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SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF ULSTER CATSKILL HERITAGE ALLIANCE, IN Petitioner, DECISION/ORDER for a judgment pursuant to CPLR Article 78 -against- Index No. 17-701 RJ.L No. 55-17-0461 Richard Mott, J.C. TOWN OF SHANDAKEN ZONING BOARD OF APPEALS, ‘TOWN OF SHANDAKEN PLANNING BOARD and CROSSROADS VENTURES, LLC, Respondents. X Petition Return Date: May 2, 2017, Final submission received May 9, 2017. APPEARANCES: Petitioner: Claudia K. Braymer, Esq Braymer Law, PLLC PO Box 2369 Glens Falls, NY 12801 Co-Counse! John W. Caffry, Esq., Of Counsel Caffry & Flower 100 Bay Street Glens Falls, NY 12801 Co-Counse! Respondents: Richard J. Olson, Esq. McCabe & Mack, LLP 63 Washington Street Poughkeepsie, NY 12601 For: Town of Shandaken Zoning Board of Appeals and Town of Shandaken Planning Board John J. Henry, Esq. Whiteman Osterman & Hanna, LLP One Commerce Plaza Albany, NY 12206 For Crossroads Ventures, LLC Mott, J. Petitioner in this Article 78 proceeding seeks, inter alfa, to annul Respondent Town of Shandaken Zoning Board of Appeals (hereinafter, “ZBA”) interpretation of the Shandaken Zoning Code (hereinafter, “SZC’) as arbitrary and capricious and thereby annul Respondent Town of Shandaken Planning Board's (hereinafter, “Board”) special permit and site plan approvals (hereinafter, “Approvals"), The ZBA, Board and Respondents Crossroads Ventures, LLC, (hereinafter, "Crossroads”) oppose. Background The facts giving rise to this proceeding have been documented in Decisions and Orders in a prior Article 78 proceeding, which remitted the dispute to the ZBA to determine ifthe disputed detached lodges and duplex units, (hereinafter, “habitational structures"), part of a proposed hotel development project, (hereinafter, “Project’), are permitted uses under the SZC.1 The dispute involves the fact that although hotel, motel and lodge developments and vacation resorts are permitted in the subject zoning districts, the habitational structures do not fit the SZC definition of hotel or motel, and the term lodges is undefined. Further, the SZC prohibits new construction multifamily [sic] dwellings? in said districts (R3, RS) or requires a special permit (R1.5). * Gatskill Heritage Alfiance, Inc, v. Crossroads Ventures, LLC, and Town of Shandaken Planning Board, Ulster County Index No. 16-0385, Decision and Order dated June 21, 2016 (denying a motion to dismiss) and Decision and Order, dated October 6, 2016. (hereinafter, “October Order") 2 The SZC defines multiple dwellings as “a detached, semidetached or attached building, or portion thereof, containing three or more dwelling units,” but does not define multifamily dwelling, SZC § 116-4. Family is defined as certain individuals living together in a single dwelling unit and "maintaining a common household.” id The disputed habitational structures consist of 163 detached lodging units containing multiple lodge and room units grouped around the hotels® to allow larger groups and families “somewhat longer transient stays.’ Some are intended to be sold as time shares, remaining under hotel management and fee ownership on a single consolidated lot. In accordance with the October Order, the Board requested that the ZBA provide its interpretation and gave their opinion that the subject structures constitute lodges for transient occupancy and suggesting a definition for “lodge”. The ZBA conducted a public hearing on December 21, 2016. It also reviewed Project applications and prior approvals and considered written submissions from Petitioner which also intervened through counsel at the public hearing. In January, 2017 the ZBA held a closed workshop meeting to consult with counsel on potential litigation. On February 15, 2017, it approved a resolution (hereinafter, “Resolution”) by a vote of 5-0, without further ion. public discu ZBA Resolution ‘The Resolution observes that the SZC permits vacation resorts and hotel, motel and lodge developments by special permit in the subject zoning districts. It relies upon dictionary definitions of the term lodge to conclude that it isa similar use to that of a hotel or motel which are defined as single structures used for transient occupancy. Further, it notes that a lodge may be detached from the main hotel building. Therefore, it reasons that 3 A hotel is defined as “a multiple dwelling..which contains living and sleeping accommodations for transient occupancy" with common exterior entrances” The Petition refers to 15 detached habitational structures associated with the Wildacres Resort, The Resolution refers to 18 buildings housing the 163 additiona) units, 3 the habitational structures are permitted by special use as part of hotel, motel or lodge development, “held under common ownership,” as here, “where the Board's Approval is contingent upon all the individual