Preview
FILED: CATTARAUGUS COUNTY CLERK 12/21/2023 09:02 PM INDEX NO. 92541
NYSCEF DOC. NO. 79 RECEIVED NYSCEF: 12/21/2023
STATE OF NEW YORK
SUPREME COURT: CATTARAUGUS COUNTY
________________________________________
CRAIG S. MCINTRYE
Petitioner,
VS.
VILLAGE OF ELLICOTTVILLE PLANNING BOARD,
JOHN READ, and JERRY SKUBEL, Index No. 92541
Respondents.
__________________________________________
_______________________________________________________________________
Defendant Village of Ellicottville Planning Board
Memorandum of Law in Support of Motion to Dismiss
________________________________________________________________________
Dated December 21, 2023
Submitted by:
Richard E. Stanton, Esq.
Attorney for Village of Ellicottville Planning Board
415 Franklin St.
Buffalo, NY 14202
Email: Richard.stanton@yahoo.com
To: All Counsel of Record (via Electronic Filing)
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I. Preliminary Statement
On September 6th, 2023, Petitioner filed an Article 78 Petition seeking to annul a Village of
Ellicottville Planning Board (Planning Board) determination granting Site Plan and Architectural
Review Approval to developers/owners of a property bearing the address of 10-12 McKinley St,
Ellicottville, NY granted on July 11, 2023.
In its Answer filed with the Court (Docket Item 26 ) 2023 the Planning Board submitted
through its counsel the action filed more than 30 days after the determination at issue was untimely,
and could not be maintained against the Planning Board.
Based upon statements made at an initial Oral Argument of this matter held on November 8,
2023, and thereafter, it appears that the Petitioner believes the thirty day Statute of Limitations
created by Village Law provision which creates there cause of action should not be applied against
them.
For the reasons set forth below it is respectfully submitted that the Planning Board staff met
all requirements for Noticing the hearing, and the Petition is time barred by the applicable Statute
of Limitations which is set by Village Law § 7-725-a (11), which both creates and limits the right
to review of the Planning Board action. Village Law § 7-725-a (11) provides as follows:
Court review. Any person aggrieved by a decision of the authorized board or any
officer, department, board or bureau of the village may apply to the supreme court
for review by a proceeding under article seventy-eight of the civil practice law
and rules. Such proceedings shall be instituted within thirty days after the filing of
a decision by such board in the office of the village clerk.
It is further submitted that the Planning Board had no right to enforce the Petitioners
interpretation of private restrictive Covenants.
Finally, it is submitted that the failings fail to maintain a factual basis that the
Planning Board lacked a rational basis for their decision.
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II. Statement of Facts
1. The Notice Requirements for the Application
The Notice Requirements for the Owners Application to the Planning Board arise under
NY Village Law, and Village Code.
NY Village Law 7-725-a (8) provides that:
In the event a public hearing is required by local law adopted by the village board
of trustees, the authorized board shall conduct a public hearing within sixty-two
days from the day an application is received on any matter referred to it under this
section. The authorized board shall mail notice of said hearing to the applicant at
least ten days before such hearing, and shall give public notice of said hearing in a
newspaper of general circulation in the village at least five days prior to the date
thereof…
The Planning Board does have additional public notice requirements adopted with
Section 6 (6)(A)(2) (a-c) of their LL 1-2005, which provides in relevant part:
2) Notice of the public hearing shall be published in the following ways:
a) By publication in a newspaper of general circulation in the Village at least
five days prior to the date of the public hearing.
b) By mailing a notice of the hearing to the owners of every parcel that is
within one hundred ( 100) feet of the perimeter of the site that is the subject
of the application…. Such notices shall be mailed to the address shown on
the current assessment roll, at least ten ( 10) days prior to the public hearing.
2. The Public’s Notice of the Application for Site Plan Approval for 10-12 Mckinley.
The requisite publication in the Village newspaper was made (See Court Docket Item
31, attached as Exhibit D to Planning Board Answer); and, as set forth on the Affidavit of
Village, all property owners whose property fell within 100’ of the boundaries of 10-12
McKinley received the Direct Mailing. (See Village Planner Affidavit ¶¶ 5-7 (Docket Item
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63)), and radius map, mailing lists, and mailing labels utilized by Village Planner (Docket
Items 46-48, and 64-66).
