| Matter of Palczynski v County of Herkimer |
| 2008 NY Slip Op 07285 [55 AD3d 1242] |
| October 3, 2008 |
| Appellate Division, Fourth Department |
| In the Matter of Francis Palczynski et al., Respondents, v County ofHerkimer, Appellant, et al., Respondent. |
—[*1] Menter, Rudin & Trivelpiece, P.C., Syracuse (Thomas J. Fucillo of counsel), forpetitioners-respondents.
Appeal from a judgment of the Supreme Court, Herkimer County (Michael E. Daley, J.),entered October 12, 2007 in a proceeding pursuant to CPLR article 78. The judgment granted thepetition and, inter alia, annulled Resolution No. 83 of 2007 authorizing respondent County ofHerkimer to purchase certain property for the construction of a correctional facility and annulledthe purchase and sale agreement for that property.
It is hereby ordered that the judgment so appealed from is unanimously reversed on the lawwithout costs and the petition is dismissed.
Memorandum: Petitioners commenced this CPLR article 78 proceeding seeking, inter alia, toannul Resolution No. 83 of 2007 (Resolution) authorizing the County of Herkimer (respondent)to purchase certain property for the construction of a correctional facility and to annul thepurchase and sale agreement (agreement) for that property. We agree with respondent thatSupreme Court erred in granting the petition. According to petitioners, respondent failed toconduct the review required by article 8 of the Environmental Conservation Law (StateEnvironmental Quality Review Act [SEQRA]) before adopting the Resolution or entering intothe agreement. Pursuant to the Resolution and the agreement, respondent's purchase of theproperty was subject to several conditions, including respondent's acquisition of all necessarypermits and approvals for developing the property and respondent's determination "that nounacceptable environmental condition exists" with respect to either the property or theneighboring properties. In addition, respondent was relieved of any obligation to purchase theproperty in the event that it determined that the cost of obtaining permits and installing utilityservices was "too high" or in the event that it could solve its inmate housing needs through meansother than the construction of a new facility.[*2]
Although a SEQRA review is required for any "action"taken by an agency (6 NYCRR 617.3 [a]), preliminary steps in the planning of a project do notconstitute such an action unless they "commit the agency to a definite course of future decisions"(6 NYCRR 617.2 [b] [2]; see Matter ofEast End Prop. Co. #1, LLC v Kessel, 46 AD3d 817, 821 [2007], lv denied 10NY3d 926 [2008]; Hudson Riv. Sloop Clearwater v Cuomo, 222 AD2d 386 [1995],lv denied 88 NY2d 806 [1996]; see also Matter of Programming & Sys. v New YorkState Urban Dev. Corp., 61 NY2d 738, 739 [1984]). Here, the conditions set forth in theResolution and the agreement establish that respondent did not commit to "a definite course offuture decisions" by adopting the Resolution or entering into the agreement (6 NYCRR 617.2 [b][2]).
Contrary to petitioners' further contention, respondent was not required to conduct a SEQRAreview for each site that it considered before finally selecting the location for the correctionalfacility. Although respondent is required pursuant to ECL 8-0109 (2) (d) to set forth in theenvironmental impact statement (EIS) "a description and evaluation of reasonable alternatives tothe action which would achieve the same or similar objectives" (10 NYCRR 97.12 [d] [5]), thestatute does not require such a description and evaluation of reasonable alternatives prior to theEIS stage of the SEQRA process (see generally Webster Assoc. v Town of Webster, 59NY2d 220, 227-228 [1983]). Present—Scudder, P.J., Lunn, Fahey, Pine and Gorski, JJ.