Papers submitted on this motion: Petitioners/Plaintiffs Order to Show Cause with Petition, Complaint, and Exhibits Annexed X Respondents/Defendants Affirmation in Opposition with Exhibits and Affidavits X Respondents/Defendants Memorandum of Law in Opposition X Petitioners/Plaintiffs Reply Affidavit X Decision and Order Petitioners/Plaintiffs (hereinafter “P/P”) move by Order to Show Cause for the following relief: (a) an Order of the Court granting a preliminary injunction restraining Defendants/Respondents (hereinafter “D/R”) from continuing construction of a fence at the Northside School pursuant to CPLR §6311, pending a hearing and determination of this matter; and (b) an Order of the Court that the administrative determination by D/Rs to ignore the legal requirement to file for a permit and follow the Village code process was arbitrary and capricious, pursuant to CPLR Article 78, 7801, and 7803(3); and (c) an Order of the Court pursuant to CPLR §3001 and §3017(b) that the East Williston Union Free School District is not blanketly and absolutely immune from local zoning considerations; that local zoning considerations; with respect to the District are applicable when there is no conflicting New York State Education Law provision or State Education Department (“SED”) Regulation relative to a particular issue; that the SED has acknowledged, in its May 7, 2019 letter to the District that there are no particular New York State Education Law requirements or SED regulations that would pre-empt the Village Code as it relates to fencing and the height thereof; and that as a result on the issue of the construction of the fence and the height thereof, the District is subject to the jurisdiction of the Village, and obligated to abide by the process prescribed by the Village Code. Background The East Williston Union Free School District (“the District”) is a school district organized and existing pursuant to the laws of the State of New York. The District owns and operates the Northside School and the property on which the school is located in the incorporated Village of East Williston, at 110 East Williston Avenue, Williston Park, New York 11596. The school is a primary school, serving Kindergarten through 4th grade students. The school is bounded on the north side by East Williston Avenue, on the west side by Wheatley Avenue, on the south side by Downing Street and on the east side by Andrews Road. The Board of Education of the District is a board consisting of five (5) elected members. P/Ps reside in the District. On April 11, 2019, the District received SED authorization to erect a perimeter fence on the North Side School property. By letter, dated April 16, 2019, the Village contacted SED and objected to its approval of the North Side Fence Project, stating that the project violated the Village Code of East Williston, in that the project planned the erection of a fence on three (3) sides of the school at a height of six (6) feet, exceeding the four (4) foot limit prescribed by the Village Code at §160-37(B)(1), which provides in pertinent part that, “no fence shall exceed four feet in height measured from the finished grade at its base.” By a May 7, 2019 letter addressed to the District Superintendent, Elaine Kanas, Ph.D., SED responded to the objection raised by the Village. The May 7, 2019 letter states: Dear Dr. Kanas: Commissioner Elia received a letter from Leventhal, Mullaney & Blinkoff, LLP, dated April 16, 2019, which was submitted on behalf of the Village of East Williston, objecting to your proposed construction project at the North Side School. In essence, the letter indicates that the Village of East Williston has not had the opportunity to respond to the school district’s complete building project submission and asserts that the proposed fencing may be out of compliance with the Village Code. The letter further expresses concern relating to the “deleterious effect that a fence of this height will have on the surrounding environment.” Your building project was approved by this Department on April 11, 2019 pursuant to Education Law §401, 407, 408. Please be advised that the State Education Department’s approval of a school district building project is separate and distinct from any local zoning approval which may still be required. See e.g., Ravena-Coeymans-Selkirk Cent. Sch. Dist. v. Town of Bethlehem, 156 A.D.3d 179 (3rd Dept. 2017); leave to appeal denied, 31 N.Y.3d 901 (2018). As such, the district is advised to resolve any potential local zoning issues related to this project directly with the Village of East Williston. If you have any questions, please do not hesitate to contact me. Sincerely, Rosanne T. Groff, R.A. Coordinator Office of Facilities Planning Cc: Jeffrey Blinkoff, Leventhal, Mullaney & Blinkoff, LLP Hon. Bonnie Parent, Mayor, Village of East Williston John Grillo, R.A. JAG Architects Following receipt of the May 7th SED letter, the District did not make application to the Village for a permit. On or about August 12, 2019, the District commenced construction to erect the fence. By letter to the District, dated August 21, 2019, the Village requested that the District halt construction of the fence and asked that the District abide by the Village Code process or action would be taken. As no formal action was taken by the Village and construction remained ongoing, P/P commenced the action herein by Order to Show Cause seeking a preliminary injunction, a determination pursuant to CPLR Article 78, and a declaration concerning SED and Village jurisdiction relative to this matter. The District sought clarification from SED and by letter addressed to the District Superintendent, Elaine