3. The Accrual, and expiration of the Cause of Action
The Village Clerk received and filed the report of the decision signed by the Planning
Board Chair, and herself on July 17th, 2023 (See Affidavit of Mary Klahn dated December
19, 2023, and Exhibit 1 thereto., which commenced the accrual of the 30 day statute of
limitation created by Village Law § 7-725-a (11). In addition to filing of the report of the
decision the Village Clerk also posted it on the Village Bulletin Board in the public area of
the Village Hall.
The Petitioner’s cause of action accrued on July 17th, 2023, and expired on Thursday
August 17th, 2023, the 30th day following the filing of the signed report of the Planning
Board decision.
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III. Argument
A. The Plaintiff’s Claim for Relief against the Planning Board are Time
Barred.
1. The Right to Challenge the Planning Board’s Determination is limited by the
Statute which created the Right to Sue, and is to be Narrowly Construed.
As the Court of Appeals noted in Riegert Apartments Corp. v. Plan. Bd. of Town of
Clarkstown, 57 N.Y.2d 206 at 209, (1982) “town[s] and other municipalities derive no
power to regulate land use other than through legislative grant”. Here, the Legislative grant
of power to villages to require a property owner to obtain site plan approval within the
Village does not arise from common law, but rather was a statutory power authorized and
limited pursuant to N.Y. Village Law § 7-725-a (2) (a) which provides in relevant part that:
The village board of trustees may, as part of a local law adopted pursuant to this
article or other enabling law, authorize the planning board or such other
administrative body that it shall so designate, to review and approve, approve
with modifications or disapprove site plans, prepared to specifications set forth
in the local law and/or in regulations of such authorized board.
The right to challenge the administrative body’s exercise of its discretion to grant Site
Plan authority is limited within the statutory scheme of Article 7 of the Village Law, and
duly enacted Local Laws. In re World Trade Ctr. Lower Manhattan Disaster Site Litig., 30
N.Y.3d 377, 384, (2017). See also Matter of B.T. Prods. v. Barr, 44 N.Y.2d 226, 236, 405,
and Matter of Department of Personnel v. New York City Civ. Serv. Commn., 79 N.Y.2d
806, 807.)
Also, because the Site Plan Review is a zoning process arising under Village Law 7-
725-a, and Ellicottville Local Law 1-2005, created by legislative actions, in derogation of
the common law right to develop one’s own property, the right to restrict the land use,
including the non-applicant’s neighbor’s right to challenge the grant of authority to develop
the property should be strictly construed, and “ Any ambiguity in the language used in such
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regulations must be resolved in favor of the property owner.” See Allen v. Adami 39 N.Y.2d
275, 277 (1976).
Thus, the Petitioner is pursuing a limited right to challenge an administrative action
created by legislative action that must be narrowly construed in favor of the property owner
whose property use was regulated by the zoning law. That is the backdrop against we must
assess their attempts to expand Notice rights to non-parties below, and the application of
the Statute of Limitations which limits the legislatively created cause of action.
2. The Requisite Notice was Provided.
From the statutory schemes there, there are two sources of public notice requirements.
First is the public notice requirements imposed by the State Legislative grant of
authority to require site plan review which was the 5 day notice in the local newspaper (See
Village Law § 7-725-a (8)) which was met (See Docket Item 31).
The second public notice requirement is created by Village LL 1 -2005 Section 6
(6)(A)(2)(b) which added the requirement of an additional mailing requirement to property
owners of parcels within 100’ of the parcel whose request for Site Plan approval is set for
public hearing. The Affidavit of the Village Planner (Docket Item 63) attests with backup
evidentiary proof (Docket Items 46-48, and 64-66) that all property owners with parcels
within 100’ of the perimeter of the property whose Site Plan approval was set for Public
Hearing were mailed the requisite Notice.
