Opinion
No. 7410/2015.
11-05-2015
In the Matter of the Application of VILLAGE OF SOUTH BLOOMING GROVE, Town of Blooming Grove, Village of Monroe, Village of Woodbury, Town of Woodbury, Village of Harriman, Village of Cornwall–on–Hudson, Town of Cornwall, County of Orange (On Behalf of Itself and Orange County Sewer District No. 1), Town of Chester, Monroe Joint Fire District, and the Black Rock Fish and Game Club of Cornwall, Petitioners, For a Judgment pursuant to Article 78 of the Civil Practice Law and Rules v. VILLAGE OF KIRYAS JOEL BOARD OF TRUSTEES, Village of Kiryas Joel, Town of Monroe Town Board, and Town of Monroe, Respondents, and Emanuel Leonorovitz, Basya Sabov, Mendel Breuer, Ella Breuer, Congregation Beth Aryeh, Esther Stessel, 257 Mountainview Trust, David Goldberger, Tziposa Goldberger, 483 105 Corp., 481 Coun. Corp., Port Orange Holdings, Isidor Landau, Provider–Hamaspic OC, Joel Brach, Henry Weinstock, Beth Freund, Joseph Stulovitch 1 LLC, Lillian And Pincus J. Strulovitch, Herbst Family Holdings LLC, Hashgucha Prutius LLC, Be & Yo Realty, Inc., Benny Wercberger, Rachel Wercberger, Israel Weber, Sigmond Brach, Forest Edge Development LLC, Brucha Properties Ltd., Naftaliausch, Kent Neighborhood LLC, Rafoel A. Krausz, Eliyahu Polatseck, Rosa Polatseck, Wolf Wercberger, Moishe Oppenheim, Zalmen Stern, Rivka Oppenheim, Lipa Oppenhiem, Yehuda Berger, Seven Springs Corp., Mendel Oppenheim, Raizel EVA Freund, Isaac Glanzer, Judy Glanzer, Moses Goldberger, Simon Gelb, Samuel Kahan, 7 Springs Villas LLC, Chaim Landau, Josef Freidman, Frida Freidman, Silah Rosenberg Fam LLC, Deborah Rosenberg, Abraham Rosenberg, Isaac Rosenberg, Forest Road Capital, LLC, Commandeer Realty Associates, Inc., Amazon/Burdock Realty Associates Inc., Amazon Realty Associates Inc., Atkins Brothers Inc., Der Blatt Inc., Bais Yisroel Congregation, Bersh Stern, Alex Neustadt, Chaim Friedman, Goldy Friedman, Seven Springs Realty Inc., Sara Gelb, Erno Bodek, Rachel Bodek, Arthur Meisels, Am Seven Springs LLC, Jacobs Hickory LLC, 282 Mountainview Drive, LLC, Joel Reisman, Paula Reisman, Vista Pearl LLC, Konitz Estates, LLC, Jacob Wieder, Chaya Weider, Marsha Wagschal, Congregation Lanzut of Orange County, Eliazer Glanzer, Esther Glanzer, 72 Seven Springs RD LLC, 131 Acres RD LLC, Bakertown Holding, LLC, Harry Arnstein, Esther Arnstein, Shraga Greebaum, Rely Greebaum, Jacob Schwartz, Rene Schwartz, Yehosua Weiner, Devorah Weiner, Alfred Weingarten, Solomon Ellenbogen, Hana Perlstein, Simon Katz, Raizy Ellenbogen, Building 54 LLC, Mordechai Goldberger, Mountainview N.Y. Estates, Inc., Israel Werzberger, Yittele Werzberger, NDS Propertymanagement Inc., Jossi Leib Werzberger, Benjamin Green, Chaya Green, Chaim Parnes, Miriam Parnes, Tobias Schreiber, Feige Schreiber, Upscale 4 Homes Corp., Aes 11–07 Trust, Bakertown