Beer v. Town of New Paltz

179 A.D.3d 1238

118 N.Y.S.3d 755

In the Matter of Ingrid BEER, Appellant,

v.TOWN OF NEW PALTZ et al., Respondents.

528273

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: November 12, 2019

Decided and Entered: January 9, 2020

Marty I. Rosenbaum, Albany, for appellant.

DiStasi Moriello & Murphy Law PLLC, Highland (Joseph M. Moriello of counsel), for respondents.

Before: Garry, P.J., Egan Jr., Lynch and Aarons, JJ.

MEMORANDUM AND ORDER

Egan Jr., J. Appeal from a judgment of the Supreme Court (Cahill, J.), entered March 22, 2018 in Ulster County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 78, to review a determination of the Town Board of respondent Town of New Paltz establishing Water District No. 5.

The New York City Department of Environmental Protection (hereinafter DEP) operates and maintains the water supply system for the City of New York utilizing a number of reservoirs and lakes located in the Hudson Valley and Catskill Mountains. In addition to providing drinking water to the City of New York, this system also provides water to a number of other communities in Westchester, Orange, Putnam and Ulster Counties, including respondent Town of New Paltz. In order to perform maintenance work on this system, DEP determined that it would need to interrupt the supply of water to the Town on multiple occasions for extended periods of time. In response, the Town identified a well at 101 Plains Road within the Town that was determined to have adequate capacity and water quality to serve as an alternate source of supply and, in 2014, a report was issued recommending, among other things, the establishment of a new water district in the area of Plains Road. In June 2015, the Town Board of the Town of New Paltz adopted a resolution authorizing an intergovernmental agreement with the City of New York and DEP that provided that DEP would, among other things, provide the Town with the funding necessary to plan and design two groundwater systems, including, as relevant here, the well located at 101 Plains Road. Thereafter, in November 2015, a majority of property owners within the proposed district filed a petition (hereinafter the citizens' petition) for the establishment of Water District No. 5 (hereinafter the district). Following an environmental review under the State Environmental Quality Review Act (see ECL art 8), the Town Board issued a negative declaration¹ and, following two public hearings, on February 25, 2016, adopted a resolution and order establishing the district (hereinafter the determination).

In March 2016, petitioner, a property owner within the area to be served by the district, commenced this proceeding pursuant to CPLR article 78 seeking to annul the determination. Petitioner set forth nine causes of action, contending that the determination suffered from numerous procedural errors and/or omissions pursuant to Town Law article 12. In April 2016, respondents filed a pre-answer motion to dismiss, arguing, among other things, that the petition failed to state a cause of action upon which relief may be granted. In September 2016, Supreme Court partially granted respondents' motion by dismissing petitioner's second, fifth and seventh causes of action.² Respondents then answered, and, in March 2018, Supreme Court dismissed the remaining five causes of action on the merits. This appeal ensued.³

Petitioner contends that Supreme Court erred when it partially granted respondents' pre-answer motion, dismissing her second, fifth and seventh causes of action. We disagree. Supreme Court properly dismissed petitioner's second cause of action alleging that the citizens' petition and accompanying documentation failed to properly describe and define the boundaries of the district pursuant to Town Law § 191. Town Law § 191 provides, in relevant part, that a petition for the establishment of a water district "shall describe the boundaries of the proposed district ... in a manner sufficient to identify the lands included therein as in a deed of conveyance." Here, the citizens' petition was supplemented by, among other attachments, (1) a map depicting the boundaries of the district, (2) a list of the tax map identification numbers and addresses of all 86 properties to be included within the district and (3) a "Map, Plan and Report" prepared by David Clouser & Associates, the engineer for the Town (hereinafter the Clouser report), which provided a detailed description of the project, including its proposed boundaries. Although no survey or metes and bounds description of the district were provided, nothing in Tax Law § 191 requires that a petition for the establishment of a water district contain same. Rather, given that the citizens' petition was amplified by a map providing a clear, visual depiction of the boundaries of the district, as well as a list of the tax identification numbers and addresses of each property to be included within the district, we find that respondents substantially complied with Town Law § 191 inasmuch as the land to be included within the district was sufficiently identified (see Matter of Angelis v. Town of New Baltimore, 30 A.D.3d 940, 942, 818 N.Y.S.2d 635 [2006], lv denied 7 N.Y.3d 712, 824 N.Y.S.2d 604, 857 N.E.2d 1135 [2006] ).