In both Ottinger v. Arenal Realty Co., 257 N.Y. 371, 383, 178 N.E. 665 (1931) and
Gazan v. Corbett, 304 N.Y. 920, (1953) the Court of Appeals considered the claims of
adjoining property owners who challenged the reasonableness of the public notice by
publication granted zoning board approvals they did not like. In Ottinger, whose rational
was reaffirmed by the Court in Gazan, the Court held adjoining owners have no right to
information as to the time and place of hearing in excess of the right belonging to them as
members of the general public. In Gazan the Court affirmed the Appellate decision which
set aside the lower court’s decision which would have set aside the granting of a use
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variance based upon a Petitioner’s theory that notice that only met the statutory mandates
was not reasonable.
Here, the public notice exceeded what was statutorily created. It included the requisite
Public Notice in the newspaper, the requisite mailing to residents within a 100’ perimeter,
and the additional web postings, bulletin board postings, answering petitioners phone calls,
and direct mailings. Although the non-adjoining property owner who lives on the same
street, but outside the notice perimeter created by Local Law, would like to see expanded
Notice provisions than what the State Legislature, and Village Board legislatively created,
he as a member of the Public received the requisite notice, and more.
3. The Applicable Statute of Limitations to Challenge the Planning Boards Expired
Village Law § 7-725-a (11)) very clearly sets a thirty day Statute of Limitations on the
challenges to the statutorily created cause of action when it provides “Any person
aggrieved by a decision of the authorized board or any officer, department, board or bureau
of the village may apply to the supreme court for review by a proceeding under article
seventy-eight of the civil practice law and rules. Such proceedings shall be instituted within
thirty days after the filing of a decision by such board in the office of the village clerk. The
30 day statute of limitations as it applies to Planning Board decisions has been consistently
applied by the Fourth Department to dismiss causes of action where indispensable parties
were not joined prior to the expiration of the thirty day period. See Wood v. Vill. of Painted
Post, 216 A.D.3d 1465, 189 N.Y.S.3d 845, 847 (2023); see also Matter of Citizens Against
Sprawl-Mart v. City of Niagara Falls, 35 A.D.3d 1190, 1191, 827 N.Y.S.2d 803 [4th Dept.
2006], lv dismissed 9 N.Y.3d 858, 840 N.Y.S.2d 756, 872 N.E.2d 869 [2007]). The
dismissals for failure to join indispensable parties within the period when the action must
be commenced are applicable, because it is the expiration of the 30 day period that prevents
the defect from being curable. In denying the right to sue new necessary parties to bring
them into the litigation, the Fourth Department acknowledged and applied the 30 day
Statute of Limitations.
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Here the Planning Board Chair signed and filed the reporting of the Village Planning
Board determination with the Village Clerk on July 17th, 2023 (See Klahn Aff. Dated
December 19th, 2023 and Exhibit 1 therto. Here the Statute of Limitations ran on August
17th, 2023, and the action was commenced on September 6th, 2023. There is just no rational
basis to dispute that the petitioners failed to commence their article 78 proceeding against
PPD within 30 days after the Planning Board's decision was filed with the Village Clerk.
B. The Petitioners Challenges Based Upon their Interpretation of Deed
Restrictions Fail to State a Cause of Action against the Planning Board.
The tenant that interpretations of Deed Restrictions are not the province of the
Planning Board was made clear by our Fourth Department in Rowe v. Town of
Chautauqua, 84 A.D.3d 1728, 1729 (2011) wherein they held that ‘The use that may
be made of land under a zoning ordinance and the use of the same land under an
easement or restrictive covenant are, as a general rule, separate and distinct matters, the
ordinance being a legislative enactment and the easement or covenant a matter of
private agreement” . See also Chambers v Old Stone Hill Rd. Assoc., 1 NY3d 424, 432
(2004), quoting Matter of Friends of Shawangunks v Knowlton, 64 NY2d 387, 392
(1985). Application of interpretations of restrictive covenants found in a chain of title
is simply not a part of the Site Plan review powers created by NY Village LAW 7-725-
a, or Ellicottville LL1-2005, and the covenants created no power of enforcement in the
Planning Board.
