Motion,Ex Parte: Milwood Place, Llc v. Village Of Woodbury Zoning Board Of Appeals, The Shops At Woodbury, Llc

On March 12, 2020 a Motion,Ex Parte was filed involving a dispute between Milwood Place, Llc, and The Shops At Woodbury, Llc, Village Of Woodbury Zoning Board Of Appeals, for Special Proceedings - CPLR Article 78 in the District Court of Orange County.

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FILED: ORANGE COUNTY CLERK 08/03/2020 03:51 PM INDEX NO. EF002051-2020
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF ORANGE
------------------------------------------------------------------------x
MILWOOD PLACE, LLC, Index No. EF002051-2020

Petitioner,
-against-

VILLAGE OF WOODBURY ZONING BOARD OF
APPEALS and THE SHOPS AT WOODBURY, LLC

Respondents.
------------------------------------------------------------------------x

REPLY MEMORANDUM OF LAW IN FURTHER SUPPORT OF
RESPONDENT'S MOTION TO DISMISS

Richard B. Golden, Esq.

Burke, Miele, Golden & Naughton, LLP
Attorneys for Respondent Village of
Woodbury Zoning Board of Appeals
40 Matthews Street, Suite 209
Post Office Box 216

Goshen, New York 10924

(845) 294-4080

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PRELIMINARY STATEMENT

This reply memorandum of law is respectfully submitted in further support of Respondent

Village of Woodbury Zoning Board of Appeals ("ZBA") motion to dismiss the Petition of

Milwood Place, LLC ("Petitioner").

POINT I
PETITIONER HAS FAILED TO ESTABLISH STANDING

Respondents'
As fully set forth in moving papers, this proceeding must be dismissed

because Petitioner lacks standing to challenge the area variances granted to Respondent the Shops

12-21).1
at Woodbury, LLC ("Shops"). (See NYSCEF Doc. No. 17 at Point I & Doc. No. 38 at¶¶

Petitioner has failed to cure this fatal deficiency in its opposition. Instead, Petitioner seeks to

establish standing based upon the proximity of an access road to its hotel. (See NYSCEF Doc. No.

44 at¶¶ 712). Petitioner admits itdoes not own the access road and relies entirely upon itseasement

over the road to establish standing by way of proximity. (Id. at ¶¶ 7-8). Further, Petitioner has

failed to offer any evidence that the access road is even within the 500-foot inference of proximity

Shops' development.2 co-
standing to the proposed As noted in the Reply affirmation of

Respondent the Shops, the Shops site and the access road upon which Petitioner relies for

proximity standing is separated by 8 lanes of traffic and a concrete median on a State highway.

(See NYSCEF Doc. No. 50 at ¶¶ 3-7). Importantly, Petitioner cites to no authority that would

afford itan inference of injury based on the proximity of its access easement and offers no rational

request.3
reason for the court to even entertain this

1
Pursuant to C.P.L.R. 2214, papers that were previously filed electronicallywith the Court and are not being
reproduced with thismotion arereferred to hereinby NYSCEF Docket Number.
2
Courts may inferan injurywhere petitionersreside within 500 feet ofa challenged project. See Save the Pine Bush,
Inc.v. Common Council of Cityof Albany, 13 N.Y.3d 297, 309 (2009) (Pigott,J.,concurring) (collectingcases).
3 not
Respondents have located any authorityto support Petitioner'sposition on thispoint. In addition tothe access
road lying more than 8 lanesof State highway from theproject site,theaccess road's length is over 1,800 feetlong,
as measured ina straightlinenot taking intoaccount thebend. Under Petitioner'stheory an inference of injurywould
be given to anyone who gains access from a road inthe general vicinityof aproject site,despite theirbuilding or the

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Notwithstanding the foregoing, even if the Court were to use Petitioner's arbitrary

measurement from its easement over the access road, and further assuming, arguendo, that the

Shops'
access road is within 500 feet of the proposed development (which Petitioner has not

established), the circumstances are still insufficient to confer Petitioner standing to bring this

Mere to a project site - even as close as an adjacent owner - "does
proceeding. proximity being

instance."
not entitle the property owner to judicial review in every CPD N.Y. Energy Corp. v.

