| Matter of Bauer v County of Tompkins |
| 2008 NY Slip Op 09689 [57 AD3d 1151] |
| December 11, 2008 |
| Appellate Division, Third Department |
| mIn the Matter of Merry Jo Bauer et al., Respondents, v County ofTompkins, Appellant. |
—[*1] Mahlon R. Perkins, Dryden, for respondents.
Rose, J. Appeal from a judgment of the Supreme Court (Mulvey, J.), entered April 22, 2008 inTompkins County, which, among other things, granted petitioners' application, in a combinedproceeding pursuant to CPLR article 78 and action for declaratory judgment, to annul certainresolutions of the Tompkins County Legislature issuing, among other things, a negative declaration ofenvironmental significance.
Petitioners, who own land adjoining a highway, commenced this consolidated action andproceeding challenging respondent's plan to reconstruct and widen the highway's driving lanes andshoulders. Petitioners allege that respondent failed to comply with the State Environmental QualityReview Act (see ECL art 8 [hereinafter SEQRA]), and their petition seeks annulment ofrespondent's legislative resolutions that approved an environmental assessment form (hereinafter EAF)containing a negative declaration of the project's environmental significance and a final design report(hereinafter FDR) reviewing the project's environmental impact. Also, their complaint seeks adeclaration that respondent has no right to expand the width of the highway beyond the area actuallyused in the past. With its answer, respondent moved pursuant to CPLR 3211 for dismissal of thecomplaint and petition, and for summary judgment on its counterclaim for a declaration that its highwayright-of-way is at least three rods wide. Supreme Court denied respondent's motions, granted thepetition and annulled the resolutions approving the EAF and FDR, finding that, among other things, theEAF does not include the FDR. As for the complaint, Supreme Court held that respondent's easementextends [*2]only to the width of past actual use, but found a question offact as to the extent of such use.
Respondent appeals, contending initially that the width of its right-of-way was established as atleast three rods by documentary evidence consisting of deeds and surveys of petitioners' properties.We agree that the survey maps do show such a right-of-way. The deeds themselves, however, extendeach grantees' premises to the centerline of the road, they do not state the width of the actual roadwayand they make the grantees' premises subject only to the rights of the public. Inasmuch as respondent'sclaim to the right-of-way is based solely on petitioners' own deeds and surveys, petitioners aptly citethe well-settled rule that "a deed with a reservation or exception by the grantor in favor of a third party,a so-called 'stranger to the deed', does not create a valid interest in favor of that third party"(Matter of Estate of Thomson v Wade, 69 NY2d 570, 573-574 [1987]; Adirondack Park Agency v Bucci, 2 AD3d1293, 1294 [2003], lv dismissed and denied 3 NY3d 634 [2004]; Carter vHeitzman, 198 AD2d 649, 650 [1993], lv denied 83 NY2d 751 [1994]). Because therecord here contains no grant of the right-of-way to respondent or its predecessor, the deeds makingpetitioners' properties subject to the rights of the public cannot create a valid interest in respondent'sfavor. Accordingly, Supreme Court correctly concluded that the road is a highway by use and is only aswide as its actual use for public travel (see Schillawski v State of New York, 9 NY2d 235,238 [1961]; Dutcher v Town ofShandaken, 23 AD3d 781, 782 [2005]; Jim May Pontiac Buick v Gleason, 112AD2d 618, 620 [1985]). Since the record further shows that the widths of the paved and ancillaryareas of the highway vary or are in dispute, Supreme Court properly found a question of fact as to thewidth of the right-of-way.
We also agree with Supreme Court's finding that respondent's negative declaration failed to complywith SEQRA. Strict compliance with SEQRA's procedural mechanisms is mandated and anything lesswill result in annulment of the determination (see Matter of King v Saratoga County Bd. ofSupervisors, 89 NY2d 341, 347 [1996]; State of New York v Town of Horicon, 46 AD3d 1287, 1290 [2007];Matter of Di Veronica v Arsenault, 124 AD2d 442, 443-444 [1986]). As is relevant here,SEQRA requires the lead agency to "set forth its determination of significance in a written formcontaining a reasoned elaboration and providing reference to any supporting documentation" (6NYCRR 617.7 [b] [4]). While the record reveals that respondent consulted with other agencies, heldpublic hearings, adopted the EAF and accepted the FDR which elaborates upon the environmentalconcerns and adequately explains why the impacts were insufficient to warrant a positive declaration,Supreme Court correctly noted that the EAF does not include any such reasoned elaboration or makereference to the FDR or any other document as the basis for its negative declaration (cf. Matter of Save Southard Rd. NeighborhoodCoalition v Town of Saratoga Planning Bd., 35 AD3d 1017, 1020 [2006]; Matter ofHeritage Co. of Massena v Belanger, 191 AD2d 790, 792 [1993]). Nor do the minutes of themeeting at which the EAF was approved reflect that, before doing so, respondent reviewed andaccepted the contents of the environmental sections of the FDR as the basis for its negative declaration.As a result, although we do not agree with Supreme Court's further finding that respondent failed todesignate itself as the lead agency as required by 6 NYCRR 617.6 (b) (2), we conclude thatrespondent failed to strictly comply with the requirement to set forth a reasoned elaboration of itsnegative declaration either in the EAF or by an express reference to other documents (see Matterof New York City Coalition to End Lead Poisoning v Vallone, 100 NY2d 337, 349-350 [2003]).
Peters, J.P., Lahtinen, Kane and Malone Jr., JJ., concur. Ordered that the judgment is affirmed,without costs.