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Lawsuit Challenges Both Validity of Underlying Zoning District And Village Compliance With Open Meetings Law
LEGAL ANALYSIS (UPDATED)
Four Piermont residents, who oppose a proposal to construct a modern multifamily residential building in the Village’s historic downtown, filed suit in Rockland County Supreme Court on Wednesday seeking to void the Village’s new zoning law and to stop the developer’s application before any approvals or permits are issued.
Residents Janice Young, Laura Healy-Grznar, John Grznar, and Valentina Zitt, live within 500 feet of the project site at 447-477 Piermont Avenue where Piermont Developers LLC, also named as a defendant in the suit, seeks a Special Permit to build a 14-unit, three-story multifamily residential building.
The requirement for a Special Permit is part of a new zoning law, passed in March of 2023, that created the CBM (Central Business Multi-Use) zone. Plaintiffs allege the new Zoning Law and the CBM zone are illegal and have asked the Court to declare the local law “null and void.” Plaintiffs also say the Village has violated the Open Meetings Law by not posting notices and meeting minutes as required by New York State law.
The Village has hired outside counsel to handle the case. Desmond Lyons of Lyons McGovern LLP of White Plains, said, “I have not had a chance to review the lawsuit but will do so in forthcoming days and will respond.”
The suit was filed in Rockland County Supreme Court even though neither the Village Board of Trustees nor the Village Planning Board have advanced the developer’s application – no site plans have been approved, no SEQRA (State Environmental Quality Review Act) declarations have been issued, no special permits have been granted. To date, Village Trustees and Planning Board members have heard the developer’s proposal at public meetings.
At least one legal scholar questions whether the suit is ripe, especially since no actual action has been taken by the Village. The “Ripeness Doctrine” prohibits courts from exercising jurisdiction over a case until an actual controversy is presented involving a threat of injury that is real and immediate, not hypothetical.
Piermont Developers LLC has proposed building a three-story 14-unit residential proposal at 447-477 Piermont Avenue, the village’s main commercial street. The boxy, modern design has been particularly offensive to many residents, who are calling for village officials to preserve the historic Victorian character of the central business district.
Brian Condon, the attorney representing residents who ran an online fundraising effort for legal fees, contends the Village cannot move ahead with the proposal because the new CBM zone was not properly adopted. The Rockland County Planning Department in a series of letters found the “local law that created the Central Business Multi-Use (CBM) District was not properly referred” to the County Planning Department and that it is “jurisdictionally defective”.
Zoning Amendments require review by the Rockland County Department of Planning under what is generally referred to as GML (General Municipal Law) Section 239 Review.
The Village says it fully complied back in January of 2023 when it mailed the proposed text amendment to the County Planning Department, as well as other municipal entities that have acknowledged receipt of the GML package. The County Planning Department maintains the Village did not comply and says the local law creating the new zone was “not properly referred.”
Under New York State law, a referral to the County Planning Department is accomplished when a “full statement” of the proposed action is received by the County, but “received” under the law only requires that the package is delivered by mail to the clerk of the County Planning Department. When delivery is made by mail, the date of the postmark is considered the date of delivery.
According to the Village, the Village Clerk has prepared an affidavit attesting to mailing the GML package to the County on January 10, 2023. The County maintains says it never received the package.
Condon is asking the court for declaratory judgement and an injunction, which means he wants to have the court intervene and stop the application from advancing.
Typically, a challenge to the passage of any local law must be challenged through an Article 78 proceeding, which are lawsuits used to challenge actions or inactions by New York State agencies and local governments. An Article 78 must be brought within four months after the passage of a law. Piermont’s local zoning law was passed in March 2023, the time to challenge the law via an Article 78 has long expired.
The court will have to consider whether this lawsuit should have been brought as an Article 78; but if it does consider the plaintiffs’ request for a declaratory judgment and an injunction, the case will likely center on compliance with the GML.
The County Planning Department reviews all zoning amendments for every village and town in the county and sends written comments to the referring municipality. No County Planning review was undertaken on Piermont’s proposed zoning amendment.
The County told Rockland County Business Journal that “Nothing has changed between the County and the Village of Piermont since the date that the Piermont Village Board passed the zoning ordinance without sending it for review.”
“The Village is mandated by law to send the zoning change to [the County] for review before it is final. With all of that in mind [the County] is not here to try to control the Piermont government’s law making on zoning, and if [the Village] will deliver a full statement of the proposed action [the County] will be happy to review it now.”
In addition to questioning the validity of the local zoning law, the lawsuit also alleges that the Village Board of Trustees and the Village Planning Board have violated the Open Meetings Law (OML) by not providing notices and materials in advance of public meetings as required by law. They also charge that the Village Planning Board fails to provide minutes of its meetings on its website. They seek a declaration that the Village Board and the Village Planning Board have violated the Open Meetings Law and ask the Court to prevent the Village from processing the Piermont Developers’ application unless and until the Village is in compliance with the Open Meetings Law.
The Village has provided proof of publication in advance of the meeting where the CBM district was created by Local Law in March 2023.
The Open Meetings Law gives the Court broad discretion in how to respond to violations, from voiding actions taken by government entities (though no actions have actually been undertaken with regard to the Piermont Developer’s application) to sending the municipal officers for retraining in compliance with the OML. The court could also require the Village to re-do whatever failures it finds and re-start the process after compliance.