Town ofPoughkeepsie Planning Bd., 139 A.D.3d 942, 944 (2d Dept. 2016).

In CPD N.Y. Energy Corp., the Second Department held that adjacent property owners

lacked standing to challenge a development on the abutting property. Id. The petitioners in that

case argued that they had standing based on their proximity to the developmeñt and alleged adverse

impacts including "traffic impacts, impacts arising from issues of compliance with the land use

laws, rules, regulations, and procedures of the town, community character impacts, and access

petitioners' property."
issues related to an interconnection between the subject property and the Id.

The Dutchess County Supreme Court found that "the petitioners rely on their close proximity to

the proposed development to establish standing, but failto prove itwould suffer direct harm that

public." "1"
is in some way different from that of the general (See Golden Reply Aff. Exhibit at

3).4 petitioners' harm"
p. The court rejected the "general perfunctory allegations of and held that

they "failed to establish their standing as an aggrieved party who would suffer direct harm that is

public."
distinct from that of the general Id. at pp. 3-4. The Second Department affirmed and

found proper the lower court's holding "that the petitioners failed to establish standing on the basis

primary use of theirproperty being over 2,000 feet away from thechallenged development. Affording an inferenceof

injurydue to proximity in thisfashion would undermine thevery purpose and foundation for which such court-created
inference was devised, and would provide a dramatically expanded standard ofthe proximity standing presumption
not supported by prior case law.
4 References Aff."
to "Golden Reply areto the accompanying Reply Affirmation of Richard B. Golden, Esq., dated
August 3, 2020,and theexhibits thereto.

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of alleged traffic impacts, impacts arising from issues of compliance, or community character

impacts, as the petitioners failed to establish any harm distinct from that of the community at

large."
See .CPD N.Y Energy Corp., 139 A.D.3d at 944.

Here, similarly, Petitioner seeks to establish standing based solely on proximity and general

conclusory, perfunctory allegations of injuries that are not distinct from that of the community at

large. Petitioner's sole argument is that itwill suffer an unidentified, yet somehow unique, injury

due to the proximity of its access road easement. Specifically, Petitioner merely asserts that, based

solely on the proximity of itsaccess easement:

the potential improper design and over development of [the Shops] commercial
project (as approved [the who's access is also the Route 17 /32 -
by ZBA]) only
Lane - Centre Drive Intersection can impact the
Locey Woodbury directly
Petitioner[']s interest in a way that is categorically different than that of the general
public.

(NYSCEF Doc. No. 44 at ¶¶ 11-12). (See also NYSCEF Doc. No. 1 at ¶ 2) (conclusory allegations

of "unmitigated traffic impacts, unmitigated storm water impacts and unmitigated sewer demand

- different"
and water supply impacts."). Petitioner's position that ithas suffered a "categorically

without the maññer in which the is different - must
injury identifying injury allegedly categorically

be rejected.

Recently, and consistently, the Second Department again denied standing to a property

owner alleging close proximity to a challenged development in order to establish standing. The

case is particularly instructive here as there is a close similarity of the standing argument to that

relied upon by Petitioner in the case sub judice. See 159-MP Corp. v. CAB Bedford, LLC, 181

A.D.3d 758 (2d. Dept. 2020), Although the petitioner's grocery store was located only 450 feet

from the challenged retail center that proposed to include a Whole Foods grocery store, the Second

Department nonetheless held that petitioner lacked standing because it"failed to allege any harm

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distinct from that of the community at large. Id at 761. The challenged project had been

characterized and permitted by the local building inspector as an alteration, rather than a new

which allowed the Whole Foods store to operate with fewer on-site spaces. 159-
building, parking

MP Corp. v. Cab Bedford, LLC, 55 Misc. 3d 1213(A), 2017 WL 1539642, at *1 (Sup. Ct. Kings

