| Matter of Dugan v Liggan |
| 2011 NY Slip Op 09563 [90 AD3d 1445] |
| December 29, 2011 |
| Appellate Division, Third Department |
| In the Matter of James P. Dugan et al., Appellants, v Billy Liggan etal., Constituting the Planning Board of the Town of Rosendale, et al.,Respondents. |
—[*1] Mary Lou P. Christiana, Kingston, for Billy Liggan and others, respondents. Riseley & Moriello, Kingston (Michael A. Moriello of counsel), for Daniel Falk and others,respondents. Cook, Netter, Cloonan, Kurtz & Murphy, P.C., Kingston (Eric M. Kurtz of counsel), forUlster County Department of Health-Environmental Sanitation Division, respondent.
Stein, J. Appeal from a judgment of the Supreme Court (Cahill, J.), entered July 30, 2010 inUlster County, which, in a proceeding pursuant to CPLR article 78, dismissed the petition.
In August 2006, respondents Daniel Falk, Kevin Evans and Angela Evans (hereinaftercollectively referred to as the applicants) filed an application with the Planning Board of theTown of Rosendale for a three-phase subdivision in the Town of Rosendale, Ulster County. Theproposed project was to consist of 21 residential lots and one preexisting commercial lot. TheBoard began a coordinated environmental review in October 2006 and formally announced itsintention to act as a lead agency for purposes of the State Environmental Quality Review Act(see ECL art 8 [hereinafter SEQRA]). Respondent Ulster County Department ofHealth-Environmental Sanitation Division (hereinafter Department) was named as one of the[*2]involved agencies. The project was classified as a type Iaction under SEQRA. Public hearings were conducted by the Board in April and December 2007and public comments were solicited on the proposed plan.
In July 2008, the Board determined that an environmental impact statement would not benecessary and filed a negative declaration of environmental significance with the Town Clerk.The Board then adopted a resolution and issued a decision granting preliminary plat approval,which was filed with the Town Clerk on September 4, 2008. In February 2009, the preliminaryapproval was extended for a six-month period. In September 2009, after conducting an extensivereview of the relevant sewage disposal plans, as well as the soil and water conditions of theproperty, the Department issued a certificate of approval of the subdivision plans, finalsubdivision plat approval was granted and such approval was promptly filed with the TownClerk.
In October 2009, petitioners—a group of neighboring landowners whose propertiesadjoin the proposed subdivision—commenced this CPLR article 78 proceeding seekingreview of the approvals of the subdivision plan by the Board and by the Department.Respondents answered asserting, among other things, that petitioners had not commenced theproceeding within the applicable statute of limitations. Supreme Court dismissed the petition asuntimely, prompting this appeal by petitioners.[FN*]
We modify. The four-month period in which a CPLR article 78 proceeding must be broughtto review an agency determination commences on the date "the determination to be reviewedbecomes final and binding upon the petitioner" (CPLR 217 [1]; see 7801 [1]; Matter of Best Payphones, Inc. vDepartment of Info. Tech. & Telecom. of City of N.Y. 5 NY3d 30, 34 [2005]). Adetermination is final and binding when the decision maker has arrived at "a definitive positionon the issue that inflicts an actual, concrete injury [and when that injury] may not be prevented orsignificantly ameliorated by further administrative action or by steps available to the complainingparty" (Matter of Essex County v Zagata, 91 NY2d 447, 453 [1998] [internal quotationmarks and citations omitted]; see Church of St. Paul & St. Andrew v Barwick, 67 NY2d510, 519, 520 [1986], cert denied 479 US 985 [1986]).
Consideration by the Department of whether aspects of a subdivision plan comport with thePublic Health Law and Department regulations pursuant to its statutory duty to supervise andregulate the sanitary aspects of sewage disposal is a separate and distinct inquiry from theSEQRA process (see Matter of Ames v Johnston, 169 AD2d 84, 86 [1991]). Here, afterreceiving petitioner's application in October 2006, requesting further information and consideringvarious expert reports, among other things, the Department issued its approval of the subdivisionplans for the proposed water supply and sewage disposal system in September 2009. It isaxiomatic that petitioners did not have a claim against the Department until that time, as theDepartment had not previously arrived at a position on the issue. This proceeding wascommenced in October 2009, well within the four-month limitations period. Thus, dismissal ofthe petition as it related to claims against the Department was erroneous. Because Supreme [*3]Court did not review the merits of such claims, we remit thisproceeding to Supreme Court to hear and determine the issues raised by petitioners in the firstinstance (see generally CPLR 7804 [g], [h]; Matter of Samson Mgt., LLC v New York State Div. of Hous. &Community Renewal, 76 AD3d 1024, 1025 [2010]; Matter of Harvey v New YorkState Dept. of Envtl. Conservation, 235 AD2d 625, 625 [1997]).
Peters, J.P., Lahtinen, McCarthy and Garry, JJ., concur. Ordered that the judgment ismodified, on the law, without costs, by reversing so much thereof as dismissed that part of thepetition relating to respondent Ulster County Department of Health-Environmental SanitationDivision; matter remitted to the Supreme Court for further proceedings not inconsistent with thisCourt's decision; and, as so modified, affirmed.
Footnote *: Inasmuch as petitioners havenow conceded that their challenge to the Board's preliminary plat approval filed with the TownClerk on September 4, 2008 was untimely, we deem that issue to be abandoned.