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KellnerSUPREME COURT OF THE STATE OF NEW YORK DUTCHESS COUNTY Date filed: ---- -----o ----------------- D AARON KELLNER, ~ r~ (~ ~ 0 ' Plainti f, MAY 0 9 2014 S~TMMONS TOWN OF WAPPINGER ~' TOWN CLERK --- -- - _ __ - - __ Index No. THE TOWN OF WAPPINGER, THE CODE ENFORCEMENT OFFICER OF THE TOWN OF 2014 WAPPINGER and THE TOWN OF WAPPINGER ZONING BOARD OF APPEALS, ~ ~~~ ~~ Defendants. ac ;----F ~ -, ~-~~ t ~~~-,~ ~~ -~. ©~-;, ~ t`r"~ `*~ Ci TO THE ABOVE NAMED DEFENDANT(S): ~ ~' N ~ -G N YOU ARE HEREBY SUNIlVIONED to answer the complaint in this action and to serve a copy of your answer, or, if the complaint is not served with this summons, to serve a notice of appearance, on the Plaintiff s Attorney within 20 days after the service of this summons, exclusive of the day of service (or within 30 days after the service is complete if this summons is not personally delivered to you within the State of New York); and in case of your failure to appear or answer, judgment will be taken against you by default for the relief demanded in the complaint. Dated: Goshen, New York May 8, 2014 Defendant's address: 20 Middlebush Road Wappingers Falls, NY 12590 Y J en ttorneys for aintiff Office and P. 'O. Address One Harriman Square P. O. Box 806 Goshen, New York 10924 Tel No. 845-291-1100 SUPREME COURT OF THE STATE OF NEW YORK DUTCHESS COUNTY AARON KELLNER, ------------------------------------X Date filed: Plaintiff, COMPLAINT v. THE TOWN OF WAPPINGER, THE CODE Index No. ENFORCEMENT OFFICER OF THE TOWN OF WAPPINGER and THE TOWN OF WAPPINGER ZONING BOARD OF APPEALS, Defendants. -----------X The Plaintiff Aaron Kellner by his attorney James G. Sweeney for his complaint to this Court does hereby allege: INTRODUCTION 1. The Plaintiffs ("Kellner") complaint sets forth two causes of action, the first based on state law and the second based on federal law. 2. Kellner's first cause of action is for a Declaratory Judgment brought pursuant to CPLR §3001 seeking threefold relief: (i) a judgment declaring that in the instances described below the provisions of TL §280-a[1] and, correspondingly, Town of Wappinger Town Code § 240-20 do not apply and do not constrain the issuance of a building permit for the rebuilding of an existing dwelling accidently destroyed by fire, (ii) a mandatory injunction directing the defendant town via its appointed code enforcement officer to issue the applied for reconstruction building permit for the dwelling, (iii) for incidental damages in the amount of $67,625.53 representing a fire insurance award to the plaintiff that was forfeited because the defendant would not issue the applied for building permit and the said dwelling was not able to be reconstructed. 3. Kellner's second cause of action is anchored in the just compensation clause of the Fifth Amendment to the federal constitution made applicable to the states via the Fourteenth Amendment, asserting that his property has sustained a categorical per se taking by the town - by way of regulation - in the sense meant by Lucas v. South Carolina ("Lucas").' 4. Kellner also prays for such other further and different relief as may seem just to the Court under the circumstances. THE PARTIES 5. Kellner is a domiciled in the State of Connecticut residing at 117 Duncaster Road, Bloomfield, CT 06002. 6. The defendant Town of Wappinger ("the town") is a municipal corporation organized under the laws of the State of New York governed by an 'Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992). 2 elected Town Board having the power and duty to appoint appropriate officials to review and issue - or deny -applications for building perrnits. 7. The town has offices at 20 Middlebush Road, Wappingers Falls, NY 12590. 8. The defendant Code Enforcement Officer is the duly appointed officer of the Town of Wappinger charged with the duty of issuing building permits in that town and having his or her office at 20 Middlebush Road, Wappingers Falls, NY 12590. 9. The defendant Zoning Board of Appeals ("ZBA") is the duly appointed town agency with the power to pass upon requests for variances from the prohibitions of TL §280-a[1] all pursuant to TL §280-a[3]. It maintains offices at 20 Middlebush Road, Wappingers Falls, NY 12590. JURISDICTION AND VENUE 10. This Court has jurisdiction to hear and adjudicate this action pursuant to CPLR §3001. 1 1. Pursuant to CPLR §504[2] the proper venue for this action is Dutchess County. 3 FACTUAL ALLEGATIONS The Property 12. Kellner owns a 3.5 acre parcel of land in the Town of Wappinger with frontage on Easter Road designated on the town tax map as tax parce16056- O l -32268 also known as 80 Easter Road and as shown on filed map (Dutchess County) No. 2332 as Lot 9 thereon ("the property"). 13. The property has access to a municipally maintained road (River Road formerly known as Old Chelsea Road) by way of a continuous right of way over Easter Road and, alternatively, over private roads known as Lake Drive and Circle Drive. 14. Easter Road, Lake Drive and Circle Drive are private roads not municipally maintained by the State of New York, the County of Dutchess, or the Town of Wappinger. 15. Until 2004 the property was improved with a single family detached dwelling ("the dwelling"). 16. The dwelling was built by Kellner's father Paul Kellner in 1954 at a time before the adoption by the Town of Wappinger. of any zoning laws or building codes. 4 The Fire 17. On June 26, 2004 the dwelling was accidently and totally destroyed by fire. K 18. As a result of the fire, Continental Insurance Company determined that Kellner was entitled to the sum of $184,320.93 for the fire loss but it retained the sum of $67,625.53 as security for reconstruction which sum Kellner would forfeit if he could not show repair and replacement expenditures totaling the amount of the award by May 9, 2014. Kellner's application for a reconstruction building permit. 