lots being consolidated into one lot to be retained in common ownership by Crossroads. Crossroads therefore will retain ownership of the real property and will manage and lease the lodge and duplex units to guests who visit the resort.” The ZBA rejects Petitioner's contention that the structures are multiple dwellings. It reasons that because motels, inns and similar uses characterized as transient occupancies are specifically excluded from the definition of dwelling units and multiple dwellings are made up of dwelling units, any structure used for transient occupancy cannot be a multiple dwelling, Further, it asserts that this Court previously determined that the habitational structures are not multiple dwellings because of its rejection of the parties’ remaining contentions as academic or without merit. ‘The ZBA concludes that: “the term “lodge” as used in the [SZC] should be interpreted in the manner as proposed by the [Board], i.e, as including the detached buildings...containing one or more units of lodging and sleeping accommodations for transient occupancy in connection with the special permitted use of hotel or lodge development and/or vacation resort held under common ownership. Furthermore this [ZBA] finds that the term “transient occupancy” requires that users of the lodge units have another or permanent place of residence or abode, so that the lodge units will not serve as a primary residence.” The Petition Petitioner claims the Resolution is arbitrary and capricious, alleging in its first, through | 'd causes of action that the ZBA acted ultra vires by legislating definitions of 5 The SZC defines a dwelling unit as: “A building or entirely self-contained portion thereof containing complete housekeeping facilities for only one farmily, ..and having no enclosed space... or cooking or sanitary facilities in common with any other ‘dwelling unit’. A boarding house, dormitory, motel, inn, nursing home, fraternity, sorority ‘or other similar building shall not be deemed to constitute a ‘dwelling unit." 4 lodge and transient occupancy, that it failed to acknowledge SCZ definitions of multiple dwellings and condominiums which are not permitted as of right in the subject zoning districts, or to respond to the Court's directive. Its fourth cause of action claims a violation of the Open Meetings Law, (hereinafter, “OML.") and alleges that the ZBA failed to deliberate publicly upon the six-page Resolution. The fifth cause of action alleges that because the ZBA Chair, Keith Johnson, (hereinafter, “Chair’) failed to recuse himself based upon an alleged conflict of interest arising from his prior work as a commercial logger for Crossroads’ and because he once plowed Crossroads’ driveway using the Town's equipment, the Resolution must be annulled. The sixth and seventh causes of action challenge the Board's Approvals upon the 2Ba's defective Resolution and that further, they are deficient because they fail to indicate which of the Projects additional uses are integral to the hotel SZC 116-40(0)(4).« First, Second and Third Causes of Action Parties’ Contentions Petitioner claims that the ZBA exceeded its authority and failed to assess whether the structures are permitted under the SZC. Respondents” contend that the Resolution properly reflects the ZBA’s power to interpret the SZC and that Petitioner is collaterally estopped from asserting that the habitational structures are multiple dwellings because the Court previously ruled thereon. “All uses integral to the hotel or motel development shall either be clearly accessory... as defined within § 116-4, {not for human habitation] or be permitted uses or special permit uses.” SZC 116-40(0)(4). 7 Respondents proffer the same arguments and they are addressed collectively herein. 5 Discussion Zoning laws are in derogation of the common law, must be strictly construed against the party seeking to enforce them and any ambiguity must be resolved in favor of the property owner. Ohrenstein v Zoning Bd. of Appeals of Town of Canaan, 39 AD3d 1041, 1042 [3d Dept 2007}. Further, a zoning board's interpretation of zoning law generally is afforded great deference and “will only be disturbed ifit is irrational or unreasonable.” Meier v Vil. of Champlain Zoning Bd. of Appeals, 129 AD3d 1364, 1365 [3d Dept 2015] Granger Group v Town of Taghkanic, 77 AD3d 1137, 1141 [3d Dept 2010] (ZBA reasonably concluded that the racetrack constituted a recreational use for private recreational Purposes within the customary meaning of recreation). However, such deference is not absolute and the ultimate responsibility of interpreting the law is with the court. Tartan Oil Corp. v Bohrer, 249 AD2d 481 [2d Dept 1998]. Brancato v Zoning Bd. of Appeals of City of Yonkers, NY., 30 AD3d 515, 516 [2d Dept 2006] (narrow exception to deference doctrine where ZBA incorrectly interprets zoning code). Where