Realty Equities, Jacob Bandua Trust, Martin Terkeltaub, Zigmund Klein, Orange N.Y. Homes Inc., and Vintage Apartments LLC, Additional Respondents. Preserve Hudson Valley, John Allegro, Emily Convers, and Louis M. Cerqua, Petitioners/plaintiffs, v. Town Board of the Town of Monroe, Town of Monroe Supervisor Harley Doles, Village Board of the Village of Kiryas Joel, Acting Commissioner Marc Gerstman As Successor to Joseph Martens of the New York State Department of Environmental Conservation, New York State Department of Environmental Conservation, Emanuel Leonorovitz, Basya Saboy, Mende Breuer, Ella Breuer, Cong Beth Aryeh, Esther Stessel, 257 Mountainview Trust/Erwin Landau, David Goldberger, Tzipora Goldberger, 483 105 Corp., 481 Coun. Corp., Port Orange Holdings, Isidor Landau, Provider–Hamaspic OC, Joel Brach, Henry Weinstock, Beth Freund, Joseph Strulovitch 1, Herbst Family Holdings LLC, Hashgucha Prutius LLC, BE & Yo Realty, Inc., Benny Wercberger, Rachael Wercberger, Israel Weber, Sigmond Brach, Forest Edge Development, LLC, Brucha Properties Ltd, Forest Road, Naftali Ausch, Kent Neighborhood, LLC, Rafoel A. Krausz, Eliyahu Polateseck, Rosa Polatseck, Moishe Oppenheim, Wolf Wercberger, Zalmen Stern, Rivka Oppenheim, Lipa Oppenheim, Yehuda Berger, Seven Springs Corp., Mendel Oppenheim, Raizel Eva Freund, Isaac Glanzer, Judy Glanzer, Moses Goldberger, Simon Gelb, Samuel Kahan, 7 Springs Villas LLC, Chaim Landau, Josef Friedman, Frida Freidman, Silah Rosenberg Fam, LLC, Deborah Rosenberg, Abraham Rosenberg, Isaac Rosenberg, Forest Road Capital, LLC, Commandeer Realty Assoc. Inc., Amazon/Burdock Rlty Assoc Inc., Atkins Bros Inc., Der Blatt, Inc., Bais Yissroel Cong, Bersh Stern, Alex Neustadt, Chaim Friedman, Goldy Friedman, Seven Springs Rlty Inc., Sara Gelb, Erno Bodek, Rachel Bodek, Arthur Meisels, AM Seven Springs LLC, Jacobs Hickory LLC, 282 Mountainview Drive, LLC, Joel Reisman, Paula Resiman, Vista Pearl LLC, Konitz Estates, Jacob Wieder, Chaya Weider, Marsha Wagschal, Cong Lanzut of O C, Eliazer Glanzer, Esther Glanzer, 72 Seven Springs RD LLC, 131 Acres RD LLC, Bakertown Estates LLC, 12 Bakertown Holding, Harry Arnstein, Esther Arnstein, Shraga Greebaum, Rely Greebaum, Jacob Schwartz, Renee Schwartz, Yehosua Weiner, Devorah Weiner, Alfred Wengarten, Soloman Ellenbogen, Hana Perlstein, Simon Katz, Raizy Ellenbogen, Building 54 LLC, Mordechai Goldberger, Mountainview N.Y. Estates, Inc., Israel Werzberger, Yittele Werzberger, Jossi Leig Werzberger, NDS Property Management Inc., Benjamin Green, Chaya Green, Chaim Parnes, Mirian Parnes, Tobias Schreiber, Feige Schreiber, Martin Terkeltaub, Zigmund Klein, Orange N.Y. Homes, Inc., Vintage Apartments LLC, Upscale 4 Homes Corp., Joseph Strulovitch 1, LLC, Aes 11–07 Trust, Bakerstown Realty Equities, And Jacob Bandua Trust, Respondents/defendants.