C. The Petitioner Have not Provided Competent Proof in Pleading, or
Subsequent filings, that the Planning Board Determination was Arbitrary
and Capricious.
One challenging a municipal body’s determination as arbitrary and capricious has
the burden of pleading by competent facts the administrative action is without
foundation in fact. “Arbitrary action is without sound basis in reason and is generally
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taken without regard to the facts.... the proper test is whether there is a rational basis
for the ... order”. see Pell v. Board of Educ., 34 NY2d 222, 231 (1974) (internal citations
omitted and emphasis added). See also Save Am.’s Clocks, Inc. v. City of New York, 33
NY3d 198, 207 (2019) (dismissing proceeding); 512-3rd St., Inc. v. New York State
Liquor Auth., 217 AD2d 1010 (4th Dept 1995). A petitioner in an Article 78 Action
bears the “heavy burden” of proving that the decision was not grounded upon a rational
basis. See Rayle v. Town of Cato Board, 295 AD2d 978, 980 (4th Dept 2002)
(dismissing petition because the petitioners missed their burden of proof).
Here the Petitioner has the heavy burden of establishing the Planning Board had no
rational basis to find the standards arising under LL 1-2015 Section 6 (7) (F-G) ) were
met. The standards at issue are as follow:
F. Buildings and structures within the proposed project are compatible with one
another in design, mass, scale, style, materials, colors and architectural
detailing, and provide a sense of cohesion.
G. The proposed project is compatible in design, mass, scale, style, materials,
colors and architectural detailing with the prevailing architectural standards in
the general neighborhood. The orientation of the proposed buildings is
compatible with the orientation of buildings on adjacent lots.
The applicable code provisions do not require identical structures, or material but
rather compatible structures.
Comparing the McKinley Street frontages set forth in the Petition itself we see the
Petitioners structures having nearly identical scaling and massing. Below is a visual
comparison of the Petitioner and Developer-respondents 2 ½ story structures which will
be on opposite sides of the street. The images are cut from paragraph 36 of the Petition
(Docket Item 1)
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Each are 2 ½ story symmetrical structures with a central feature, double windows
and doors, stone accents, and a clapboard like material in a muted color scheme. On the
existing structure the central feature is the stone chimney, and on the planned structure the
central feature is the peak. The center of the house projects forward on both, and the
symmetrical sides on each recess in an almost identical pattern. Both have balconies on the
second story overlooking the street. Although the Petitioner claims his structure is 30%
larger he provides no basis for this conclusion that belies the eye, and the fact that he fit
almost identically on very similar lots.
It is respectfully submitted that the images themselves, and the parallel symmetries
of the structure, with compatible natural appearing materials, of similar muted color
schemes supports the conclusion of the planning board that the structures were compatible,
although not identical.
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IV. Conclusion
It is respectfully submitted that based upon the foregoing the pending claims against
the Village Planning Board should be dismissed in their entirety.
Dated: December 21, 2023
Respectfully submitted,
/s/ Richard E. Stanton
Richard E. Stanton, Esq.
