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I can tell the Queen of Diamonds by the way she shine.
Come to Daddy on an inside straight.
I got no chance of losing this time.
No, I got no chance of losing this time.
No, I got no chance of losing this time.
No, I got no chance of losing this time.”
“Loser”, written by Jerome J. (Jerry) Garcia and Robert C. Hunter,
from the album “Garcia” by Jerry Garcia (1972).
FILED: ROCKLAND COUNTY CLERK 10/11/2024 07:24 AM
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NYSCEF DOC. NO. 100
RECEIVED NYSCEF: 10/11/2024
To
commence the statutory time period for appeals as of right (CPLR 5513 [a]), you
are advised to serve a copy of this order, with notice of entry, upon all
parties.
Index
# 032252-2024
SUPREME
COURT OF THE STATE OF NEW YORK
COUNTY
OF ROCKLAND
- -
- - -
JANICE
YOUNG, LARA HEALY-GRZNAR, JOHN GRZNAR and VALENTINA ZITT,
Plaintiffs-Petitioners,
-against-
VILLAGE
OF PIERMONT, VILLAGE OF PIERMONT BOARD OF TRUSTEES, VILLAGE OF PIERMONT
PLANNING BOARD, CHARLES SCHAUB in his official capacity as Village of Piermont
Building Inspector and PIERMONT DEVELOPERS, LLC,
Defendants-Respondents,
-and-
COUNTY
OF ROCKLAND,
Interested
Party.
- -
- - - X
DECISION
AND ORDER: ORDER TO SHOW CAUSE MX#1
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The
following NYSCEF documents were reviewed and or read by the Court in reaching
the within Decision and Order: 1-43, 45, 52-63. 65-75, 76-99. Additionally,
multiple Court conferences were held with counsel, both on and off the record.
BRIEF
PROCEDURAL HISTORY.
On April 24, 2024,
Plaintiffs-Petitioners JANICE YOUNG, LAURA HEALTY-GRZNAR, JOHN GRZNAR and
VALENTINA ZITT (collectively “Concerned Residents”) commenced the within
declaratory action by the filing of a 27-page Summons and “Verified Complaint
and Petition” on April 24, 2024 against Defendants-Respondents VILLAGE OF
PIERMONT, VILLAGE OF PIERMONT BOARD OF TRUSTEES, VILLAGE OF PIERMONT PLANNING BOARD,
CHARLES SCHAUB in his official capacity as Village of Piermont Building
Inspector and PIERMONT DEVELOPERS, LLC. The COUNTY OF ROCKLAND is listed as an “Interested
Party”. In a nutshell, the relief sought is a declaratory judgment that (1)
Local Law 4 is invalid; (2) The Village of Piermont violated Open Meetings Law
103(e) and (3) The Village of Piermont violated Open Meetings Law 106(3).
THE
INSTANT ORDER TO SHOW CAUSE.
On April 25, 2024,
plaintiffs-petitioners/Concerned Residents filed a proposed Order to Show Cause
(OSC) seeking a Temporary Restraining Order (TRO). The TRO sought to enjoin the
Defendants-Respondents from conducting public hearings, processing, or approving
site plan/subdivision and special permit applications concerning the real
property located at 447-477 Piermont Avenue, Piermont, New York (the subject
property), “…pending the hearing and determination of this action”. Between
April 25, 2024, and May 6, 2024, litigation by letter was conducted by both
sides as well as the filing of various letters and Notices of Appearance by all
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sides.
The Court scheduled and held a pre-OSC court conference on May 8, 2024,
attended by all counsel, to attempt to resolve the matter. Letters continued to
be filed by the parties. On May 30, 2024 the OSC was signed setting forth a
briefing schedule a return date and a TRO was granted. However, the duration of
the TRO was changed from, “…hearing and determination of this action”,
(Emphasis added), to, “…hearing and determination of this ORDER TO SHOW CAUSE”,
(Emphasis added). On June 13, 2024, opposition papers were filed by Piermont Developers,
LLC; the County of Rockland and the Village of Piermont defendants. Reply
documents were filed by the Concerned Residents on June 26, 2024. A second
in-person court conference was conducted on July 8, 2024, and again in
September 2024.