Bryan Cave LLP, New York, NY, for the petitioners in Proceeding No. 1. Zarin & Steinmetz, White Plains, NY, for the petitioners/plaintiffs in Proceeding No. 2. Dickover, Donnelly & Donovan, LLP, Goshen, NY, for the Town Board of the Town of Monroe and the Town of Monroe. Keane & Beane, LLP, White Plains, NY, Co-counsel for the Town Board of the Town of Monroe and the Town of Monroe. Whiteman, Osterman & Hanna LLP, Albany, NY, for the Board of Trustees of the Village of Kiryas Joel and the Village of Kiryas Joel. Sive, Paget & Riesel, P.C., New York, NY, for the respondent signatories to the annexation petitions. Office of the New York State Attorney GeneralEnvironmental Protection Bureau Albany, NY, for the Department of Environmental Conservation and the Commissioner of the Department of Environmental Conservation.
Bryan Cave LLP, New York, NY, for the petitioners in Proceeding No. 1.
Zarin & Steinmetz, White Plains, NY, for the petitioners/plaintiffs in Proceeding No. 2.
Dickover, Donnelly & Donovan, LLP, Goshen, NY, for the Town Board of the Town of Monroe and the Town of Monroe.
Keane & Beane, LLP, White Plains, NY, Co-counsel for the Town Board of the Town of Monroe and the Town of Monroe.
Whiteman, Osterman & Hanna LLP, Albany, NY, for the Board of Trustees of the Village of Kiryas Joel and the Village of Kiryas Joel.
Sive, Paget & Riesel, P.C., New York, NY, for the respondent signatories to the annexation petitions.
Office of the New York State Attorney GeneralEnvironmental Protection Bureau Albany, NY, for the Department of Environmental Conservation and the Commissioner of the Department of Environmental Conservation.
FRANCESCA E. CONNOLLY, J.
The following papers were considered in connection with the petitioners' separate motions for preliminary injunctive relief:
Amended notice of petition (Proceeding No. 1), petition with exhibits, affirmation with exhibits 1–3
Order to show cause (Proceeding No. 1), affirmation with exhibits, emergency affirmation with exhibits, affidavit with exhibits, memo of law 4–7
Notice of petition (Proceeding No. 2), petition with exhibits 8–9
Order to show cause (Proceeding No. 2), affirmation with exhibits, memo of law 10–12
Attorney General letter dated November 4, 1201513
Kiryas Joel memo of law in opposition, affirmation with exhibits 14–15
Monroe affirmation in opposition with exhibit, affidavits, memo of law 16–19
Respondent signatories to the annexation petitions' affirmation in opposition with exhibits, affidavit 20–21
The petitioners in Proceeding No. 1, the Village of South Blooming Grove, Town of Blooming Grove, Village of Monroe, Village of Woodbury, Town of Woodbury, Village of Harriman, Village of Cornwall–on–Hudson, Town of Cornwall, County of Orange (on behalf of itself! and Orange County Sewer District No. 1), Town of Chester,! Monroe Joint Fire District, and the Black Rock Fish and Game Club of Cornwall (hereinafter collectively the municipal petitioners), and the petitioners/plaintiffs in Proceeding No. 2, Preserve Hudson Valley, John Allegro, Emily Convers, and Louis M. Cerqua (hereinafter collectively Preserve Hudson Valley) (the petitioners in both proceedings hereinafter collectively referred to as "the petitioners" unless otherwise specified), commenced these proceedings to challenge two proposed petitions for annexation of certain land from the Town of Monroe to the Village of Kiryas Joel. At issue is one petition seeking to annex approximately 507 acres and a latter-filed petition seeking to annex approximately 164 acres, which area can generally be described as a subset of the 507–acre annexation proposal. Pursuant to the State Environmental
Quality Review Act (SEQRA), a Draft Generic Environment Impact Statement (DGEIS) was issued on May 1, 2015 and a Final Generic Environmental Impact Statement (FGEIS) was issued on August 12, 2015, evaluating the potential impacts associated with the proposed annexations. On September 6, 2015, the Board of Trustees of the Village of Kiryas Joel, as lead agency for the proposed annexation projects, adopted a Findings Statement determining that the DGEIS and FGEIS met the requirements of SEQRA and, separately, adopted resolutions pursuant to the Municipal Annexation Law determining that both the 164–acre and 507–acre annexation proposals were in the "over-all public interest." On September 8, 2015, the Town Board of the Town of Monroe, as an involved agency, adopted a Findings Statement determining that the DGEIS and FGEIS met the requirements of SEQRA with respect to the 164–acre annexation proposal, but not with respect to the 507–acre annexation proposal. The Town Board of the Town of Monroe also adopted a resolution determining that the 164–acre annexation was in the "over-all public interest."
