FILED:
ROCKLAND COUNTY CLERK 10/11/2024 07:24 AM
INDEX
NO. 032252/2024
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
FILED:
ROCKLAND COUNTY CLERK 10/11/2024 07:24 AM
INDEX
NO. 032252/2024
NYSCEF
DOC. NO. 100
RECEIVED
NYSCEF: 10/11/2024
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 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.
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). 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.
By
reason of all the foregoing the referral requirements of GML 239-m are
applicable to the instant proceeding before the Court.
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.
THE
CLAIM BY “CONCERNED RESIDENTS”.
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:
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 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.
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 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’ 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 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.
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.
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 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 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,
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.