THE
RELEVANT STATUTE.
The relevant statute is General
Municipal Law (GML) 239-m which is entitled “Referral of certain proposed
city, town and village planning and zoning actions to the county planning
agency or regional planning council; report thereon; final action”. Let’s
review the portions of the statute that may pertain to the situation at hand:
Para
1 Subpara. (a): explains the usage of the word “proposed” as it applies to “certain
propose city, town and village planning and zoning actions” to be referred to a
county planning agency. This section refers to GML 239-d County Comprehensive
Plan which applies to the needs of the County (wherein the subject Village is
located) as to policies and standards applicable to immediate and long-term land
use, among other things. Also referred to is GML 239-e County Official Map
which states its intent at the outset as follows: “It is the general intent of
this section and…to enable counties to utilize certain regulatory powers which
are essential for providing for orderly growth and development.” The subject
action which is to create the BDM District pursuant to Local Law 4 is such a “proposed”
planning and zoning action.
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Subpara.
(b) defined “referring body shall mean the ….village body responsible for final
action or proposed action subject to this section”. In this action the ‘referring
body” is the Village of Piermont Planning Board pursuant to GML 239-m(1)(b).
Subpara.
(c) utilizes the term “full statement of such proposed action. The Court
understands the “proposed action herein to be the creation of the CBM District
pursuant to the enactment of Local Law 4 as proposed by the Village of Piermont
Planning Board. The Court however is unaware of what “full statement” was
purportedly referred by the Village of Piermont Planning Board to the Rockland
County Planning Board. Therefore, the Court cannot comment on the completeness
or correctness of what was purportedly referred.
Subpara.
(d) defines ‘receipt” as the delivery of a full statement (as defined above) in
compliance with any County planning agency rules and regulations as to “person,
place and period of time for submission”. As to “receipt” this means “delivery
in hand or by mail to the clerk of the county planning agency…”. At this time,
the rules and regulations as to timelines of the purported referral is not the
issue, as the RCPB says it did not receive any such referral from the VPPB,
which claims it made a timely referral. However, the material point put in
controversy by the pleadings is the alleged mailing of the referral by the
VPPB. This subparagraph states in relevant part: “Where delivery is by
mail, the date as postmarked shall be the date of delivery.”. The issues raised by this subparagraph for
the crux of the matter before the Court both as to the plaintiffs’/petitioners’
application for a Preliminary Injunction and the Complaint. (Emphasis added)
Postmark.
A stamp or mark put on letters or other mailable matter received at the post
office for transmission through the mails (as defined by below).
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Black’s
Law Dictionary: Special Deluxe Fifth edition: St. Paul Minn WEST PUBLISHING CO.
1979.
Para.
2: The Court reads Para 2 as being applicable to the instant matter as well.
This case concerns an alleged referral of a proposed planning and zoning action
(creation of the CBM District by the implementation of Local Law 4) by the VPPB
to the RCPB, “…before taking final actions…”, on the proposed creation of the
CBM District.
Para
3: Paragraph 3 defines the actions subject to the referral requirements of GML
239-m which include:
i. “Adoption or amendment of a comprehensive plan
pursuant to… section 7-722 of the village law…”
ii. “adoption… of a zoning ordinance or local law…”
Further
proposed actions that will likely apply to the proposed creation of the CBM
District by Local Law 4 include:
iii. Issuance of special use permits.
iv. Approval of site plans.
v. Granting of use or area variance.
vi. Other authorizations.
By
reason of all the foregoing the referral requirements of GML 239-m are
applicable to the instant proceeding before the Court
THE
CLAIM BY “CONCERNED RESIDENTS”.
