| Matter of Marshall v City of Albany |
| 2007 NY Slip Op 08799 [45 AD3d 1064] |
| November 15, 2007 |
| Appellate Division, Third Department |
| In the Matter of Linda E. Marshall et al., Appellants, v City ofAlbany et al., Respondents. |
—[*1] Nixon Peabody, L.L.P., Albany (Ruth E. Leistensnider of counsel), for City of Albany andothers, respondents. Young, Sommer, Ward, Ritzenberg, Baker & Moore, L.L.C., Albany (Michael J. Moore ofcounsel), for John F. Frangella and others, respondents.
Lahtinen, J. Appeal from a judgment of the Supreme Court (McCarthy, J.), entered April 18,2006 in Albany County, which, among other things, dismissed petitioners' application, in acombined proceeding pursuant to CPLR article 78 and action for declaratory judgment, to,among other things, declare null and void several option agreements for the purchase of certainreal property.
This appeal involves, among other issues, an alleged violation of the State EnvironmentalQuality Review Act (ECL art 8 [hereinafter SEQRA]) and failure to follow a prior decision ofthis Court by respondent City of Albany, which is one of many municipalities in the Albany NewYork Solid Waste Energy Recovery System Waste Shed Planning Unit (see generallyECL 27-0107). That Planning Unit was created in 1989 to develop a solid waste managementplan for the region. The underlying facts are set forth in appeals from earlier proceedings thatwere commenced once the 363-acre site in the Town of Coeymans, Albany County, known asSite C-2, was indicated as the preferred site (see Matter of Town of Coeymans v City ofAlbany, 284 AD2d 830 [2001], lv denied 97 NY2d 602 [2001] [hereinafterCoeymans II]; Matter of Town of Coeymans v City of Albany, 237 AD2d 856[1997], lv denied 90 NY2d 803 [1997]). The Department of EnvironmentalConservation, Region 4 (hereinafter DEC), was [*2]designatedthe lead agency. The City negotiated options to purchase the parcels that comprised Site C-2 and,thereafter, its effort to segment review for acquiring the property was nullified (see Matter ofTown of Coeymans v City of Albany, 284 AD2d at 835).
Because of delays encountered in attempting to establish a new solid waste site, the City waspermitted by DEC to expand its existing facility (known as P-4 expansion) subject to variousconditions including a continuation of its efforts to establish a new site. In light of this conditionand the approaching expiration of the option agreements for Site C-2, the City entered into aseries of two-year extension agreements with the owners. Those agreements included a thirdoption (January 2001 to December 2002), a fourth option (January 2003 to December 2004) anda fifth option (January 2005 to December 2006). By the time of the fifth option agreement, theCity had paid over $5 million for the options, which was an amount that exceeded the originalpurchase price and, under the terms of the agreement, the City was entitled to have the propertytransferred to it.
Petitioners commenced this proceeding in April 2005 asserting, among other things, that thethird, fourth and fifth extensions of the option agreements violated SEQRA. In a preanswermotion, Supreme Court (Tomlinson, J.) dismissed six of the seven causes of action, includingchallenges to the third and fourth options upon the ground that claims regarding those optionswere barred by the statute of limitations. Thereafter, Supreme Court (McCarthy, J.) dismissed theremaining cause of action in April 2006 finding that the fifth option and extension agreement didnot violate SEQRA. In September 2006, the City and landowner respondents closed on theproperty. Petitioners subsequently perfected this appeal in April 2007.
We find merit in the City's argument that the inordinate delay by petitioners in bringing thisproceeding, in which they seek equitable relief, implicates the doctrine of laches. "Laches isdefined as such neglect or omission to assert a right as, taken in conjunction with the lapse oftime, more or less great, and other circumstances causing prejudice to an adverse party, operatesas a bar in a court of equity" (Matter of Schulz v State of New York, 81 NY2d 336, 348[1993] [internal quotation marks and citation omitted]; accord Matter of Barabash, 31NY2d 76, 81 [1972]; see Matter of E.F.S. Ventures Corp. v Foster, 71 NY2d 359,371-372 [1988]). Here, petitioners did not directly challenge the initial option agreements in theearlier action. Nor was any challenge presented when the third and fourth options were executed.Each option covered a period of two years, certainly enough time to commence a proceeding.Indeed, as held by Supreme Court (Tomlinson, J.), the attempt by petitioners in the currentproceeding to reach back to the third and fourth options was clearly untimely. Even though thisproceeding is not barred by the statute of limitations as to the fifth option, the delay in waitinguntil after that last option was in place before bringing this proceeding is troubling. Further, oncethe proceeding was commenced, petitioners failed to make a timely motion for a preliminaryinjunction to attempt to prevent the transfer of the property. In light of the repeated failure to actpromptly and the considerable prejudice to and expense incurred by the City, we find laches anappropriate defense.
We further note that, were we to address the merits, we would affirm for essentially the samereasons set forth in the thorough decision of Supreme Court (McCarthy, J.). In light of theenvironmental concerns implicated, two issues merit brief mention. First, while we held inCoeymans II that the City's Common Council could not unilaterally segment theacquisition and funding of Site C-2 and declare itself the lead agency for such purpose whereDEC was the lead agency for the entire project (see Matter of Town of Coeymans v City ofAlbany, 284 AD2d at [*3]834-835), we were not asked toaddress the validation of the City's options. Extending the options was apparently necessary inorder for the City to receive permission from DEC to continue operating the current facility thatis located within its boundaries (the P-4 expansion). Moreover, since the City did not haveeminent domain power where Site C-2 is located (see General City Law § 20) andthe municipality in which Site C-2 is located is opposed to a facility there, the extensions of theoptions were ostensibly necessary to keep Site C-2 as a possible site.[FN*]
Next, under the narrow circumstances presented, the use of options and extensions for theproperty—when considered together with the long delays that eventually resulted in theCity obtaining deeds under the terms of those agreements—were not actions that set adefinite course (see 6 NYCRR 617.2 [b] [2]; cf. Matter of Tri-County TaxpayersAssn. v Town Bd. of Town of Queensbury, 55 NY2d 41, 46 [1982]; Matter of Sun BeachReal Estate Dev. Corp. v Anderson, 98 AD2d 367, 371 [1983], affd 62 NY2d 965[1984]). In such regard, it is significant that neither the City nor any member of the Planning Unitis the lead agency. DEC has that responsibility and it is not a sponsor of the proposed solid wastemanagement plan. DEC is, in essence, neutral, while having a strong regulatory interest regardingboth the solid waste plan and the potentially implicated wet lands (see generally Gerrard,Ruzow and Weinberg, Environmental Impact Review in New York § 3.03 [1]). The recordreveals that environmental issues have been considered throughout. There is no reason to believethat DEC will require less than continued full environmental review without ascribing any weightto the unusual circumstances regarding Site C-2 that have transpired up to this point in thislengthy process. As aptly observed by Supreme Court (McCarthy, J.), the fate of Site C-2 restswith DEC and not the City, the City will be bound by DEC's determinations, and there is not asignificant risk that DEC will abrogate its responsibilities.
Crew III, J.P., Peters, Spain and Kane, JJ., concur. Ordered that the judgment is affirmed,without costs.
Footnote *: While public authorities createdto manage solid waste typically are clothed with eminent domain power (see e.g. PublicAuthorities Law § 2041-d [4]; former § 2048-e [3]; § 2051-e [4]; §2729 [4]), no such power was provided to the Planning Unit. The City's power to exercise suchpower outside its boundaries is limited to specifically enumerated situations and does not includeestablishment of a solid waste facility (see General City Law § 20 [2]).