On July 22, 2020, petitioner-plaintiff (hereinafter petitioner) purchased certain premises located at 51 South Park Street in the Village of Cambridge, Washington County, which it operates as the “Motel Cambridge.” As relevant here, on August 5, 2016 petitioner’s predecessor in title applied to respondent-defendant Village of Cambridge Planning Board (hereinafter the Planning Board) for a Special Use Permit authorizing use of the premises as a motel. The application described the premises as including “12 unit motel rooms” and “5 unit efficiency apartment[s].” The “current use” of the premises is described in the application as “motel as its been,” and the “proposed use” described as “same as always.” On August 8, 2016, the Planning Board unanimously voted to approve the application and granted the Special Use Permit, with the minutes from the meeting stating as follows: “The Board reviewed the application. The property was formally [sic] used as a motel with efficiency rooms, however it has been closed for a couple of years now. Mr. Alexander stated that he wanted to use the [property] as a motel without efficiency rooms.” After purchasing the motel, petitioner installed kitchenettes in each of the motel rooms and allegedly began advertising them as efficiency rooms or one-room apartments available for longer stays. On February 3, 2021, respondent-defendant Village of Cambridge Zoning Enforcement Officer (hereinafter ZEO) sent correspondence to the Village of Cambridge Board of Trustees and the Planning Board advising that he “received several complaints regarding the Cambridge [M]otel property[, with a]ll complaints stat[ing] the property [is not] following the special use permit as described [in] the Planning Board application dated 8/5/2016.” The ZEO thereafter contacted petitioner and scheduled an inspection of the property for April 7, 2021. On March 31, 2021, petitioner made a Freedom of Information Law (see Public Officers Law art 6 [hereinafter FOIL]) request to the Village of Cambridge Clerk to obtain copies of, inter alia, the complaints made to the ZEO. Petitioner received certain documents in response to this request on April 2, 2021, but was apparently unsatisfied and made several subsequent requests. The impetus for these requests appears to be petitioner’s belief that “the genesis of the entire investigation and proceeding against [it] was concepted by [respondent-defendant] Village of Cambridge Mayor” Carman Bogle.1 On June 21, 2021, the ZEO served petitioner with a notice of violation pursuant to §10.03 (E) of the Village of Cambridge Zoning Law (hereinafter the Zoning Law), which provides that “[a]ny violation of the conditions of a special use permit…shall be deemed a violation of this Local Law and shall be subject to [an] enforcement action.” The notice of violation stated, in pertinent part: “Please be advised 51 South Park Street is in violation of the 2016 Special Use Permit. Specifically, the 2016 Special Use Permit approved the property to be used as a 12-room motel along with 5 efficiency rooms. Upon investigation, all rooms visited were configured with efficiency apartments which is in violation of the 2016 Special Use permit…. “You are directed to bring your business into compliance within 30 days.” Petitioner — through counsel — sent correspondence to the ZEO on July 6, 2021, inquiring what precisely was required to bring the motel into compliance with the Special Use Permit. In this regard, petitioner noted that the Special Use Permit authorized use of the premises as a motel, with a motel defined in §1.01 of the Village Zoning Law as “[a] lodging facility offering accommodations to the general public, including buildings designed as tourist courts, overnight cabins, housekeeping units/cottages and similar facilities, and providing additional customary uses such as, but not limited to, restaurants, meeting rooms, playgrounds, game rooms, snack bars and recreational facilities or activities used primarily for patrons including tennis courts, swimming or bathing, golf or convention facilities, excluding water-based motorized vehicles.” Petitioner argued that the Village Zoning Law does not define efficiencies, nor does it indicate that a motel may only have a certain number of rooms with efficiencies. Petitioner also filed an appeal of the ZEO’s notice of violation with the Village of Cambridge Zoning Board of Appeals (hereinafter the ZBA) on July 7, 2021, with §14.02 (A) of the Village Zoning Law providing that “[a]n appeal from an action, omission, decision or rule by the [ZEO] regarding a requirement of this Local Law may be made only to the Zoning Board of Appeals.” The ZBA, however, did not consider the appeal. Instead, at the conclusion of the 30-day period the matter was referred to the Planning Board, with a hearing scheduled for September 22, 2021 on the issue of whether the Special Use Permit should be revoked. In this regard, §10.03 (D) of the Village Zoning Law provides that “[a] special use permit may be revoked by the Planning Board if the conditions of the special use permit are violated.” At the beginning of this hearing