Subsequent to the boards' resolutions finding that the 164–acre annexation was in the "over-all public interest," on October 5, 2015, the Town of Monroe scheduled a special election on the annexation for November 9, 2015. Pursuant to General Municipal Law § 713, this special election is to be called by the affected municipalities "[n]ot later than ninety days after ... the filing in the offices of the clerks of the affected local governments of orders of the governing boards of such affected local governments approving a proposed annexation." Additionally, as the affected [*2]governing boards disagreed as to the "over-all public interest" of the 507–acre annexation proposal, the Board of Trustees of the Village of Kiryas Joel commenced a proceeding in the Appellate Division, Second Department pursuant to General Municipal Law § 712 entitled Board of Trustees of the Village of Kiryas Joel v Town Board of the Town of Monroe (Appellate Division Docket No. 2015–9553), for a judicial determination that the annexation is in the "over-all public interest."
In the proceedings pending before this Court, the petitioners challenge two aspects of the annexation process. First, they contend that the DGEIS and FGEIS foiled to meet the requirements of SEQRA. Second, they contend that the requirements of the Municipal Annexation Law have not been met with respect to the qualification of signatories to the petitions, the sufficiency of the number of signatories to the petitions, and the form and content of the petitions (see General Municipal Law §§ 705[1][a]—[d] ; 711[3] ). Additionally, Preserve Hudson Valley challenges the determination of the Commissioner of the Department of Environmental Conservation (DEC) to appoint the Board of Trustees of the Village of Kiryas Joel as lead agency for the annexations' environmental review, and seeks a declaratory judgment that the boards' resolutions in favor oft annexation violate the Establishment Clauses of the federal land state constitutions.
Now, the municipal petitioners and Preserve Hudson Valley separately move for preliminary injunctive relief. The municipal petitioners seek an order staying the November 9, 2015 special election or, in the alternative, if the vote is permitted to go forward, staying the Board of Trustees of the Village of Kiryas Joel from enacting any local law to effectuate the proposed annexation, until such time as this Court has entered final judgment in this proceeding. Preserve Hudson Valley seeks a preliminary injunction to remain in effect until a final determination is made in this proceeding or until a final determination is made by the Appellate Division, Second Department in Board of Trustees of the Village of Kiryas Joel v Town Board of the Town of Monroe (a) enjoining the special election scheduled for November 9, 2015 on the 164–acre annexation proposal; (b) enjoining the adoption of any Local Law by the Village of Kiryas Joel purporting to annex territory as a result of the special election; (3) enjoining the adoption by the Village of Kiryas Joel of any law, ordinance, rule, or regulation that would effect the presently existing town laws governing the subject area; and (4) enjoining any owner of property in the 164–acre annexation area from developing its property other than in conformance with the presently existing Town of Monroe requirements.
The Town Board of the Town of Monroe, the Board of Trustees of the Village of Kiryas Joel, and the individual property owners who are signatories to the 164–acre and 507–acre annexation petitions separately oppose the motions for preliminary injunctions.
The New York State Attorney General's Office, on behalf of the DEC, submits a letter expressly taking no! position with respect to the motions for preliminary injunctions, but defending the DEC Commissioner's decision to appoint the Board of Trustees of the Village of Kiryas Joel as the lead agency for purposes of the SEQRA review.