Attorney for Village of Ellicottville Planning Board
415 Franklin St.
Buffalo, NY 14202
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FILED: CATTARAUGUS COUNTY CLERK 12/21/2023 09:02 PM INDEX NO. 92541 NYSCEF DOC. NO. 79 RECEIVED NYSCEF: 12/21/2023 STATE OF NEW YORK SUPREME COURT: CATTARAUGUS COUNTY ________________________________________ CRAIG S. MCINTRYE Petitioner, VS. VILLAGE OF ELLICOTTVILLE PLANNING BOARD, JOHN READ, and JERRY SKUBEL, Index No. 92541 Respondents. __________________________________________ _______________________________________________________________________ Defendant Village of Ellicottville Planning Board Memorandum of Law in Support of Motion to Dismiss ________________________________________________________________________ Dated December 21, 2023 Submitted by: Richard E. Stanton, Esq. Attorney for Village of Ellicottville Planning Board 415 Franklin St. Buffalo, NY 14202 Email: Richard.stanton@yahoo.com To: All Counsel of Record (via Electronic Filing) 1 1 of 11 FILED: CATTARAUGUS COUNTY CLERK 12/21/2023 09:02 PM INDEX NO. 92541 NYSCEF DOC. NO. 79 RECEIVED NYSCEF: 12/21/2023 I. Preliminary Statement On September 6th, 2023, Petitioner filed an Article 78 Petition seeking to annul a Village of Ellicottville Planning Board (Planning Board) determination granting Site Plan and Architectural Review Approval to developers/owners of a property bearing the address of 10-12 McKinley St, Ellicottville, NY granted on July 11, 2023. In its Answer filed with the Court (Docket Item 26 ) 2023 the Planning Board submitted through its counsel the action filed more than 30 days after the determination at issue was untimely, and could not be maintained against the Planning Board. Based upon statements made at an initial Oral Argument of this matter held on November 8, 2023, and thereafter, it appears that the Petitioner believes the thirty day Statute of Limitations created by Village Law provision which creates there cause of action should not be applied against them. For the reasons set forth below it is respectfully submitted that the Planning Board staff met all requirements for Noticing the hearing, and the Petition is time barred by the applicable Statute of Limitations which is set by Village Law § 7-725-a (11), which both creates and limits the right to review of the Planning Board action. Village Law § 7-725-a (11) provides as follows: Court review. Any person aggrieved by a decision of the authorized board or any officer, department, board or bureau of the village may apply to the supreme court for review by a proceeding under article seventy-eight of the civil practice law and rules. Such proceedings shall be instituted within thirty days after the filing of a decision by such board in the office of the village clerk. It is further submitted that the Planning Board had no right to enforce the Petitioners interpretation of private restrictive Covenants. Finally, it is submitted that the failings fail to maintain a factual basis that the Planning Board lacked a rational basis for their decision. 2 2 of 11 FILED: CATTARAUGUS COUNTY CLERK 12/21/2023 09:02 PM INDEX NO. 92541 NYSCEF DOC. NO. 79 RECEIVED NYSCEF: 12/21/2023 II. Statement of Facts 1. The Notice Requirements for the Application The Notice Requirements for the Owners Application to the Planning Board arise under NY Village Law, and Village Code. NY Village Law 7-725-a (8) provides that: In the event a public hearing is required by local law adopted by the village board of trustees, the authorized board shall conduct a public hearing within sixty-two days from the day an application is received on any matter referred to it under this section. The authorized board shall mail notice of said hearing to the applicant at least ten days before such hearing, and shall give public notice of said hearing in a newspaper of general circulation in the village at least five days prior to the date thereof… The Planning Board does have additional public notice requirements adopted with Section 6 (6)(A)(2) (a-c) of their LL 1-2005, which provides in relevant part: 2) Notice of the public hearing shall be published in the following ways: a) By publication in a newspaper of general circulation in the Village at least five days prior to the date of the public hearing. b) By mailing a notice of the hearing to the owners of every parcel that is within one hundred ( 100) feet of the perimeter of the site that is the subject of the application…. Such notices shall be mailed to the address shown on the current assessment roll, at least ten ( 10) days prior to the public hearing. 