the Mayor stated as follows: “[O]ur zoning person officer is…away on vacation…and according to our zoning if our…zoning person officer is absent then it automatically falls to the Mayor[,s]o I am filling in for him tonight.”2 The Mayor then proceeded to present evidence and witnesses in support of petitioner’s alleged violation of the Special Use Permit, and petitioner was given an opportunity to oppose. Both parties had counsel present for the hearing. The Planning Board then met on October 12, 2021 without petitioner present and voted unanimously to revoke the Special Use Permit. This determination was sent to petitioner on October 18, 2021, with correspondence advising that “[p]ursuant to [§] 12.04 of the Village’s Zoning Law, [it] could be appealed to the [ZBA].” On November 3, 2021, petitioner submitted an appeal to the Village of Cambridge Clerk relative to the responses to his several FOIL requests, contending that certain records were intentionally omitted. Petitioner thereafter filed an appeal of the revocation of the Special Use Permit with the ZBA on November 15, 2021, simultaneously commencing this combined CPLR article 78 proceeding and declaratory judgment action. The ZBA has apparently tabled that appeal pending the outcome of this lawsuit. Petitioner alleges seven causes of action: (1) the Planning Board’s revocation of the Special Use Permit was not based upon substantial evidence, constituted an error of law and was arbitraryand capricious; (2) the Planning Board exceeded its jurisdiction in conducting the hearing and revoking the Special Use Permit; (3) the ZEO’s failure to provide the requested clarification relative to the notice of violation and the ZBA’s failure to consider the appeal of the notice of violation constitute an abuse of discretion and an error of law; (4) petitioner is entitled to counsel fees because respondents-defendants (hereinafter respondents) acted with gross negligence, in bad faith, and with malice, particularly with respect to the Mayor acting as ZEO during the hearing before the Planning Board; (5) respondents failed to provide adequate responses to petitioner’s FOIL requests; (6)petitioner is entitled to a declaratory judgment that the current use of the motel complies with the Special Use Permit; and (7) petitioner’s constitutional rights have been violated under 42 USC §1983 as a result of respondents’ actions. Presently before the Court is respondents’ pre-answer motion seeking to dismiss the verified petition and complaint in its entirety. At the outset, respondents contend that petitioner’s first, third, fifth, and sixth causes of action must be dismissed for lack of standing and ripeness. Turning first to the issue of standing, “[a]n individual challenging an administrative determination in a land-use matter must show that he or she ‘would suffer direct harm, injury that is in some way different from that of the public at large’” (Matter of Barnes Rd. Area Neighborhood Assn. v. Planning Bd. of the Town of Sand Lake, 206 AD3d 1507, 1508 [2022], quoting Matter of Ziemba v. City of. Troy, 37 AD3d 68, 71 [2006] [internal quotation marks and citations omitted], lv denied 8 NY3d 806 [2007]; see Matter of Basha Kill Area Assn. v. Planning Bd. of Town of Mamakating, 46 AD3d 1309, 1310-1311 [2007], lv denied 10 NY3d 712 [2008]). Here, petitioner — the sole owner of the motel — is unquestionably suffering a direct harm entirely different from that of the public at large. To that end, the Court finds respondents’ contention that petitioner is without standing to be wholly without merit. With respect to the issue of ripeness, “‘[a] determination as to whether a controversy is ripe for review requires a court ‘first to determine whether the issues tendered are appropriate for judicial resolution, and second to assess the hardship to the parties if judicial relief is denied’” (Sullivan v. New York State Joint Commn. on Pub. Ethics, 207 AD3d 117, 130-131 [2022], quoting Church of St. Paul & St. Andrew v. Barwick, 67 NY2d 510, 519 [1986] [internal quotation marks and citation omitted]; see National Park Hospitality Assn. v. Department of Interior, 538 U.S. 803, 808, 123 S.Ct. 2026, 155 L.Ed.2d 1017 [2003]). “‘The appropriateness inquiry looks to whether the administrative action being reviewed is final and whether the controversy may be determined as a purely legal question. The concept of finality requires an examination of the completeness of the administrative action and a pragmatic evaluation of whether the decision-maker has arrived at a definitive position on the issue that inflicts an actual, concrete injury’” (Sullivan v. New York State Joint Commn. on Pub. Ethics, 207 AD3d at 131, quoting Church of St. Paul & St. Andrew v. Barwick, 67 NY2d at 519 [internal quotation marks and citations omitted]). “The hardship prong, ‘from the standpoint of the challenging party, entails an examination of the certainty and effect of the harm claimed to be caused by the administrative action: whether it is sufficiently direct and immediate and whether the action’s effects have been felt in a concrete way. If the anticipated harm is