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Sban Porm Order

SUPREME COURT - STATE OF NEW YORK I.A.S. PART XXXVI SUFFOLK COUNTY

PRESENT:

HON. PAUL J. BAISLEY, JR., J.S.C. In the Matter of the Application of 67 WEST MAIN ST. LLC, HAVENS BREWERY LLC, STEPHEN FUOCO, ELIZABETH MCGUIRE. FOUR CORNERS ENTERPRISES, REMEMBER YESTERYEARS, INC., IRISH CROSSROADS, LTD., THE COLONY SHOP. INC. and THE ROE REALTY CORP. on behalf of themselves and others similarly situate, Plaintiffs,
-against-

~-~--~~--------------------------------~~~-----------------J{

INDEX NO.:17599/2011

MOTION DATE: 9/29/2011 MOTION NO.: 001 MG - CASEDISP

THE VILLAGE BOARD OF THE INCORPORATED VILLAGE OF PATCHOGUE, the Vll.,LAGE OF PATCHOGUE and DOWNTOWN PATCHOGUE REDEVELOPERS, LLC, Defendants. ----------------------~----------------------------------------){ In the Matter of the Application of 67 WEST MAIN ST., LLC, HA YENS BREWERY LLC, STEPHEN FUOCO, ELIZABETH MCGUIRE, FOUR CORNERS ENTERPRISES, REMEMBER YESTERYEARS, INC., IRISH CROSSROADS, LTD., THE COLONY SHOP, INC. and THE ROE REALTY CORP. on behalf of themselves and others similarly situate, Petitioners,
-against-

INDEX NO.: 1760012011 MOTION DATE: 9/29/2011

MOTION NO.: 001 MD ~CASEDISP 002MO Attorneys for Plaintiffs/Petitioners: PATRICK KEVIN BROSNAHAN, ESQ. 73 West Main Street Babylon, New York 11702 JAMES A. GOWAN) ESQ. 90 Sequams Lane East West Islip, New York 11795 Attorneys for DefendantslRespondents: EGAN & GOLDEN, LLP 96 South Ocean Avenue Patchogue, New York 11772 CERTILMAN BALIN ADLER & HYMAN 1393 Veterans Memorial Hwy., Suite 301S Hauppauge, New York 11788

THE VILLAGE BOARD OF THE INCORPORATED VILLAGE OF PATCHOGUE, the VILLAGE OF PATCHOGUE and DOWNTOWN PATCHOGUE REDEVELOPERS. LLC, Respondents. ----------------------------------------------------------------){

Upon the following paper!; numbered I tg J 33; read on these joint motions to dismiss complaint and rOt sl,Ioomru;x judgment; Notice: of Motion! Order to Show Cause and supporting papers 1·85; 86·132; Notiee of' 01'¢M M~ill7rl end stI""orting ~ ; Answering Affidavit~ and supporting papers 133- J 40; ReI''' ing ,'tffid1t1 ill 21id Stsl'POllil1, ~CJ'$_; Otbc:r~ ; (and lI'ftc:r ht"a'J'ing cotlmd';'lt ~tsppOlt Slid opposed ~ the: motion) it is,

ORDERED that, on the Court's own motion, the above-captioned matters are hereby consolidated solely for the purposes of this determination; and it is further

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67 West Main SI. LLC et al. v Village Board

