Preview
FILED: ONEIDA COUNTY CLERK 07/13/2020 03:19 PM INDEX NO. EFCA2020-001043
NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 07/13/2020
SUPREME COURT
STATE OF NEW YORK COUNTY OF ONEIDA
A proceeding pursuant to Article 78 of the
Civil Practice Laws and Rules of
ONEIDA HOUSING, INC. and
STEUBEN WEST HOLDINGS, LLC,
Petitioners, REPLY MEMO OF LAW
SUPPORT OF ARTICLE 78
-vs-
Index No: EFCA2020-001043
CITY OF UTICA, NEW YORK ZONING
BOARD OF APPEALS; JOSEPH BURKE,
in his Official Capacity as Chairman; FRANK
DONATO, in his Official Capacity as Member;
WENDY TARVER, in her official capacity as
Member; NEDZAD SMAJIC, in his official
capacity as Member; and MICHAEL WOLFE,
in his official capacity as Member,
Respondents.
Petitioners submit this Reply Memorandum of Law to supplcmcnt the Memorandum of
Law in Support of the Article 78 filed with the Court on June 12, 2020. Consequently, this
Petitioners'
Memorandum of Law is meant to supplement the previous legal arguments and is in
Respondents'
being submitted in response to answering paperwork.
LEGAL ARGUMEN_T
I. ZONING BOARD HELD PETITIONERS TO A DIFFERENT STANDARD
THAN OTHER APPLICANTS SEEKING USE VARIANCES.
As Judge Lehman stated:
Exercise of discretion in favor of one confers no right upon another to demand the same
decision. Unlimited discretion vested in an administrative board by ordinance is not
narrowed through itsexercise. The [board] may refuse to duplicate previous error; itmay
change itsviews as to what is forthe best interests of the [town]; itmay give weight to
slight differences which are not easily discernible. There are, of course, extreme cases
where analogy is so complete, where grant of consent under similar circumstances has
been so frequent, both before and after refusal in one instance, that inference arises
that the refusal is the result of unfair discrimination and oppression. Especially is
this true where strong reason is made out for granting the consent. In such case,
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perhaps, the courts may call upon the dispensing power to rebut such inference.
(emphasis Cowan v. Kern et al (constitutine Zoning Board of Anneals of Town of Smith-
added)
41 N.Y.2d 596 Matter of Larkin Co. v Schwab. 242 N.Y. 330, 336-
town, 591, (1977) quoting
accord Matter Crossroads Recreation vBroz. 4 N.Y.2d 39. 46-47.)I*1 The Court in
3.32; of
case" de-
Cowan went on to hold that an "extreme where oppressive or arbitrary action could be
"consistently"
termined to exist where the zoning board granted variances to other applicant, but
not the petitioner. See Cowan, 41 N.Y.2d at 596. See generally, Matter of Ozolins v.Horn,
(2nd defi-
26 A.D.2d 555, 556 Dep't 1966)(Fact that other applicants received approvals despite
ciencies in requirements leads to conclusion the board's decision to appli-
meeting zoning deny
cant on similar deficiencies is arbitrary).
Petitioners' vari-
The Cowan and Ozolins cases are relevant because-even assuming use
ance application had deficiencies-the extent to which the Zoning Board granted use variances to
other applicants whose applications were deficient is sufficient to establish the Board acted arbi-
trarilywith regard to Petitioners. Upon finding arbitrary or oppressive action, the Court can and
should overturn the ZBA. In this case, the Petitioners provided documentation to the Court that
16 of 17 applicants received use variance approvals in the 15 month period before itsapplications.
"E"
See, Exhibits and "F". Although 1 other applicant was denied for a use variance in March
2020, that same applicant had a previous application for the same parcel approved. See, Exhibit
"F". Therefore, the Court can and should conclude the Petitioners were treated differently-i.e.,
arbitrarily-and should overturn the ZBA's decision.
IL TRANSCRIPT NOT NECESSARY TO RULE ON ARTICLE 78
WHEN COURT HAS SUFFICIENT INFORMATION BEFORE IT.