County 2017), affdin part, rev'd in part, 181 A.D.3d 758 (2d Dept. 2020). The petitioner grocery

store argued that the alteration characterization was incorrect and itclaimed to be injured/impacted

by the consequential reduced availability of community parking spaces in the general area, thus

impacting itsbusiness. Id. The Supreme Court found that the grocery store established standing

based solely on its proximity to the retail center (id at *4), but the Second Department reversed

and held that an injury premised upon the reduced availability of community parking spaces was

insufficient to grant standing to the petitioner grocery store. The Second Department did so, even

with the petitioner's close proximity to the proposed new development and the concomitant

inference of an injury in fact. The Court held that notwithstanding its proximity and associated

inference of standing, the grocery store "failed to allege any harm distinct from that of the

large"
community at and denied standing. 159-MP Corp., supra, 181 A.D.3d at 761. The reduced

parking availability in the area impacted not only the petitioner grocery store, but every other

business in the area, resulting in no individualized damage to the petitioner grocery store as

required for standing purposes.

Here, Petitioner suffers from this same legal infirmity, as it has failed to identify any

unique injuries. To the extent they exist at all, the general injuries Petitioner alleges itmay suffer

due to the proximity of its access easement to the Shops are injuries suffered by all surrounding

businesses and residences in the area, including all of the businesses in the Woodbury Centre

shopping mall complex. Because Petitioner's opposition to the Village's motion to dismiss still

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fails to allege any special injury different in kind from that suffered by the public at large, the

Petition must be dismissed. See Casement v. Town of Poughkeepsie Planning Bd., 162 A.D.2d

685 (2d Dept. 1990). Cf Duke & Benedict, Inc. v. Town of Se., 253 A.D.2d 877, 878 (2d Dept.

1998) ("The owner of property near the site of a proposed project who alleges actual or potential

noneconomic harm from the enviroñmental impacts of the project risks harm that is different from

that of the public at large, and therefore has standing.") (Emphasis added). The Second

Department's decisions in CPD N.Y. Energy Corp. and 159-MP Corp. require Petitioner to

demonstrate more than mere proximity when its alleged standing is challenged. Petitioner has

failed to do so.

Additionally, even ifa property owner is entitled to an inference of injury based upon close

proximity to the project site, "petitioner must also satisfy the other half of the test for standing to

seek judicial review of administrative action-that 'the interest asserted is arguably within the

statute.'"
zone of interest to be protected by the Sun-Brite Car Wash, Inc., 69 N.Y.2d at 414. The

petitioner in Sun-Brite failed under this second half of the test, despite its proximity to the project

site. Specifically, the Court of Appeals held that a car wash lacked standing to challenge a use

vanance that allowed the property across the street to be used as carwash because the only claimed

- increased business competition - was not within the zone of interest to be protected
injury by

the zoning laws. Sun-Brite Car Wash, Inc., 69 N.Y.2d at 410, 415. See also Matter of Panevan

Corp. v. Town of Greenburgh, 144 A.D.3d 806, 806-08 (2d Dept. 2016) (property owners/tenants

lacked standing to challenge area variances granted for development on adjacent property based

on conclusory and speculative allegations of traffic congestion). Here, Petitioner has failed to

identify an injury different from the public at large that is within the zone of interests. The

perfunctory allegations of impacts are insufficient and pretextual; the obvious real interest of

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Petitioner, as in Sun-Brite Car Wash, Inc, supra, is a purely economic interest of preventing

Shops'
increased business competition from the proposed hotel, an interest not within the zone of

interest protected by the zoning laws at issue.

Accordingly, because Petitioner has failed to establish standing, this proceeding must be

dismissed in itsentirety on this threshold issue.

POINT II
PETITIONER'S SEQRA CHALLENGE MUST BE DISMISSED AS UNTIMELY AND
BECAUSE PETITIONER HAS FAILED TO NAME ALL NECESSARY PARTIES

Shops'
The proposed hotel development project was classified as a Type I action under

SEQRA. (See NYSCEF Doc. No. 26 atp. 6). As a Type I action, a coordinated review was required

and a lead agency had to be established.See 6 NYCRR § 617.6(b)(2)(i) ("For all Type I actions...

a lead agency must be established prior to a determination of significance."). The Planning Board

undertook the role of SEQRA lead agency in the action. (See NYSCEF Doc. No. 25 at p. 5). As

SEQRA lead agency, the Planning Board was required to make a determiñation of environmental

significance, i.e.,whether or not the project had the potential for significant adverse environmental

impacts.See 6 NYCRR § 617.6(b)(3)(ii) ("lead agency must determine the significance of the

action"). This determination of significance is binding on all other involved governmental agencies

having approval power over some part of the project, which here included the Village of Woodbury

ZBA.See 6 NYCRR f 617.6(b)(3)(iii) ("...determination of significance issued by the lead agency

following coordinated review is binding on allother involved agêñcies.").