DISCUSSION/ANALYSIS
1. The branches of the motions seeking to stay the special election are denied.
As a general rule, "the process of enacting legislation by referendum or by direct legislative procedures Will not be restrained by [a] court on the ground that the statute or other enactment that will ultimately emerge would be invalid" (Matter of De Santis v. Brown, 37 A.D.2d 865, 325 N.Y.S.2d 60 [3d Dept 1971] ). Courts will not intervene to stay an election absent "[e]xceptional and extraordinary circumstances bf a public nature" (Matter of McCabe v. Voorhis, 243 N.Y. 401, 412 [1926] ). Further, in any application for a preliminary injunction, the party seeking relief must demonstrate "(1) a likelihood of ultimate success on the merits; (2) the prospect of irreparable injury if the provisional relief is withheld; and (3) a balance of equities tipping in the moving party's favor" (see Doe v. Axelrod, 73 N.Y.2d 748, 750 [1988] ). Here, the petitioners failed to establish the existence of exceptional or extraordinary circumstances tipping the equities in their favor, or that they would be irreparably harmed merely by the special election taking place, to warrant a stay of the election.
Further, in the event that the result of the special election is against the annexation proposal, these proceedings may be rendered academic (see e.g. Matter of Parietti v. Town of Ramapo, 129 A.D.3d 1088,1090 [2d Dept 2015] ).
Additionally, the petitioners' delay in seeking injunctive relief is a factor that weighs against enjoining the election (see Matter of Brucia v. County of Suffolk, 90 A.D.2d 762, 763, 455 N.Y.S.2d 281 [2d Dept 1982] [where legislation directing that a referendum be placed on the November 2, 1982 ballot was passed on August 19, 1982, a proceeding commenced on October 26, 1982 to enjoin the referendum was untimely]; see also Matter of Kupferman v. Katz, 19 A.D.2d 824, 825, 243 N.Y.S.2d 773 [1st Dept 1963] ["Inexcusably delayed proceedings in election matters coming to judicial determination close to the eve of the polling are especially not to be encouraged"], aff'd 13 N.Y.2d 932 [1963] ). Although the Monroe Town Board noticed the November 9, 2015 election on October 5, 2015, the petitioners did not file their orders to show cause seeking to enjoin the election until October 30, 2015, only 10 days prior to the election. That brief period was further eroded to afford the respondents a fair opportunity to oppose the motions. Oral argument was held on November 5, 2015 at the petitioners' request, only four calendar days prior to the scheduled election. Under these circumstances, the special election should not be stayed (see Matter of Kupferman v. Katz, 19 A.D.2d at 825, 243 N.Y.S.2d 773 ["In the meantime all of the machinery and expenditure for the conduct of the referendum have gone forward. The delay in bringing the proceeding has not been adequately explained, is not justified, and is harmful."] ).
2. The branches of the motions seeking to stay the effectiveness of any annexation are granted.
However, in order to preserve the status quo during the pendency of these proceedings, the petitioners' alternative request for a preliminary injunction staying the effect of any vote in the special election pending the outcome of these proceedings is granted. In a proceeding pursuant to CPLR article 78, the Court is authorized "to stay further proceedings, or the enforcement of any determination under review, upon terms including notice, security and payment of costs" (CPLR 7805 ).
In order to maintain the status quo, the petitioners propose that, if the special election is in [*3]favor of annexation, the Court enjoin the Board of Trustees of the Village of Kiryas Joel from passing a local law effectuating the annexation, as they are required to do following the election pursuant to General Municipal Law § 714(1).
However, rather than enjoin the Board of Trustees from enacting such a local law, in order to accomplish the same result and to preserve the status quo, the Court will stay the effective date of any such local law during the pendency of these proceedings. Pursuant to the Municipal Annexation Law, "[a] local law annexing territory to a local government pursuant to this section shall specify the date on which such annexation shall become effective" (General Municipal Law § 714[2] [emphasis added] ).
Accordingly, unless otherwise ordered by this Court, if the special election is in favor of annexation, the effective date of any local law effectuating an annexation of the 164–acre territory is preliminarily stayed during the pendency of these proceedings. While this injunction is in place, the subject territory shall remain unincorporated territory within the Town of Monroe and subject to its laws, regulations, and ordinances.
3. The branch of Preserve Hudson Valley's motion which seeks a stay pending the determination of the proceeding in the Appellate Division is denied.
