Petitioner moves by Order to Show Cause and seeks a temporary injunction against the respondents to prevent the demolishing or the impairing of real property owned by the petitioner and located on Main Street, Callicoon Center, New York. The petitioner also seeks an order declaring the Town of Callicoon ("Town") Town Board's Resolution and Order of December 21, 2010 arbitrary and capricious and seeks to permanently enjoin the Town from demolishing the petitioner's Main Street property.

The respondents oppose the petition and cross-move for an order denying the petitioner's application for a preliminary injunction and dismissing the petition in its entirety.

The petitioner opposes the cross-motion.

In October 1998, the petitioner purchased real property located on Main Street in the Town of Callicoon at a Sullivan County tax sale for $4,000.00. At the time of the sale, the County had listed the building as an "unsafe building". The building was built in 1840 and is listed on the national and state historical registers.

Shortly after the purchase of the building, the Town issued an Order to Remedy dated August 2, 1999 which required the petitioner to correct unsafe conditions on the property.

The petitioner failed to comply with the Order and on November 9, 1999 the Board chose to proceed with the removal and demolition of the building.

On December 17, 1999, the petitioner commenced a CPLR Article 78 proceeding and sought to vacate the Town orders. In a decision dated December 22, 1999, Supreme Court (Kane, J.) granted petitioner's application for a temporary restraining order and gave the petitioner time to comply with the Order to Remedy. In a Decision and Order dated January 13, 2000, Supreme Court (Kane, J.) found the petitioner substantially compiled with the Order to Remedy and enjoined the Town from proceeding with the demolition of the building. However, the Court stated "it has taken no position with regard to the structural integrity of the subject building, and that this determination should not be construed as a finding by this Court that the subject building is habitable or structurally sound in its present condition."

The petitioner alleges Howard Fuchs, as an owner of an adjacent parcel and as a member of the Town Board, entered into negotiations to purchase the property. In August 2009, the petitioner and Mr. and Mrs. Fuchs signed a contract to purchase the property and a deposit was held in escrow with petitioner's attorney. Petitioner contends in November 2009, Fuchs refused to close and made several excuses for his failure to do so.

Petitioner claims she was notified by the Town in a letter dated August 23, 2010 that the Town had ordered the demolition of her property. In a letter dated September 9, 2010, the petitioner pointed out the historic qualities of the building and stated it would be in the best interests of the community to preserve this "heritage for future generations". Petitioner alleges on December 13, 2010, the Town adopted a resolution requiring the demolition of the property for safety reasons.

Petitioner commenced this CPLR Article 78 proceeding and alleges the actions of the Town Board are arbitrary and capricious.

The petitioner admits that the property has fallen in disrepair. Petitioner contends her health and her limited finances required her to move to Indiana to be near her son and she can no [*2]longer monitor the property. The petitioner alleges the respondents failed to procedurally comply with the Town's Unsafe Buildings Law in regard to the demolition of building. The petitioner alleges the Town failed to comply with the Unsafe Buildings Law § 97-6 which requires a state of particulars in which the building is unsafe or dangerous and an order outlining the manner in which the building is to be made safe and secure or demolished and removed. The petitioner claims the Town failed to hold a post notice hearing as required by Unsafe Building's Law § 76-6 and failed to prepare a joint survey before the demolition of the property as required by UBL § 97-8. Petitioner also claims the Town failed to comply with the requirements of SEQR by not undertaking an environmental review. In addition, the petitioner contends the Town's Resolution and Order of December 21, 2010 constitutes an unlawful taking of her property without due process of law in violation of federal and state constitutions. Petitioner and her architect claim renovations could be made to stabilize the structure rather than resort to demolition.

The Town opposes the petition and alleges the petitioner has not met her burden of proof in this CPLR Article 78 proceeding. The Town claims the petitioner has been afforded all of her due process rights with regard to this unsafe building. The Town maintains it has a duty to protect the health, safety and welfare of the community and has the authority to order the demolition of the unsafe building. The Town alleges the petitioner has failed to maintain the building or make any renovations over the past twelve years leaving the building structurally unsafe. The Town maintains the structural reports prepared in the 1999 litigation addressed the same structural problems that exist today.

The Town contends it complied with the procedures of the Town's Unsafe Building Law. The Town set December 13, 2010 as the date for a hearing on the issue of demolition of petitioner's property. On November 16, 2020 the petitioner was sent a Notice of Hearing of Unsafe Building and a copy of the engineering report by registered mail. Although not required, petitioner's architect Robert Dadras also received a Notice of Hearing for the December 13, 2010 demolition hearing. Although the petitioner sent an e-mail opposing the demolition, neither she or Mr. Dadras appeared at the hearing on December 13, 2010.

On December 21, 2010, the Town adopted a Resolution and Order for the removal of petitioner's building on Main Street finding it unsafe and dangerous. The demolition resolution was based upon the recommendation of the engineering report and the findings of the Code Enforcement Officer.

The respondents claim since the petitioner and her architect failed to appear at the hearing on December 13, 2010, her unsubstantiated allegations should not be considered as they are not part of the record. The Town claims it complied with the requirements of the Unsafe Building's Law and it provided notice of the December 13, 2010 hearing to the petitioner on November 8, 2010. In addition, the Town avers it is exempt from SEQRA review when enforcing the Town Building Code.