Kanas, Ph.D., dated September 3, 2019, SED states: Dear Dr. Kanas: At the request of your attorneys, I have been asked to clarify the purpose of my letter to you dated May 7, 2019, which was written in response to correspondence received by the Village of East Williston dated April 16, 2019. The purpose of my letter, as stated therein, was to alert the school district that there may be additional local zoning approval required and to suggest that the District consult directly with the Village of East Williston in that regard. My letter was not intended to direct or admonish the District and took no position as to whether or not local zoning approval was required under the circumstances. If you have any questions, please do not hesitate to contact me. Sincerely, Rosanne T. Groff, R.A. Coordinator Office of Facilities Planning Following an extensive conference with all parties, together with a review of the papers submitted, the Court granted a Temporary Restraining Order (August 25, 2019) against continued construction and set the matter down for a September 25, 2019 return date on the Order to Show Cause, including the request for a preliminary injunction. On September 25, 2019, the Court again conducted an extensive conference on the matter, after which the Court also heard the parties on the record. At the September 25, 2019 court appearance, the Court was advised that D/Rs presented an Order to Show Cause to the Appellate Division, Second Department on August 29, 2019, seeking a halt to this Court’s temporary restraining order; and further, that while the Appellate Division signed the Order to Show Cause, it did not halt the temporary restraining order, and that the matter remains pending at the Appellate Division. At the heart of the dispute is D/Rs’ contention that SED is vested with exclusive jurisdiction concerning matters related to school construction. Therefore, the District has no obligation to seek a permit from the Village for the construction of the six (6) foot perimeter fence on the North Side School property. P/Ps contend that SED’s jurisdiction is not exclusive, as evidenced by the SED letters of May 7, 2019 and September 3, 2019. P/Ps argue that the relief they seek, i.e. preliminary injunction, declaratory judgment, and hybrid Article 78 ruling, are necessary to avert a legal wrong, as well as a subversion of local governance. Law/Analysis CPLR §6301 states: “A preliminary injunction may be granted in any action where it appears that the defendant threatens or is about to do, or is doing or procuring or suffering to be done, an act in violation of the plaintiff’s rights respecting the subject of the action, and tending to render the judgment ineffectual, or in any action where the plaintiff has demanded and would be entitled to a judgment restraining the defendant from the commission or continuance of an act, which, if committed or continued during the pendency of the action, would produce injury to the plaintiff. A temporary restraining order may be granted pending a hearing for a preliminary injunction where it appears that immediate and irreparable injury, loss or damage will result unless the defendant is restrained before the hearing can be had.” The party seeking a preliminary injunction has the burden of showing the likelihood of success on the merits of the claim; irreparable injury absent such relief; and a balancing of the equities in that party’s favor. (See Kelley v. Garuda, 36 A.D.3d 593 [2d Dept. 2007]). D/Rs assert that P/Ps cannot demonstrate irreparable harm in that P/Ps’ harm is purely monetary and as such cannot serve as the basis for a preliminary injunction. According to D/Rs any potential harm to P/Ps could only relate to the cost of erecting the fence, and any costs associated with work delays or any directive to remove the fence if it were to be completed or partially completed. P/Ps counter that they would indeed suffer irreparable harm should a preliminary injunction not issue, and that the harm transcends money. P/Ps contend that D/Rs’ commencement of construction of a 6-foot fence around a portion of the North Side primary school without first seeking and obtaining a permit from the Village is violative of §160-37 of the Village Code of the Incorporated Village of East Williston, which limits the height of fencing to four (4) feet in height. (See Plaintiff’s Verified Hybrid Article 78 Petition and Declaratory Judgment Complaint, Exhibit D). They further contend that D/Rs’ failure to seek and obtain a Village permit thwarts the legal process, which would provide D/Rs a determination from which D/Rs would be entitled to appeal in the event the determination were unfavorable. P/Ps argue that irreparable harm inures to them as residents and taxpayers of the District from D/Rs’ failure to participate in the process of making application to the Village for a permit in that D/Rs’ action or inaction deprives the Village and P/Ps, as taxpayers within the District, of rightful participation in Village governance, as well as results in significant costs due to D/Rs’ actions. It is P/Ps’ contention that D/Rs’ actions, if allowed to go unchecked, would unlawfully afford D/Rs the opportunity to avoid accountability to the Village and its taxpayers, resulting in significant avoidable costs to P/Ps, the Village, and all taxpayers therein, and thereby infringing on their local governance. In order to prevail on the issue of a preliminary injunction, P/Ps must also establish that they are likely to succeed on the merits. D/Rs contend that P/Ps fail in this regard, as P/Ps have presented no evidence that the District is in violation of the Village Code and