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NYS Supreme Court Judge Reverses and Annuls Putnam Valley Planning Board Morrissey Drive Resolution
by Edward Paul Greiff
On February 20, 2007 New York State Supreme Court Judge Robert Dibella issued a Decision Order reversing and annulling a Putnam Valley Planning Board resolution that had approved Raymond Hilyer's application for a Special Exception Use Permit and site plan approval for a Tank Testing and Soil Remediation business located on Morrissey Drive in Lake Peekskill.
As background, on March 13, 2006, Hilyer applied to the Town of Putnam Valley Planning Board for site plan approval and a Special Exception Use Permit to operate his business on Morrissey Drive. On June 5th the Planning Board issued a resolution approving Hilyer's application. On September 11, 2006, the Board issued an Amended Resolution that rescinded the June 5th resolution and re-approved Hilyer's application. The Petitioners, Agnes Powe and Ronald Powe and RCJ Management Corp., business owners on Morrissey Drive, then filed an Article 78 proceeding challenging the September 11th resolution.
Their petition maintains that "(1) the Planning Board exceeded its jurisdiction by interpreting the Town's zoning ordinance; (2) the Planning Board's decision to approve the decision was arbitrary, irrational, and in violation of the State Environmental Quality Review Act ("SEQRA"); (3) the Planning Board violated petitioner's due process rights; and (4) the Planning Board acted illegally by voting on the resolution because there was a re-zoning petition pending."
Judge Dibella ruled that "this court may not substitute its judgment for that of the Board." He also ruled that "the scope of judicial review is limited to whether the action taken was illegal, arbitrary, or an abuse of discretion."
Here the judge said "the Planning Board exceeded its authority in determining that Hilyer's proposed use of the site was permissible under the Town's zoning laws. The site is located in a Community Commercial Two (CC-2) zoning district. Uses permitted in a CC-2 district are listed in the Putnam Valley Town Code. Hilyer's proposed use of the property, for an office and storage facility for his tank testing and environmental remediation business, is not permitted in a CC- 2 district."
"It is well settled," wrote Judge Dibella, "that the power to interpret the provisions of the local zoning law is vested exclusively in the Zoning Board of Appeals. Accordingly, the Zoning Board of Appeals was required to determine whether respondent's proposed unlisted use should be permitted as a special use within the CC-2 zoning district. The Planning Board did not have the authority to make this determination. Therefore, the Planning Board's September 11, 2006 resolution granting respondent Hilyer site plan approval and a Special Exception Use Permit is annulled. The matter is remitted to the Planning Board for further consideration and action within the limits of its power."
Morrissey Drive, the gateway to Lake Peekskill, is currently zoned CC-2. However, part of the controversy arises over the interpretation of what zoning uses are permissible in a CC-2 District. This debate started back in May 2004 when Ronald and Agnes Powe filed their first Morrissey Drive Article 78 petition against the Town of Putnam Valley. The petition was to reverse a decision made by the Zoning Board of Appeals to allow A&N Carting to store six garbage trucks and six dumpsters on property located on Morrissey Drive.
The Powes stated in a letter and subsequent appearance before the Town Board (May 19, 2004) that Section 165-13C of the Town Code reads as follows, "The purpose and intent of the CC-2 District is to provide for a variety of commercial activities that are of moderate intensity in scale and traffic generation, of a character similar to but more restricted then the CC-1 District. The uses within this district are to serve the conveniences and needs of the greater Putnam Valley community and must be compatible with the residential character and environment of the adjacent neighborhood. These uses generally result in limited traffic generation."
The Judge ruled in favor of the Powes, and on July 28, 2004 the Putnam Valley Zoning Board of Appeals rescinded their Decision and Order dated April 15, 2004. However, the Powe's wrote in a letter dated July 30, 2004, "This is not a victory. The ZBA voted to rescind the D&O . . . not because a full scale garbage carting business is incompatible with the residential character of the adjacent neighborhood as demanded in Chapter 165 of the Town Code, not because it is ultimately a heavy industrial use in a Community-Commercial District, but because they discovered that they had no jurisdiction in the matter to begin with."
The Powes further argued that if a CC-2 District is more restrictive than a CC-1 District (Oregon Corners is CC-1), and garbage trucks and dumpsters is a permissible use in a CC-2 District, then what is allowed in a less restrictive district such as Oregon Corners asks Agnes Powe. "Treatment of raw sewage, nuclear waste storage, maybe an asphalt plant?"
On June 5, 2006 at a Planning Board Public Hearing and informal discussion Vice Chairman Michael Raimondi commented that he remembered when his father owned buildings on Morrissey Drive and how, "They could not sustain any sort of business or any shops or anything. They've been there and failed over and over again. That's why it has appealed to contractors and people in that business for construction yards because that's all it can be. And where the Master Plan has a great idea, it really cannot work and it hasn't worked. It's been proven over and over and over again and I think the Board should take that into consideration."
Ronald and Agnes Powe, on August 7, 2006, distributed a 20 page document to the Town Board stating, "In the time that has passed since 2004, nothing has happened and very little has changed. The Town Board neither acted on our petition nor our letters. This time it is the Putnam Valley Planning Board that has approved a waste Management and Remediation Service company that is now located on Morrissey Drive. We again have been compelled to file an Article 78 . . . The Powe's concluded their letter by asking them to consider the text of the 2002 Comprehensive Plan Update as it relates to Morrissey Drive: "The vitality of the . . . Lake Peekskill Business District depends upon a land use policy and action plan that is able to attract the kind of businesses that Putnam valley residents will utilize."
The Town now appears to have a dilemma. With the Planning Board's decision having been overturned as an "overstepping" of its authority, and the Town Board this past summer having repealing the ZBA's ability to permit unlisted uses as principal or special permit uses, the Town seems to have no "flexibility" available to applicants who might want to use their property in a way that is not explicitly permitted in the Zoning Codes.
But those who have seen zoning code exceptions become the rule of law in the past, continue to fight hard for enforcement and changes to the Town zoning code.
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