CPLR, §7804 states a certified transcript must be submitted with a respondent's answering
paperwork and, generally speaking, when the transcript isnot available, Courts usually remand the
matter back to the board . See, CPLR, §7804 (McKinney's 2020). However, where the Court
has received sufficient information upon which to base a decision, the certified transcript may be
(4th
dispensed with. Duchman v. Town of Hamburg, 93 AD.3d 1289, 940 N.YS.2d 498
2012)(Request to remand matter to town board on basis certified transcript was not filed is insuf-
ficient basis inasmuch as town provided sufficient material to render a decision).
In the case at hand, the Court should not remand the matter to the ZBA, as the parties
have submitted sufficient information to the Court to allow itto render a decision. Moreover, in
this regard, the Petitioners assert the certified transcript-even iffiled-would not materially or
substantively improve the Court's ability to render a decision, as the transcript would be devoid
of any evidence or information that would sustain the Respondents's decision. IN that regard,
the Respondent received no quantitative evidence to support itsdecision.
Moreover, where sufficient information isbefore the Court on an Article 78 matter, the
Court may treat same as analogous to a motion for summary judgment. See generally, Battaglia
(4thDept'
.v.Schuler, 60 A.D. 2d 769 1977)(Hearing on Article 78, as special proceeding, is
equivalent to on judgment). Itshould be noted in Battaglia, the Fourth Depart-
hearing summary
ment upheld a petition upon the grounds that the respondent's answering papers were not support
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personal knowledge and based on statements and therefore were insufficient to de-
by conclusory
Respondents' an-
feat a motion for summary judgment. In this case, the Petitioners assert the
documents are as are lack proof sufficient to overcome Pe-
swering insufficient, they conclusory,
titioners allegations (who receive the benefit of their allegations being presume true for purposes
of the motion for and do not include affidavit of the ZBA members set-
summary judgment) any
personal knowledge of the for the denial. the Respondents an-
ting reasoning Consequently,
swering papers should be deemed insufficient to allege facts sufficient to warrant an hearing on
the matter and the Court should grant Petitio d relief.
Affirmed and Dated: July , 2020
. E ICT, Q.
Petitioners'
Attorney for Oneida Housing,
Inc. and Steuben West Holdings, LLC
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FILED: ONEIDA COUNTY CLERK 07/13/2020 03:19 PM INDEX NO. EFCA2020-001043 NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 07/13/2020 SUPREME COURT STATE OF NEW YORK COUNTY OF ONEIDA A proceeding pursuant to Article 78 of the Civil Practice Laws and Rules of ONEIDA HOUSING, INC. and STEUBEN WEST HOLDINGS, LLC, Petitioners, REPLY MEMO OF LAW SUPPORT OF ARTICLE 78 -vs- Index No: EFCA2020-001043 CITY OF UTICA, NEW YORK ZONING BOARD OF APPEALS; JOSEPH BURKE, in his Official Capacity as Chairman; FRANK DONATO, in his Official Capacity as Member; WENDY TARVER, in her official capacity as Member; NEDZAD SMAJIC, in his official capacity as Member; and MICHAEL WOLFE, in his official capacity as Member, Respondents. Petitioners submit this Reply Memorandum of Law to supplcmcnt the Memorandum of Law in Support of the Article 78 filed with the Court on June 12, 2020. Consequently, this Petitioners' Memorandum of Law is meant to supplement the previous legal arguments and is in Respondents' being submitted in response to answering paperwork. LEGAL ARGUMEN_T I. ZONING BOARD HELD PETITIONERS TO A DIFFERENT STANDARD THAN OTHER APPLICANTS SEEKING USE VARIANCES. As Judge Lehman stated: Exercise of discretion in favor of one confers no right upon another to demand the same decision. Unlimited discretion vested in an administrative board by ordinance is not narrowed through itsexercise. The [board] may refuse to duplicate previous error; itmay change itsviews as to what is forthe best interests of the [town]; itmay give weight to slight differences which are not easily discernible. There are, of course, extreme cases where analogy is so complete, where grant of consent under similar circumstances has been so frequent, both before and after refusal in one instance, that inference arises that the refusal is the result of unfair discrimination and oppression. Especially is this true where strong reason is made out for granting the consent. In such case, 1 of 3 FILED: ONEIDA COUNTY CLERK 07/13/2020 03:19 PM INDEX NO. EFCA2020-001043 NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 07/13/2020 perhaps, the courts may call upon the dispensing power to rebut such inference. (emphasis Cowan v. Kern et al (constitutine Zoning Board of Anneals of Town of Smith- added) 41 N.Y.2d 596 Matter of Larkin Co. v Schwab. 