[*1]
Pittsford Canalside Props., LLC v Village of Pittsford, N.Y.
2014 NY Slip Op 51614(U) [45 Misc 3d 1217(A)]
Decided on October 23, 2014
Supreme Court, Monroe County
Ark, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on October 23, 2014
Supreme Court, Monroe County


Pittsford Canalside Properties, LLC, Petitioner,

against

Village of Pittsford, New York, BOARD OF TRUSTEES OF THE VILLAGE OF PITTSFORD, NEW YORK, LINDA LANPHEAR and FRANK GALUSHA, in their official capacity as members of the Board of Trustees of the Village of Pittsford, New York, VILLAGE OF PITTSFORD PLANNING BOARD, VILLAGE OF PITTSFORD ZONING BOARD OF APPEALS, VILLAGE OF PITTSFORD ARCHITECTURAL PRESERVATION AND REVIEW BOARD, and FRIENDS OF PITTSFORD VILLAGE, INC., Respondents. FRIENDS OF PITTSFORD VILLAGE, INC., Intervenor-Respondent.




2014/5753



Harris Beach PLLC, Frank C. Pavia, Esq., Joseph D. Picciotti, Esq. and John A. Mancuso, Esq. of counsel for petitioner Pittsford Canalside Properties, LLC.



Hodgson Russ LLP, Daniel A Spitzer, Esq. and Charles W. Malcomb, Esq. of counsel for respondents Village of Pittsford, New York, Board of Trustees of the Village of Pittsford, New York, Linda Lanphear and Frank Galusha,



Osborn, Reed & Burke LLP, Jeffrey L. Turner, Esq. of counsel for respondents



Village of Pittsford Planning Board, Village of Pittsford Zoning Board of Appeals



and Village of Pittsford Architectural Preservation and Review Board



Knauf Shaw LLP, Alan J. Knauf, Esq. and Amy Kendall, Esq. of counsel, for intervenor-respondent Friends of Pittsford Village, Inc.,



Whiteman, Osterman & Hanna LLP, John J. Henry, Esq. attorney for amicus curiae New York State Builders' Association


John J. Ark, J.

Petitioner Pittsford Canalside Properties, LLC ("Canalside") and respondents Village of Pittsford, Board of Trustees of the Village of Pittsford ("Trustees"), Linda Lanphear and Frank Galusha move and cross move for summary judgment in this CPLR article 78 proceeding, which along with the related article 78 proceeding captioned Friends of Pittsford Village, Inc. v. Village of Pittsford, et al., Index No. 2012/13778 (the "FOPV Litigation")[FN1] , and a declaratory judgment action captioned Pittsford Canalside Properties, LLC v Village of Pittsford, et al., Index No. 13-9151 (the "Pittsford Canalside Litigation")[FN2] , concern Canalside's proposed re-development project involving the construction and operation of a multiple dwelling building community known as the Westport Crossing Community (the "Project") located at 75 Monroe Avenue in the Village of Pittsford, New York (the "Property").

The Village of Pittsford is a quaint, historic, canalside village located in an affluent suburban town. The subject Property, which abuts the Erie Canal at the edge of the village, is a petroleum contaminated 7.39 acre strip of now vacant land, which had been used for oil distribution and asphalt operations for decades. Five and one- half acres of the Property were annexed from the Town of Pittsford into the Village of Pittsford in April, 2008 and the Property was zoned R-5 Residential District in May, 2009. Pursuant to the Zoning Ordinance of the Village of Pittsford (the "Zoning Ordinance"), a special permit is required for the construction of "[m]ultiple-dwelling buildings, including condominiums and apartments," in the R-5 Residential District. On or about June 23, 2009, Canalside submitted an application for special permits to the Board of Trustees in order to develop the Project (the "Special Permits Application").

