| Centerville's Concerned Citizens v Town Bd. of Town ofCenterville |
| 2008 NY Slip Op 08778 [56 AD3d 1129] |
| November 14, 2008 |
| Appellate Division, Fourth Department |
| Centerville's Concerned Citizens, Appellant, v Town Board ofTown of Centerville, Respondent. |
—[*1] Hodgson Russ LLP, Buffalo (Daniel A. Spitzer of counsel) and Richardson and Pullen, P.C.,Fillmore, for defendant-respondent.
Appeal from a judgment (denominated order) of the Supreme Court, Allegany County(Michael L. Nenno, A.J.), entered May 9, 2007 in a declaratory judgment action. The judgmentdismissed the complaint (denominated petition and complaint).
It is hereby ordered that the judgment so appealed from is unanimously reversed on the lawwithout costs, the complaint is reinstated and judgment is granted in favor of plaintiff as follows:"It is ADJUDGED AND DECLARED that Local Law No. 1 (2006) of the Town of Centerville isinvalid."
Memorandum: Plaintiff commenced this hybrid CPLR article 78 proceeding and declaratoryjudgment action seeking to annul Local Law No. 1 (2006) of the Town of Centerville (LocalLaw) based on, inter alia, the alleged failure of defendant to comply with the procedural andsubstantive requirements of ECL article 8 (State Environmental Quality Review Act [SEQRA])in enacting the Local Law. We note at the outset that this is properly only a declaratory judgmentaction. "The gravamen of the plaintiff's challenge here is . . . that the local law itselfis an invalid legislative enactment . . .[, and i]t is well established that an article 78proceeding is not the proper vehicle to test the validity of a legislative enactment" (Kamhi vTown of Yorktown, 141 AD2d 607, 608 [1988], affd 74 NY2d 423 [1989]). Weagree with plaintiff, however, that Supreme Court erred in dismissing the complaint (improperlydenominated petition and complaint) and instead should have granted judgment in favor ofplaintiff declaring that the Local Law is invalid.
Defendant declared itself the lead agency for the proposed Local Law under SEQRA,concluded that this was an "Unlisted action" (6 NYCRR 617.6 [a] [3]), and prepared a "ShortEnvironmental Assessment Form" (short EAF) used for such actions (see 6 NYCRR617.20, Appendix C). The short EAF contained a negative declaration of environmentalsignificance and, based upon that declaration, no environmental impact statement was prepared(see ECL 8-[*2]0109 [4]; 6 NYCRR 617.7 [a] [2]).
It is well settled that SEQRA applies to the "adoption of . . . local laws. . . that may affect the environment" (6 NYCRR 617.2 [b] [3]; see ECL8-0105 [4]; State of New York v Townof Horicon, 46 AD3d 1287, 1288 [2007]). In addition, "[t]he mandate that agenciesimplement SEQRA's procedural mechanisms to the 'fullest extent possible' reflects theLegislature's view that the substance of SEQRA cannot be achieved without its procedure, andthat departures from SEQRA's procedural mechanisms thwart the purposes of the statute. Thus itis clear that strict, not substantial, compliance is required" (Matter of King v Saratoga CountyBd. of Supervisors, 89 NY2d 341, 347 [1996]).
We agree with plaintiff that defendant failed to comply with the procedural requirements ofSEQRA and, "where a lead agency has failed to comply with SEQRA's mandates, the negativedeclaration must be nullified" (Matter of New York City Coalition to End Lead Poisoning vVallone, 100 NY2d 337, 348 [2003]). The use of a short EAF is permitted only in the eventthat the proposed action, here, the enactment of the Local Law, is properly classified as anunlisted action (see 6 NYCRR 617.6 [a] [3]). Unlisted actions are defined as thoseactions not identified as either type I or type II actions (see 6 NYCRR 617.2 [ak]), andtype I actions include "the adoption of changes in the allowable uses within any zoning district,affecting 25 or more acres of the district" (6 NYCRR 617.4 [b] [2]). The action at issue hereinwould change the allowable use within the entire Town and thus is properly classified as a type Iaction (see generally Matter of Gernatt Asphalt Prods. v Town of Sardinia, 87 NY2d 668,689-690 [1996]; Patterson Materials Corp. v Town of Pawling, 264 AD2d 510 [1999],lv denied 95 NY2d 754 [2000]). "For Type I actions, a full EAF . . . must beused to determine the significance of such actions" (6 NYCRR 617.6 [a] [2]). Thus, "[w]e agreewith [plaintiff] that the failure of [defendant] to complete . . . the full EAF nullifiesits SEQRA negative declaration" (Matter of Citizens Against Sprawl-Mart v Planning Bd. of City of NiagaraFalls, 8 AD3d 1052, 1053 [2004]).
In light of our determination, we have not considered plaintiff's remaining contentions.Present—Smith, J.P., Lunn, Fahey and Peradotto, JJ.