a zoning ordinance does not define a term, courts will give such term its ordinary meaning. Sullivan v Bd. of Zoning Appeals of City of Albany, 144 AD3d 1480, 1482 [8d Dept 2016], lv to appeal denied, 29 NY3d 901 [2017] ((ZBA improperly imposed an additional requirement in defining place of worship, requiring it also be communal). Such interpretation must construe the whole ordinance in a harmonized manner “to give it plain meaning, thereby avoiding a construction that renders superfluous any language therein.” “Winterton Properties, LLC v Town of Mamakating Zoning Bd. of Appeals, 132 AD3d 1141, 1143 [3d Dept 2015]; Saratoga County Economic Opportunity Council, Inc. v Vil. of Ballston Spa Zoning Ba. of Appeals, 112 AD3d 1035, 1037 [3d Dept 2013]; Lewis Family Farm, Inc. v ‘New York State Adirondack Park Agency, 64 AD3d 1009, 1014 [3d Dept 2009] (although farmworker residences fall within definition of single family dwellings they are also agricultural use structures under the ordinance) Finally, while it is proper for a zoning board to impose conditions and safeguards in conjunction with a special permit, they must be reasonable and relate only to the use of the land without regard to the person who owns or occupies it. Dexter v Town Bd. of Town of Gates, 36 NY2d 102, 105 [1975]. Therefore, a zoning board of appeals "may not insert conditions or criteria into a zoning ordinance that are not contained in the statutory language. Winterton Properties, LLC v Town of Mamakating Zoning Bd. of Appeals, 132 AD3d. 1141, 1143 [3d Dept 2015], citing Saratoga County Economic Opportunity Council, Inc. v Vil. of Ballston Spa Zoning Bd. of Appeals, 112 AD3d 1035, 1037 [3d Dept 2013]. S2C § 116-68(A)(2)(a) empowers the ZBA: “To decide upon the following questions upon request by an administrative official, board or agency of the town: (a) Determination of the meaning of any portion of the text of this Chapter or of any conditions or requirement specified or made {hereunder}.” SZC § 116-10 (B) states that: “Any use not listed specifically or through a similar use, as such may be deemed by the Zoning Board of Appeals, as a permitted, special permit or accessory use ...shall be considered a prohibited use...” While the ZBA improperly concluded that this Court previously determined that the habitational structures were not multiple dwellings, its conclusion that their use is similar to that of a hotel in accordance with a dictionary definition of a lodge, is rationally based. 8 Hotel and motel are specifically defined as multiple dwellings in the SZC, albeit those intended for transient occupancy. 7 Cole v Town of Esopus, 55 Misc 3d 382 [Sup Ct 2016] (interpretation by a zoning board of appeals of an ambiguous zoning law is entitled to deference). Winterton Properties, LLCv Town of Mamakating Zoning Bd. of Appeals, 132 AD3d at 1143. Indeed, the ZBA notes that although some units would be sold as time shares, they would continue to be owned and managed by Crossroads as part of the whole Project, located on a single consolidated lot. Similarly, while the ZBA exceeded its authority by defining transient occupancy as Fequiring an occupant to have a primary residence elsewhere, Dexter v Town Bd. of Town of Gates, 36 NY2d at 105, its reasoning that the term “transient” excludes the habitational structures’ use as a primary residence is rational, where the plain meaning of the term limits occupancy to a short, fleeting or transitory period. Accordingly, the Resolution constitutes a rational interpretation of the SZC’s ambiguity which permits hotel, motel and lodge developments by special permit in the subject zoning districts, despite the prohibition on new construction multifamily dwellings in those same zones. Consequently, Petitioner's first three causes of action are without merit. Open Meetings Law Parties’ Contentions Petitioner claims that the ZBA violated the OML and frustrated its purpose of ensuring meaningful public participation by deliberating in a private workshop session with its attorney. Petitioner cites that the Resolution vote, while occurring in a public session, was not preceded by ZBA public deliberations The ZBA maintains that it properly engaged in a closed session discussion with its attorney to discuss potential litigation, that the OML does not specifically require public deliberations following a hearing and that the Resolution reflects each member's determination. ‘The OML requires that meetings of a public body be open to the public, “except that an executive session of such body may be called and business transacted thereat in accordance with.” POL § 105; POL § 103 [a]; Zehner v Bd. of Educ. of Jordan-Elbridge Cent. School Dist, 91 AD3d 1349 [4th Dept 2012]. However, the OML is not to be construed to cover attorney-client communications. POL § 108(3); Brown v Feehan, 125 AD3d 1499, 1501 [4th Dept 