After an extensive and still ongoing application and review process, on August 8, 2012, the Trustees issued the negative declaration pursuant to the New York State Environmental Quality Review Act, Article 8 of the Environmental Conservation Law and 6 NYCRR. Part 617 ("SEQRA") for the Project, culminating a three year SEQRA review.[FN3] Pursuant to the negative [*2]declaration, the Trustees determined that the Project would not result in any significant adverse impact to the environment. On December 19, 2012, the Trustees adopted Resolution No. 20 of 2012, which issued the requisite special permits for the Project and set forth a conceptual regulating plan (the "Regulating Plan") to guide future site plan considerations for the Project (the "Special Permits Resolution"). The permits and regulating plan allowed the construction and operation of 167 upscale apartments, parking for 337 cars ( including 200 underground), a swimming pool and a 125 seat restaurant on the property. The Project also entails a costly remediation of the contamination, which is in process and for which $3,000,000 has already been spent, the installation of public access to canal side amenities and replacing inadequate water lines to serve the project.

Prior to March 11, 2014, the Project became the very controversial subject of elections for the positions of mayor and trustees of the Village of Pittsford. Incumbent Mayor Corby, Trustee Lanphear and Trustee Galusha, who were against the Project, were elected to the Village Board. During this period, Canalside, the Village Planning Board, and the Village Zoning Board of Appeals (ZBA) continued site plan and variance review. On July 10, 2013, a preliminary site plan was approved.[FN4] On March 11, 2014, the Board of Trustees held a meeting during which it passed two (2) resolutions stating that the modifications approved by the planning board for the Project's preliminary site plan were "substantive" and "significant and adverse" under the SEQRA regulations governing the rescission of a negative declaration (the "March 11, 2014 Resolutions").

On March 17, 2014, the Board of Trustees issued a notice entitled "State Environmental Quality Review Notice of Intent to Rescind a Negative Declaration" to Canalside and all involved agencies under SEQRA (the "Notice to Rescind the Negative Declaration"). The Notice [*3]to Rescind the Negative Declaration set a deadline of April 8, 2014 at 5:00 p.m. for comments from Canalside and all involved agencies.

As a result of the Notice to Rescind the Negative Declaration, on March 17, 2014 the Village attorney, who also serves as the planning and ZBA boards' attorney, advised that he was directing the planning board and the ZBA not to proceed in any manner with their reviews of the final site plan and variance applications until such time that the issues raised by the Trustees regarding SEQRA are addressed.

On May 1, 2014, the Trustees held a special meeting to discuss an April 25, 2014 proposal submitted by Canalside. After an executive session, a resolution to rescind the negative declaration and issue the positive declaration was introduced. Prior to the vote being taken, Trustee Galusha noted that he did not believe entering into discussion with Canalside to work out a process to avoid litigation (as proposed by Canalside) would be worthwhile. The May 1, 2014 Resolution passed by a vote of 3-2, with Trustees Lanphear and Galusha and Mayor Corby voting in favor.

Petitioner's causes of action and Respondents counterclaims.

Canalside argues that the May 1, 2014 Resolution and the positive declaration, which were proposed and adopted in a manner directly contrary to applicable law, must be set aside and the negative declaration reinstated so that Canalside may proceed with obtaining the remaining Project approvals before the planning board, ZBA, and architectural preservation review board (APRB).

Canalside maintains that by resolution dated July 10, 2013, the planning board unanimously voted to approve the preliminary site plan (the "Preliminary Site Plan Approval"), which incorporated the revisions recommended by a Development Review Committee (DRC) Memorandum.[FN5] The findings adopted by the planning board, which were drafted by the Village attorney, reflect that the modifications to the Project were exhaustively studied during the preliminary site plan review of the Project.

Canalside also maintains that as a lead agency the Trustees has no authority under the SEQRA regulations to rescind the negative declaration and/or re-open its SEQRA review after its decision to approve an action. The "decision" made by the Trustees - as that term is utilized in the SEQRA regulations - was the issuance of the special permits for the Project pursuant to the Special Permits Resolution. Consistent therewith, the Trustees, by adoption of the Special Permits Resolution, had already made its only required decision on the Project for purposes of SEQRA 6 NYCRR 617.7(f). Therefore, the Trustees have no subsequent authority or basis to rescind the negative declaration at this late juncture in the SEQRA review process. In addition to the foregoing, Canalside argues:

1. that to the extent the March 11, 2014 Resolutions are deemed final actions of the Trustees that rescinded the negative declaration or otherwise rendered it invalid, the March 11, 2014 Resolutions violated the strict procedural mandates of SEQRA and, therefore, should be [*4]reversed, annulled, vacated and/or set aside;

2. its claim relates back to the filing of the initial CPLR article 78 petition on May 19, 2014 and, therefore, is timely;

3. respondents are judicially estopped from asserting that the March 11, 2014 Determinations were final and that Canalside's claims are time-barred because they took a contrary position in a prior proceeding before this court; and

4. respondents are estopped from raising statute of limitations as an affirmative defense to Canalside's claim.

