| Matter of Mirabile v City of Saratoga Springs |
| 2009 NY Slip Op 08125 [67 AD3d 1178] |
| November 12, 2009 |
| Appellate Division, Third Department |
| In the Matter of William Mirabile et al., Appellants, v City ofSaratoga Springs et al., Respondents. |
—[*1] Miller, Mannix, Schachner & Hafner, L.L.C., Glens Falls (Mark Schachner of counsel), forrespondents.
Kavanagh, J. Appeal from a judgment of the Supreme Court (Nolan, Jr., J.), entered April 3,2009 in Saratoga County, which, in a combined proceeding pursuant to CPLR article 78 andaction for declaratory judgment, granted respondents' motion for summary judgment dismissingthe petition/complaint.
In 2001, respondent City of Saratoga Springs created an investigatory task force to study thefeasability of constructing a public indoor recreation facility within city limits. Initially, a site onWeibel Avenue in the City of Saratoga Springs, Saratoga County was chosen for the facility, andfunding for the construction of an arena to house the facility was included and approved by theCity in its 2005, 2006 and 2007 six-year capital programs and capital budgets.[FN1][*2]
In 2008, after issues were raised regarding the use of theWeibel Avenue site, respondent City of Saratoga Springs City Council selected property that theCity owned on Vanderbilt Avenue as the location for the arena and declared that it would be thelead agency for this project (see ECL 8-0111 [6]; 6 NYCRR 617.2 [u]). The CityCouncil then commenced its review of the project in accord with the State EnvironmentalQuality Review Act (see ECL art 8 [hereinafter SEQRA]) and, after numerous publichearings, adopted a negative declaration of environmental significance regarding the project'simpact on the surrounding environment. After respondent City of Saratoga Springs PlanningBoard issued site plan approval for the project, petitioners, 14 adjacent property owners,commenced this combined declaratory judgment action/CPLR article 78 proceeding challengingthe City Council's decision to issue a negative environmental declaration and sought a judgmentdeclaring that the City Council had violated the City's zoning ordinance and the city charter inthe process it employed in improving and funding the project. After respondents moved todismiss the petition, Supreme Court, on notice to the parties, converted the motion to one forsummary judgment (see CPLR 3211 [c]) and issued a temporary restraining orderpreventing the City from actual construction, but not otherwise preventing the project frommoving forward. Supreme Court then issued a decision finding in respondents' favor, vacated thetemporary restraining order and dismissed the petition/complaint. Petitioners now appeal.
We affirm. As a preliminary matter, respondents argue that petitioners' failure to seek a stayof the construction while this appeal was pending renders their challenge to the process and theapproval of the project moot (see Matterof Defreestville Area Neighborhood Assn., Inc. v Planning Bd. of Town of N. Greenbush,16 AD3d 715, 717-718 [2005]; see also Matter of Dreikausen v Zoning Bd. of Appealsof City of Long Beach, 98 NY2d 165, 173 [2002]). Undoubtedly, the burden was onpetitioners to preserve the status quo of this project while this appeal was pending and, in theirwritten submissions on this appeal, they offer no explanation for not seeking a stay barring anyfurther work being performed on the project after Supreme Court rendered its decision and thetemporary stay had been lifted[FN2](see Matter of Citineighbors Coalitionof Historic Carnegie Hill v New York City Landmarks Preserv. Commn., 2 NY3d 727,728-729 [2004]; Matter of Schupak vZoning Bd. of Appeals of Town of Marbletown, 31 AD3d 1018, 1019-1020 [2006],lv dismissed and denied 8 NY3d 842 [2007]). However, we cannot conclude on therecord before us that construction of this facility has proceeded beyond the point where it couldnot be " 'readily undone, without undue hardship' " (Matter of Citineighbors Coalition ofHistoric Carnegie Hill v New York City Landmarks Preserv. Commn., 2 NY3d at 729,quoting Matter of Dreikausen v Zoning Bd. of Appeals of City of Long Beach, 98 NY2dat 173). In fact, the order dismissing the petition and vacating the temporary restraining orderwas issued within the last six months, and respondents, while characterizing the construction ofthe project as "well under way," have not claimed that it is near completion or substantiallycompleted. We also note that petitioners, over respondents' objection, sought an expeditedhearing of this appeal and had moved expeditiously to perfect it.[FN3]As such, this appeal is not [*3]moot.
As for the issues raised by this appeal, petitioners in essence claim that respondents failed tocomply with SEQRA in the review performed on this project prior to its approval and theissuance of a negative declaration. They argue that the City Council did not take a "hard look" atthe project's impact upon the surrounding area and, in particular, petitioners complain that theCity Council's review did not account for how the project would substantially diminish whatopen space now exists in the area or the significant increase in noise, odor and traffic that wouldinevitably result from the location of an indoor arena in their neighborhood. Petitioners alsoargue that the plan as approved does not take into consideration the adverse impact such afacility would have on the local water supply.