Index Nos. 17)99111 &: 17600111

ORDERED that in the above-captioned declaratory judgment action commenced under Index No. 17599111, the joint motion (motion sequence no. 001) of defendants the Village Board of the Incorporated Village of Patchogue, the Village of Patchogue, and Downtown Patchogue Redevelopers, LLC, brought on by order to show cause (ASHER, J.) dated August 18, 2011, for an order pursuant to CPLR R. 3211 (aX2), (3), (4), (5) and (7) dismissing the complaint, and for an order pursuant to CPLR R. 3212 granting defendants summary judgment dismissing the complaint in its entirety, and granting defendants their costs and disbursements in this action, is granted and the action is dismissed, and it is declared that Local Law No. 3-2008, its adoption and application and the acts and/or actions of the municipal respondents herein are legal, proper and lawful; and it is further
ORDERED that in the above-captioned hybrid Article 78 proceeding/declaratory judgment action commenced under Index No. t 7600/11, the joint motion (motion sequence no. 002) of respondents the Village Board of the Incorporated Village of Patchogue, the Village of Patchogue, SD.d Downtown Patchogue Redevelopers, LLC, brought on by order to show cause (PINES, 1.) dated August 15, 2011, for an order pursuant to CPLR R. 3211 (a)(2), (3), (4), (5) and (7) dismissing the petition, and for an order pursuant to CPLR R. 3212 granting respondents summary judgment dismissing the petition in its entirety, and granting respondents their costs and disbursements in this proceeding, is granted and the proceeding is dismissed, and it is declared that Local Law No, 3-2008, its adoption and application and the acts and/or actions of the municipal respondents herein are legal, proper and lawful; and it is further ORDERED that a copy of this decision. and order be entered by the Clerk of the Court under the index numbers of both of the above-captioned actions/proceedings.

The submissions reflect that on April 21, 2008; in furtherance of a comprehensive plan for the growth and revitalization of the Village's blighted downtown business district; the Village Board of Trustees (the "Board") of the Incorporated Village of Patchogue (the "Village") adopted Local Law No. 3-2008 which amended the Code of the Village of Patchogue (the "Code") to create a new "Downtown Redevelopment District!' ('~DRD") in a designated two-block area of the Village comprising approximately 8.87 acres (Code §435-30). Downtown Patchogue Redevelopers, LLC ("Downtown"), the owner of various parcels in the Village, thereafter applied to change the zoning classification of 11 of its parcels located within the designated DRD area, totaling approximately 4.31 acres, from the D2 Business and D3 Business districts to DRD, and for site plan approval for its proposed mixed-use development comprising 240 residential units, 28,460 square feet of retail space, a Ill-room hotel, and associated parking and appurtenances. The Board, acting as lead agency, issued a positive SEQRA declaration for the proposed change of zone and mixed-use development, and ultimately a Final Environmental Impact Statement was prepared and a findings statement adopted. On May 12,2009, the Board granted Downtown's application for a zoning change to the new ORD zoning, and granted site plan approval for construction of a mixed-use development comprising residential units, retail space, a hotel and parking. On or about November 8, 2010. Downtown submitted a revised site plan that removed the proposed hotel and added 51 residential units, 7,689 square feet of retail space and an underground parking lot. On March 10,2011, after issuing a negative declaration under SEQRA,
-2-

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Index Nos. 17599/11 & 1760011 J

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67 West Main

s: LLC et al. v Village Board

the Board granted site plan approval for the amended site plan, conditioned on Zoning Board of Appeals approval of a variance for parking space length and subject to Downtown's compliance with a series of enumerated covenants. 1 On July 8, 2011, plaintiffs, who allege that they are residents and property owners or occupants in the Village and/or the area designated as DRD-eligible, commenced the abovecaptioned action, styled as one for a declaratory judgment "and/or otherwise" (the "Action"), and simultaneously commenced the above-captioned hybrid Article 78 proceeding/declaratory judgment action (the "Proceeding"), challenging both the local law creating the downtown redevelopment district and the amended site plan approval. Plaintiffs' /petitioners' substantially identical complaint and petition, each comprising 42 pages and 81 numbered paragraphs, set forth a plethora of prolix and wide-ranging claims aimed at, inter alia, the procedural mechanism whereby the zoning change was implemented, the adequacy of the SEQRA review of Downtown's proposed development, the rationaHty and legality of the Board determination approving Downtown's amended site plan, and the constitutionality of Local Law No. 3-2008. Plaintiffs/petitioners seek an order reversing and annulling so much of the Board's March 10, 2011 determination as granted Downtown's application, a declaration that Local Law No. 3-2008 was adopted unlawfully or is unlawful as applied,' as well as an award ofreasonabJe attorney's fees together with costs and disbursements. Defendants/respondents thereafter interposed substantially identical joint motions to dismiss plaintiffs'/petitioners' complaint/petition on various grounds, including the statute of limitations, res judicata and/or collateral estoppel, lack of standing, failure to state a cause of action, and the pendency of another action for the same relief. Defendants/respondents also seek summary judgment dismissing any causes of action that survive the motions to dismiss. It appearing that the parties in both matters are the same, that the pleadings in. the Action and the Proceeding are substantially identical, and that the underlying facts and legal issues, as well as the offered proofs by both parties, are also substantially identical, and in the interest of judicial economy, the Court hereby, and solely for the purposes of the instant determination, consolidates the Action and the Proceeding, determines both as follows, and directs the Clerk to enter the instant order under the index numbers of both matters. Plaintiffs/petitioners allege, at paragraph 76 of the complaint and petition, respectively, that the instant matters were commenced within four months after the filing of the March 10, 2011 decision in the office of the Village Clerk and within six years of the adoption of the Code provision creating the ORD zoning classification and accordingly were timely commenced. However, the Court is constrained to conclude that, as argued by defendants/respondents, virtually all of plaintiffs' /petitioners' claims herein are time-barred. Pursuant to Village Law §7-725-a, entitled "Site plan review, 'I any person aggrieved by a decision of a Village Board of Trustees or other board authorized to review and approve site plans
I The Zoning Board of Appcals' subsequent grant of the variance was the subject of an Articlc7S proceeding commenced by I'laintitt<:lpetitioncrs 0" May 24, 201 I under Index No. 13409120t 1. which was summarily dismissed by this Court (BAfST..EY. J,) for. inter alia, failure to serve Down~own, a necessary party, with the notice o(petition arid petition,

