,:

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF WESTCHESTER -------------------. --------------------------------------------------X RALPH G. MASTROMONACO,

Petitioner,

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ZONING BOARD OF APPEALS OF THE TOWN OF CORTLANDT, DAKOTA SUPPLY CORP., BILOTTA REALTY CONSTRUCTION, BRIGA ENTERPRCS ES, TNC., and BILOTI'A REALTY OF WESTCHESTER, TNC.,

Respondents. ----------------------------------------------------------------------X

CACACE, J.

DECISION & ORDER

Index No. 1956/19

The fo llowing papers, numbered one (1) through eleven ( 11) were read on this petition

., fo r relief pursuant to article 78 of the Civil Practice Law and Rules (CPLR):

Notice of Verified Petition ....... .. . ................. . ................... . 1 Verified Petition - Exhibits ................ .. . .......... . ... ... ...... ... . . 2 Verified Answer ......................... .... .......................... 3 Notice of Motion to Dismiss . . . ... ... .. .. ................ ........ ..... .... 4 Aflirmation in Suppon of Motion to Dismiss - Affidavit - Exhibits . ........ .... .. 5 Memorandum of Law in Support of Motion to Dismiss ....... .. ... ...... .. .... 6 Affirmation in Support of Motion to Dismiss - Exhibits ... . .... .... ... .. .... ... . 7 Verifi ed Reply ............ .. .. .... .. .... .... .. ..... ....... . ............ 8 Aff.idavit in Opposition to Motion to Dismiss - Exhibits ... . . .... ........ . ...... 9 Memorandum of Law in Opposition to Motion to Dismiss - Exhibits .... . . ..... ... 10 Reply Memorandum of Law in Support of Motion to Dismiss . . . . . . . . . . . . . . . . . . . I I

Upon the foregoing papers, it is decided and ordered that the instant petition is addressed as

follows:

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Issues Presented / Factual Background

The prose petitioner brings thi s proceed ing by the filing of a verified petition pursuant to

article 78 of the CPLR, seeking an orde~ of this Court reve~sing, annulling and setting aside the

Decision and Order of the respondent Town of Cortlandt Zoning Board of Appeals (hereinafter,

respondent ZBA), as adopted on May 22, 2019 and fil ed on May 24, 2019 (hereinafter, the

chal lenged determination), which had served to deny the petitioner's appel late challenge to the

failure of the Town of Cortl andt Code Enforcement Director Martin Rogers, P.E., (hereinafter,

CED Rogers) to provide him with the several interpretations he had requested regarding the

perm·itted uses of a specific I 0.8 acre parcel of real property located at 2097 Albany Post Road in

Montrose, New York in the HC/9A and M-1 Zoning District of the Town of Cortlandt

(hereinafter, the underlying application), which is designated as Lot 3 in Block 1 of Section 55.09

on the official tax assessment map of the Town of Cortlandt (hereinafter, the subj ect property).

By the instant petition, the petitioner also seeks an order of this Court directing the respondent

ZBA to provide hi m with the interpretations he unsuccessfully requested from CED Rogers

regarding the permitted uses of the subj ect property. Through the instant petition, the petitioner

bases his request for such relief upon his. claims that the challenged determination of the

respondent ZBA was arbitrary and capricious, constituted an abuse of discretion, and was

contrary to law.

Spec ifical ly, the cha ll enged determ ination resolved and held that the respondent ZBA did

not have jurisdiction to address the petit ioner's underlying application due to the peti tioner's

fai lure to identi fy an actual determination or interpretation rendered by an administrative official

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of the Town of Cort landt from which an appeal to the respondent ZBA may permissibly be taken.

As an alternative ground, the respondent ZBA based the challenged determination upon its

further resolution and holding that. even if the petitioner's underlying application had raised an

actual determination or interpretation which was jurisdictionally within its purview, the petitioner

lacked standing to bring same due to his failure to show that he had sustained a cognizable

injury-in-fact v,hich is within the zone of interests· to.be protected by th<:: statute or ordinance at

issue. As an additional alternative ground, the respondent ZBA bas~d the challenged

determination upon its resolution and holding that the applicati.on of the Jaw of the case doctrine

precludes the petitioner from obtaining the relief he sought through his underlying appl ication

due to the resolution of the issues raised tlu·ough this proceeding in a previously decided article

78 proceeding brought by the peti tioner pursuant to Westchester County Index No. 1076/2018.

