        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

211
CA 11-01940
PRESENT: SCUDDER, P.J., CENTRA, PERADOTTO, LINDLEY, AND MARTOCHE, JJ.


JOSEPH TUPPER, AS PRESIDENT AND ON BEHALF
OF SYRACUSE PROPERTY OWNERS ASSOCIATION,
STAMPEDE VI, LLC, HAMR, INC., AVON, INC.,
867 SUMNER AVE, L.L.C., JAKE AND BUCK, LLC,
OCOMSTOCK COMPANY, LLC, NORMAN ROTH, WILLIAM
OSUCHOWSKI, DAVID EADE, DAVID PATRUNO,
JENNIFER PATRUNO, BARBARA HUMPHREY, RENEE
MURRAY, YAJAIRA BRIZUELA, PAUL WALSH, CAROL
STONE AND BENJAMIN TUPPER,
PLAINTIFFS-APPELLANTS,

                    V                             MEMORANDUM AND ORDER

CITY OF SYRACUSE, COMMON COUNCIL OF CITY OF
SYRACUSE AND PLANNING COMMISSION OF CITY OF
SYRACUSE, DEFENDANTS-RESPONDENTS.


HOCHERMAN TORTORELLA & WEKSTEIN, LLP, WHITE PLAINS (ADAM L. WEKSTEIN
OF COUNSEL), FOR PLAINTIFFS-APPELLANTS.

MARY ANNE DOHERTY, CORPORATION COUNSEL, SYRACUSE (MEGHAN P. MCLEES
CRANER OF COUNSEL), FOR DEFENDANTS-RESPONDENTS.


     Appeal from a judgment of the Supreme Court, Onondaga County
(James P. Murphy, J.), entered May 19, 2011 in a declaratory judgment
action. The judgment, among other things, dismissed plaintiffs’
complaint.

     It is hereby ORDERED that the judgment so appealed from is
unanimously modified on the law by denying those parts of defendants’
motion to dismiss the first, second, fourth and fifth causes of action
except with respect to the claims of plaintiff Benjamin Tupper,
reinstating those causes of action for all plaintiffs except Benjamin
Tupper, and granting those parts of plaintiffs’ cross motion, with the
exception of Benjamin Tupper, for summary judgment on the first,
second, fourth and fifth causes of action and judgment is granted in
favor of plaintiffs, with the exception of Benjamin Tupper, as
follows:

          It is ADJUDGED and DECLARED that General Ordinances 20
     and 21 of 2010 of the City of Syracuse are invalid,

and as modified the judgment is affirmed without costs.
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                                                         CA 11-01940

     Memorandum: Plaintiffs are the owners of non-owner occupied
houses within the Syracuse University Special Neighborhood District
(District) in defendant City of Syracuse (City), as well as an
unincorporated association of owners of those properties, and the
president of that association. They commenced this action seeking,
inter alia, to declare invalid General Ordinances 20 and 21 of 2010 of
the City and to recover damages and attorneys’ fees for alleged
violations of their rights to due process under the Fifth and
Fourteenth Amendments of the United States Constitution and article 1
(§ 6) of the New York Constitution. General Ordinance 20 established,
inter alia, the requisite amount of space for workable parking spaces
and the maximum square footage allowed for open surface parking areas
for one- and two-family residences. That ordinance applied to all
one- and two-family residences within the District. General Ordinance
21, inter alia, imposed parking requirements for one- and two-family
residences that were owned by absentee owners. Those properties were
required to have one off-street parking space for each potential
bedroom. Although existing absentee-owner properties were exempt from
the new requirements, the owners of those properties would be required
to meet the new parking requirements if they made any “material
changes” to the properties.

     In their complaint plaintiffs alleged, inter alia, that
defendants had failed to comply with Second Class Cities Law § 35 and
Syracuse City Charter § 4-103 (2) when the Common Council adopted the
ordinances on the same day on which they were introduced without
unanimous consent; that defendant Planning Commission of City of
Syracuse, as the lead agency, failed to follow the dictates of article
8 of the Environmental Conservation Law ([SEQRA] State Environmental
Quality Review Act); that defendants had violated General City Law §
20 (24) and Syracuse City Charter § 5-1302 because General Ordinance
21 treats absentee-owner properties differently from owner-occupied
properties; and that defendants violated their constitutional due
process rights in adopting the ordinances.