In addition, Preserve Hudson Valley seeks a preliminary injunction staying any proceedings with respect to the proposed 164–acre annexation during the pendency of the proceeding in the Appellate Division, Second Department, relating to the 507–acre annexation proposal. However, in the event that the proceedings before this Court are decided in favor of the respondents while the proceeding in the Appellate Division is still pending, Preserve Hudson Valley's remedy would be to either seek a stay of the 164–acre annexation in connection with an appeal of this Court's determination, or to apply directly to the Appellate Division for a stay in connection with the proceeding relating to the 507–acre annexation. Accordingly, the branch of Preserve Hudson Valley's motion which seeks to stay proceedings pending the Appellate Divisions' determination in Board of Trustees of the Village of Kiryas Joel v Town Board of the Town of Monroe (Appellate Division Docket No. 2015–9553), is denied.
4. To maintain the preliminary injunction an undertaking of $500 is fixed in each proceeding.
In granting the preliminary injunction, the Court is required to fix an undertaking to be posted by the movant to indemnify the party against whom the injunction is entered for damages and costs that may be sustained by reason of the injunction, if it is later found that the injunction was improperly entered (see CPLR 6315[b] ). Such amount must be "rationally related to the amount of potential damages which the defendant established that [it] might sustain by virtue of the preliminary injunction if it were later determined that the plaintiff was not entitled to the preliminary injunction" (Parolisi v. Slavin, 98 A.D.3d 488, 490, 950 N.Y.S.2d 140 [2d Dept 2012] ).
Here, since the Court is permitting the special election to go forward, any potential damages [*4]that the respondents might sustain as a result of the preliminary injunction are speculative. Accordingly, as security, the Court will fix a nominal undertaking of $500 to maintain the preliminary injunction in each proceeding (see Melvin v. Union College, 195 A.D.2d 447, 600 N.Y.S.2d 141 [2d Dept 1993] [granting preliminary injunction pursuant to CPLR 7805 and remitting for the Supreme Court "to fix the amount of the bond to be provided by the appellant as security for costs"] ).
While the municipal corporations who are petitioners in Proceeding No. 1 are exempt from posting an undertaking pursuant to CPLR 2512(1), the petitioner Black Rock Fish and Game Club of Cornwall is a private entity to which the undertaking requirement applies. Accordingly, if the Black Rock Fish and Game Club of Cornwall wishes to maintain the injunction independently of its co-petitioners, it shall post an undertaking of $500 within 20 days of service of this order with notice of entry.
Preserve Hudson Valley and its co-petitioners in Proceeding No. 2 shall post a single undertaking of $500 within 20 days of service of this order with notice of entry in order to maintain their preliminary injunction.
Based upon the foregoing, it is hereby,
ORDERED that the petitioners' motion in proceeding No. 1 is granted to the extent of staying the effective date of any annexation contained in a local law passed by the respondent Board of Trustees of the Village of Kiryas Joel pursuant to General Municipal Law § 714 to effectuate the 164–acre annexation proposal during the pendency of the proceeding; a cash-or-bond undertaking in the amount of $500 is fixed and shall be posted by the non-municipal petitioner, Black Rock Fish and Game Club of Cornwall, within 20 days of service of this order with notice of entry; and the motion is otherwise denied; and it is further
In the event that the Black Rock Fish and Game Club of Cornwall fails to post the foregoing undertaking, their co-petitioners, as municipal corporations exempt from posting an undertaking, shall nevertheless have an enforceable preliminary injunction.
ORDERED that the plaintiffs/petitioners' motion in Proceeding No. 2 is granted to the extent of staying the effective date of any annexation contained in a local law passed by the respondent Board of Trustees of the Village of Kiryas Joel pursuant to General Municipal Law § 714 to effectuate the 164–acre annexation proposal during the pendency of the action/proceeding; a cash-or-bond undertaking in the amount of $500 is fixed and shall be posted within 20 days of service of this order with notice of entry; and the motion is otherwise denied; and it is further
ORDERED that all other relief requested and not decided herein is denied.
This constitutes the decision and order of the Court.