Insofar as the relationship between the parties to thi s proceeding is concerned, it is noted

that the subject property is owned by the principals of respondents Dakota Supply Corp., Bilotta

Construction Corp., Briga Enterprises, Inc., and Bilotta Realty of Westchester, Inc. (hereinafter,

the respondent businesses), who collectively operate a construction contractor business thereupon

which involves the storage and recycling of concrete/asphalt rubble construction debris and the

subsequent supply of these materials, as well as stone aggregate, sand and road base, for sale as a

component of dry-mix concrete supplied and deposited into cement mixers on-site for subsequent

off-site preparation and use in road construction projects. ln this regard, it is further noted that

the petitioner resides at 2083 Albany Post Road #3, Montrose, New York, which he alleges

through his petition to be within 750 feet of the subject property. Through the instant petition,

the petitioner further alleges that the respondents' business operations upon the subject property

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have caused him to sustain adverse health and environmental impacts derived from excessive

noise, unsightly views, and polluted air and water.

Prior to the commencement of this proceedi ng, the petitioner had unsuccessfully

prosecuted a special proceedi ng pursuant to article 78 of the CPLR in the Supreme Court,

Westchester County under Westchester County Index No. I 076/20 18 against the very same

respondents named in this proceeding and with .regard to th~ very same challenged uses of the

subject property raised in this proceeding (hereinafter, the prior proceeding). By Decision and

Order, dated December 22, 2017, the respondent ZBA had determined that it did not have

jurisdiction to address the petitioner's application for an interpretation of the permitted uses of

the subject property due to the petitioner's failure to identify an actual determination or

interpretation which had been rendered by a zoning offi cial·of the Town of Cortlandt from which

-an appeal to the respondent ZBA may be taken. By Order and Judgment, filed and entered

September 28.2018, the Supreme Court, Westchester County (Schwanz, J.), denied the petition

and dismissed the prior proceeding brought by the petitioner pursuant to Index No. 1076/2018,

having found that the respondent ZBA' s determination that it lacked the requisite jurisdiction to

entertain the pt:titioner's interpretation application was neither arbitrary nor capricious, and was

supported by a rational basis (hereinafter, the prior determination). In this regard, the Court notes

that the record of thi s proceeding indicates that the petitioner failed to pursue a challenge to the

prior determination, as he neglected to perfect a direct appeal to the Appellate Division, Second

Department from the Order and Judgment constituting the prior determination.

Subsequent to the resolution of the prior proceeding on September 28, 2018, the

petitioner tiled the underlying application and an accompanying cover letter with the respondent

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ZBA on October I 0, 2018, appeal ing the failure of CED Rogers to provide him with the so­

called "interpretations" he had requested regarding the permitted uses of the subject property as

set forth in the written request he had submitted to CED Rogers on December 28, 2017.1 In

substance, the peti tioner's underlying ZBA appli cation referenced Town Law§ 267-b(l) as .

authority for his specific requests that the respondent ZBA (1) overrule CED Rogers' failure to

issue the interpretations regarding the permitted uses of the subject property which the petitioner

had requested, and (2) itself make the requested interpretations of the permitted uses of the

subject property. On December l 7, 20 18, the petitioner appeared before the respondent ZBA for

a work session conducted with regard to the underlying ZBA application. After affording the

pet itioner the opportunity to be heard in support of the underlying application, the respondent

ZBA invited the petitioner to provide it with~ 'Nritten submission relating both the basis for his

' belief that he had legal standing to bring the underlying ZBA application, and the jurisdictional

grounds fo r bringing the underlying ZBA application.

Although the petitioner declined to submit-any additiona l material to the respondent ZBA

unti l April 22, 2019; he did appear before the respondent ZBA on April 17, 2019 for·the public

hearing upon the underlying ZBA application, when he personally addressed the respondent ZBA

by first relating that s ince the dismissa l of the prior proceeding on September 28, 2018, he had

repeatedly, albeit unsuccessfully, requested that CED Rogers provide him with a series of

interpretations concerni ng the legal ity of the operations of the respondent businesses upon the

1 Based upon the al legations set forth through the instant petition, the only specific request for such interpretations referenced by the petitioner is contained within a letter he submitted to CED Rogers and Zoning Inspector Ken Hoch, dated December 28, 2017, which lists six specific so-called interpretation requests pertaining to the legality of various commercial operations engaged in by the respondent businesses upon the subject property.

