| Matter of Kuzma v City of Buffalo |
| 2007 NY Slip Op 08523 [45 AD3d 1308] |
| November 9, 2007 |
| Appellate Division, Fourth Department |
| In the Matter of Michael Kuzma, as President of Friends of J.N.Adam, et al., Appellants, v City of Buffalo et al., Respondents. |
—[*1] Alisa A. Lukasiewicz, Corporation counsel, Buffalo (Leonardo D. Sette-Camara of counsel),for respondent-respondent City of Buffalo. Andrew M. Cuomo, Attorney General, Albany (Lawrence A. Rappoport of counsel), forrespondents-respondents Empire State Development Corporation, Dormitory Authority of Stateof New York and Office of Mental Retardation and Developmental Disabilities of State of NewYork. Harter Secrest & Emery LLP, Rochester (Robert C. Weissflach of counsel), forrespondent-respondent Thomas S. Trathen, as Managing Member of Trathen Land Company,LLC.
Appeal from a judgment (denominated order) of the Supreme Court, Cattaraugus County(Larry M. Himelein, A.J.), entered May 18, 2006 in a proceeding pursuant to CPLR article 78.The judgment, insofar as appealed from, granted those parts of the motion of respondents EmpireState Development Corporation, Dormitory Authority of State of New York and Office of MentalRetardation and Developmental Disabilities of State of New York to dismiss the first throughthird causes of action against them, granted the motion of respondent City of Buffalo to dismissthe SEQRA allegations against it and denied petitioners' cross motion for summary judgment onthe petition.[*2]
It is hereby ordered that the judgment insofar as appealedfrom be and the same hereby is unanimously reversed on the law without costs, the motion ofrespondents Empire State Development Corporation, Dormitory Authority of State of New Yorkand Office of Mental Retardation and Developmental Disabilities of State of New York is deniedin part and the first through third causes of action against those respondents are reinstated, themotion of respondent City of Buffalo is denied in its entirety and the first cause of action againstthat respondent is reinstated, the cross motion is granted in part and the petition is granted in partby annulling the 1998 negative declaration, the resolution by the Common Council of respondentCity of Buffalo approving the sale of its reversionary interest in the property in question and thecontract for the sale of that property.
Memorandum: Petitioners commenced this CPLR article 78 proceeding seeking to annul tworelated administrative determinations. The first determination is a resolution by the CommonCouncil of respondent City of Buffalo (City) approving the sale of the City's reversionary interestin a 649-acre portion of a former State mental hygiene facility known as the J.N. AdamDevelopmental Center (Center) to the State of New York. The second is a determination byrespondents Empire State Development Corporation (ESDC), Dormitory Authority of State ofNew York, and Office of Mental Retardation and Developmental Disabilities of State of NewYork (collectively, State) to enter into a contract for the sale of the Center to respondent ThomasS. Trathen, as managing member of Trathen Land Company, LLC (Trathen). In general terms,petitioners challenge the prospective sale by the City and State of their respective interests in theenvironmentally sensitive and historically significant Center to enable Trathen to log the heavilywooded property on which the Center is located, with no guarantee that the historic structureslocated on the property would be preserved. In the first through third causes of action of thepetition, petitioners allege that both the City and the State violated article 8 of the EnvironmentalConservation Law (State Environmental Quality Review Act [SEQRA]), and they further allegethat the State violated Public Buildings Law § 63 (1) and (4) and PRHPL 14.09 (1) and (2).
Petitioners appeal from a judgment that granted the motion of the State for leave to rearguewith respect to Supreme Court's denial of that part of its motion seeking dismissal of the firstcause of action, alleging a SEQRA violation, and, following reargument, granted the motion ofthe State to dismiss the petition against it in its entirety. In addition, the court granted the motionof the City to dismiss the SEQRA allegations against it, denied the cross motion of petitioners forsummary judgment on the petition, and "ORDERED[,] ADJUDGED AND DECREED that theState respondents, upon their further SEQRA [review] and determination as to whether or not theconveyance of the Center to Trathen may have a significant impact on the environment, shallprovide notice of their determination to Petitioners, and [shall not] transfer . . . titleto the Center to Trathen . . . until after 15 days after the State respondents providesuch notice." In dismissing the petition against the State, the court determined that the petitionwas a premature challenge to the State's non-final determination inasmuch as the State agreedafter the commencement of this proceeding "to reopen the prior negative declaration and do anew SEQRA analysis," with notice to petitioners of "whatever determination is made." Inaddition, the State acknowledged that it must comply with its obligations pursuant to the PublicBuildings Law and PRHPL by engaging in the statutorily required interagency "consultations"with the New York State Office of Parks, Recreation, and Historic Preservation (OPRHP). Thosecommitments of the State stemmed from its belated realization that the Center is in fact eligiblefor inclusion on the State Register of Historic Places.