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The basic claim by “Concerned
Residents” is that Local Law 4 which changed certain zoning in the Village of
Piermont (hereinafter referred to as the Village or Piermont) is “jurisdictionally
flawed and therefore null and void” (NYSCEF 21, para 4). The effect of Local
Law 4 is that a new zoning district, the Central Business Multi-Use District
(CBM) is created within the Village. As a potential result, Piermont Developers
LLC ( the Developers) is seeking approvals for a new, three story, fourteen
(14) unit multiple dwelling (the Project) located at 447- 477 Piermont Avenue
in the Village (Subject Property). The cause of action is that Local Law 4 was
enacted without “referring the legislation to the Rockland County Department of
Planning (County Planning Department) as mandated by General Municipal Law
239-m.” (NYSCEF 21, para 7). Further, since the Village failed to make such a
mandatory referral, the establishment of the CBM District is “void as a matter
of law.” (NYSCEF 21, para 11). The support for the subject OSC is the Summons
and Verified Complaint and Petition with its attachments, an attorney
affirmation of Brian K. Condon, Esq., an Affidavit of Louis A. Terminello, a
resident of the Village and former president of the Piermont Landing Homeowners
Association, an additional 22 NYCRR 202.8 Attorney Affirmation of Brian K.
Condon, Esq., and a Memorandum of Law. Failure to make this referral
constitutes a “jurisdictional defect” rendering the zoning amendment invalid as
a matter of law., and plaintiffs/petitioners assert, that as a result a
preliminary injunction should be granted by the Court.
CASELAW
IN SUPPORT OF ORDER TO SHOW CAUSE.
In their Memorandum of Law
plaintiffs/petitioners cite the following cases in support of their application
for a preliminary injunction based upon the alleged “jurisdictional defect” of
the VPPN failing to make a proper referral to the Rockland County Planning
Board pursuant to GML 239-m:
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Calverton Manor, LLC v. Town of Riverhead, 160 A.D.3d 842 (2nd Dept.
2018) Here, the Town Board made a referral to the Planning Commission which was
not a new referral but based on a prior referral and was deemed insufficient by
the Planning Commission. Town Board therefore failed to comply with the
requirements of GML 239-m and the law in question was invalidated by the Second
Department.
Annabi v. City Council of Yonkers,
47 A.D.3d 857 (2nd Dept. 2008); Westchester County Planning Board (WCPB)
advised Yonkers that a certain mixed-use development should be modified or
disproved. Under existing law, the Yonkers City Council could only act contrary
to the WCPB by a super majority (majority plus 1). Yonkers City Council then voted
to change that law so that only a majority was needed to act contrary to the
WCPB and thereafter no referral to the WCPB would be necessary. By reason of
non-compliance with GML 239-m, the NYS Supreme Court declared the new ordinance
invalid, and the Second Department affirmed.
Matter of Roanoke Sand &
Gravel Corp. v. Town of Brookhaven, 24 A.D.3d 783(2nd Dept. 2005);
Initially in this Article 78 proceeding there was no allegation that the
referral of a certain chapter 17E of the Code of the Town of Brookhaven failed
to comply with GML 239-m. Supreme Court declared 17E invalid and directed the
Town Planning Board to process the petitioner’s application. The Second
Department modified the Order and Judgment to include an allegation that the
Town violated GML239-m by failing to refer 17E to the local Code to the Suffolk
County Planning Commission prior to its enactment.
Matter of Burchetta v. Town Bd.
of Town of Carmel, 167 A.D.2d 339 (2nd Dept. 1990); The Court held that the
local law at issue falls squarely within General Municipal Law § 239-m.
Therefore, the town’s failure to refer it to the County Planning Commission is
a jurisdictional
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defect
which renders its enactment invalid (see, Matter of Old Dock Assocs. v.
Sullivan, 150 AD2d 695; Matter of Asma v. Curcione, 31 AD2d 883).
Matter of Old Dock Assoc. v.
Sullivan, 150 A.D.2d 695 (2nd Dept. 1989) It was found that the failure of
the Town Planning Board to submit Route 347’s site plan to the Suffolk County
Planning Commission, is a serious issue. Pursuant to GML 239-m the Town
Planning Board was required to refer Route 347’s site plan to the Suffolk
County Planning Commission, before it took final action. This referral was
deemed a “legislative mandate” and is “…jurisdictional in nature”. Due to
non-compliance with GML239-m, the action of the Town Planning Board in
approving Route 347’s site plan was of no effect .