Finally, Canalside claims that the May 1, 2014 Resolution is the result of Trustees Lanphear and Galusha, who were not on the Board when it issued the negative declaration on August 8, 2012, and Mayor Corby, who was on the Board on May 1, 2012 and was against the Project before he was in favor of the Project before he was again against the Project,[FN6] using the SEQRA review process as a weapon against the Project. Canalside contends that by the May 1, 2014 Resolution rescinding the negative declaration it issued nearly two (2) years ago, the Trustees have directly infringed upon and usurped the independent authority and obligation of the planning board to undertake the review of the final site plan for the Project. Canalside maintains that the issuance of the Special Permits Resolution concluded the Trustees' review of the Project and that the Trustees have undertaken a subsequent SEQRA review of the Project in order to create a vehicle whereby the Trustees can manipulate the site plan review process.

Respondents counter that Canalside made substantive modifications to the Project and to the Project site that were not contemplated by the initial SEQRA review or the special permit and regulating plan that were issued by the Trustees. Respondents further maintain that it was necessary to rescind the negative declaration because the Project was modified in a way that directly undercut the rationale in the negative declaration issued in August, 2012, as well as changed conditions due solely to the actions of Canalside. Furthermore, the issuance of a negative declaration for one project does not allow the applicant to subsequently modify the project without SEQRA review, nor does the issuance of a special use permit allow subsequent project changes that were not specifically contemplated or authorized..

FIFTH CAUSE OF ACTION (Article 78 - the March 11, 2014 Resolutions).

EIGHTH COUNTERCLAIM. Declaratory Judgment-Petitioner's Claims Accrued On March 11, 2014 When Respondent Board of Trustees Voted To Reopen SEQRA Because Modifications To The Site Plan Were "Substantive" And "Significant And Adverse" Under SEQRA.

Respondents submit that Canalside's claim with respect to the Trustees reopening SEQRA and rescinding the negative declaration accrued on March 11, 2014 with the adoption of two resolutions, the first of which determined that there had been "substantive changes" to the Project and that Canalside failed to challenge that determination and is now time-barred from doing so.

Canalside counters that the March 11, 2014 Resolutions were non-final actions of the Board of Trustees that were not ripe for judicial review. The actual concrete injury to Canalside that could not be prevented or significantly ameliorated by further administrative action or by [*5]steps available to Canalside was the adoption of the May 1, 2014 Resolutions rescinding the negative declaration and issuance of the positive declaration.

During a court proceeding on March 26, 2014, the Village/ Planning/APR Boards' attorney Jeffrey R. Turner represented that the March 11, 2014 Resolutions were non-final and the negative declaration had not yet been rescinded:



MR. TURNER: Just as a procedural matter. I don't think the neg[ative] dec[laration] has been rescinded. I think what they have done is say we are taking a look at whether it is going to be rescinded. Here applicants, here is your notice; here, agency, you have until 5 o'clock on April 8th to get back whatever information, and we are going to decide whether or not to rescind the neg[ative] dec[laration] on that night and we are going to follow that decision with whether there is going to be a neg[ative] dec[laration] or pos[itive] dec[laration].



It is my position Your Honor is correct. It is the rescission of the neg[ative] dec[laration], is the final act which has is an adverse reaction on the neg[ative] dec[laration]. I don't believe there has been a final action on the neg[ative] dec[laration]. There has been two resolutions that form the basis for the potential for that. (emphasis added).

During that same proceeding, special counsel to the Board of Trustees, Peter K. Skivington, represented that the Board of Trustees was "still considering what to do and have not made a final determination whether or not there will be a change in the environmental impact"

This court agreed with respondents' attorneys' position that the Trustees had yet to take a final action:



THE COURT: Here is what I think. Look, the only thing the Court can review is a final determination. And whether this is an amendment or a modification or an entirely new positive declaration, that will be a final determination, okay. Once they do that, then you bring your Article 78, then the Court is in a position to rule on that. Then the . . . Village Board is out of it because they have made their final determination.