     Defendants moved to dismiss the complaint pursuant to, inter
alia, CPLR 3211 (a) (1), (5) and (7). Plaintiffs cross-moved, inter
alia, to convert defendants’ motion to dismiss to one for summary
judgment and to grant plaintiffs summary judgment declaring invalid
the ordinances and awarding them damages and attorneys’ fees. Supreme
Court granted the cross motion in part, by converting the motion to
one for summary judgment. Although the court determined that all
plaintiffs except Benjamin Tupper had standing to maintain the action,
the court granted defendants’ “motion to dismiss the complaint.” On
this appeal, we conclude that the court erred in part, and that
plaintiffs were entitled to summary judgment declaring General
Ordinances 20 and 21 of 2010 invalid. We therefore modify the
judgment accordingly.

     Contrary to plaintiffs’ contention, defendants adhered to the
procedural requirements of SEQRA (see generally ECL article 8; Matter
of Save the Pine Bush, Inc. v Common Council of City of Albany, 13
NY3d 297, 306-307). “[O]ur review is limited to whether the lead
agency . . . identified the relevant areas of environmental concern,
                                 -3-                           211
                                                         CA 11-01940

took a hard look at them, and made a reasoned elaboration of the basis
for its determination” (Matter of Mombaccus Excavating, Inc. v Town of
Rochester, N.Y., 89 AD3d 1209, 1210, lv denied ___ NY3d ___ [Feb. 21,
2012] [internal quotation marks omitted]; see Matter of Neville v
Koch, 79 NY2d 416, 424-425). In our view, defendants fulfilled their
obligations under SEQRA.

     We likewise reject plaintiffs’ contention that defendants
violated their due process rights under the federal and state
constitutions. “In order for a zoning ordinance to be a valid
exercise of the police power it must survive a two-part test: (1) it
must have been enacted in furtherance of a legitimate governmental
purpose, and (2) there must be a ‘reasonable relation between the end
sought to be achieved by the regulation and the means used to achieve
that end’ ” (McMinn v Town of Oyster Bay, 66 NY2d 544, 549). We note
at the outset that we agree with plaintiffs that their contention that
defendants violated their due process rights is not barred by res
judicata inasmuch as neither plaintiffs nor defendants have had an
opportunity to litigate those precise issues insofar as they concern
the ordinances at issue herein (see generally Ryan v New York Tel.
Co., 62 NY2d 494, 500-501).

     A city ordinance, as a legislative enactment, is presumed
constitutional and the burden is on plaintiffs to establish that
“defendant[s] acted in an arbitrary and irrational way” (Welch Foods v
Wilson, 277 AD2d 882, 886; see generally Duke Power Co. v Carolina
Envtl. Study Group, 438 US 59, 83; McMinn, 66 NY2d at 548-549). “An
[ordinance that] has been carefully studied, prepared and considered
meets the general requirement for a well-considered plan . . . The
court will not pass on its wisdom” (Asian Ams. for Equality v Koch, 72
NY2d 121, 132). Although plaintiffs contend that defendants are not
entitled to summary judgment at this juncture of the litigation
because plaintiffs need additional disclosure, the “[m]ere hope that
somehow [plaintiffs] will uncover evidence that will prove a case
provides no basis pursuant to CPLR 3212 (f) for postponing a
determination of a summary judgment motion” (Wright v Shapiro, 16 AD3d
1042, 1043 [internal quotation marks omitted]; see Rowland v
Wilmorite, Inc., 68 AD3d 1770, 1771). Plaintiffs were afforded
voluminous documentation pursuant to a request under the Freedom of
Information Law (Public Officers Law art 6), and they have failed to
establish that additional discovery will enable them to prove their
case. We thus conclude that defendants met their burden of
establishing that “the provision[s are] reasonably related to the
legitimate governmental purposes of eliminating traffic congestion due
to on-street parking . . . and serve[] to enhance traffic safety by
removing cars from the [City’s] streets” (Adar v Incorporated Vil. of
Lake Success, 160 AD2d 829, 830, lv denied 76 NY2d 712). Plaintiffs
failed to raise a triable issue of fact or to establish that they
could do so with additional discovery.