Matter of Asma v. Curcione,
31 A.D.2d 883 (4th Dept, 1969) GML 239-m mandates a referral to the Niagara
Counties Regional Planning Board for the issuance of a special permit where the
subject property is within 500 feet of a State highway. This referral was noted
as an “…essential procedural step and a permit issued without referral is
invalid…”. (See (3 Anderson, American Law of Zoning, § 15.16.)
NOTE:
The above cases were cited as Appellate Court decisions after either motion
practice or trials in the trial Court. The issue to be resolved in the above cited cases
was NOT to grant a Preliminary Injunction, but to decide the case, to decide
whether the failure to comply with GML 239-m was a jurisdictional defect that
would ultimately lead to a nullification of the subject law. The instant issue
is whether to grant a preliminary injunction to stop the local law. However,
the effect of issuing a preliminary injunction would be a stoppage of Local Law
4 which could be tantamount to determining Local Law 4 is invalid.
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SALIENT
POINTS IN COMPLAINT.
The Verified Complaint (NYSCEF 1)
sets forth the salient points that form the basis for this lawsuit. According
to the plaintiffs/petitioners the Village of Piermont Planning Board (VPPB)
failed to refer the proposed change in zoning (Local Law 4) to the Rockland
County Planning Board (RCPB). This is a jurisdictional defect and therefore
Local Law 4 is invalid. However, until this action was commenced, the VPPB has
been acting that there are no concerns as voiced by the RCPB in prior
communications. In November 2023 an Application for site plan/subdivision
approval made by Piermont Developers’, LLC (PD) was referred to the RCPB. The
RCPB issued two letters on this revised application and further disproved the
November 2023 Application on December 11, 2023. The RCPB wrote that the VPPB
had failed to refer Local Law 4 to the RCPB and thus it was invalid and that
the RCPB had no record of receiving Local Law 4. (Emphasis added). Additionally,
by letter dated December 12, 2023, the RCPB disapproved the 2023 Special Permit
request VPPB, indicating that the current zoning for the Village was still
Business B (BB). A public hearing was held that same night, but there was no
discussion of the letters received from the RCPB and the hearing was continued
to January 23, 2024. There were several other referrals pursuant to GML 239-m
made by the VPPB to the RCPB in December 2023, and March 2024. The RCPB
consistently replied with disapprovals based upon the invalidity of Local Law
4. However, it appears to the Court that the Village and the Village of
Piermont Planning Board were continuing to process various applications from
Piermont Developers, LLC.
Historically, on or about March 8,
2023, Piermont had adopted an amendment to its zoning code by local law no.
4-2023. Plaintiffs claim that Local Law 4 is invalid as a matter of law. At
least one lot in the new zone is within 500 feet of the Long Path Hiking Trail,
Tallman Mountain State Park, the Sparkill Creek, and the Ash Street Station
Park bringing the zoning amendment
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into
the jurisdiction of the Rockland County Planning Department. See NYS General
Municipal Law (GML) § 239-m(3)(b). The Complaint raises the issue that failure
to refer the local law to the County Planning Department and/or Board is a
jurisdictional defect which renders its enactment invalid. (See Matter
of 24 Franklin Ave. R.E. Corp. v. Heaship, 139 AD3d 742 [2nd Dept. 2016]; Annabi
v. City Council of Yonkers, 47 AD3d 856 [2nd Dept. 2008]; and Eiseman v.
Inc. Vil. Of Bellport, 2020 NY Slip Op. 31941[U] [Sup. Ct., Suffolk County
2020].) It follows that since the local law that created the CBM District was
not properly referred to the Rockland County Planning Department as required by
General Municipal Law and is jurisdictional defective, this application must be
subject to the use and bulk requirements of the prior existing Business B (BB)
zoning district. Logically, the Plaintiffs propose that since multifamily
dwellings are not permitted by right or by special permit in the BB zoning
district, the subject application must be disapproved. SAME WAS REPEATED BY
LETTER DATED APRIL 3, 2024.
THE
OPPOSITION BY PIERMONT DEVELOPERS, LLC.
