| Matter of Tupper v City of Syracuse |
| 2007 NY Slip Op 10205 [46 AD3d 1343] |
| December 21, 2007 |
| Appellate Division, Fourth Department |
| In the Matter of Joseph Tupper, as President and on Behalf ofSyracuse Property Owners Association, et al., Respondents, v City of Syracuse et al.,Appellants. |
—[*1] Hocherman Tortorella & Wekstein, LLP, White Plains (Adam L. Wekstein of counsel), forpetitioners-respondents.
Appeal from a judgment (denominated order) of the Supreme Court, Onondaga County(James P. Murphy, J.), entered July 19, 2006 in a proceeding pursuant to CPLR article 78. Thejudgment granted the amended petition and annulled City of Syracuse General Ordinance Nos.46 and 49 of 2005.
It is hereby ordered that the judgment so appealed from be and the same hereby isunanimously reversed on the law without costs, the CPLR article 78 proceeding is converted to adeclaratory judgment action and judgment is granted in favor of respondents as follows: "It isADJUDGED AND DECLARED that City of Syracuse General Ordinance Nos. 46 and 49 of2005 are valid."
Memorandum: Respondents appeal from a judgment granting the amended petition seekingto annul City of Syracuse General Ordinance Nos. 46 and 49 of 2005 on the ground thatrespondents failed to perform the review required pursuant to the State Environmental QualityReview Act ([SEQRA] ECL art 8) prior to enacting the ordinances. We note at the outset that,inasmuch as "the proper procedural vehicle for challenging a legislative act is a declaratoryjudgment action" (Wright v County ofCattaraugus, 41 AD3d 1303, 1304 [2007]), we convert the CPLR article 78 proceedingto a declaratory judgment action and consider the merits of the appeal (see CPLR 103 [c];Matter of Valley Realty Dev. Co. v Town of Tully, 187 AD2d 963 [1992], lv denied81 NY2d 880 [1993]).
With respect to the merits of the appeal, it is well established that "[s]trict compliance withSEQRA guarantees that environmental concerns are confronted and resolved prior to agencyaction" (Matter of New York City Coalition to End Lead Poisoning v Vallone, 100 NY2d337, [*2]350 [2003]). Here, however, respondents' actions do notaffect the environment within the meaning of SEQRA (see ECL 8-0103 [5], [6]), becausethe enactment of the ordinances does not impact the physical environment, nor does it affect thepopulation patterns or existing community character (cf. Chinese Staff & Workers Assn. vCity of New York, 68 NY2d 359, 366 [1986]). We therefore grant judgment in favor ofrespondents accordingly. General Ordinance No. 46 requires that nonresident owners of one- andtwo-family houses in special neighborhood districts, including the area surrounding SyracuseUniversity where petitioners are nonresident homeowners, obtain a certificate of sufficiency priorto January 1, 2008 and prior to a sale of the residence. The certificate of sufficiency certifies thatan inspection of the residence was made and that the residence was found to be in compliancewith, inter alia, the Fire Code of the State of New York and the Property Conservation Code ofthe City of Syracuse. Respondents enacted that ordinance to "ensure that all premises. . . are maintained and used in accordance with law, do not have a serious negativeimpact upon surrounding residential premises and do not endanger the health, safety or welfareof persons in the City of Syracuse." General Ordinance No. 49 defines a "nuisance party" and,inter alia, imposes penalties for persons who "sponsor, conduct, host, invite or permit a NuisanceParty." Present—Scudder, P.J., Gorski, Centra, Fahey and Green, JJ.