2 Specifically. the "wherefore" clause of plainti(f.o/petitioncTs' complaint/petition seeks the following: "B, Plaintiffs' [ale} request a declaration regarding Local Law No.3 of2008. and/or its adoption, and/or application and otherwise and/or the legality of the municipal respondents [sic} acts and/or actions and/or otherwise and to declare same illegat, improper void [sic] and/or unlawfu t."

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Index Nos. '7)99/fl

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& 176001/1

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67 West Main St. UC et al,

Village Board et al.

may commence an Article 78 proceeding in this Court to review the decision. The statute further provides that "[sjuch proceedings shall be instituted within thirty days after the filing of a decision by such board in the office of the village clerk" (Village Law §7-725-a(11)). The submissions reflect that the March 10,2011 decision of the Board was filed that same day; accordingly, an Article 78 proceeding challenging the decision would have to have been commenced no tater than April 11, 2011 (the thirtieth day thereafter having been a Saturday). Plaintiffs/petitioners did not commence the instant ActionlProceeding until July 8, 2011, more than 30 days after the filing of the decision. Plaintiffs'/petitioners' argument that the amended site plan application was in actuality a new application for change of zone and site plan approval, and thus governed by a four-month statute of limitation, is without merit (see, e.g., Merrill v Friends Academy, 298 AD2d 439 [2d Dept 2002]). Accordingly, all of plaintiffs 'Ipetitioners' claims arising out of the March 10,2011 approval of Downtown's amended site plan are time-barred (Village Law §7-725-a(II); Save the Woods & Wetlands Assoc. v Village of New Paltz Planning Bd., 296 AD2d 679 [3d Dept 2002]). These include their allegations that the Code does not authorize the Board to approve an amendment or modification of a previously approved site pIM; that the removal of the hotel from the site plan required a new zoning application; that the amount ofparlcing provided for in the amended site plan is inadequate; that insufficient notice of the public hearing was given; that the Traffic Impact Study is inadequate; that certain parcels were improperly excluded from the DRD zoning; and that the proposed project improperly utilizes a public street. In addition, plaintiffs'/petitioners' allegations regarding alleged SEQRA violations in connection with the approval of the amended site plan are similarly time-barred by the one-month statute of limitations (Long Island Pine Barrens Society, Inc. v Planning Bd., 78 NY2d 608 [1991]; Casement v Town of Poughkeepsie Planning Bd., 162 AD2d 685 [2d Dept 1990]). The fact that plaintiffs have characterized the instant Action as one for a declaratory judgment, and denominated the instant Proceeding as a hybrid action/proceeding for a declaratory judgment, is unavailing to extend the statute of limitations. It is well established that in determining the applicable statute of limitations for a declaratory judgment action, the determinative analysis is whether the underlying dispute is one that could have been resolved in an action or proceeding that has a statutorily prescribed statute of limitations (Matter of Save the Pine Bush v City of Albany, 70 NY2d 193 [1987]). Plaintitfs'/petitioners' claims herein predicated on the March 10, 20 II Board action are unquestionably proper subjects of an Article 78 proceeding, , which in the circumstances presented here is governed by a 30-day statute of limitations and not the four-month statute oflimitations claimed by plaintiffs/petitioners to be applicable (td.; Merrill, supra, 298 AD2d at 440; see Village Law §7-725-a). Plaintiffsvpetitioners' claims arising out of alleged procedural defects in the enactment of the 2008 local law amending the Code to establish the new DRD zoning district are also timebarred. Such claims are governed by a four-month statute of limitations (CPLR §217; Matter of Save the Pine Bush v City of Albany, 70 NY2d 193 [1987]) and their interposition more than three years after the filing of the local law with the Secretary of State is untimely.
Local Law No. 3-2008 is unconstitutional, either on its face or as applied (East Suffolk Dev. Corp. v Town Bd. of Town of Riverhead, 59 AD3d 661 [2d Dept 2009]). However, as argued by