The Planning Board, as lead agency, necessarily issued its SEQRA determination of

Shops'
significance for the entire action, as itmust, (including the then-pending ZBA application)

on February 6, 2019, when it found that the Shops project's potential adverse environmental

impacts were within the potential adverse environmental impacts that were studied and mitigated

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under the prior SEQRA analysis performed for the Cabela's project on the same site. (See

NYSCEF Doc. No. 4 at pp. 7-10).

Petitioner alleges that the Planning Board did not examine or discuss "the issues of the

specific lot coverage and side yard setback variances contained in... the Shops... application to

[ZBA]."
the (NYSCEF Doc. No. 44 at ¶ 18). Though thinly veiled as a challenge to the ZBA's

failure to comply with SEQRA, Petitioner's only allowable challenge is to the adequacy of the

Planning Board's SEQRA determination that the project's impacts and mitigations were the same

as the prior Cabela's project on the site,requiring no further SEQRA review or decision making.

agency"
Indeed, the ZBA, as a SEQRA "involved (6 NYCRR § 617.2(t)), could not legally make

itsown SEQRA deteññination; itwas bound by the SEQRA determination by the Planning Board

as the SEQRA lead agency for the entire development. As noted clearly by the DEC's regulatory

guidance on this topic:

Can an involved agency supersede the lead agency's determination of
significance in coordinated review?

No. When coordinated review has occurred for Type I or Unlisted actions, the
determination of significance by the lead agency is binding on all involved
agencies.

(4th
The SEQRA Handbook, Chapter 4, (B)(A)(8) Edition 2020), available at https://www.dec.

ny.gov/does/permits ei operations pdf/seqrhandbook.pdf (accessed 8-3-20), at p. 78. See also, 6

NYCRR § 617.6(b)(3)(ii), (iii);Gordon v. Rush, 100 N.Y.2d 236, 245 (2003) ("Since the [involved

agency] was bound by the [lead agency's] negative declaration, it acted outside the scope of its

authority when it decided to conduct its own SEQRA review . .. .").

If Petitioner disagreed with the SEQRA determination for the project itssole recourse was

against the lead that made such determination - the Board - and itwas required
agency Planning

to challenge that determination within four months of the Planning Board's final SEQRA

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determination. See C.P.L.R. § 217(1). Based upon the principles established in Gordon v. Rush,

100 N.Y.2d at 242, upon the Plaññiñg Board's conclusion of the SEQRA process the issue was

ripe for a judicial challenge, and the limitations period commenced at that time. The Planning

Board's SEQRA determination was a definitive position that concluded the SEQRA process for

the project, and the harm alleged by Petitioner here of the alleged failure to consider certain

environmental impacts could not be "prevented or significantly ameliorated by further

party,"
administrative action or by steps available to the complaining as the ZBA could not legally

further address the Planning Board's SEQRA determination as noted above. Id. .

As Petitioner did not file itspetition challenging the review under SEQRA until more than

a year after the Planning Board's SEQRA determination, its SEQRA claims are time-barred.

Additionally, because Petitioner failed to join the Planning Board, the SEQRA claim must further

be dismissed for the failure to name all necessary parties within the statute of limitations period.