insignificant, remote or contingent[,] the controversy is not ripe’” (Sullivan v. New York State Joint Commn. on Pub. Ethics, 207 AD3d at 131, quoting Church of St. Paul & St. Andrew v. Barwick, 67 NY2d at 519 [internal quotation marks and citations omitted]). Here, the Court finds that the issues tendered in petitioner’s first, third, fifth, and sixth causes of action are appropriate for judicial resolution and, further, that there will be substantial hardship to petitioner if judicial relief is denied. Insofar as the third and sixth causes of action are concerned, the ZBA declined to consider petitioner’s appeal from the ZEO’s notice of violation — notwithstanding the language of §14.02 (A) of the Village Zoning Law, among other sections of that Law3 — and as a result, the notice of violation is sufficiently final. Indeed, the Planning Board subsequently revoked the Special Use Permit because of the violations listed in the notice. Turning now to the first cause of action — notwithstanding the representations of the Planning Board — §12.04 of the Village Zoning Law does not require nor authorize an appeal to the ZBA from a determination of the Planning Board. Rather, this section applies to appeals from determinations of administrative officials like the ZEO. Petitioner therefore was not required to appeal the determination of the Planning Board to the ZBA before commencing a CPLR article 78 proceeding (see Matter of Woodland Community Assn. v. Planning Bd. of Town of Shandaken, 52 AD3d 991, 992 [2008]; Matter of Jones v. Planning Bd. of Town of Marlborough, 203 AD2d 626, 628 [1994]). In any event, petitioner attempted to appeal the Planning Board’s revocation of the Special Use Permit to the ZBA and again, the ZBA declined to consider it. With respect to the fifth cause of action, petitioner did not receive a reply to his administrative appeal of the FOIL responses within ten (10) days and, as such, it too is ripe for review (see Public Officers Law §89 [4][b]; Matter of Hutchinson v. Annucci, 189 AD3d 1850, 1852 [2020]). Respondents next contend that petitioner’s second cause of action must be dismissed for lack of subject matter jurisdiction. CPLR 7803(2) plainly states that petitioner may raise the following question in a CPLR article 78 proceeding: “whether the body or officer proceeded…in excess of jurisdiction.” To the extent that this is precisely the allegation made in the second cause of action — namely that the Planning Board exceeded its jurisdiction — this contention is unavailing. Finally, respondents contend that petitioner’s fourth cause of action must be dismissed for failure to state a cause of action, and its seventh cause of action must be dismissed because petitioner did not have a vested interest in the subject premises. Neither of these contentions require a detailed analysis. Counsel fees may be awarded in the context of a combined CPLR article 78 proceeding and declaratory judgment action (see e.g. Matter of Brown v. City of Schenectady, __ AD3d __, 2022 NY Slip Op 05245, *1 [2022]) and, as such, the fourth cause of action clearly states a claim. Further, the vested interest doctrine — relied upon by respondents in their argument relative to the seventh cause of action — provides that “‘where a more restrictive zoning ordinance is enacted, an owner will be permitted to complete a structure or a development which an amendment has rendered nonconforming only where the owner has undertaken substantial construction and made substantial expenditures prior to the effective date of the amendment’” (Matter of Jamaica Recycling Corp. v. City of New York, 12 Misc 3d 276, 292 [Sup Ct, NY County 2006], quoting Matter of Ellington Constr. Corp. v. Zoning Bd. of Appeals of Inc. Vil. of New Hempstead, 77 NY2d 114, 122 [1990]). The doctrine is therefore not applicable under the circumstances herein. Based upon the foregoing, respondents’ motion to dismiss is denied in its entirety. Respondents are hereby directed to serve an answer with administrative return within thirty (30) days of the date of this Decision and Order. Petitioner shall then have fifteen (15) days from the date of receipt of the answer with administrative return to serve its reply. Therefore, having considered NYSCEF document Nos. 1 through 16, 28 through 43, 45 through 47, and 50, and oral argument having been heard on October 14, 2022 with Justin M. Grassi, Esq. appearing on behalf of petitioner-plaintiff, and April J. Laws, Esq. appearing on behalf of respondents-defendants, it is hereby ORDERED that respondents-defendants’ motion to dismiss is denied in its entirety; and it is further ORDERED that respondents-defendants shall serve an answer with administrative return within thirty (30) days of the date of this Decision and Order; and it is further ORDERED that petitioner shall serve a reply within fifteen (15) days of receipt of the answer with administrative return. The original of this Decision and Order has been e-filed by the Court. Counsel for petitioner is hereby directed to serve a copy of the Decision and Order with notice of entry in accordance with CPLR 5513. Dated: October 25, 2022