19. On or about January 29, 2013, after several years of discussion with the Town of Wappinger Building Department about the condition of the access to the property, Kellner formally applied to that department for a building permit to reconstruct the dwelling with a slightly expanded footprint ("the reconstruction permit"). 20. On or about February 20, 2013 the building department, via the Town's engineer, rejected Kellner's application for the reconstruction permit opining inter alia that no reconstruction permit could be issued because of the only access the property had to a publicly maintained road was by way of a series of private rights of way and was thus prohibited by the provisions of TL §280-a[ 1 ] 5 with respect to buildings constructed on private roads, together with the provisions of Town of Wappinger's Code, i.e., §240-20 thereof, which, by reference, incorporate the provisions of TL §280-[ 1 ]. 21. Earlier, the building department, by reference to a memorandum of the town attorney, also advised that if he was so disposed Kellner could apply to the ZBA fora "hardship variance" from these prohibitions pursuant to TL §280-a[3]. Kellner's application for a variance 22. In due time Kellner did apply to the ZBA for a variance from the provisions of TL §280-a[ l ], and the corresponding provisions of Town Code §240- 20. 23. After holding a required public hearing the ZBA denied Kellner's application for the variances on March 1 1, 2014. 24. The denial of the variances was based on Kellner's perceived failure to meet the criteria for a variance as set out in TL §280-a[3]. 25. The ZBA caused its decision in this regard to be filed in the Town Clerk's office of the Town of Wappinger on Apri19, 2014. The effect of the denial of the variances. 26. The denial of the variance has impacted Kellner as follows: A. He has lost all economially beneficial uses of the property 6 which has become economically idle. B. He has been caused to forfeit $67,625.53 in fire insurance proceeds. CHARGING ALLEGATIONS As a First Cause of Action 27. Kellner repeats the allegations contained in ¶¶ 1 through 26 as if they were set forth in full hereat. 28. TL §280-a[1), and by incorporation thereof in Wappinger Town Code §240-20, has no application to the facts at hand in that those sections of law apply only to new proposed construction of a structure or building and not to the reconstruction of an existing structure accidently destroyed by fire or other calamity. 29. The provisions of TL §280-a] 1) -and by incorporation Town of Wappinger Code §240-20 -were improperly applied to Kellner by the Building Department in rejecting his application for a reconstruction building permit for the dwelling and by the ZBA in denying Kellner's application for a variance, and Kellner should have a judicial declaration to that effect. 30. Because of that rejection Kellner has sustained incidental damages in the sum of $67,625.53 by reason of the forfeiture of his fire insurance proceeds. 7 As a Second Cause of Action 3 1. Kellner repeats the allegations contained in ¶¶ 1 through 30 as if they were set forth in full hereat. 32. Pursuant to CPLR §3014 this cause of action is pleaded as an alternative to Kellner's first cause of action. 33. This cause of action is pursued under federal law as a violation of the takings clause of the Fifth Amendment of the federal constitution because there is no cause of action under state law, i.e., the New York State Constitution (Article 1 §7) or the NY Eminent Domain Procedure Law, for compensatory damages resulting from a permanent taking of land occasioned by the regulation of land by the State or any unit of state government such as the Town of Wappinger.2 34. Because of the imposition of the provisions of TL §280-a[1] and, correspondingly, Town of Wappinger Town Code §240-20, by the town's building department and the ZBA the property has been rendered economially idle as meant by Lucas and, accordingly, a taking of Kellner's property without just compensation in violation of the Takings Clause of the Fifth Amendment of the federal ZSee Fred F. French Investing Co. v. City of New York, 77 Misc.2d 199 (Sup. Ct., NY Co., 1973), affd 47 A.D.2d 715 (ls` Dept., 1975), affd 39 N.Y.2d 587 at 595 (1976), app. den. 429 U.S. 790 (1976); Charles v. Diamond, 41 N.Y.2d 318 at 329 (1977); Jansen v. City of New York, 42 N.Y.2d 1079 at 1081(1977), and Spears v. Berle, 48 N.Y.2d 254 at 260 (1979). 8 constitution has occurred as meant by Lucas. Accordingly, Kellner should be compensated for that taking. RELIEF DEMANDED WHEREFORE Kellner demands relief from this Court as follows: On his first cause of action: A. A Declaratory Judgement pursuant to CPLR §3001 declaring that the provisions of TL §280-a[1] and, correspondingly, Town of Wappinger Town Code §240-20, do not apply to the reconstruction of an existing dwelling destroyed by an accidental fire and, accordingly do not apply to the reconstruction permit for the dwelling applied for by Kellner. B. A mandatory injunction directing the code enforcement officer of the Town of Wappinger to issue a reconstruction building permit for the reconstruction of the dwelling provided that all other applicable provisions of law, e.g. the NY State Building and Fire Code, have been met. C. A judgment against the Town of Wappinger in the amount of $67,625.23 representing the amount of forfeited fire insurance proceeds lost by Kellner because of the denial of the requested 9 reconstruction permit for the dwelling. On his second cause of action as an alternative relief A. Judgement in an amount found by the Court, after proofs have been presented, representing the full value of the property improved with the dwelling taken by the defendant town as a result of the denial of the reconstruction permit applied for by Kellner all as meant by Lucas. And, finally, for such other, different and further relief that seems just and proper to the Court under the circumstances. Dated: May 8, 2014 Ja s ~. ~G~eney orriey for the Plai tiff One Harriman Squa e PO Box 806 Goshen, NY 10924 Tel. (845) 291-1100 10