POINT III
DOCUMENTARY EVIDENCE ESTABLISHES THAT THE ZBA COMPLIED
WITH SEQRA AND VILLAGE LAW AND ITS DECISION MUST BE UPHELD

A. The ZBA Complied with SEORA

As set forth in the ZBA's moving papers, the record conclusively establishes that the ZBA

Shops'
complied with SEQRA prior to rendering a decision on the application. The ZBA has not

confused the relevant issue with regard to SEQRA. (Cf NYSCEF Doc. No. 44 at ¶ 19). While

Petitioner has framed its SEQRA challenge as an alleged violation by the ZBA, the SEQRA

deterraiñation was made by the Planning Board as lead agency for the entire action. The Plaññing

Shops'
Board determined that the potential adverse environmental impacts for the project are

within those that were mitigated under the SEQRA analysis the Planning Board previously

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performed for the Cabela's project. (See NYSCEF Doc. No. 4 at pp. 7-10). The fact that the Shops

as Woodbury's project changed during review by the boards does not negate this determination.

There are only two area variances at issue here; a lot coverage variance to allow 76% lot

coverage and a side yard setback to allow the hotel to be located 38.1 feet from the north property

line. (See NYSCEF Doc. No. 2 at pp. 3-7). The Cabela's project previously approved for the site

had required variances for side yards and lot coverage, in addition to others. (See NYSCEF Doc.

No. 24). Although the specific variañces granted to the Shops differed from those requested at the

time the Planning Board made its SEQRA determination, the size or intensity of the development

presented to the ZBA is akin to that of the plan that was reviewed by the Plaññiñg Board when it

determined that the potential adverse impacts were within those mitigated in the Cabela's SEQRA

analysis. The SEQRA Consistency Analysis presented to the Planning Board analyzed a

commercial center with 24,590 sq. ft.of restaurants, 17,210 sq. ft.of mixed retail, and a 12,840

Shops'
sq. ft.125-room hotel. (See NYSCEF Doc. No. 27 at pp. 3, 9). The plan presented to the

ZBA in connection with its area variance application was actually less intense than that reviewed

by the Planning Board; itreduced the restaurant space to 23,670 sq. ft.,the retail space to 16, 380

sq. ft.and the hotel to 12,600 sq. ft.(See Golden Reply Aff. Exhibit "2"). Both plans proposed

approximately 7.3 acres of impervious surfaces, which was less than the approved Cabela's

project.. (See id. and NYSCEF Doc. No. 27 at p. 3 and Doc. No. 27 at pp. 5, 9).

Thus, the fact that the revised ZBA application was not before the Planning Board when it

made itsSEQRA determination is of no moment. There are no potential adverse environmental

impacts from the revised ZBA application which reduced the scope of the project and was stillless

intense than the approved Cabela's project. Petitioner's argument that additional SEQRA review

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is required is not born of enviror-mental concern, but instead springs from itsfinancial motives to

quell competition from a rival hotel.

B. The ZBA Complied with Village Law 8 7-712-b

Respondents' Shops'
As set forth in moving papers, in making its determination on the

requested area variances the ZBA adhered to the test in Village Law 7-712-
statutory balancing §

b(3) and granted the minimum variances itdetermined were necessary and adequate. Petitioner

has failed to respond in any meaningful fashion to the ZBA's motion to dismiss this claim. Rather,

Petitioner relies entirely on the same exact arguments set forth in its Petition. (Compare NYSCEF

Doc. No. 1 at ¶¶ 14-15 with Doc. No. 44 at ¶¶ 24, 26). These arguments fail for the reasons set

Respondents'
forth in moving papers. Petitioner has failed to rebut the documentary evidence from

the record below. Petitioner has stillfailed to allege any facts in support of itsconclusory assertions

that the ZBA did not comply with the area variance requirements or was arbitrary or capricious in

any respect, and the record below refutes all such claims. As the ZBA had a rational basis

supporting its decision and Petitioner has failed to rebut this basis by anything other than baseless

conclusory assertions, the ZBA decision must be upheld by this Court. See, e.g., Diocese of

Rochester v. Planning Bd. of Town of Brighton, 1 N.Y.2d 508, 520 (1956); Chase partners, LLC

v. Incorporated Village of Rockville Centre, 43 A.D.3d 1053 (2d Dept. 2007).

