| Matter of Potter v Town Bd. of Town of Aurora |
| 2009 NY Slip Op 02052 [60 AD3d 1333] |
| March 20, 2009 |
| Appellate Division, Fourth Department |
| In the Matter of Margaret M. Potter et al., Appellants, et al.Petitioner, v Town Board of Town of Aurora et al., Respondents. (Appeal No.1.) |
—[*1] Bennett, Difilippo & Kurtzhalts, LLP, Holland (Ronald P. Bennett of counsel), forrespondents-respondents Town Board of Town of Aurora and Martha L. Librock, as Town Clerkof Town of Aurora.
Appeal from a judgment (denominated order and judgment) of the Supreme Court, ErieCounty (Diane Y. Devlin, J.), entered March 19, 2008 in a proceeding pursuant to CPLR article78. The judgment, among other things, dismissed the petition.
It is hereby ordered that the judgment so appealed from is unanimously affirmed withoutcosts.
Memorandum: The petitioners in appeal No. 1, property owners in the Town of East Aurora(Town), commenced a CPLR article 78 proceeding seeking, inter alia, to annul the resolution ofrespondent Town Board (Town Board) authorizing the Town's offer to purchase property fromrespondent 300 Gleed Avenue, LLC to relocate the Aurora Town Hall from its present locationto an existing building located less than three quarters of a mile away, as well as the resolution toadopt a negative declaration pursuant to article 8 of the Environmental Conservation Law (StateEnvironmental Quality Review Act [SEQRA]) with respect to that property and the relocation ofthe Town Hall to the property. In appeal No. 2, the "petitioners/plaintiffs," some of whom arealso petitioners in appeal No. 1, commenced a subsequent hybrid CPLR article 78 proceedingand declaratory judgment action seeking, inter alia, to annul further resolutions adopted by theTown Board with respect to the same property. We note at the outset that a declaratory judgmentaction is not an appropriate procedural vehicle for challenging the Town Board's administrativedeterminations, and thus the proceeding/declaratory judgment action in appeal No. 2 is properlyonly a proceeding pursuant to CPLR article 78 (see Matter of Schweichler v Village of Caledonia, 45 AD3d 1281[2007], lv denied 10 NY3d 703 [2008]). We further note that the petitioners in appealNo. 2 do not raise any contentions with respect to intervention, consolidation of thepetition/complaint with another proceeding, or [*2]their requestfor costs and sanctions, and they thus have abandoned any issues with respect thereto (seeCiesinski v Town of Aurora, 202 AD2d 984 [1994]). The remaining issues raised areidentical in both appeals.
The petitioners-appellants in appeal No. 1 and the petitioners in appeal No. 2 (collectively,petitioners) contend that the relocation of the Town Hall violates the provision in New YorkConstitution, article VIII, § 2 that no "town . . . shall contract anyindebtedness except for . . . town . . . purposes," because the subjectbuilding has excess space that will be leased to private entities. We reject that contention. Atown purpose is defined as a purpose that is " 'necessary for the common good and generalwelfare of the people of the municipality, sanctioned by its citizens, public in character, andauthorized by the legislature' " (Matter of Chapman v City of New York, 168 NY 80, 86[1901]). Pursuant to Town Law § 220 (2), a town board may "[p]urchase, lease, construct,alter or remodel a town hall, a town lockup or any other necessary building for town purposes,acquire necessary lands therefor, and equip and furnish such buildings for such purposes"(see Town Law § 64 [2]). Thus, both the purchase of the building to be used as aTown Hall and the remodeling of that building to suit the Town's needs constitute a townpurpose. Petitioners' contention that the purchase is not for a town purpose because the buildingin question is larger than that presently needed by the Town is lacking in merit. It is well settledthat "an ordinary [town] purpose may be, and often should be, planned and executed withreference as well to future as to present needs, . . . [and a town] may erect a publicbuilding, having in view future necessities, and exceeding the demands of present use"(Matter of Mayor of City of N.Y., 99 NY 569, 591 [1885]).
Petitioners are correct that, pursuant to SEQRA, the purchase of a building and therelocation of the Town Hall to that location is an unlisted action (see 6 NYCRR 617.2[ak]), thus requiring the preparation of an environmental assessment form (EAF) as defined in 6NYCRR 617.2 (m) (see Matter of CityCouncil of City of Watervliet v Town Bd. of Town of Colonie, 3 NY3d 508, 519[2004]). Although petitioners also are correct that a short EAF usually is prepared for an unlistedaction, we conclude that the Town Board properly prepared a full EAF based upon its conclusionthat "the short EAF would not provide the [Town Board] with sufficient information on which tobase its determination of significance" (6 NYCRR 617.6 [a] [3]). Contrary to petitioners' furthercontention, the Town Board timely prepared the full EAF, i.e., before the Town was committed"to a definite course of future decisions" (6 NYCRR 617.2 [b] [2]; see Matter of Billerbeck vBrady, 224 AD2d 937 [1996]). Indeed, the record establishes that the negative declarationwas issued before the Town was committed to purchasing the property (see Matter of HarEnters. v Town of Brookhaven, 74 NY2d 524, 530-531 [1989]). We further conclude that, inissuing its negative declaration of environmental significance, the Town Board properly"identified the relevant areas of environmental concern, took a 'hard look' at them, and made a'reasoned elaboration' of the basis for [its] determination" (id. at 529; see Matter of Eadie v Town Bd. of Townof N. Greenbush, 7 NY3d 306, 318 [2006]).
We have considered petitioners' remaining contentions and conclude that they are withoutmerit. Present—Smith, J.P., Centra, Fahey, Green and Pine, JJ.