2023 NY Slip Op 03744
In the Matter of Southern Realty and Development, LLC, et al., Respondents,
v.
Town of Hurley et al., Appellants.
No. 535737
Supreme Court of New York, Third Department
July 6, 2023
Calendar Date: April 26, 2023
Rodenhausen Chale & Polidoro LLP, Rhinebeck (Andrew L. Lessig of counsel), for appellants.
Whiteman Osterman & Hanna LLP, Albany (John J. Henry of counsel), for respondents.
Before: Clark, J.P., Aarons, Reynolds Fitzgerald and McShan, JJ.
McShan, J.
Appeal from a judgment of the Supreme Court (Kevin R. Bryant, J.), entered June 27, 2022 in Ulster County, which partially granted petitioners' application, in a proceeding pursuant to CPLR article 78, to annul a determination of respondent Planning Board of the Town of Hurley denying the request of petitioner Southern Realty and Development, LLC for site plan approval.
Petitioner Brown Cow Rental LLC is the owner of an approximately ½-acre parcel located at the intersection of State Routes 28 and 375 in the Town of Hurley, Ulster County and petitioner Southern Realty and Development, LLC (hereinafter SRD) seeks to construct a drive-thru Dunkin' franchise (hereinafter the project) on said parcel. In August 2020, SRD applied for site plan approval to respondent Planning Board of the Town of Hurley (hereinafter the Board). The Board held a series of public hearings on the application, as well as a nonpublic meeting (hereinafter the gateway meeting) at which members of the Board discussed issues surrounding the project with SRD and others. After more than a year of engaging in extensive discussions with SRD, the Ulster County Planning Board (hereinafter the UCPB) and other involved entities, the Board voted to reject SRD's application, citing primarily to the purported negative impact the project would have on traffic at the intersection.
Thereafter, petitioners commenced the instant proceeding pursuant to CPLR article 78, seeking to annul the Board's denial of SRD's application as arbitrary and capricious and direct the Board to approve its application. Following joinder of issue, Supreme Court vacated the Board's determination and remanded the matter to the Board for further proceedings. In doing so, the court found, in relevant part, that the Board improperly conducted meetings out of the public view and failed to adequately provide its reasoning for rejecting the application on the record. Respondents appeal.
As a preliminary matter, we find that Supreme Court erred in determining that the Board's participation in the gateway meeting and any reliance on the substance of discussions at said meeting constituted a violation of the Open Meetings Law (see Public Officers Law art 7). "The purpose of the Open Meetings Law is to prevent municipal governments from debating and deciding in private what they are required to debate and decide in public" (Matter of Gernatt Asphalt Prods. v Town of Sardinia, 87 N.Y.2d 668, 686 [1996] [citations omitted]; see Matter of Lynch v New York City Civilian Complaint Review Bd., 206 A.D.3d 558, 561 [1st Dept 2022], lv denied 39 N.Y.3d 902 [2022]). However, a violation of the Open Meetings Law renders an ensuing determination "not void but, rather, voidable upon good cause shown" (Matter of Harvey v Zoning Bd. of Appeals of the City of Kingston, 166 A.D.3d 1149, 1151 [3d Dept 2018] [internal quotation marks and citations omitted]; see Matter of Cutler v Town of Mamakating, 137 A.D.3d 1373, 1375 [3d Dept 2016]). Petitioners did not articulate in their petition the manner in which the substance of discussions at the gateway meeting were an attempt to avoid public scrutiny of the project or whether a quorum of the board was actually present (see Matter of Braunstein v Board of Zoning Appeals of the Town of Copake, 100 A.D.3d 1091, 1092 [3d Dept 2012]; see also Matter of Gedney Assn. v City of White Plains, 147 A.D.3d 938, 939-940 [2d Dept 2017]). Moreover, had petitioners pleaded and established an Open Meetings Law violation, we find that petitioners failed to demonstrate good cause requiring nullification, as they effectively rely on discussions that occurred at the gateway meeting with various parties as well as statements made by members of the Board at the meeting in support of their contention that the Board's denial was arbitrary and capricious (see Matter of Harvey v Zoning...