Initially, we note that our review of a SEQRA determination "is limited to 'whether theagency identified the relevant areas of environmental concern, and took a "hard look" at them,and made a "reasoned elaboration" of the basis for its determination' " (Matter of Riverkeeper, Inc. v Planning Bd.of Town of Southeast, 9 NY3d 219, 231-232 [2007], quoting Matter of Jackson vNew York State Urban Dev. Corp., 67 NY2d 400, 417 [1986]; see Matter of Friends of the Shawangunks,Inc. v Zoning Bd. of Appeals of Town of Gardiner, 56 AD3d 883, 884-885 [2008]).Here, the City Council directed that a long-form assessment of the project be prepared after ithad classified construction of the arena as a type I project requiring such a review (see 6NYCRR 617.6 [a] [1] [iv]; [2]). Only after it conducted numerous public hearings, all of whichfocused on the project's impact on the area and, in particular, its effect on the flow of traffic, thearea water supply and its open space, as well as the character of the surrounding neighborhood,did the City Council issue its negative declaration (see 6 NYCRR 617.7 [a] [1]), and thePlanning Board approve a site plan. This record satisfies us that the City Council acted only afterit had properly identified those areas of legitimate environmental concern (see Matter of Citizens for ResponsibleZoning v Common Council of City of Albany, 56 AD3d 1060, 1061-1062 [2008]) andtook a "hard look" at how those concerns would be affected and addressed by this project beforeit issued a negative declaration. As such, we cannot conclude that this decision, as it was issued,constituted an abuse of the City Council's discretion (see Matter of Eadie v Town Bd. of Town of N. Greenbush, 47 AD3d1021, 1025 [2008]).
We are also unpersuaded by petitioners' claim that the City Council erred by failing toidentify the Saratoga Springs Central School District and New York State Office of Parks,Recreation and Historic Preservation as "involved agencies" that should have been included inthe SEQRA process (6 NYCRR 617.2 [s]). Petitioners argue that the project's proposed use ofthis property is at odds with a clause in the deed by which the property on Vanderbilt Avenuewas obtained by the City. This clause provided that the property would revert back to the schooldistrict if it was no longer used by the City for recreational or playground purposes. However,the facility to be constructed is designed to provide the public with an indoor arena forrecreational use and, as such, contemplates a use which is consistent with the provisionscontained in this deed. As for the Office of Parks, Recreation and Historic Preservation, we notethat this agency occupies an advisory status in connection with any proposals that mightconstitute an alienation of park land and that no prohibition exists that bars the construction of anindoor public arena on public park land. Finally, neither the school district nor the park agencyhad "jurisdiction by law to fund, approve or directly undertake [the project]" (6 NYCRR 617.2[s]; compare State of New York v Townof Horicon, 46 AD3d 1287, 1289 [2007]) and, as such, are not "involved" parties thathad to be included in the SEQRA process.
Petitioners also sought a declaration that respondents had violated the City's charter by [*4]failing to include the project in the 2009 six-year capital programor capital budget when construction of this project was scheduled to begin after the VanderbiltAvenue site had been chosen for the location of the arena. However, the City's charter does notrequire that programs that have already been vetted through the budgetary process and for whichfunding has already been approved and appropriated be included in capital budgets during theyear that such projects are under construction. In fact, by 2009, this project had proceededbeyond the planning stage and could no longer be classified as a "proposed Capital project."While it is true, as petitioners claim, that Vanderbilt Avenue was belatedly chosen as the site forthe project after funds had been budgeted and appropriated for construction of the arena, that factdid not mean that the entire project had to once again be included in the City's capital budget orproceed anew through the City's budgetary process. In fact, while the location of the arena hadchanged, the essential details surrounding its construction, size and configuration and cost hadnot changed, and the decision to place this arena on Vanderbilt Avenue as opposed to WeibelAvenue did not so transform the project so as to require that the project be listed in successivecapital budgets simply because construction was ongoing but not yet completed.
Finally, petitioners argue that respondents violated the City's zoning ordinance by notobtaining approval from the City's Zoning Board of Appeals for the project before beginningconstruction (see City of Saratoga Springs Zoning Ordinance § 240-12.18 [A]).Zoning Ordinance § 240-12.18 (A) does not require Zoning Board approval for any action"proposed by any agency, department, branch or division of New York State . . .which involves the exercise of direct governmental functions, consistent with the purposes andjurisdiction of such agency, department, branch or division of New York State." We agree withSupreme Court that the City constituted a political division or subdivision of the state (seePeople ex rel. Town of Pelham v Village of Pelham, 215 NY 374, 385-386 [1915];People ex rel. Williams Eng'g & Contr. Co. v Metz, 193 NY 148, 161 [1908]; Peopleex rel. Bolton v Albertson, 55 NY 50, 56 [1873]) and, therefore, was exempt from therequirements of its own zoning ordinance.[FN4]
To the extent not specifically addressed herein, petitioners' remaining contentions have beenreviewed and found to be lacking in merit.
Cardona, P.J., Peters, Stein and McCarthy, JJ., concur. Ordered that the judgment isaffirmed, without costs.
Footnote 1: The City issued $100,000 inmunicipal bonds for the project in 2005, $1,865,000 in 2006, and $4,330,000 in 2007. To date,the City has spent over $1,000,000 toward construction of the arena.
Footnote 2: We note that during oralargument, petitioners claimed that they did not seek a stay because of the financial commitmentrequired of them if one were to issue and that respondents conceded that mootness was not aprincipal issue that they were pursuing on this appeal.
Footnote 3: Petitioners' motion was denied.
Footnote 4: In any event, the City submittedapplications for zoning variances to the Zoning Board and, in March 2009, the Zoning Boardissued variances to the City for the project.