The only claims that arguably are not time-barred are plaintiffsvpetitioners' constitutional claims fail -4.
to

claims that

defendants/respondents, plaintiffs'zpetitioners'

state a cause of action.

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Index Nos. 17599/11 & 1760011 J

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67 West Main St. UC tt al. v Village Board et al.

It is well established that vague, conclusory assertions that are unsupported by any facts are insufficient to state a cause of action (McGowan v Cohalan, 41 NY2d 434 [1977]; Sterritt v Heins Equipment Co., 114 AD2d 616 [3d Dept 1985]). Despite their length and verbosity, plaintiffs/petitioners' pleadings herein are devoid of pleaded facts to support their vague and conclusory constitutional claims, which are set forth at paragraph 79 of their respective pleadings as follows: "Local Law No.3 of2008, and/or its adoption, and/or application and otherwise and/or the municipal respondents acts and/or actions and/or otherwise are illegal, improper void and/or unlawful and/or unconstitutional and/or in violation of the United States and/or New York State Constitutions on their face andlor as , app Ile d ,.." Plaintiffs/petitioners have failed, for example, to set forth the manner in which the law is allegedly unconstitutional, or to identify the specific provision(s) of the federal and/or state constitutions that are allegedly violated, or to support their allegations of "spot zoning" or "gerrymandering" for the benefit of Downtown and to the detriment of plaintiffs/petitioners. In fact, no plaintiff or petitioner has alleged that it even sought, much less was denied, the benefits of the DRO exemption provided for by the challenged law. The submissions establish that the downtown area designated as eligible for DRO zoning includes numerous parcels owned by individuals and entities other than Downtown, including one of the named plaintiffs herein, 67 West Main Street, LLC, all of which are nominally eligible under the terms of the law to apply to rezone their property to DRD. Moreover, the local law itself reflects that the decision to create a downtown redevelopment district was based on a comprehensive plan for the revitalization of the downtown area, and accordingly was not intended to single out Downtown's property to the detriment of other property owners (Thomas v Town of Bedford, 11 NY2d 428 [1962]). Finally, in their submissions in opposition to defendantsvrespondents' joint motions, plaintiffs/petitioners have come forward with no evidence to substantiate their bare allegation of unconstitutionality. The numerous affidavits of plaintiffs and/or their principals as well as others proffered in opposition to the motions are silent on the constitutional issue. It is well established that "[zjoning classifications, like other legislative programs, are clothed with a presumption of constitutional legitimacy" (McGowan v Cohalan, 41 NY2d 434 [1977]). Accordingly, plaintiffs/petitioners bear a "heavy burden of proof" in establishing that Local Law No. 3~2008 is unconstitutional (id.). The submissions establish thatplaintiffsl petitioners have not met that burden. In light of all of the foregoing, defendantsvrespondents' joint motions to dismiss and for summary judgment are granted, and the complaint in the Action commenced under Index No. 17599/2011 is dismissed, together with the petition in the Proceeding commenced under Index No,
175600/2011.

Settle judgment(s). Dated: March 20,2012
J.S.c.
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