WPCNR WHITE PLAINS LAW JOURNAL By John F. Bailey. August 18, 2016:
Reading of the White Plains FASNY Appeal, filed July 11, of Supreme Court Judge Joan Lefkowitz’s decision to order the White Plains Common Council to vote on the French American School of New York site plan and Special Permit Application to build a 7-building campus on the former Ridgeway Country Club, contends the Judge’s decision oversteps what courts are allowed to do, by overruling a city’s due process.
The appeal asks for the Lefkowitz ruling to be dismissed.
The copy of the appeal was provided to WPCNR by the Mayor’s Office from John Callahan, Corporation Counsel. The appeal submitted on behalf of the city by Wilson, Elser, Moskowitz, Edelman & Dicker itself summarizes its argument on page 2:
“2. The appeal itself presents two serious and disruptive issues of law: First, can the Supreme Court compel a city to discontinue, de-map and sell a public street to facilitate a private development? Second, can the Supreme Court compel a city to grant a special permit and approve a site plan for property that the applicant does not own or control, in this case, the public street the City declined to discontinue, de-map and sell? The answer to both questions is no, based upon well-established precident, including recent precedent from this (Appellate) Court.
3. Put simply, if Donald Trump sued the City to compel it to sell him a portion of Main Street to allow him to build a luxury condominium building, no one would even seriously consider the argument. FASNY is no different. The Supreme Court cannot compel the City to sell it a street. As a result, FASNY cannot be entitled to the relief it seeks and the Supreme Court erred in denying the Appellants’ (City of White Plains and Common Council) motion to dismiss the petition/complaint.”
The appeal sites two cases in which the Appellate Court reversed two such decisions where the Supreme Court ruled in favor of a private entity suing because a government entity refused to close a street. The Appellate Court overruled a Yonkers litigant in 1988, in Borducci v. City of Yonkers which sought to challenge a street closing by the City of Yonkers. To wit, according to the appeal, page 17,
“The (Appellate) Court reversed the Supreme Court’s order to remove that portion of Dewey Avenue from the city’s(Yonkers) official map and explicity ‘agree(d) with the defendant’s (Yonkers) contention that the City Council’s decision not to close the portion of Dewey Avenue in question was legislative in character, and not to judicial scrutiny.”
The Appeal also notes that in 1964, in Matter of Porter Flushing Realty Co.,Inc. v. New York City Planning Commission, on page 17 of the appeal,
“…the Appellate Division, First Department, stated ‘When the Board of Estimate, as an official body duly designated to authorize a change in the map, adopts a resolution changing the city map, the action of the Board of Estimate in adopting the resolution changing the city map is legislative in character and not subject to review by a proceeding under Article 78…(citing in addition two other NYC cases) ‘Thus the Board of Estimate’s denial(italics, editor), of plaintiffs’ application to de-map and close streets on the site is not subject to judicial review. Such action is legislative in character, not for judicial determination.”
“The situation here (in the FASNY Hathaway Lane closure) presents the same non-justiciable issue. Exercising its authority under General City Law p. 20(7) AND 29 and City Charter 152…the Council denied FASNY’s petition to discontinue and de-map a portion of Hathaway Lane. That denial was a legislative act. Under the above-cited authorities, that legislative act is not reviewable by the court.
In the matter of the Special Permit and Site Plan, that the Judge Lefkowitz decision ordered the city Common Council to vote on, the White Plains appeal continues on page 18:
“Once the Common Council denied the Street Discontinuance Petition, FASNY’s 2014 Special Permit and Site Plan Application became moot, as the application was no longer complete. It was also beyond the jurisdiction of the Council to grant. The Council, therefore, correctly held the application in abeyance.
A local board has no jurisdiction to grant a special permit or site plan application for land the applicant (FASNY) does not own or control, unless it has consent of the property’s owner, and where it denies such an application, the applicant’s proceeding pursuant to CPLR Article 78 must be dismissed.”
The city notice of appeal cites the follow Appellate Court decisions in support of this argument:
Matter of Tripi v. Town of Bedford Planning Board 2003 and Matter of Hoerner v. Tormey, 1965
In another striking statement, the city appeal notes on page 19:
“Indeed, an applicant for a special use permit which has ‘no legally cognizable interest’ in the relevant property is not entitled to a permit,” and that the White Plains Zoning Ordinance states “the site plan applications must include the ‘names and address of applicant and authorization of owner if different from the applicant.’
The Matter of Tripi case in Bedford in 2003, denied a Special Permit for exactly this reason the appeal papers point out. Let’s go to the White Plains appeal which quotes the very Second Department Appellate Court decision:
“The petitioner (Tripi) commenced this proceeding to compel the respondent Town of Bedford Planning Board to grant his application for a preliminary subdivision approval for property of which he was part owner, pursuant to the default provisions of Town Law. However the owner of the remaining portion of the property neither signed nor jointed in the application. Accordingly, the petitioner’s application was not complete and the time within which the Board was required to act had not yet begun to run. The Supreme Court properly denied the petition and dismissed the proceeding.”
The appeal filed by the City of White Plains continues in its argument:
“Although FASNY is not here claiming a right to approval by default, the principle is the same. An application is incomplete, and the local regulatory body cannot be compelled to act on it, when the owner of a portion of the property for which the approval is sought has not consented to the application (City of White Plains).
SEQRA not a sanctuary, appeal notes
The City of White Plains appeal addresses the FASNY contention that the council “approved” the Hathaway Lane closure when it deemed the site plan was complete in approving a positive SEQRA finding, 6 to 1.
The FASNY contention that the Council refused to close the Hathaway Lane street or vote its site plan and Special permit was “arbitrary and capricious” because of the council approval is addressed thusly by the city appeal:
“the SEQRA findings expressly contemplate that, if the Hathaway Lane Discontinuance Petition was denied, pursuant to SEQRA rules and regulations, the traffic circulation, parking and site access plans would have to be regulated, and the revised site plan application could require additional environmental review.(italics added by Editor)”
The brief mentions two cases supporting this, and quotes Judge Joan Lefkowitz’s early decision of June 16, 2014—Judge Lefkowitz wrote in that decision, according to the City Appeal, page 23:
…A (SEQRA) findings statement at the conclusion of such process inflicts no concrete injury, and a challenge thereto is not ripe for adjudication unless and until there is an actual determination of the subject applications.
The appeal also covers this eventuality, citing Matter of WEOK Broadcasting v. Flacke, another 2nd Department Appellate Court decision in 1981: “Except where the proposed action is a zoning amendment, SEQRA review may not serve as a vehicle for adjudicating ‘legal issues concerning compliance with local government zoning.”
On the issue that the city lead FASNY to believe the Hathaway Closure was certain by virtue of the SEQRA Findings Statement of the Common Council, the City appeal beings in the state’s highest Court , the Court of Appeals…quoting Jackson vs. New York State Urban Development Corp:
“The legislature in SEQRA has left the agencies with considerable latitude in evaluating environmental effects and choosing among alternatives. Nothing in the (SEQRA) law requires an agency to reach a particular result on any issue, or permits the courts to second-guess the agencies choice.