     We agree with plaintiffs, however, that defendants violated
Second Class Cities Law § 35 and Syracuse City Charter § 4-103 (2)
when the Common Council adopted the ordinances on the same day on
which they were introduced. The statute provides in relevant part
                                 -4-                           211
                                                         CA 11-01940

that “[n]o ordinance shall be passed by the common council on the same
day in which it is introduced, except by unanimous consent,” and the
charter section contains language to the same effect. The statute and
charter do not specify whether the “unanimous consent” required is
consent to the ordinance itself or consent to the procedure of taking
the vote on the same day on which the ordinance is introduced. We
need not resolve that ambiguity because, under either interpretation,
there was not the requisite unanimous consent.

     It is undisputed that three of the nine councilors voted “nay” to
the ordinances. Thus, if the unanimous consent required is consent to
the merits of the ordinances (see Board of Educ. of City of Syracuse v
Common Council of City of Syracuse, 50 AD2d 138, 140 n 1, lv denied 38
NY2d 709; Yonkers R.R. Co. v Hume, 225 App Div 313, 318; Andrello v
Dulan, 49 Misc 2d 17, 20), then there was not unanimous consent. If
the unanimous consent required is consent to the procedure of taking
the vote on the same day on which the ordinances were introduced (see
Matter of Hushion v Barker, 253 App Div 376, 378), then we also
conclude that there was not unanimous consent. Indeed, one of the
councilors objected to taking the vote that day, noting that, “without
question, we have been asked to vote on [the ordinances] in a hasty
manner.” That same councilor stated that a neighborhood planning body
was meeting the next day to discuss the ordinances, and he questioned
what kind of message would be sent to them if the Common Council voted
before their meeting was held. He further questioned why the Common
Council could not have scheduled a meeting for after that of the
planning body. We thus conclude that those comments constitute an
objection to the procedure of taking the vote that day.

     We further agree with plaintiffs that General Ordinance 21 was
enacted in violation of General City Law § 20 (24) and Syracuse City
Charter § 5-1302 because the ordinance is not uniform for each class
of buildings within the District. The statute and charter provide in
relevant part that the City has the power “[t]o regulate and limit the
height, bulk and location of buildings hereafter erected, to regulate
and determine the area of yards, courts and other open spaces, and to
regulate the density of population in any given area, and for said
purposes to divide the city into districts. Such regulations shall be
uniform for each class of buildings throughout any district, but the
regulations in one or more districts may differ from those in other
districts” (General City Law § 20 [24] [emphasis added]; see Syracuse
City Charter § 5-1302).

     Contrary to defendants’ contention, the statute and charter
section apply to General Ordinance 21 inasmuch as that ordinance
regulates open spaces. The creation of off-street parking regulations
is included in the authority to regulate the use of land and open
spaces (see Salkin, New York Zoning Law and Practice § 7:45 [4th ed
2011]). The uniformity required by the statute and charter is
uniformity “for each class of buildings throughout any district”
(General City Law § 20 [24] [emphasis added]; see Syracuse City
Charter § 5-1302). To avoid the uniformity requirements, defendants
contend that absentee-owner properties are in a different “class” from
owner-occupied properties. That contention lacks merit inasmuch as
                                 -5-                           211
                                                         CA 11-01940

“ ‘[t]he uniformity requirement is intended to assure property holders
that all owners in the same district will be treated alike and that
there will be no improper discrimination’ ” (Rice, Practice
Commentaries, McKinney’s Cons Laws of NY, Book 61, Town Law § 262, at
64 [emphasis added], quoting Augenblick v Town of Cortlandt, 104 AD2d
806, 814 [1984] [Lazer, J.P., dissenting]). Uniformity provisions
protect against legislative overreaching by requiring regulations to
be passed without reference to the particular owners (see id.).
General Ordinance 21 treats buildings within the same class
differently based solely on the status of the property owner, i.e.,
absentee property owners as opposed to owners who occupy the property.
Even though such a distinction may be constitutionally valid, it is
invalid under the uniformity requirements of the General City Law and
the City of Syracuse Charter.

     We thus declare General Ordinances 20 and 21 of 2010 of the City
invalid. In view of our determination, we see no need to address
plaintiffs’ remaining contentions.




Entered:   March 23, 2012                       Frances E. Cafarell
                                                Clerk of the Court