local zoning considerations. D/Rs elaborate by contending that P/Ps misconstrue the May 7, 2019 SED letter by claiming that SED directed the District to comply with local zoning. D/Rs assert that such is not the case as SED simultaneously approved the construction of the fence irrespective of whether the District obtained approval from the Village as P/Ps’ claim was required. According to D/Rs, villages are prohibited from asserting jurisdiction over school construction under the jurisdiction of SED. In other words, D/Rs argue that SED has exclusive jurisdiction with respect to the erection of the fence on the North Side School property. Also in support of their opposition, D/Rs submitted an affidavit of Diane Castonguay, the Assistant Superintendent for Business of the District, which sets forth the history leading up to the commencement of the erection of the fence, and notably, also includes the two (2) SED letters. Additionally, an affidavit of John Grillo, the District Architect, was also submitted in opposition of the preliminary injunction. In his affidavit, Mr. Grillo also sets forth a timeline of the project, which he states was commenced out of security concerns. The security factor is considered herein, but the Court notes that the prospective fence does not completely enclose the North Side School. In fact, the proposed fence is to be erected on three (3) of the four (4) sides of the school, which would still allow access to school property. Further, the Court also notes that modifications had already been made to the proposed fence plan based on safety concerns expressed by the fire and police departments. Further, the Court notes that additional work apart from the fence construction is simultaneously ongoing at the North Side School, and there has been no sufficiently credible showing by D/Rs that halting the fence construction would pose a significant safety risk. Also noteworthy is the fact that the timelines set forth in the affidavits also include the SED communications. The architect also swears that he had never in the past applied to a village for a building permit to commence a school construction. This assertion, however, is not by itself dispositive as to whether a Village permit is at the very least required to be sought, especially in light of the SED letters. P/Ps contend that they have established a likelihood of success on the merits in that the Village Code was not adhered to and that the SED letters support P/P’s position. As set forth above and here excerpted, the May 7, 2019 SED letter states: Your building project was approved by this Department on April 11, 2019 pursuant to Education Law §401, 407, 408. Please be advised that the State Education Department’s approval of a school district building project is separate and distinct from any local zoning approval which may still be required. See e.g., Ravena-Coeymans-Selkirk Cent. Sch. Dist. v. Town of Bethlehem, 156 A.D.3d 179 (3rd Dept. 2017); leave to appeal denied, 31 N.Y.3d 901 (2018). As such, the district is advised to resolve any potential local zoning issues related to this project directly with the Village of East Williston. SED specifically and unambiguously states that their approval is “separate and distinct” from local zoning requirements. Further, though the language of the letter is not a directive, it clearly demonstrates that some local approval may be necessary, and recommends adherence to the local zoning process, in the event that an additional approval is necessary, i.e. that SED’s jurisdiction is not exclusive. Moreover, to reinforce the point, the May 7, 2019 SED letter specifically cites Ravena-Coeymans-Selkirk Cent. Sch. Dist. v. Town of Bethlehem, 156 A.D.3d 179 [3rd Dept. 2017]; leave to appeal denied, 31 N.Y.3d 901 [2018]. In Ravena, the Court citing Matter of Cohen v. Board of Appeals of Vil. of Saddle Rock, 100 NY2d 395, 399 [2003] [citations omitted] stated, “Petitioner argues that, as a public, it is immune and exempt from all municipal zoning regulations as they apply to the use of real property for school purposes. While schools enjoy some immunity from zoning regulations, that immunity is not so broad and absolute as Petitioner contends. As a matter of constitutional and statutory delegation, local governments are authorized to legislate in enumerated areas of local concern…” On the question of jurisdictional exclusivity of the state, the Ravena court further said, “Some courts have interpreted this mandate as the state reserve[ing] unto itself the control over and the authority to regulate all school matters, such that a school district should be and is immune from the attempted regulation of [certain] rights and responsibilities [granted under the Education Law] by means of building codes or zoning ordinances…However, several of these courts have incorrectly interpreted prior decisions to extend a full exemption from zoning ordinances where it was not warranted…” Ravena goes on to state, “Reliance on cases granting schools immunity from all zoning regulation is misplaced, considering the Court of Appeals decision in Cornell Univ. v. Bagnardi (68 NY2d 583 [1986])”. Further, Ravena goes on to state, “…these general rules…were interpreted by some courts to demand a full exemption from zoning rules for all educational and church uses — an interpretation that is mandated neither by the case law of our [state] nor common sense”…The Court clarified that it never intended to “render municipalities powerless in the face of a religious or educational institution’s proposed expansion, no matter how offensive, overpowering or unsafe to a residential neighborhoods the use might be, and