Respondents counter that Mr. Turner's comments were in his capacity as planning board attorney and not as Village attorney. Regardless of which board or boards Mr. Turner was representing in court on March 26, 2014, his pronouncement on this issue is consistent with what occurred at the March 11, 2014 Village Board meeting whereby: "Mayor Corby indicated that it is not a final decision."[FN7] Accordingly, the Fifth Cause of Action is granted and the Eighth Counterclaim is denied.



FIRST CAUSE OF ACTION. (Article 78 - the March 11, 2014 Resolutions and the May 1, 2014 Resolution).

FIRST COUNTERCLAIM. Declaratory Judgment- Respondent Lanphear Does Not Have A Conflict.

SECOND COUNTERCLAIM. Declaratory Judgment- Respondent Galusha Does [*6]Not Have A Conflict.

THIRD COUNTERCLAIM. Declaratory Judgment- Mayor Corby Does Not Have A Conflict.

Mayor Corby and Trustees Lanphear and Galusha cast the decisive votes when the Board of Trustees adopted the May 1, 2014 Resolution by a 3-2 vote.[FN8] Prior to becoming Trustees, Lanphear and Galusha spoke out against the Project during public hearings held by the Board of Trustees in connection with the special permits application. At several meetings held by the Board of Trustees, most certainly Galusha and less so Lanphear actively opposed the Project by claiming it was an inappropriate development for the Village of Pittsford.

Lanphear focused her election campaign for Village trustee on representing to the public that she would do everything in her power to oppose the Project as previously approved by the Board of Trustees. Galusha has actively supported FOPV's efforts to nullify the Special Permits Resolution and the negative declaration. Although he now claims to no longer be a member of FOPV, on October 20, 2012 as a member of FOPV, Galusha sought the rescission of the negative declaration as follows:



"We . . . petition the Village of Pittsford Board of Trustees to deny a Special Use Permit for the proposed 75 Monroe Avenue housing development. We object to the scale (4 stories) and density (24 dwelling units per acre) of the project as well as the increased traffic generated by the apartments and the 125 seat restaurant. The proposal is not compatible with the scale of the Village . . ."

Galusha, again as a member and on behalf of FOPV, on February 7, 2013 submitted an affidavit in the FOPV litigation, swearing under oath that he "requested that the Village Board rescind the Negative Declaration as required by 6 NYCRR 617.7(f)".

The rescission of the negative declaration by the Board of Trustees resulted in part from a request of Historic Pittsford that the matter be put on the November 19, 2013 special meeting agenda before the Trustees. Mayor Corby is a member of Historic Pittsford and sits on its board of directors. Mayor Corby did not disclose his relationship with Historic Pittsford at the time of Historic Pittsford's request, nor, although having a history of so doing, recuse [FN9] himself during any deliberations. Mayor Corby ultimately voted in favor of the May 1, 2014 Resolution.

Mayor Corby, Trustee Lanphear and Trustee Galusha have each expressed intense opposition to the project prior to their voting to rescind the negative declaration. Unlike Mayor Corby who was an active member and officer of an advocate (Historic Pittsford)[FN10] before the [*7]Board of Trustees in opposition to this project and Trustee Galusha, who was a participating member of a litigant (FOPV) seeking similar relief, Trustee Lanphear merely spoke out in opposition to the project.

Candidates for legislative office most certainly have the right, and arguably the responsibility, to express their opinions on issues important to the voters before an election. But being an advocate on a particular issue before a board or being a litigant against the board or a party and then serving on that board and adjudicating to the detriment of the opposition is not a question of free speech, but one of fundamental fairness, arbitrariness and caprice. Indeed, FOPV and Historic Pittsford are archetypical "community pressure" groups. As pointed out by Mayor Corby: "There certainly was no political advantage in changing my position on a project that was and is extremely unpopular with the vast majority of Village residents."[FN11] Accordingly, on the entire record in this matter, it is evident, despite the reasons assigned by the Trustees, that the negative declaration was rescinded not because of Canalside's modifications to the Project, but because of community pressure directed against permitting, although allowed by the Village Zoning Law,[FN12] a project of this size and character (see, Matter of Pleasant Val. Home Constr. v. Van Wagner 41 NY2d 1028; Pecoraro v. Bd. of Appeals, 2 NY3d 608). Furthermore, the ardent expression of preferential opposition to the Project to the extent of running for political office to defeat the Project, and then sitting in judgment of the Project, is within the definition of arbitrary. For these reasons, the rescission of the negative declaration and its sequelae were impermissible, and are hereby annulled and vacated. Accordingly, the First Cause of Action and First Counterclaim are granted and the Second and Third Counterclaims are denied.