2. The Public’s Notice of the Application for Site Plan Approval for 10-12 Mckinley. The requisite publication in the Village newspaper was made (See Court Docket Item 31, attached as Exhibit D to Planning Board Answer); and, as set forth on the Affidavit of Village, all property owners whose property fell within 100’ of the boundaries of 10-12 McKinley received the Direct Mailing. (See Village Planner Affidavit ¶¶ 5-7 (Docket Item 3 3 of 11 FILED: CATTARAUGUS COUNTY CLERK 12/21/2023 09:02 PM INDEX NO. 92541 NYSCEF DOC. NO. 79 RECEIVED NYSCEF: 12/21/2023 63)), and radius map, mailing lists, and mailing labels utilized by Village Planner (Docket Items 46-48, and 64-66). 3. The Accrual, and expiration of the Cause of Action The Village Clerk received and filed the report of the decision signed by the Planning Board Chair, and herself on July 17th, 2023 (See Affidavit of Mary Klahn dated December 19, 2023, and Exhibit 1 thereto., which commenced the accrual of the 30 day statute of limitation created by Village Law § 7-725-a (11). In addition to filing of the report of the decision the Village Clerk also posted it on the Village Bulletin Board in the public area of the Village Hall. The Petitioner’s cause of action accrued on July 17th, 2023, and expired on Thursday August 17th, 2023, the 30th day following the filing of the signed report of the Planning Board decision. 4 4 of 11 FILED: CATTARAUGUS COUNTY CLERK 12/21/2023 09:02 PM INDEX NO. 92541 NYSCEF DOC. NO. 79 RECEIVED NYSCEF: 12/21/2023 III. Argument A. The Plaintiff’s Claim for Relief against the Planning Board are Time Barred. 1. The Right to Challenge the Planning Board’s Determination is limited by the Statute which created the Right to Sue, and is to be Narrowly Construed. As the Court of Appeals noted in Riegert Apartments Corp. v. Plan. Bd. of Town of Clarkstown, 57 N.Y.2d 206 at 209, (1982) “town[s] and other municipalities derive no power to regulate land use other than through legislative grant”. Here, the Legislative grant of power to villages to require a property owner to obtain site plan approval within the Village does not arise from common law, but rather was a statutory power authorized and limited pursuant to N.Y. Village Law § 7-725-a (2) (a) which provides in relevant part that: The village board of trustees may, as part of a local law adopted pursuant to this article or other enabling law, authorize the planning board or such other administrative body that it shall so designate, to review and approve, approve with modifications or disapprove site plans, prepared to specifications set forth in the local law and/or in regulations of such authorized board. The right to challenge the administrative body’s exercise of its discretion to grant Site Plan authority is limited within the statutory scheme of Article 7 of the Village Law, and duly enacted Local Laws. In re World Trade Ctr. Lower Manhattan Disaster Site Litig., 30 N.Y.3d 377, 384, (2017). See also Matter of B.T. Prods. v. Barr, 44 N.Y.2d 226, 236, 405, and Matter of Department of Personnel v. New York City Civ. Serv. Commn., 79 N.Y.2d 806, 807.) Also, because the Site Plan Review is a zoning process arising under Village Law 7- 725-a, and Ellicottville Local Law 1-2005, created by legislative actions, in derogation of the common law right to develop one’s own property, the right to restrict the land use, including the non-applicant’s neighbor’s right to challenge the grant of authority to develop the property should be strictly construed, and “ Any ambiguity in the language used in such 5 5 of 11 FILED: CATTARAUGUS COUNTY CLERK 12/21/2023 09:02 PM INDEX NO. 92541 NYSCEF DOC. NO. 79 RECEIVED NYSCEF: 12/21/2023 regulations must be resolved in favor of the property owner.” See Allen v. Adami 39 N.Y.2d 275, 277 (1976). Thus, the Petitioner is pursuing a limited right to challenge an administrative action created by legislative action that must be narrowly construed in favor of the property owner whose property use was regulated by the zoning law. That is the backdrop against we must assess their attempts to expand Notice rights to non-parties below, and the application of the Statute of Limitations which limits the legislatively created cause of action. 