The court erred in dismissing as premature the first through third causes of action, allegingthe violations of SEQRA, the Public Buildings Law and PRHPL. In acknowledging that it has yetto comply with its obligations under those statutes, the State has failed to demonstrate [*3]that the challenged determinations are not final and that the firstthree causes of action are thus premature. Instead, the State has effectively conceded theinvalidity of its determinations and hence the merit of those causes of action against it. Inparticular, the State has effectively conceded that the 1998 negative declaration cannot standbecause it is based on erroneous information, i.e., that there is no historic significance to theCenter and that the sale of the Center would have no impact upon cultural resources included inor eligible for inclusion in the State Register of Historic Places. Under the circumstances, itcannot be said that the State "identified the relevant areas of environmental concern, took a 'hardlook' at them, and made a 'reasoned elaboration' of the basis for its determination" ofenvironmental nonsignificance (Matter of Jackson v New York State Urban Dev. Corp.,67 NY2d 400, 417 [1986]; see Matter of Gernatt Asphalt Prods. v Town of Sardinia, 87NY2d 668, 688 [1996]; Chinese Staff & Workers Assn. v City of New York, 68 NY2d359, 363-364 [1986]). The negative declaration thus must be annulled (see CPLR 7803[3]; see generally Matter of Kahn v Pasnik, 90 NY2d 569, 574 [1997]; GernattAsphalt Prods., 87 NY2d at 688; Akpan v Koch, 75 NY2d 561, 570 [1990];Jackson, 67 NY2d at 417). The State also has effectively conceded that any minimalconsultations between ESDC with OPRHP were inadequate to discharge the State'sresponsibilities under the Public Buildings Law and PRHPL (see Public Buildings Law§ 63 [1], [4]; PRHPL 14.09; see also 9 NYCRR 428.8).
Rather than dismissing the petition against the State as premature, we conclude that the courtshould have granted the petition against the State in part, despite the fact that the State has not yetanswered the petition (cf. CPLR 7804 [f]; Matter of Nassau BOCES Cent. Council ofTeachers v Board of Coop. Educ. Servs. of Nassau County, 63 NY2d 100, 103 [1984]).Where, as here, the dispositive facts and the positions of the parties are fully set forth in therecord, thereby making it "clear that no dispute as to the facts exists and [that] no prejudice willresult from the failure to require an answer," the court may reach the merits of the petition andgrant the petitioner judgment thereon notwithstanding the lack of any answer and without givingthe respondent a further opportunity to answer the petition (Nassau BOCES Cent. Council ofTeachers, 63 NY2d at 102; seeMatter of Laurel Realty, LLC, v Planning Bd. of Town of Kent, 40 AD3d 857, 860[2007]; Matter of Intermor v Board of Trustees of Inc. Vil. of Malverne, 286 AD2d 330,331-332 [2001]; Matter of Citizens Against Retail Sprawl v Giza, 280 AD2d 234, 240[2001]).
The State's conceded failure to perform a valid review under SEQRA and to engage in thestatutorily required interagency consultations warrants the annulment of the State's 1998 negativedeclaration and the concomitant determination of the State to enter into a contract for the sale ofthe Center to Trathen (see Devitt v Heimbach, 89 AD2d 920 [1982], affd 58NY2d 925 [1983]; see generally Matter of Save the Pine Bush v City of Albany, 70NY2d 193, 206-207 [1987]; Chinese Staff & Workers Assn., 68 NY2d at 369; Matterof Watch Hill Homeowners Assn. v Town Bd. of Town of Greenburgh, 226 AD2d 1031,1033-1034 [1996], lv denied 88 NY2d 811 [1996]). As the Court of Appeals has stated,"[t]he suggestion . . . that [a SEQRA violation] can be cured by 'an amendednegative declaration' . . . finds no support in the carefully drafted procedures of thestatute and would effectively allow the [State] to comply with SEQRA . . . only asan afterthought following a successful challenge to [its] prior action" (Chinese Staff &Workers Assn., 68 NY2d at 369). Moreover, under the circumstances of this case, and infairness to all parties concerned, the State's violation of SEQRA requires the annulment of theCommon Council's resolution approving the sale of the City's reversionary interest to the State.We note that both the Common Council's resolution approving the conveyance of the City'sreversionary interest and the formal reverter release executed by the Mayor are referable to thecontract for the sale of the Center by the State to Trathen, which we have annulled herein,inasmuch as both refer to the 649 acres to be sold and to the City's receipt of 90% of the purchaseprice. Present—Gorski, J.P., Smith, Centra, Fahey and Green, JJ. [See 11 Misc 3d1061(A), 2006 NY Slip Op 50338(U) (2006).]