SECOND CAUSE OF ACTION. (Article 78 - the March 11, 2014 Resolutions and the May 1, 2014 Resolution).

FOURTH COUNTERCLAIM. Declaratory Judgment- The Special Permit Is Void Because Of Project And Project Site Changes.

The applicable procedures by which a lead agency must rescind a negative declaration are set forth in 6 NYCRR 617.7(f) which states:



At any time prior to its decision to undertake, fund or approve an action, a lead agency must rescind a negative declaration when substantive:

(1)Changes are proposed for the project; or

(2)New information is discovered; or

(3)Changes in circumstances related to the project arise; that were not previously [*8]considered and the lead agency determines that a significant adverse impact may result.

The Board of Trustees, by adoption of the Special Permits Resolution on December 19, 2012, made its only required decision on the Project for purposes of 6 NYCRR 617.7(f). Once the "decision" was made, the Board of Trustees, as lead agency for the Project, would have no authority under the SEQRA regulations to rescind the negative declaration and/or re-open its SEQRA review.

The planning board, in the preliminary site plan approval (which was drafted by the Village attorney), ratified and acknowledged the negative declaration, and the planning board's findings explicitly and without reservation approved the modifications that the Board of Trustees is now claiming are "significant" and "potentially adverse." Regardless, the impacts associated with the items identified by the Board of Trustees in the Notice to Rescind the Negative Declaration may be considered by the various review boards. Even if the Board of Trustees could entertain the rescission or amendment of the negative declaration, until the final site plan is approved, the extent and detail of the Project are not certain and whether the modifications to the site plan meet all of the criteria set forth in the resolution approving the special permits for the Project.[FN13] Accordingly, it is imperative that Canalside proceed with obtaining, if possible, the remaining Project approvals before the planning board, ZBA, and the APRB. Accordingly, the Second Cause of Action is granted and the Fourth Counterclaim is denied.

FOURTH CAUSE OF ACTION (Mandamus against the Planning Board).

Pursuant to Section 210-85(B)(1) of the Zoning Ordinance, the "Planning Board shall make a decision on the [final site plan] application within 62 days after the close of [the public] hearing." The public hearing for final site plan approval for the Project was closed by the planning board on February 24, 2014. Therefore, the 62-day period for the planning board to act on Canalside's final site plan application expired on April 27, 2014, but was extended by Canalside until May 5, 2014. Now that the Board of Trustees' adoption of the March 11, 2014 Resolutions, May 1, 2014 Resolution and issuance of the positive declaration have been nullified, the planning board is to process and decide Canalside's application, including a final site plan, post haste.[FN14]



THIRD CAUSE OF ACTION (Injunctive Relief).

The court reserves on the request for injunctive relief.



SIXTH COUNTERCLAIM. Declaratory Judgment- The 2012 Negative Declaration And Special Permit Approvals Are Void If Mayor Corby Has A Prohibited Conflict.

As well as being time-barred, since the record does not indicate any involvement by Historic Pittsford in the 2012 negative declaration and special permit approvals, there was no reason for Mayor Corby's recusal. This relief is denied.

Any causes of action and counterclaims not specifically addressed herein are denied.

The court has considered all of the parties' submissions.

Submit Order.



October 23, 2014



Rochester, New York_____________________________



John J. Ark, J.S.C.

Footnotes


Footnote 1:On December 19, 2012, respondent Friends of Pittsford Village, Inc (FOPV).(then petitioner) brought an article 78 proceeding to vacate and annul the hereafter described special permits; to annul the Trustees' August 9, 2012 issuance of a negative "SEQRA" declaration for the Project; and to enjoin the Project because it does not comply with the Village of Pittsford Zoning Code and the Open Meetings Law. Canalside and the Board of Trustees moved to dismiss the Petition. On June 28, 2013, this court dismissed the causes of action filed by FOPV challenging the negative declaration on the grounds that FOPV lacked standing. The remaining causes of action are currently pending before the court.