2. The Requisite Notice was Provided. From the statutory schemes there, there are two sources of public notice requirements. First is the public notice requirements imposed by the State Legislative grant of authority to require site plan review which was the 5 day notice in the local newspaper (See Village Law § 7-725-a (8)) which was met (See Docket Item 31). The second public notice requirement is created by Village LL 1 -2005 Section 6 (6)(A)(2)(b) which added the requirement of an additional mailing requirement to property owners of parcels within 100’ of the parcel whose request for Site Plan approval is set for public hearing. The Affidavit of the Village Planner (Docket Item 63) attests with backup evidentiary proof (Docket Items 46-48, and 64-66) that all property owners with parcels within 100’ of the perimeter of the property whose Site Plan approval was set for Public Hearing were mailed the requisite Notice. In both Ottinger v. Arenal Realty Co., 257 N.Y. 371, 383, 178 N.E. 665 (1931) and Gazan v. Corbett, 304 N.Y. 920, (1953) the Court of Appeals considered the claims of adjoining property owners who challenged the reasonableness of the public notice by publication granted zoning board approvals they did not like. In Ottinger, whose rational was reaffirmed by the Court in Gazan, the Court held adjoining owners have no right to information as to the time and place of hearing in excess of the right belonging to them as members of the general public. In Gazan the Court affirmed the Appellate decision which set aside the lower court’s decision which would have set aside the granting of a use 6 6 of 11 FILED: CATTARAUGUS COUNTY CLERK 12/21/2023 09:02 PM INDEX NO. 92541 NYSCEF DOC. NO. 79 RECEIVED NYSCEF: 12/21/2023 variance based upon a Petitioner’s theory that notice that only met the statutory mandates was not reasonable. Here, the public notice exceeded what was statutorily created. It included the requisite Public Notice in the newspaper, the requisite mailing to residents within a 100’ perimeter, and the additional web postings, bulletin board postings, answering petitioners phone calls, and direct mailings. Although the non-adjoining property owner who lives on the same street, but outside the notice perimeter created by Local Law, would like to see expanded Notice provisions than what the State Legislature, and Village Board legislatively created, he as a member of the Public received the requisite notice, and more. 3. The Applicable Statute of Limitations to Challenge the Planning Boards Expired Village Law § 7-725-a (11)) very clearly sets a thirty day Statute of Limitations on the challenges to the statutorily created cause of action when it provides “Any person aggrieved by a decision of the authorized board or any officer, department, board or bureau of the village may apply to the supreme court for review by a proceeding under article seventy-eight of the civil practice law and rules. Such proceedings shall be instituted within thirty days after the filing of a decision by such board in the office of the village clerk. The 30 day statute of limitations as it applies to Planning Board decisions has been consistently applied by the Fourth Department to dismiss causes of action where indispensable parties were not joined prior to the expiration of the thirty day period. See Wood v. Vill. of Painted Post, 216 A.D.3d 1465, 189 N.Y.S.3d 845, 847 (2023); see also Matter of Citizens Against Sprawl-Mart v. City of Niagara Falls, 35 A.D.3d 1190, 1191, 827 N.Y.S.2d 803 [4th Dept. 2006], lv dismissed 9 N.Y.3d 858, 840 N.Y.S.2d 756, 872 N.E.2d 869 [2007]). The dismissals for failure to join indispensable parties within the period when the action must be commenced are applicable, because it is the expiration of the 30 day period that prevents the defect from being curable. In denying the right to sue new necessary parties to bring them into the litigation, the Fourth Department acknowledged and applied the 30 day Statute of Limitations. 7 7 of 11 FILED: CATTARAUGUS COUNTY CLERK 12/21/2023 09:02 PM INDEX NO. 92541 NYSCEF DOC. NO. 79 RECEIVED NYSCEF: 12/21/2023 Here the Planning Board Chair signed and filed the reporting of the Village Planning Board determination with the Village Clerk on July 17th, 2023 (See Klahn Aff. Dated December 19th, 2023 and Exhibit 1 therto. Here the Statute of Limitations ran on August 17th, 2023, and the action was commenced on September 6th, 2023. There is just no rational basis to dispute that the petitioners failed to commence their article 78 proceeding against PPD within 30 days after the Planning Board's decision was filed with the Village Clerk. B. The Petitioners Challenges Based Upon their Interpretation of Deed Restrictions Fail to State a Cause of Action against the Planning Board. The tenant that interpretations of Deed Restrictions are not the province of the Planning Board was made clear by our Fourth Department in Rowe v. Town of Chautauqua, 84 A.D.3d 1728, 1729 (2011) wherein they held that ‘The use that may