On June 13, 2024, the principal of
defendant/respondent PIERMONT DEVELOPERS, LLCV, (PD) Frank DeCarlo filed his
Affidavit in Opposition (NYSCEF 65) to Plaintiffs’ motion for a preliminary
injunction. While certainly, an eloquent plea for understanding and compassion
for all the efforts PD has made over the years, it did not respond to the
Plaintiffs’ position that Local Law 4 is invalid.
The legal argument in opposition to
plaintiffs’ motion for preliminary injunction was proposed in the PD Memorandum
of Law (NYSCEF 69) filed the same day. Initially, PD’s counsel proposes that
the Village Clerk’s Affidavit and the Villages’, “…own contemporaneous minutes…”
are sufficient to ensure compliance with GML 239-m. Both the
plaintiffs-petitioners and the interested party, Rockland County dispute this.
PD requests that the Court deny “Plaintiffs’
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preliminary
injunction and allow the normal municipal and legislative process to play out.”
The following cases were cited in support of PD’s opposition, which is to the
granting of a preliminary injunction, without regard to the legality of the
subject Local Law 4:
Blaikie v. Knott, 277 A.D.461
(1st Dept, 1950) a 75-year-old election law case that restrained a county
democratic meeting because the meeting location was too small. Not useful.
Uniformed Firefighters Ass’n of
Greater N.Y. v. City of N.Y., 79 N.Y.2d 236 (1992) found that the Supreme
Court did not have the power to grant injunctive relief during an improper
labor practice proceeding before the New York City Board of Collective
Bargaining. The proceeding should continue before that Board. Not useful.
Gagnon Bus Co., Inc. v. Vallo
Transp., Ltd.,13 A.D.3d 334 (2nd Dept, 2004) Injunctive relief was denied
because plaintiff did not establish a likelihood of success on the merits or
irreparable harm.
THE
REQUIREMENTS TO ISSUE A PRELIMINARY INJUNCTION.
It is well-settled that for a
preliminary injunction to be granted there are three required elements that
must be established: (1) likelihood of success on the merits, (2) irreparable
injury absent granting of a preliminary injunction, (3) and a balancing of the
equities in the movant’s favor. Berman v. TRG Waterfront Lender, LLC,
181 A.D.3d 783 (2nd Dept. 2020) (see Keller v. Kay, 170 A.D.3d
978, (2nd Dept. 2018); Carroll v. Dicker, 162 A.D.3d 741, (2nd Dept.
2018)). The elements to be satisfied must be demonstrated by clear and
convincing evidence. Liotta v. Mattone, 71 A.D.3d 741 (2nd Dept. 2010).
The decision to grant or deny a preliminary injunction rests in the sound
discretion of the Supreme Court (see Tatum v. Newell Funding,
LLC, 63 A.D.3d 911, (2nd Dept. 2009); Cooper v. Bd. of White Sands Condo.,
89 A.D.3d 669, 669, (2nd Dept. 2011). Whether
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a
party is entitled to a preliminary injunction is a determination entrusted to
the sound discretion of the motion court (see Doe v. Axelrod, 73
N.Y.2d 748 (1988); Eastview Mall, LLC v. Grace Holmes, Inc., 182 A.D.3d
1057, (4th Dept. 2020).
OPPOSITION
POINT 1:
PLAINTIFFS
CANNOT DEMONSTRATE A LIKELIHOOD OF SUCCESS.
The PD defendants next focused on
opposition to plaintiffs’-petitioners’ application for a preliminary injunction
to enjoin the defendants from going forward with the Project. Several cases are
cited for the premise that the plaintiffs-petitioners cannot meet the first
prong requirement for a preliminary injunction, that the plaintiffs-petitioners
have a likelihood of success on the merits, as follows:
Caruso v. Town of Oyster Bay,
172 Misc.2d 93, (Supreme Court, Nassau County, 1997). The property owner
brought a declaratory judgment action seeking a preliminary injunction to
enjoin the Town’s enforcement of a moratorium on issuing new building permits.
The property owner first checked with the Nassau County Planning Commission
(NCPC) that his 21,000+ square foot lot did not require subdivision approval,
but that he could subdivide into two 10,000+ square foot lots and build.
