Opinion
No. 2011–0315.
2011-12-27
TOWN BOARD, Town of Italy, and Bradley E. Jones, Town of Italy Supervisor, Petitioners, v. John E. GARVEY, as Ontario County Administrator, and Theodore M. Fafinski, as Chairman of the Ontario County Board of Supervisors, Respondents.
Gary A. Abraham, Esq., Attorney for Petitioners. John W. Park, Esq., Ontario County Attorney.
Gary A. Abraham, Esq., Attorney for Petitioners. John W. Park, Esq., Ontario County Attorney.
Andrea J. Schoeneman, of Counsel, Attorney for Respondent.
W. PATRICK FALVEY, J.
Respondents' motion to dismiss is denied. The respondents' motion for summary judgment is denied. Respondent is hereby directed to file and serve its answer to the petition, any answering affidavits or other written proof, and a certified copy of the record of the proceedings by January 6, 2012. The petitioner is hereby directed to file and serve any reply papers by January 11, 2012. The matter is returned to the Court's calendar to be heard on January 17, 2012 at 9:30 AM.
This is an Article 78 proceeding. The Town of Italy (“Town”) has petitioned the Court to grant declaratory relief, declaring that Ontario County (“County”) is obligated by law to apply to the Town for zoning approval for its emergency communications tower project, and to order the County to comply with the Town's Zoning Law section 350–44, by applying to the Town of Italy for a zoning permit or approval of said radio communication tower to be located in the Town. The petitioner initially sought by Order to Show Cause a temporary restraining order and preliminary injunction to halt the construction of the tower pending final determination of this action. The Court denied that requested relief by Order dated November 21, 2011.
The petition alleges that the Town's Zoning Ordinance requires such an application by the County, but that the County has commenced work on the tower project and has refused to submit the required application to the Town. The Town argues that there is no federal or state law governing placement of radio communication towers that preempt local zoning requirements and so the County is acting unlawfully.
In response, the County has made a motion to dismiss arguing that the action is time barred, and that the Town has failed to state a cause of action. Alternatively, respondent seeks summary judgment, dismissing the action..
As part of the SEQRA process, the County sent a copy of the Draft Generic Environmental Impact Statement (“DGEIS”) to the Town on December 17, 2010. Section 5 of the DGEIS discusses the “balancing of interests tests” regarding exemption from local zoning. See Mtr of Monroe County, 72 N.Y.2d 338 (1988). Thus, the County asserts, the Town was made aware in December, 2010 that the County considered itself exempt from local zoning.
The County held a public hearing on January 6, 2011 seeking comments regarding the DGEIS. No one from the Town came to the hearing. The Town did respond with written comments, and those were incorporated into the Final Generic Environmental Impact Statement (“FGEIS”). The Town did not object to the County's declaration that it was exempt from local zoning laws, even after having that section of the DGEIS pointed out to Town officials (Harvey affidavit para 17–18). The Town's February 1, 2011 letter does not address the exemption issue, but asks the County to consider other sites and work with the Town's Planning Board and Enforcement Officer.
The County accepted the FGEIS February 17 2011 and set another 10 day comment period to end March 2, 2011. The Town was noticed of this action.
On March 10, 2011, the County determined that the record was complete and adopted the SEQRA findings necessary to proceed with the project. The County directed Ontario Planning to submit site plans for new towers to the Code Enforcement Officers of the towns where new towers were to be constructed for comment on site design (not site selection) and to incorporate these comments into the project as much as practical. The County also found the project was exempt from local zoning ordinances. The March 10, 2011 findings and resolution were sent to all interested agencies, including the Town.
County personnel met with Town of Italy officials March 30, 2011 to discuss the project. But, it wasn't until May 12, 2011 that Mr. Jones appeared at a Ontario Supervisors' meeting and stated to the Board that the County was not exempt from the Town's zoning laws. By June 16, 2011 letter, the County responded to a May 17, 2011 letter from the Town's attorney, reiterating its position. The Town posited that an existing tower in the Town could be used for the new equipment of the County. In response, the County had a structural analysis performed on the existing tower, but that analysis was rejected by the County's consultants. Instead, the County commissioned another analysis, and based on that report, began construction October 6, 2011.
Petitioner Town had four months under CPLR 217(1) to bring the action against the County after the determination under review became final and binding. The County asserts that the four months started March 10, 2011, when the County adopted the Findings Statement and Declaration of Exemption from Zoning Ordinances and Local Zoning Laws, sending a copy to the Town on March 11, 2011. Thus, by the County's reckoning, the statute of limitations expired July 12, 2011.
Respondent asserts that the County's March 30, 2011 meeting with the Town did not revive the statue of limitations. Nash v. Board of Education, 82 AD3d 470 (1st Dept, 2011). Even using the date when the County responded to the Town's letter, June 16, 2011, the four months would have been up October 16, 2011. The action was not commenced until November 4, 2011.
The petitioner opposes the respondent's motion to dismiss. Because the County used a Generic Environmental Impact Statement, the statement did not specifically state that a new tower would be built in the Town of Italy. The siting was not determined until much later. Petitioner alleges that the County did not decide on the Shay Road site until August at the earliest, and the Town did not learn that the County had finally committed itself to the Shay Road site until October 6, 2011 when site preparation began. Therefore, the action is not time barred.
This Court agrees with the petitioner. Judicial resolution of an issue in the context of an Article 78 proceeding may not occur until there is finality. Finality means that a “ ‘decision-maker has arrived at a definitive position on the issue that inflicts an actual concrete injury” ’. Church of St. Paul & St. Andrew v. Barwick, 67 N.Y.2d 510 (1986), cert. denied 79 U.S. 985, quoting Williamson County Regional Planning Commission v. Hamilton Bank, 473 U.S. 172, 193 (1985).
Here, although the County's FGEIS concluded that the County would not be seeking zoning approval from the various towns located in the project area, the Town of Italy did not know for certain that it would be affected by a new tower being built in the Town until the County began work on the site in October, 2011. Even though the County had purchased the Shay Road, Town of Italy property in June, 2011, that same month, on June 23, 2011, the Board of Supervisors issued a resolution to pay for a structural analysis on the existing Parish Hill Road tower, owned by SBA Properties, in answer to the Town's request that the feasibility of leasing this tower be considered as an alternative to building a new tower. Respondent's Ex. L. The County then had another feasibility study done, which report was dated August 22, 2011. The County finally then decided to build the tower at the Shay Road property, issuing Resolution 569–2011 which awarded the contracts for the building of the tower. (Harvey affidavit in support of the motion, para 35). Clearly, the four months statute of limitations did not start to run until August 22, 2011, at the earliest, but, since it does not appear that the County gave notice of this resolution to the Town, the earliest that the Town knew for certain that the project was going forward was in October, 2011, when the Code Enforcement Officer learned of construction beginning. Thus, this action was timely commenced on November, 4, 2011.
The County also argues that the action should be dismissed for failure to allege facts demonstrating a right to relief, because the County is exempt from local zoning under the nine factor “balancing of public interests test”. Mtr of Monroe County, 72 N.Y.2d 338 (1988). This ground for dismissal must be denied. The petitioner's petition as supported by the affidavits submitted herein, is sufficient to make out a cause of action against the respondent. As petitioner points out, the petitioner may test in a court of law whether the County is exempt from the Town's zoning ordinance under the “balance of public interests test.”
The summary judgment motion to dismiss is also denied. The record of the proceedings has not yet been provided, and would be necessary for the Court to determine a summary judgment motion.This constitutes the Order of this Court. Submission of an order by the parties is not necessary. The mailing of a copy of this Order by this Court shall not constitute notice of entry.