242 N.Y. 330, 336- town, 591, (1977) quoting accord Matter Crossroads Recreation vBroz. 4 N.Y.2d 39. 46-47.)I*1 The Court in 3.32; of case" de- Cowan went on to hold that an "extreme where oppressive or arbitrary action could be "consistently" termined to exist where the zoning board granted variances to other applicant, but not the petitioner. See Cowan, 41 N.Y.2d at 596. See generally, Matter of Ozolins v.Horn, (2nd defi- 26 A.D.2d 555, 556 Dep't 1966)(Fact that other applicants received approvals despite ciencies in requirements leads to conclusion the board's decision to appli- meeting zoning deny cant on similar deficiencies is arbitrary). Petitioners' vari- The Cowan and Ozolins cases are relevant because-even assuming use ance application had deficiencies-the extent to which the Zoning Board granted use variances to other applicants whose applications were deficient is sufficient to establish the Board acted arbi- trarilywith regard to Petitioners. Upon finding arbitrary or oppressive action, the Court can and should overturn the ZBA. In this case, the Petitioners provided documentation to the Court that 16 of 17 applicants received use variance approvals in the 15 month period before itsapplications. "E" See, Exhibits and "F". Although 1 other applicant was denied for a use variance in March 2020, that same applicant had a previous application for the same parcel approved. See, Exhibit "F". Therefore, the Court can and should conclude the Petitioners were treated differently-i.e., arbitrarily-and should overturn the ZBA's decision. IL TRANSCRIPT NOT NECESSARY TO RULE ON ARTICLE 78 WHEN COURT HAS SUFFICIENT INFORMATION BEFORE IT. CPLR, §7804 states a certified transcript must be submitted with a respondent's answering paperwork and, generally speaking, when the transcript isnot available, Courts usually remand the matter back to the board . See, CPLR, §7804 (McKinney's 2020). However, where the Court has received sufficient information upon which to base a decision, the certified transcript may be (4th dispensed with. Duchman v. Town of Hamburg, 93 AD.3d 1289, 940 N.YS.2d 498 2012)(Request to remand matter to town board on basis certified transcript was not filed is insuf- ficient basis inasmuch as town provided sufficient material to render a decision). In the case at hand, the Court should not remand the matter to the ZBA, as the parties have submitted sufficient information to the Court to allow itto render a decision. Moreover, in this regard, the Petitioners assert the certified transcript-even iffiled-would not materially or substantively improve the Court's ability to render a decision, as the transcript would be devoid of any evidence or information that would sustain the Respondents's decision. IN that regard, the Respondent received no quantitative evidence to support itsdecision. Moreover, where sufficient information isbefore the Court on an Article 78 matter, the Court may treat same as analogous to a motion for summary judgment. See generally, Battaglia (4thDept' .v.Schuler, 60 A.D. 2d 769 1977)(Hearing on Article 78, as special proceeding, is equivalent to on judgment). Itshould be noted in Battaglia, the Fourth Depart- hearing summary ment upheld a petition upon the grounds that the respondent's answering papers were not support 2 of 3 FILED: ONEIDA COUNTY CLERK 07/13/2020 03:19 PM INDEX NO. EFCA2020-001043 NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 07/13/2020 personal knowledge and based on statements and therefore were insufficient to de- by conclusory Respondents' an- feat a motion for summary judgment. In this case, the Petitioners assert the documents are as are lack proof sufficient to overcome Pe- swering insufficient, they conclusory, titioners allegations (who receive the benefit of their allegations being presume true for purposes of the motion for and do not include affidavit of the ZBA members set- summary judgment) any personal knowledge of the for the denial. the Respondents an- ting reasoning Consequently, swering papers should be deemed insufficient to allege facts sufficient to warrant an hearing on the matter and the Court should grant Petitio d relief. Affirmed and Dated: July , 2020 . E ICT, Q. Petitioners' Attorney for Oneida Housing, Inc. and Steuben West Holdings, LLC 3 of 3