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subject property. The petitioner fu1ther related the basis for his belief that he has the requisite

standing to bring the underlying ZBA appl ication, focusing upon the physical proximity of his

resjdence to the subject property, as well as the excessjve noise generated in the overnight and

early morning hours by commercial operati ons upon the subject property. On May 22, 2019, t_he

respondent ZBA issued the challenged determination to resolve the underlying applisation,

having denied same based upon its ho ldings that (1) the ZBA lacked the requisite jurisdiction to

entertain the petitioner's underlying application due to the absence of any actual determination or

interpretation rai sed therein for the ZBA 's appellate review, (2) the petitioner lacked the requisite

standing to bring the underlying application before the ZBA, and (3) the ZBA was bound to deny

the underlying application pursuant to the law of the case doct rine.

In opposition to the instant verified petition, the respondent businesses filed a motion

seeking the dismissal of thi s proceed ing pursuant to CPLR 321 1 (a)(7), arguing that (1) the

respondent ZBA lacked the requisite j urisd ict ion to entertain the petitioner's underlying

application, (2) the petitioner lacked the requisit~ standing to bring the underlying application

before the respondent ZBA, and (3) the respondent ZBA was bound to deny the underlying

application pursuant to the Jaw of the case doctrine.

Add itional ly, and in further opposition to the instant verified petition, the respondent

ZBA fi led a motion seeking the dism issal of this proceeding upon its adoption of the same

grounds and arguments set forth in the respondent businesses' motion to di smiss brought

pursuant to CPLR 321 1 (a)(7). Jn further opposition to the in stant verified petition, the

respondent ZBA fil ed an answer wh ich reflects its objection in point of law to the petitioner's

argument th at he has stand ing to maintain the claims raised in thi s proceeding.

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Legal Analysis

At the outset, the Court notes that CPLR 7804(() permits a respondent in an article 78

proceeding to either answer the petition, or make a motion to dismiss the petition. Therefore, .

although the respondent ZBA filed both an answer to the i.nstant petition, as well as an

affirmation w ith an~exed exhibits in support oftl1e respondent businesses' motion to dismiss, the

Court will consider only the joined motion to dismiss at this time (see LeClair v Caswell, 112

. . Misc.2d 979, affd 89 AD2d 786, app. dism. 57 NY2d 774; see also Lemmon v Seneca Meadows,

Inc., 46 Misc.3d 1215[A]).

Upon consideration of a motion to dismiss brought pursuant to CPLR 3211 , it is well­

settled that the pleadings are to be liberally construed by the reviewing court, that the alleged

facts arc to be accepted as true, and every favorable inference possible must be afforded to the

petitioner (see Non non v City of New York, 9 NYJ~ 825). Furthermore, in connection with its

examination of the pleadings upon such a motion, it is well-settled that the reviewing court's sole

inquiry shall concern whether the facts alleged fit within any cognizable legal theory, irrespective

of the level of cvidentiary support proffered (see People v Coventry Firsr LLC, 13 NY3d 758; see

also Lawrence v Miller, 11 NY3d 588; Leon v Marrinez, 84 NY2d 83, 87; Silverman v

Nicholson, 110 AD3d I 054, 1055; Ray v Ray, 108 AD~d 449, 451). However, the Court also

recognizes that "bare lega l conclusions as well as factual claims flatly contradicted by the record

are not enti tled to any such considerat ion" (Lutz v Caracappa, 35 AD3d 673 , 674, quoting Daria

v Masucci, 230 AD2d 764, 765).

In a proceeding brought pursuant to article 78 of the CPLR to review a determination of a

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zoning board of appeals, judicial review is limited to determining whether the action taken by the

board is illegal , arbitrary and capricious, or an abuse of discretion (see Khan v Zoning Bd. of

Appeals of Vil. of Irvington, 87 NY2d 344, 351; Matter of Fuhs! v Foley, 45 NY2d 441, 445; .

Tarantino v Zoning Bd. a/Appeals of the Town of Brookhaven, 228 AD2d 511; Matier o_{S~ith

v. Board of Appeals of Town of Islip, 202 AD2d 674). Upon review, the determination of a

zoning board will be upheld provided that it has a rational basis and is supported by substantial

evidence (see Ma((er of Fuhst v Foley, 45 NY2d at 445; Matier of Sautner v Amster, 284 AD2d

540,54 1; 1\1/aller of Rockbottom Stores v Zoning Bd. of Appeals o/Town of Clarkstown, 237

AD2d 6 11 ; Mauer of Shore~and.s v Ma((hew, 230 AD2d 862) .