Footnote 2:See footnote 4 below.

Footnote 3:From August 11, 2009 through August 8, 2012, the Board of Trustees conducted an environmental review of the Project pursuant to SEQRA. The Village hired multiple consultants (the cost of each were passed on to and borne by Pittsford Canalside) to assist in the review of the Project, including a traffic engineer; an attorney specializing in real estate and municipal zoning; a preservation architect; an environmental engineer; a civil engineer; two planners; an appraisal firm; a SEQRA consultant; and a rental residential real estate expert. The Board of Trustees also consulted with NYSDEC, the New York State Department of Transportation, the State Historic Preservation Office, and the New York State Canal Corporation during the review process.

Footnote 4:In response to the preliminary site plan approval, FOPV et al filed an appeal pursuant to Section 210-87 of the Zoning Ordinance which permits appeals of site plan determinations by the Planning Board to the Board of Trustees. At the time the appeal application was filed, Lanphear and Galusha were members of the Board of Trustees. Because the appeal application was predicated on what Canalside believes to be an invalid provision of the zoning ordinance and the involvement of Lanphear and Galusha in proceedings before the Board of Trustees concerning the Project, Canalside commenced the Pittsford Canalside Litigation seeking, among other relief, a judgment: (i) declaring Section 210-87 invalid under New York law; and (ii) declaring that Trustees Lanphear and Galusha should recuse themselves from participating in any future deliberations concerning the Project on the grounds of bias.

24, 2013, this court issued an order cancelling the public hearing on the appeal application and enjoining and restraining the Board of Trustees from taking any further action on the appeal application (the "September 24, 2013 Order"). The Pittsford Canalside Litigation is currently pending before this Court (Index No. 2013/9151). Canalside alleges that the Trustees action on March 11, 2014 was precipitated, in part, by the injunction.



Footnote 5:On June 3, 2013, the DRC, consisting of the Village mayor, a Village trustee, the chairs and a member of each of the Planning and Architectural Planning and Review Boards (APRB), forwarded to Canalside an endorsement/ summary of a revised concept plan presented by Canalside with the caveat that "there are issues yet to be resolved and more detail will be required as the Planning and APRB resume their respective reviews of the project".

Footnote 6:January 17, 2014 affidavit submitted to this court by Mayor Corby.

Footnote 7:"Proceedings of a Meeting of the Board of Trustees March 11, 2014." Dorothea M. Ciccarelli, Recording Secretary

Footnote 8:Mayor Corby and Trustees Lanphear and Galusha would hear an appeal of the preliminary site plan to the Board of Trustees pursuant to Section 210-87 of the Zoning Ordinance (the "Pittsford Canalside Litigation").

Footnote 9:On January 17, 2014, Mayor Corby swore in an affidavit submitted to this court:" I have been a member of Historic Pittsford's Board of Directors for twenty -three years. Whenever there has been a decision involving the Village government, I have recused myself."

Footnote 10:Unknown to this court is the extent to which Mayor Corby had any interaction, if any, with Historic Pittsford concerning Historic Pittsford's request to be put on the November 19, 2013 Special Meeting agenda before the Trustees.

Footnote 11:January 17, 2014 affidavit submitted to this court by Mayor Corby. This is particularly revealing in that between the issuance of the negative declaration in 2012 and its recision in 2014, two anti- project Trustees were elected to the Village Board. Remarkably, Trustee Galusha, a most vociferous opponent to the Project, was appointed to fill a Board vacancy before his election.

Footnote 12:The dissatisfaction with a development of this type and size should have been directed at the original R-5 Zoning of the parcel.



Footnote 13:This court has taken every opportunity to emphasize to the parties that only after the Planning Board issues a final site plan will the details of the project and whether it conforms to the special permits, the regulating plan and the original SEQRA finding and adheres to the R-5 zoning requirements. This court held that FOPV "... has standing to challenge compliance with the requirements of Village of Pittsford Code § 210-19, General Municipal Law § 239-m and Village Law § 7-725-b(7)..."



Footnote 14:On November 11, 2014, the Village of Pittsford Planning Board unanimously approved the final site plan.