Building permit applications were made with the Department of Planning for the
Town (DOP) but they would not be reviewed as the Town was considering a zoning
reclassification. In the meantime, the Town adopted a Local law to adopt a
moratorium on the issuance of building permits. Two years later! the property
owner sued for a declaratory judgment that the moratorium local law was invalid
by reason that the Town failed to comply with GML239-m. It appears that the DOP
did not make its required referral to the NCPC which “…renders the moratorium
invalid as jurisdictionally defective.”. However, the trial court did not grant
plaintiff’s request for the issuance of a building permit. Not useful.
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The matter was appealed as Caruso
v. Town of Oyster Bay, 250 A.D.2d 639 (2nd Dept. 1998). The Appellate Court
found that the subject Local law No 1was not different from a prior approved
Local law No 4 approved by the County Planning Commission and did not require
any new notice, new hearing or a need to “…submit proposed local law to County
Planning Commission prior to its adoption, therefore, Supreme Court erred in
determining it was invalid and unenforceable.”.
OPPOSITION
POINT 2:
NO
IRREPARABLE HARM TO PLAINTIFFS.
The opposition posed by defendants
is that the plaintiffs-petitioners will not suffer any irreparable harm, but
the movant PD will, and several cases are cited.
Faberge
Intl. v. Di Pinto, 109 A.D.2d 235 (1st Dept. 1985) concerned applications for
attachment, preliminary injunctions, and a motion to compel arbitration. The
First Department reversed the trial court which had granted preliminary
injunctions against disclosure by defendant of trade secrets, on the movant’s
basis for such relief was based on, “…speculation and conjecture…”. Other
issues concerned the foreign nature of the claims and whether New York
arbitration would be the proper remedy. Not useful.
Neos
v. Lacey,
291 A.D.2d 434 (2nd Dept. 2002). Preliminary injunction was not justified and
was reversed, since the harmed party could be compensated by monetary damages.
Not useful.
Kaufman
v. Internatl. Bus. Machs. Corp., 97 A.D.2d 925 (3rd Dept. 1983). Preliminary
junction was reversed. Plaintiff failed to show a likelihood of success and
that certain personalty he claimed was his and not IBMs. Due to lack of
supporting evidence the Appellate Court reversed and vacated the preliminary
injunction. Not useful.
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Garofolo
v. State of New York, 122 A.D.2d 209 (2nd Dept. 1986) Concerned exhausting administrative
remedies prior to asserting a claim for irreparable harm. Not useful.
OPPOSITION
POINT 3. BALANCING OF THE EQUITIES.
Plaintiffs’-petitioners initially
filed its Memorandum of Law (MOL) (NYSCEF 43) on April 25, 2024. Defendant PD
wrote in its Opposition Point 3 that plaintiff’s MOL mentioned the topic “Equities
Tip in favor of Maintaining the Status Quo 10”, in the MOL Table of Contents,
however, no such page 10 was filed. Subsequently, plaintiffs filed an Affidavit
or Affirmation in Reply (NYSCEF 77) that responded to this oversight and
attached a revised MOL as Exhibit A (NYSCEF 78) that contained the missing page
10.
Prior to the filing of the aforesaid
Reply, PD’s argument was that plaintiffs-petitioners did not argue the
balancing of the equities argument, and thus a preliminary injunction could not
be granted. However, at this juncture, the Court has reviewed the missing page
10 and agrees that the Village and the PVPB would suffer more harm if an
invalid Local Law was the grounds for permitting further development, than the
harm suffered by the developer.
OPPOSITION
POINT 4: A BOND IS REQUIRED.
The Opposition proposes that the
relevant statute is CPLR 6312(b) which states in relevant part:
(b) Undertaking. Except as provided in section 2512
and in actions brought under section two hundred sixty-five-a of the real
property law, prior to the granting of a preliminary injunction, the plaintiff
shall give an undertaking in an amount to be fixed by the court, that the
plaintiff, if it is finally determined that he or she was not entitled to
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an injunction, will pay to the defendant all damages
and costs which may be sustained by reason of the injunction, including:
1. if the injunction is to stay proceedings in
another action…or
2. if the injunction is to stay proceedings in an
action to recover real property, or for dower…or
3. if the injunction is to stay proceedings upon a
judgment for a sum of money.