Upon the petitioner's instant applica tion seeking this Court's review of the challenged

determination rendered by the respondent ZBA, the Court must first consider the petitioner' s

challenge to the respondent ZBA 's determi.nation that it lacked the jurisdict ion to entertain the

petitioner's underlying application due to his failure to identify an actual determination or

interpretation rendered by an administrative official of the Town of Cortlandt from which an

appeal to the respondent ZBA could be taken . In this regard , the Cour1 notes that the jurisdiction

of a zoning board of appeals wi thin this State is defined by Town Law§ 267-a(4) which

specifically provides that:

Unless otherwise provided by loca l law or ordinance, the jurisdiction of the board of appeals shall be appellate only and shall be limited to hearing and deciding appeals from and reviewing any order, requirement, decision, interpretation, or determination made by the administrati ve official c harged with the enforcement of any ordinance of local law adopted pursuant to this arti cle. Such appeal may be taken by any person aggrieved, or by an officer, department, board or bureau of the town .

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Furthermore, it is clear that the local zoning law of the Town of Cortlandt does not alter the

conferral of jurisdiction provided by the Town Law, as § 307-92(A) of the Town of Cortlandt

Zoning Ordinance specifical)y provides that its zoning board of appeals "shall have all the

powers and duties prescribed by § 267 ·of the New York State Town Law, as may from time to

time be amended." fn add ition to the prescribed scope of a zoning board of appeals' jurisdiction

to act provided in Town Law § 267-a(4), its power to act once it has jurisdiction to do so is

defined by Tov,'n Law§ 267-b(l) which narrowly defines such authority and provides that:

The board of appeals may reverse or affirm, wholly or partl y, or may modify the order, requirement, decis ion, interpretation or determination appealed from and shal l make such ord.er, req uirement, decision, interpr~tation or detem1ination as in its opinion ought to have been made in the matter by the administrative official charged with the ei:iforcement of such ordinance or local law and to that end s~all have all the po wers of the ad ministrative official from whose order, requirement, decision, interpretation or determination the appeal is taken.

Here, although the petitioner had characteri zed his requests of CED Rogers within the

underlying ZBA application as a statutorily recognized request for an "interpretation" within the

meaning of Town Law§ 267-a(4), the record reveals no actual "interpretation" of a Town of

Cort landt zoning provision sought by the petitioner from CED Rogers . Indeed, irrespective of

the petitioner' s inaccurate characterization of the underlying ZBA application as an appeal of an

"interpretation", as well as the respondent ZBA 's subsequent treatment of the underlying

application as such, the Court finds that the record of these proceedings reveals that there was no

actual " interpretat ion" requested of, nor issued by, any zoning enforcement official of the Town

of Cortlandt at any point in time relevant to thi s proceeding. Rather, the record of these

proceedings reveals that, in effect, the underlying ZBA application constituted an appeal filed by

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the petitioner w ith the respondent ZI3A to challenge CED Roger's failu.re to accede to his

requests for the issuance of the zoning violations a lleged by the petitioner against the respondent

busi nesses - under the guise of his requests fo r a multitude o f so-called "interpretations"

regarding the permitted uses of the subject property - in an effort to ultimately compel CED

Rogers and/or the responde nt ZBA to issue those alleged zoning violations.2

However, as Tow n Law§ 267-a(4) clearly provides, the jurisdiction of the zoning board

of appeals is specifical ly ci rcumscribed to permit it to, insofar as relevant here, hear and decide

an appeal from, or to review, an " interpretation" made by an admi nistrative official who is

responsible fo r the enforcement of zoning laws. Furthermore, its authori ty to act is even more

narrowly circumscribed by§ 267-b(l ), which permits a zoning board of appeals to reverse,

affirm or modify the interpretation appealed from, but the statute expressly confines the zoning

board of appeals to undertake such action in an appe llate capacity only. In thi s regard, it has been

held that a zoning board of appeals must be presented with an adverse determi nation to review,

as it is without power to render an advisory opinion (see Maller of Brenner v Sniado, 156 AD2d