C. Petitioner Imnroperly Raised New Arguments in the Petition

In moving to dismiss, the Shops asserted that Petitioner improperly raised new arguments

in this proceeding. (See NYSCEF Doc. No. 38 at ¶¶ 28-29). The ZBA joins in this argument and

also moves to dismiss on this basis. The ZBA hearing video upon which Petitioner relies

demonstrates that Petitioner improperly raises new arguments for the firsttime in this proceeding.

See https://www.youtube.com/watch?v=ZN22fSibzTY at 1:13:10 to 1:17:10 (accessed 7-
starting

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29-20). Specifically, during the ZBA hearing Petitioner made three points. Itwas concerned about

overdevelopment and argued that variances could be avoided by a less-intense development by

eliminating, shrinking or moving buildings; itargued that the Planning Board's SEQRA analysis

did not address the specific variances requested so the ZBA needs to look at whether itcan rely on

that action or if itneeds to make itsown SEQRA determination; and itargued that the ZBA needed

to consider an alleged deed restriction that prohibits fast food restaurants and hotels on the site.

Although Petitioner identified its concern for overdevelopment it never argued how it

would be adversely impacted by the alleged overdevelopment. The alleged traffic, stormwater and

water/sewer impacts identified in the Petition were never raised before the ZBA and thus are

improperly raised here. in See, e.g., Matter of Bray v. Town of Yorktown Zoning Bd. of Appeals,

151 A.D.3d 720, 721 (2d Dept. 2017). Petitioner's attempt to limit the holding in Bray is contrary

to decades of well-established precedent regarding the proper scope of CPLR article 78 review.

See, e.g., Featherstone v. Franco, 95 N.Y.2d 550, 554 (2000) (discussing "füñdamental tenet of

CPLR article 78 review... that [j]udicial review of administrative determinations is confined to the

agency."
'facts and record adduced before the (citations and quotation marks omitted). See also

Matter of Kaufman v. Incorporated Vil. of Kings Point, 52 A.D.3d 604, 607 (2d Dept. 2008):

A litigant is required to address his or her "complaints initially to administrative

tribunals, rather than to the courts, and to exhaust allpossibilities of obtaining relief

through administrative channels before appealing to the courts". Thus, in a CPLR
article 78 proceeding, the court's review is limited to the arguments and record
adduced before the agency.(internal citations omitted).

Contrary to Petitioner's argument, in Bray the Second Department did not hold that the
.

petitioner was unable to argue defective notice in his Article 78 petition because itwas contrary to

an admission or position made at the public hearing. (Cf NYSCEF Doc. No. 44 at ¶ 27). Rather,

the Second Department rejected the petitioner's notice argument because he had not raised itbefore

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the zoning board of appeals and, thus, it"was improperly raised during the CPLR article 78

proceeding."
Bray, 151 A.D.3d at 721. Although the petitioner had admitted there was proper

notice during his testimony at the zoning board of appeals hearing, that simply demonstrated he

had not argued defective notice below, itdid not serve as a limitation on the Second Department's

holding. This is clear from a review of the two cases cited the court - Matter
by Bray of Kaufman,

supra, 52 A.D.3d at 607 and Matter of Torres v. New York City Hous. Auth., 40 A.D.3d 328 (1st

Dept. 2007). Neither of these cases involved a petitioner who had backtracked from a position they

petitioners'
made during an administrative hearing; both were cases where the argument was

rejected because they improperly raised a new argument in the CPLR article 78 proceeding that

they had not raised in the administrative hearing.

Accordingly, because Petitioner never argued it would suffer from traffic, stormwater or

water/sewer impacts before the ZBA itcannot argue those now.

CONCLUSION

For the reasons set forth herein, Respondent Village of Woodbury Zoning Board of

Appeals respectfully requests that the Petition be dismissed in itsentirety.

Dated: August 3, 2020

Goshen, New York

Ric , rd B. Golden, Esq.

Burke, Miele, Golden & Naughton, LLP
Attorneys for Respondent Village of
Woodbury Zoning Board of Appeals
40 Matthews Street, Suite 209
Post Office Box 216

Goshen, New York 10924

(845) 294-4080

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Motion,Ex Parte: Milwood Place, Llc v. Village Of Woodbury Zoning Board Of Appeals, The Shops At Woodbury, Llc

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