be made of land under a zoning ordinance and the use of the same land under an easement or restrictive covenant are, as a general rule, separate and distinct matters, the ordinance being a legislative enactment and the easement or covenant a matter of private agreement” . See also Chambers v Old Stone Hill Rd. Assoc., 1 NY3d 424, 432 (2004), quoting Matter of Friends of Shawangunks v Knowlton, 64 NY2d 387, 392 (1985). Application of interpretations of restrictive covenants found in a chain of title is simply not a part of the Site Plan review powers created by NY Village LAW 7-725- a, or Ellicottville LL1-2005, and the covenants created no power of enforcement in the Planning Board. C. The Petitioner Have not Provided Competent Proof in Pleading, or Subsequent filings, that the Planning Board Determination was Arbitrary and Capricious. One challenging a municipal body’s determination as arbitrary and capricious has the burden of pleading by competent facts the administrative action is without foundation in fact. “Arbitrary action is without sound basis in reason and is generally 8 8 of 11 FILED: CATTARAUGUS COUNTY CLERK 12/21/2023 09:02 PM INDEX NO. 92541 NYSCEF DOC. NO. 79 RECEIVED NYSCEF: 12/21/2023 taken without regard to the facts.... the proper test is whether there is a rational basis for the ... order”. see Pell v. Board of Educ., 34 NY2d 222, 231 (1974) (internal citations omitted and emphasis added). See also Save Am.’s Clocks, Inc. v. City of New York, 33 NY3d 198, 207 (2019) (dismissing proceeding); 512-3rd St., Inc. v. New York State Liquor Auth., 217 AD2d 1010 (4th Dept 1995). A petitioner in an Article 78 Action bears the “heavy burden” of proving that the decision was not grounded upon a rational basis. See Rayle v. Town of Cato Board, 295 AD2d 978, 980 (4th Dept 2002) (dismissing petition because the petitioners missed their burden of proof). Here the Petitioner has the heavy burden of establishing the Planning Board had no rational basis to find the standards arising under LL 1-2015 Section 6 (7) (F-G) ) were met. The standards at issue are as follow: F. Buildings and structures within the proposed project are compatible with one another in design, mass, scale, style, materials, colors and architectural detailing, and provide a sense of cohesion. G. The proposed project is compatible in design, mass, scale, style, materials, colors and architectural detailing with the prevailing architectural standards in the general neighborhood. The orientation of the proposed buildings is compatible with the orientation of buildings on adjacent lots. The applicable code provisions do not require identical structures, or material but rather compatible structures. Comparing the McKinley Street frontages set forth in the Petition itself we see the Petitioners structures having nearly identical scaling and massing. Below is a visual comparison of the Petitioner and Developer-respondents 2 ½ story structures which will be on opposite sides of the street. The images are cut from paragraph 36 of the Petition (Docket Item 1) 9 9 of 11 FILED: CATTARAUGUS COUNTY CLERK 12/21/2023 09:02 PM INDEX NO. 92541 NYSCEF DOC. NO. 79 RECEIVED NYSCEF: 12/21/2023 Each are 2 ½ story symmetrical structures with a central feature, double windows and doors, stone accents, and a clapboard like material in a muted color scheme. On the existing structure the central feature is the stone chimney, and on the planned structure the central feature is the peak. The center of the house projects forward on both, and the symmetrical sides on each recess in an almost identical pattern. Both have balconies on the second story overlooking the street. Although the Petitioner claims his structure is 30% larger he provides no basis for this conclusion that belies the eye, and the fact that he fit almost identically on very similar lots. It is respectfully submitted that the images themselves, and the parallel symmetries of the structure, with compatible natural appearing materials, of similar muted color schemes supports the conclusion of the planning board that the structures were compatible, although not identical. 10 10 of 11 FILED: CATTARAUGUS COUNTY CLERK 12/21/2023 09:02 PM INDEX NO. 92541 NYSCEF DOC. NO. 79 RECEIVED NYSCEF: 12/21/2023 IV. Conclusion It is respectfully submitted that based upon the foregoing the pending claims against the Village Planning Board should be dismissed in their entirety. Dated: December 21, 2023 Respectfully submitted, /s/ Richard E. Stanton Richard E. Stanton, Esq. Attorney for Village of Ellicottville Planning Board 415 Franklin St. Buffalo, NY 14202 11 11 of 11