renewed its rejection of the existence of any conclusive presumption of an entitlement to an exemption from zoning ordinances for schools.” Though the underlying facts of Ravena and Cornell differ from those herein, the gravamen of the issues in all is identical, i.e. that the state does not have exclusive jurisdiction over matters relating to school real estate, and that local zoning bodies may also have jurisdiction. The second SED letter, dated September 3, 2019, as excerpted, states: At the request of your attorneys, I have been asked to clarify the purpose of my letter to you dated May 7, 2019, which was written in response to correspondence received by the Village of East Williston dated April 16, 2019. The purpose of my letter, as stated therein, was to alert the school district that there may be additional local zoning approval required and to suggest that the District consult directly with the Village of East Williston in that regard. Again, the clarification reinforces the recommendation “alerting” the District and “suggesting” that they consult with the Village concerning additional zoning approval. It is unknown what the result of a Village permit application would be, nor should it be known in the absence of an application and a due and lawful process, to which P/Ps and the Village are entitled as residents, property owners, and governors of their locality. The law, facts, and circumstances support P/Ps’ position that they would likely succeed on the merits. P/Ps additionally assert that the balancing of the equities is in their favor. All factors considered, the Court agrees. Local governance is an underpinning of our democracy. Localities enact statutes that serve their residents and provide them with a lawful and orderly means of governance concerning local matters. Despite an abundance of state and federal laws which necessarily impact the lives of local residents, they must be assured and confident that their local self-governance is not impeded, and that they can meaningfully participate in the matters that significantly touch their lives, as does this school-related matter. P/Ps contend that D/Rs would not be irreparably prejudiced if they were made to halt construction of the fence in order to abide by the local zoning permit process. The Court agrees. The fact that D/Rs commenced the construction of the fence two (2) weeks before the start of the school year, knowing fully that D/Rs had not sought a local zoning permit, that SED had recommended to them in not one (1) but two (2) letters to do so, and that the Village had voiced objection, was short-sighted, and cannot now be used as a sword to prevent the halting of the construction until a local permit is sought. Based on the foregoing, the Court finds P/Ps have satisfied their burden of showing the likelihood of success on the merits of the claim; irreparable injury absent such relief; and a balancing of the equities in their favor, and that a preliminary injunction is warranted. Additionally, the Court finds that P/Ps have established that the decision of whether to file for a permit from the Village is not one that D/Rs are unilaterally entitled to make; and moreover, D/Rs are not immune from local zoning considerations even where SED has issued a permit. Accordingly, it is hereby ORDERED, that Plaintiff/Petitioners’ motion for an Order of the Court granting a preliminary injunction pursuant to CPLR §6311 enjoining and restraining Defendants/Respondents and their agents, servants, employees, contractors and/or vendors from continuing construction of a fence at the Northside School pending resolution of the underlying action is Granted; and it is ORDERED, that Plaintiff/Petitioners’ motion for an Order of the Court that the administrative determination by Defendants/Respondents to ignore the legal requirement to file for a permit and follow the Village code process was arbitrary and capricious, is Granted; and it is ORDERED, that Plaintiff/Petitioners’ motion for an Order of the Court pursuant to CPLR §3001 and §3017(b) that the East Williston Union Free School District is not blanketly and absolutely immune from local zoning considerations; that local zoning considerations with respect to the District are applicable when there is no conflicting New York State Education Law provision or State Education Department (“SED”) Regulation relative to a particular issue; that SED has acknowledged, in its May 7, 2019 letter to the District that there are no particular New York State Education Law requirements or SED regulations that would pre-empt the Village Code as it relates to fencing and the height thereof; and that as a result on the issue of the construction of the fence and the height thereof, the District is subject to the jurisdiction of the Village, and obligated to abide by the process prescribed by the Village Code, is Granted; and it is ORDERED, that the preliminary injunction shall remain in effect until such time as Defendant/Respondents make application to and a determination is rendered by the local zoning body; and it is ORDERED, that the Court having extensively conferenced this matter and having also heard extensively from the parties on the record, finds that there is no need for an additional hearing, including the previously scheduled October 7, 2019 hearing, concerning the relief sought in the Order to Show Cause that is the subject of this Decision and Order, and the previously scheduled and now additional October 7, 2019 hearing is hereby cancelled. All applications not specifically addressed herein are denied. This constitutes the Decision and Order of the Court. Dated: October 4, 2019 Mineola, New York