559; see also Barron v Get nick, I 07 AD2d IO 17). Moreover, in those instances where the

2 As revealed through the record of these proceedings, CED Rogers has, at a ll relevant times, decli ned to issue any of the so-called interpretations req uested by the petitioner in hi s letter of December 28, 20 17, which was unsuccessfully challenged by the petitioner through an article 78 proceeding brought in the Supreme Court, Westchester County under Index No. I 076/2018 against the very same respondents named in thi s proceeding, and thereafter, in the absence of any further offic ial action by CED Rogers, or any other offi cial o f any department of the Town of Cortlandt, the petitioner si mply filed the underlying ZBA application less than 2 weeks later on October 10, 20 18 by re-framing his previously denied ZBA appli c~tion as a request to have the respondent ZBA overrule the refusal of CED Rogers to provide h im with the so-caJled interpretat ions of the permitted uses of the subj ect property he had requested, and to then have the respondent ZBA itself provide him with those so-called interpretations.

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zon ing board of appeals is called upon to render an "interpretation" within the meaning of Town

Law§ 267-a(4), it is statutorily constrained to review an application seeking a retrospective

determination concerning the propriety of a zoning enforcement official's earlier interpretation of

the Town's zoning code (see Matter of Northern Dutchess Rod and Gun Club v Town of

Rhinebeck, 29 AD3d 587; see also Town Bd. of Town of Vernon v Zoning Bd. of Appeals of

Town of Vernon, 21 AD3d 1389; lndian Rock, LLC v Zoning Bd. of Appeals of Village of

Airmont, 287 AD2d 629).

G iven the foregoing, although the petitioner couched hi s ZBA application which gave rise

to the challenged determination as a request to have the respondent ZBA overru le a

determination allegedly rendered by CED Rogers, the Court finds that the instant petition fails to

establish or otherwise reference an actual prior determination, order, requirement, decision, or

interpretation made by either CED Rogers, or any other zoning enforcement official of the Town

of Cortlandt, nor does the instant petition establish or otherwise reference an actual interpretation

of a zoning provision of the Town Code made by CED Rogers or any other zoning enforcement

offi c ial of the Town of Cortlandt. Consequently, as the pet.it ioner's underlying ZBA application

failed to present or reference a prior determination, order, requirement, decision, or interpretation

by a zoning enforcement official under the Town Code, and similarly failed to present a prior

" interpretation" by a zoning enforcement official under the Town Code, the respondent ZBA was

presented with nothing to review in its appellate capacity under the authority vested within it

under Town Law § 267-a(4), nor anything to reverse, affirm of modify with the meaning of Town

Law § 267-b( I), lea:virig the respondent ZBA without the requisite jurisdiction to take the action

requested by the petitioner through his underlying ZBA application.

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Accordingly, as the petitioner's underlying ZnA application fai led to raise a matter for

resolution which was within the jurisdictional authority of the respondent ZBA under either

Town Law§ 267-a(4) or§ 267-b( l), this Court concludes the factual allegations set forth by the

petitioner in support of the relief requested through the instant article 78 petition are insufficient

to make out a claim that the challenged detennination of the respondent ZBA was made in

violation of lawful procedure, was affected by an e1Tor of law, ~as arbitrary and capricious, or

otherwise constituted an abuse of discretion. Based upon the foregoing, it is decided and ordered

that the respondent ZBA 's motion to dismiss this proceeding for a judgment pursuant to article

78 of the CPLR is hereby granted pursuant to CPLR 32 11 (a)(7), and this proceeding is hereby

dismissed.

The for'egoing consti tutes the Decision an

Dated: White Plains, New York January 3, 2020

TO: Ralph G. Mastromonaco. Petitioner, prose 2083 Albany Post Road #3 Montrose, New York 10548

Zarin & Steinmetz

Acting Justice of the Supreme Court HON. SUSAN CACACE

WESTCHESTER COUNTY COURT JUDGE

Attorneys for Respondents Dakota Supply Corp., Bi lotta Construction Corp., Briga Enterpruises, Inc., amd Bilotta Realty of Westchester, Inc. 81 Main Street, Suite 415 White Plains, Nev; York 10601

Office of the Town Attorney of the Town of Cort landt Co11landt Town Attorney Thomas F. Wood Altoeny for Respondent Zoni ng Board of Appeals of the Town of Cortlandt I Ileady Street Cort landt Manor, New York I 0567

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