With respect to petitioner's fifth cause of action, alleging that the citizens' petition contained certain fraudulent misrepresentations, we agree with petitioner that Supreme Court erred to the extent that it found said cause of action to be outside the parameters of the court's review. Notwithstanding, we find that this cause of action was nevertheless properly dismissed. Even accepting petitioner's allegations as true, other than her conclusory assertions, there were no specifically detailed factual allegations provided to support a cause of action for fraud (see CPLR 3016 ; Cheslowitz v. Board of Trustees of the Knox Sch., 156 A.D.3d 753, 756, 68 N.Y.S.3d 103 [2017] ; Matter of Gilheany v. Civil Serv. Empls. Assn., 59 A.D.2d 834, 836, 395 N.Y.S.2d 717 [1977] ; see also Langdon v. Town of Webster, 270 A.D.2d 896, 896–897, 706 N.Y.S.2d 547 [2000] ; Town of Islip v. Clark, 90 A.D.2d 500, 501, 454 N.Y.S.2d 893 [1982] ). Similarly, Supreme Court properly dismissed petitioner's seventh cause of action alleging that the Town improperly expended funds in support of the citizens' petition for the establishment of the district without having adopted a resolution specifically approving same (see Town Law § 191–a ). The Town adopted a resolution in June 2015 authorizing an intergovernmental agreement with DEP providing, among other things, that DEP would cover the costs incurred by the Town to plan, design and prepare for the construction of two groundwater systems, including the well at 101 Plains Road. Pursuant to this agreement, as long as the Town complies with the terms thereof, DEP is contractually obligated to reimburse the Town for all eligible expenses incurred for the design and necessary preparations to construct the proposed groundwater systems such that no cost is to ultimately be borne by the Town in furtherance of the establishment of the district.⁴ Moreover, since the establishment of the district was initiated via a citizens' petition pursuant to Town Law article 12, as opposed to the Town Board's own motion pursuant to Town Law article 12–a, the Town Board was not required to conduct a permissive referendum regarding the formation of this "no cost improvement district" (compare Town Law § 190–c, with Town Law § 209–b ; see generally Matter of Angelis v. Town of New Baltimore, 30 A.D.3d at 943, 818 N.Y.S.2d 635 ; Matter of MacFarlane v. Budine, 86 A.D.2d 731, 732, 446 N.Y.S.2d 592 [1982], lv denied 56 N.Y.2d 506, 453 N.Y.S.2d 1025, 438 N.E.2d 880 [1982] ).

Supreme Court also properly dismissed, following joinder of issue, petitioner's third, fourth, sixth, eighth and ninth causes of action on the merits. Petitioner's contention that Supreme Court improperly dismissed her third cause of action alleging that the citizens' petition and public notice of hearing with regard thereto failed to comply with Town Law §§ 191 and 193 is without merit. Both the citizens' petition and the subject public notice provided that the maximum amount proposed to be expended for the establishment of the district was $2,375,000. These documents also specifically set forth and explained the estimated cost to the average user in the district and how this cost was determined (see Town Law §§ 191, 193[1][a] ; [2][c] ),⁵ and the Clouser report provided additional detailed information regarding how the costs to the average user were calculated.⁶ The Town Board's public notice, therefore, properly outlined the general terms contained in the petition, and all persons potentially affected thereby were on notice of and had access to the relevant figures and calculations prior to the December 2015 and February 2016 public hearings in conformity with Town Law § 193. The public also had a full and fair opportunity thereafter to be heard with regard thereto. Accordingly, we find Supreme Court properly dismissed petitioner's third cause of action.

We are also unpersuaded that Supreme Court erred in dismissing petitioner's fourth cause of action, contending that the Town Board violated Town Law §§ 191, 192 and 194 as neither the citizens' petition nor the Town Board's resulting determination properly identified the mode of constructing the proposed water district or included the location of all proposed water outlets, including water mains, pipes and fire hydrants. As previously indicated, a map and plan for the district were attached to the citizens' petition, identifying the source of the groundwater supply and the lands to be acquired – i.e., "a plentiful and high quality water supply source ... [located] at 101 Plains Road." The map and plan further provided that "the proposed wells, the water treatment facility, and the...