2015]; Young v Bd. of Appeals of Inc. Vil. of Garden City, 194 AD2d 796, 798 [24 Dept 1993] (confidential communications between the board and its counsel concerning legal matters are exempt from the OML). Thus, Board may seek advice of counsel without regard to the OML disclosure requirements so long as executive session is not used to avoid public debate. Here, Petitioner fails to allege facts meriting a sanction, because it has failed to demonstrate a formal rule violation evidencing an attempt to avoid public serutiny of its deliberations. POL § 103(e). Cf. Frigault v Town of Richfield Planning Bd, 107 AD3d 1347, 1352 [3d Dept 2013] (no good cause for sanction even where there is a formal rule violation concerning change of mecting location where purpose was to ensure public Participation) with, Gordon v Vil. of Monticello, Inc., 87 NY2d 124 [1995] (village board violated public deliberations requirement when it created and divided up elected leadership positions in closed executive session, thereby avoiding quorum requirements). Further, there is no specific requirement of public discussion prior to a vote after a hearing. Therefore, Petitioner's fourth cause of action must be dismissed. Conflict of interest Petitioner’s submission is insufficient to demonstrate that the ZBA Chair had a conflict of interest that affected the outcome of deliberations inasmuch as the Board’s vote was 5-0, In addition, Petitioner failed to rebut the Chair's affidavit substantiating that he had no conflict of interest. The Chair disclosed a 2010 contract with Crossroads to log land it then owned, which the Chair had logged for a prior owner and which Crossroads later sold to New York State. Cf, Zagoreos v Conklin, 109 AD2d 281, 282 [2d Dept 1985] (where employees of a utility cast the decisive votes of ZBA granting said utility’s application for a variance said determination was properly set aside due to a perceived conflict of interest) and Tuxedo Land Trust, Inc. v Town Bd. of Town of Tuxedo, 112 AD3d 726 [2d Dept 2013] (petitioners could not prevail where they failed to controvert the sworn allegations of the involved officials) with Matter of Tuxedo Conservation & Taxpayers Assn, v. Town Bd. of Town of Tuxedo, 69 A.D.2d 320, 323-327 (2nd Dep't 1979) (determination correctly set aside where voting member was employed by entity that did business with applicant and would likely benefit financially if application were granted); see also, Parker v Town of Gardiner Planning Bd, 184 AD2d 937, 938 [3d Dept 1992] (mere fact of employment or similar financial interest does not mandate disqualification, especially where such interest is insubstantial). Consequently, Petitioner's fifth cause of action is without merit. Board Approvals Given the ZBA’s rational conclusion that the habitational structures are a lodge development permitted in the subject zoning districts by special permit, the Approvals are also entitled to deference. Valentine v McLaughlin, 87 AD3d 1155, 1158 [2d Dept 2011] (where planning board's decision has a rational basis in the record, a court may not 10 substitute it ‘own judgment, even where the evidence could support a different conclusion); Kinderhook Dev, LLC v City of Gloversville Planning Bd., 88 AD3d 1207, 1209 [3d Dept 2011] (petitioner met its burden of demonstrating that the proposed project has complied with any legislatively imposed conditions on an otherwise permitted use) Accordingly, the petition is dismissed. Any remaining contentions have been rendered academic by this determination. This constitutes the Decision and Order of this Court. The Court is forwarding the original Decision and Order directly to the Respondent ZBA who is required to comply with the provisions of CPLR §2220 with regard to filing and entry thereof. A photocopy of the Decision and Order is being forwarded to all other parties who appeared in the proceeding. All original motion papers are being delivered by the Court to the Supreme Court Clerk for transmission to the County Clerk. Dated: Hudson, New York June 30, 2017 RICHARD MOTT> Papers Considered: 1. Notice of Petition of Claudia K. Braymer, Esq,, date March 22, 2017 and Petition of Claudia K. Braymer, Esq., dated March 23, 2017 with Exhibits A-D; 2. Verified Answer and Affirmation and of Richard J. Olson, Esq., dated April 28, 2017, with Exhibits A-E, Affidavit of Keith Johnson, dated April 27, 2017 with Exhibit A, Certified Copy of the Administrative Record and Supplement to Certified Copy of Administrative Record of Anne Ricciardella, dated July 7, 2016 and April 25, 2017, respectively; 3. Verified Answer, Affirmation and Memorandum of Law of John J. Henry, Esq, dated April 28, 2017 with Exhibits A-E; 4, Reply Memorandum of Law of Claudia K. Braymer, Esq., and Reply Affidavit of Kathy Nolan, dated May 2, 2017. a

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