| State of New York v Town of Horicon |
| 2007 NY Slip Op 10442 [46 AD3d 1287] |
| December 27, 2007 |
| Appellate Division, Third Department |
| State of New York et al., Respondents, v Town of Horicon et al.,Appellants. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Lisa M. Burianek of counsel), forrespondents.
Crew III, J. Appeal from an order and judgment of the Supreme Court (Aulisi, J.), enteredJune 13, 2006 in Warren County, which, in a combined proceeding pursuant to CPLR article 78and action for declaratory judgment, among other things, granted petitioners' motion forsummary judgment annulling Local Law No. 2 (2002) of the Town of Horicon.
In September 2002, respondents enacted Local Law No. 2 (2002) of the Town of Horicon,which opened eight routes traversing state forest lands in Warren County for use by all-terrainvehicles (hereinafter ATVs). This enactment was preceded by a 1999 proposal and an earlier2002 enactment (see Local Law No. 1 [2002] of Town of Horicon), both of which metwith stiff opposition by petitioners.
Shortly thereafter, petitioners commenced this combined proceeding pursuant to CPLRarticle 78 and action for declaratory judgment seeking, among other things, a declaration thatLocal Law No. 2 was unconstitutional and violative of various state statutes and a judgmentannulling respondents' adoption thereof based upon their failure to comply with, among otherprovisions, the State Environmental Quality Review Act (ECL art 8 [hereinafter SEQRA]).Discovery ensued and petitioners thereafter moved for summary judgment. Respondents opposedthe motion, invoking Highway Law § 189 and contending that the public had used andrespondent Town of Horicon had maintained the subject routes for decades. In the interim,petitioners sought and Supreme Court issued a preliminary injunction suspending Local Law No.[*2]2 based upon the adverse environmental impacts ATV usagewas having upon the routes and surrounding forest.
Ultimately, Supreme Court granted petitioners' motion for summary judgment, finding thatpetitioners demonstrated that the state owned the land underlying the routes in question and thatrespondents, in turn, failed to tender sufficient proof to raise a question of fact as to whether thesubject routes were "[h]ighways by use" within the meaning of Highway Law § 189. Uponfinding that route Nos. 1 through 6 and that the portion of route No. 7 that was subject to a priorDepartment of Transportation closure order in 1972 constituted forest preserve lands within theexclusive jurisdiction of the Department of Environmental Conservation (hereinafter DEC),Supreme Court annulled Local Law No. 2 in its entirety.[FN1] This appeal by respondents ensued.
We affirm, albeit for somewhat different reasons than those expressed by SupremeCourt.[FN2] While we have no quarrel with Supreme Court's resolution of which entity has [*3]jurisdiction over the routes traversing the state lands, we are of theview that Local Law No. 2 should be annulled in its entirety due to respondents' documentedfailure to comply with the provisions of SEQRA and/or Vehicle and Traffic Law § 2405(1).[FN3]
The adoption of a local law that "may" affect the environment constitutes an "action" withinthe meaning of the relevant statute and accompanying regulations (see ECL 8-0105 [4]; 6NYCRR 617.2 [b]) and, as such, it was incumbent upon respondent Town Board of the Town ofHoricon to exercise due diligence in ascertaining "whether the action may involve one or moreother agencies" and to make a "preliminary classification" thereof (6 NYCRR 617.6 [a] [1] [iii],[iv]). Once that determination was made, a "lead agency" had to be designated to coordinate theensuing review process (see 6 NYCRR 617.6 [b]).
Here, there can be no serious dispute that DEC, as the land manager for the underlying forestpreserve, plainly qualifies as an "involved agency" (6 NYCRR 617.2 [s]). Despite receivingletters in opposition to the various local laws proposed in 1999 and 2002, it is clear thatrespondents made no effort whatsoever to either confer with DEC on this matter, designate a leadagency or otherwise undertake a coordinated review process. To the extent that respondentsargue that they were merely opening town roads to ATV use and/or that DEC was free to moreforcefully interject itself into the Town's legislative process, we agree with petitioners that suchclaims are both disingenuous and, ultimately, unavailing. Hence, inasmuch as strict compliancewith SEQRA's procedural requirements is mandated (see Matter of King v Saratoga CountyBd. of Supervisors, 89 NY2d 341, 347 [1996]), respondents' failures in this regard compelannulment of Local Law No. 2 in its entirety.
Moreover, even assuming that no procedural infirmities existed here, we nonetheless wouldagree with petitioners that respondents failed to take the requisite "hard look" at the variousenvironmental impacts and/or provide a "reasoned elaboration" for the negative declarationissued (see e.g. Matter of New York City Coalition to End Lead Poisoning v Vallone,100 NY2d 337, 347-348 [2003]). The review process undertaken by respondents, whichcharitably could be described as perfunctory, was devoid of any studies or analyses. While weacknowledge that in the absence of such studies, the impact of opening the routes to routine ATVuse upon soil erosion, drainage patterns, air quality and noise levels—to name but a fewpotential impacts—cannot definitively be ascertained, it simply strains credulity to suggest,as respondents summarily concluded, that opening forest lands to ATV usage would have noimpact whatsoever upon any of these areas. Simply put, the review process undertaken byrespondents falls far short of both the letter and the spirit of SEQRA.
We reach a similar conclusion with regard to Vehicle and Traffic Law § 2405 (1),which permits agencies to open highways in their jurisdiction to ATVs "when in thedetermination of [*4]the governmental agency concerned, it isotherwise impossible for ATVs to gain access to areas or trails adjacent to the highway."Although Local Law No. 2 indeed contains a recital to this effect, there is absolutely nothing inthe record to substantiate the Town Board's findings in this regard. Accordingly, we concludethat respondents failed to discharge their obligations under Vehicle and Traffic Law §2405 (1) and, as such, Local Law No. 2 was enacted in violation thereof. Respondents' remainingcontentions, to the extent not specifically addressed, have been examined and found to be lackingin merit.
Mercure, J.P., Peters, Spain and Rose, JJ., concur. Ordered that the order and judgment isaffirmed, without costs.
Footnote 1: There does not appear to be anydispute that route No. 8 constitutes a seasonal-use town road.
Footnote 2: Preliminarily, we agree withSupreme Court that petitioners' submissions, including numerous deeds for the "great lots" inquestion, the colorized map submitted as petitioners' exhibit No. 7 on the motion for summaryjudgment and the affidavit of Michael Grove, a licensed land surveyor employed by DEC, aremore than sufficient to discharge their initial burden on the motion for summary judgment, i.e., todemonstrate exclusive ownership and control over the forest preserve and/or wilderness areasthat the routes traverse. In opposition, respondents attempted to demonstrate that the routes inquestion constituted "[h]ighways by use" within the meaning of Highway Law § 189,which "is established by showing that, for a period of at least 10 years, the road at issue was usedby the public and the municipality exercised dominion and control over the road" (Whitton v Thomas, 25 AD3d 996,997 [2006], lv dismissed 7 NY3d 783 [2006]). Such a showing, in turn, requires morethan intermittent use by the public and more than occasional road work by the municipality(see e.g. LaSalle Co. v Town of Hillsdale, 199 AD2d 685 [1993]). Upon our review ofthe voluminous record before us, we are persuaded that neither the affidavit submitted byprofessional abstractor Thomas Magee, the town maps submitted by respondents nor theaverments of its various residents and officials offering vague recollections of unspecifiedinstances of road use and/or maintenance is sufficient to raise a question of fact as to whether theroutes at issue indeed were highways by use.
Footnote 3: These alternative grounds wereraised by petitioners but not addressed by Supreme Court.