It is well established that the very limited standard which governs judicial review of administrative determinations pursuant to Article 78 is whether the determination was arbitrary [*3]and capricious, and that a reviewing court is therefore restricted to an assessment of whether the action in question was taken "without sound basis in reason and...without regard to the facts." Matter of Pell v. Board of Education, 34 NY2d 222 (1974).

Moreover, in order to maintain the limited nature of this review, it is incumbent upon the court to defer to the agency's construction of the statutes and regulations that it administers as long as that construction is not irrational or unreasonable. Salvati v. Eimicke, 72 NY2d 784 (1988); Albano v. Kirby, 36 NY2d 526 (1975).

The reviewing court in a proceeding pursuant to CPLR Article 78 will not substitute its judgment for that of the local Board unless it clearly appears to be arbitrary, capricious, or contrary to the law. Hauser v. Town of Webb, 34 AD3d 1353 [4th Dept. 2006).

Local Boards have broad discretion in considering applications and judicial review is limited to determining whether the action taken by the board was illegal, arbitrary or an abuse of discretion. Ifrah v. Utschig, 98 NY2d 304 (2002); Matter of Sasso v. Osgood, 86 NY2d 374 (1995). Also, the court must give deference to factual evaluations within an agency's area of expertise. Violet Realty, Inc. v. City of Buffalo Planning Board, 20 AD3d 901 (4th Dept. 2005); Matter of City of Rensselaer v. Duncan, 266 AD2d 657 (3rd Dept. 1999).

Petitioners allegation that the Town did not comply with the Town's Unsafe Building Law is unfounded. The petitioner was given sufficient notice of the December 13, 2010 demolition hearing and she failed to appear. The Notice of the Unsafe Building hearing dated November 8, 2020 clearly stated the particulars regarding the unsafe condition of the building based upon the engineer's report and the need for demolition. Petitioner's claim that no joint survey was prepared as required by Town Law is unpersuasive. The Town had presented the required engineering report. Since, the petitioner did not submit a report from an engineer refuting the findings of the Town's engineer, the Town Code requires the Town to use its engineer's report in determining whether the building should be removed. This Court determines the respondents substantially complied with the provisions of the Town's Unsafe Building Law.

This Court further finds the Town was not required to conduct an environmental review pursuant to SEQR for the demolition of an unsafe historic building. See, 6 NYCRR § 617.5(c)(19)(33); Develop Don't Destroy Brooklyn v. Empire State Development Corp., 31 AD3d 144 (1st Dept. 2006); Ziemba v. City of Troy, 37 AD3d 68 (3rd Dept. 2006), lv denied 8 NY3d 806 (2007).

The petitioner has failed to sustain her burden of proof by demonstrating the Resolution and Order for demolition was arbitrary and capricious and without a rational basis. The Town held the required hearing on December 13, 2010 and recommended demolition of the structure based upon the engineering report dated November 8, 2010 and upon the findings of the Town Code Enforcement Officer. The petitioner failed to attend the hearing and failed to submit an [*4]engineer's report detailing any possibility of salvaging the building.

Oral argument was held and all parties were represented by counsel. The testimony adduced at the hearing indicates the petitioner was able to repair her property in 1999 pursuant to an Order to Remedy with minimal effort in order to avoid demolition. Since then, the petitioner has not made any substantial repairs to the property nor has she offered any plans demonstrating major renovations to the structure. For the past twelve years the property has remained vacant and uninhabitable and has become unsafe and dangerous over time. The petitioner admits she does not have the resources to stabilize the property.

In consideration of the safety and welfare of the community at large, this Court determines the Resolution and Order for demolition dated December 13, 2010 had a rational basis and was not arbitrary or capricious. This Court must defer to the findings of the Town in its enforcement of the statutes and regulations it administers. The reports from the professional engineer and the code enforcement officer indicates the building was unsafe and presented a public safety hazard which established the need for demolition. St. David's Anglican Catholic Church, Inc. v. Town of Halfmoon, 11 AD3d 874 (3rd Dept. 2004); Matter of Town of Duanesburg v. Vojnar, 127 AD2d 819 (3rd Dept. 1989).

Based upon the above, it is

ORDERED, that the CPLR Article 78 petition is dismissed and the cross-motion granted.

This shall constitute the Decision and Order of this Court.

DATED: April 1, 2010

Monticello, NY

Hon. Frank J. LaBuda

Acting Supreme Court Justice

Papers Considered:

1.Order to Show Cause dated January 21, 2011;

2.Affidavit of Palline Plum with exhibits annexed;

3.Affirmation of Ronald Jay Litchman, Esq. dated January 21, 2011;

4.Notice of Cross-Motion dated February 11, 2011;

5.Affirmation of Marvin Newberg, Esq. dated February 11, 2011 with exhibits annexed;

6.Affidavit of Tom Bose dated February 11, 2011; [*5]

7.Affirmation of Robert Dadras dated March 1, 2011;

8.Affirmation of Derek Trelstad dated March 2, 2011;

9.Petitioner's Memorandum of Law dated March 2, 2011;

10.Affirmation of Marvin Newberg, Esq. dated March 11, 2011;

11.Petitioner's Memorandum of Law dated March 21, 2011.