidavit of Frank Hessari, Vice President of Prestige Petroleum Corp. and Managing Member of Wappingers Properties, LLC, makes numerous speculative and conclusory statements concerning the potential for negative impact to property values and a negative transformation of the community character. These statements are not supported by any actual evidence, such as an economic analysis performed by an expert in the field. Moreover, the injury alleged, while speculative at best, is not unique to the petitioners/plaintiffs; rather, the injuries are alleged as to the entirety of the community. Accordingly, these assertions by Mr. Hessari are clearly insufficient to establish that the petitioners/plaintiffs have standing to maintain these actions (see Matter of Tappen Cleaners v. Zoning Bd. of Appeals of Vil. of Irvington , 57 AD3d 683 [2nd Dept 2008] ).
Accordingly, the motions of the respondents/defendants are granted in their entirety and petitioners'/plaintiffs' petitions/complaints are dismissed.
The foregoing constitutes the decision, order and judgment of the court. This decision, order and judgment has been filed electronically.