N.Y.
C.P.L.R. 6312 (McKinney).
The purpose of the undertaking is to
“compensate the defendant for damages incurred by reason of an injunction in
the event it is determined that the plaintiff was not entitled to the
injunction.” 91-54 Gold Rd., LLC. v. Cross-Deegan Realty Corp., 93
A.D.3d 649 (2nd Dept. 2012). The amount of the undertaking is within the
discretion of the Court. Olympic Ice Cream Co., Inc. v. Sussman, 151
A.D.3d 872 (2nd Dept. 2017) Consequently, applying the statute to the facts
herein, the Court, in an exercise of discretion sets the undertaking in the
mount of ONE THOUSAND ($1000.00) dollars. This is premised, in part, that the
Decision herein holds that Local Law 4 is null and void and of no force and
effect nunc pro tunc to the date of the alleged filing of the GML239-m referral
to Rockland County Planning Board. That there were certain activities taken by
the Defendants in reliance upon Local Law 4, the Court finds that such a
nominal undertaking is sufficient under the circumstances demonstrated to the
Court in this instance.
By reason of all the foregoing it is
ORDERED, that the Order to Show
Cause brought by Plaintiffs-Petitioners (MX#1) seeking a Preliminary Injunction
restraining and enjoining the Defendants-Respondents Village of Piermont,
Village of Piermont Board of Trustees and Village of Piermont Planning Board,
along
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with
their trustees, officers, employees, servants, agents, attorneys, affiliates,
and all other persons acting on Defendants’-Respondents’ behalf from
processing, or approving, site plan/subdivision, and special permit
applications concerning real property situated at 447 – 477 Piermont Avenue,
Village of Piermont, County of Rockland, New York, and as otherwise referenced
in the Complaint, unless and until such time as a valid zone change permitting
such development has occurred as a matter of law is
GRANTED; and it is further
ORDERED, that the portion of
Defendants-Respondents Opposition to said Order to Show Cause seeking an
undertaking by plaintiffs-petitioners is GRANTED and said undertaking is fixed
in the amount of one THOUSAND ($1000.00) dollars, which shall be posted by
plaintiffs- petitioners within fifteen (15) days of this Decision and Order. In
the event that it is ultimately determined that the plaintiffs-petitioners were
not entitled to an injunction as granted herein, then plaintiffs-petitioners
will pay such undertaking amount to the defendants-respondents as and for any
damages and costs that may be sustained by reason of said injunction; and it is
further
ORDERED and ADJUDGED, that
Local Law 4 and its progeny the Central Business Multi-Use (CBM) District
within the Village of Piermont are both null, void and jurisdictionally invalid
based upon the Village of Piermont’s failure to affect the mandatory referral
of said legislation to the Rockland County Planning Board as required by
General Municipal law 239-m; and it is further
ORDERED, that the Village of
Piermont file the appropriate referral of what was Local Law 4 or its updated
equivalent in compliance with General Municipal law 239-m with the Rockland
County Planning Board within thirty (30) days of this Decision and Order; and it
is further,
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RECEIVED
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ORDERED that the Rockland County
Planning Board exercise its utmost efforts to respond in writing as soon as
possible to the above filing of the aforesaid appropriate referral of what was
Local Law 4 or its updated equivalent in compliance with General Municipal law
239-m with the Rockland County Planning Board; and it is further,
ORDERED that Plaintiff-Petitioner’s
application for legal fees is DENIED, and it is further
ORDERED, that any relief not
specifically granted herein is DENIED. The foregoing constitutes the Decision
and Order of the Court.
ENTER:
_________________________
Hon.
Hal B. Greenwald, J.S.C.
Dated:
October 10, 2024
New
City, New York
Pursuant
to CPLR Section 5513, an appeal as of right must be taken within thirty days
after service by a party upon the appellant of a copy of the judgment or order
appealed from and written notice of its entry, except that where the appellant
has served a copy of the judgment or order and written notice of its entry, the
appeal must be taken within thirty days thereof.
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