| Matter of Herman v Incorporated Vil. of Tivoli |
| 2007 NY Slip Op 09229 [45 AD3d 767] |
| November 20, 2007 |
| Appellate Division, Second Department |
| In the Matter of Mona Herman et al.,Appellants, v Incorporated Village of Tivoli, Respondent. |
—[*1] Rapport Meyers Whitbech Shaw & Rodenhausen, LLP, Poughkeepsie, N.Y. (Shoshanah V.Asnis and Victor Meyers of counsel), for respondent.
Hybrid proceeding pursuant to CPLR article 78, in effect, to review a determination of theIncorporated Village of Tivoli dated February 22, 2006, authorizing and directing the Mayor ofthe Incorporated Village of Tivoli to execute, on behalf of the Incorporated Village of Tivoli, awireless access agreement between the Incorporated Village of Tivoli and American WiFi, LLC,and action for a judgment declaring that the wireless access agreement is null and void and inviolation of the zoning regulations of the Incorporated Village of Tivoli, which was transferred tothis Court by order of the Supreme Court, Dutchess County (Brands, J.), dated August 14, 2006.
Ordered that the order dated August 14, 2006 is vacated; and it is further,
Ordered that the matter is remitted to the Supreme Court, Dutchess County, for furtherproceedings on the petition, and for a final determination thereafter on those branches of thepetition which were, in effect, to review the determination dated February 22, 2006, and forfurther proceedings on the cause of action for a declaratory judgment and the entry thereafter ofan appropriate judgment, inter alia, declaring whether or not the wireless access agreement is nulland void and in violation of the zoning regulations of the Incorporated Village of Tivoli, withcosts to abide the event.[*2]
In November 2005 the Incorporated Village of Tivoli, atthe direction of the Village Board of Trustees (hereinafter the Village Board), issued a request forproposals, seeking a wireless internet access provider to supply wireless internet accessthroughout the Village. In response, the Village received a single proposal from American WiFi,LLC (hereinafter American WiFi). American WiFi offered to provide: (1) free wireless internetaccess to Village employees for Village government purposes, (2) free wireless internet access toVillage residents at certain "hotspot" locations, including the Village's Memorial Park and theGeneral Business District, and (3) wireless internet services to Village residents at their homes atspecified prices if the residents so chose. In exchange, the Village would allow American WiFi tomount three or four antennae approximately 36 inches high by 8 inches wide onto the Village'swater tower, which is located within the Village's Memorial Park. After the Village's staffcompleted an environmental assessment form pursuant to the State Environmental QualityReview Act (ECL art 8 [hereinafter SEQRA]), the Village Board passed a resolution finding thatthe proposal would not have any significant adverse environmental effects, and authorizing anddirecting the Village's Mayor to execute an agreement with American WiFi (hereinafter theagreement). The agreement that was ultimately executed gave the Village the right to terminatethe arrangement at any time if, in the Village's sole judgment, the use of the water tower byAmerican WiFi interfered with the primary use of the water tower for water storage purposes.
The petitioners, who own real property adjacent to Memorial Park, and locatedapproximately 650 feet from the water tower, commenced this hybrid proceeding, in effect, toreview the Village Board's determination authorizing the Mayor to execute the agreement andaction for a judgment declaring that the agreement is null and void on the ground that it violatedthe Village's zoning regulations.
The challenged determination was not the result of "a hearing held, and at which evidencewas taken, pursuant to direction by law" (Matter of Shapiro v New York City Police Dept.[License Div.], 157 Misc 2d 28, 31 [1993], affd 201 AD2d 333 [1994] [internalquotation marks omitted]). Thus, the Supreme Court erroneously transferred theproceeding to this Court pursuant to CPLR 7804 (g), inasmuch as the determination should bereviewed under the "arbitrary and capricious" standard of CPLR 7803 (3), as opposed to the"substantial evidence" standard of CPLR 7803 (4) (see Matter of Sasso v Osgood, 86NY2d 374, 384 n 2 [1995]; Matter ofHalperin v City of New Rochelle, 24 AD3d 768, 769-770 [2005]). Moreover, thepetitioners also requested a declaratory judgment, relief for which a transfer is not authorized.
In this instance, it would not serve the interests of judicial economy to make a finaldetermination on the merits (cf. Matter of Halperin v City of New Rochelle, 34 AD2d at774). The record before us is insufficiently developed to permit us to make an informeddetermination as to whether there was a violation of the applicable zoning regulations or SEQRAand whether or not the doctrine of the exhaustion of administrative remedies should be appliedhere (see generally Matter of Sievers v City of N.Y. Dept. of Bldgs., 146 AD2d 473[1989]; Rosenberg v 135 Willow Co., 130 AD2d 566 [1987]).
Accordingly, we remit the matter to the Supreme Court, Dutchess County, for furtherproceedings on the petition, and a final determination thereafter on the merits of those branchesof the petition which were, in effect, to review the determination dated February 22, 2006, andsince this is, in part, a declaratory judgment action, for further proceedings on that cause ofaction and the entry thereafter of an appropriate judgment, inter alia, declaring whether or not theagreement is null and void and in violation of the Village's zoning regulations (see Lanza vWagner, 11 NY2d 317 [1962], lv dismissed 371 US 74 [1962], cert denied371 US 901 [1962]). Crane, J.P., Goldstein, Florio and Dillon, JJ., concur.