| Matter of Town of Riverhead v Central Pine Barrens Joint Planning &Policy Commn. |
| 2010 NY Slip Op 01803 [71 AD3d 679] |
| March 2, 2010 |
| Appellate Division, Second Department |
| In the Matter of Town of Riverhead et al.,Respondents, v Central Pine Barrens Joint Planning and Policy Commission, Appellant.Long Island Pine Barrens Society, Inc., et al., Nonparty Appellants. |
—[*1] Regina Seltzer, Bellport, N.Y., for nonparty appellants. Dawn C. Thomas, Town Attorney, Riverhead, N.Y., for respondents.
In a hybrid proceeding pursuant to CPLR article 78, inter alia, to review determinations ofthe Central Pine Barrens Joint Planning and Policy Commission dated July 19, 2006, and April18, 2007, adopting resolutions asserting its jurisdiction over the review of the proposeddevelopment of certain properties located within Enterprise Park At Calverton, and action for ajudgment declaring, among other things, that development of the properties is exempt fromreview by the Central Pine Barrens Joint Planning and Policy Commission, and permanentlyenjoining the Central Pine Barrens Joint Planning and Policy Commission from exercisingjurisdiction to review the development of the properties, the Central Pine Barrens Joint Planningand Policy Commission appeals, as limited by its brief, from so much of an order and judgment(one paper) of the Supreme Court, Suffolk County, (Baisley, Jr., J.), dated March 31, 2008, as,upon a decision of the same court dated January 30, 2008, denied its motion to amend its answer,granted the petition, annulled the determinations, in effect, awarded summary judgment to thepetitioners/plaintiffs declaring that development of the properties is exempt from review by theCentral Pine Barrens Joint Planning and Policy Commission, declared that development of theproperties is exempt from review by the Central Pine Barrens Joint Planning and PolicyCommission, and permanently enjoined the Central Pine Barrens Joint Planning and PolicyCommission from exercising jurisdiction to review the development of the properties, andnonparties Long Island Pine Barrens Society, Inc., and Richard Amper separately appeal, aslimited by their brief, from so much of the same order and judgment as denied their motionpursuant to CPLR 1013 for leave to intervene in the matter.
Ordered that the order and judgment is reversed insofar as appealed from, on the law,without costs or disbursements, the petition is denied, the proceeding and action are dismissed aspremature, and the motion for leave to intervene is denied as academic.
This matter is not ripe for judicial review. "The function of the courts is to determine [*2]controversies between litigants. They do not give advisoryopinions. The giving of such opinions is not the exercise of the judicial function"(Self-Insurer's Assn. v State Indus. Commn., 224 NY 13, 16 [1918] [citations omitted]).To be ripe, there must be "an actual controversy between genuine disputants with a stake in theoutcome" (Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLRC3001:3, at 433).
To determine whether a matter is ripe for judicial review, it is necessary " 'first to determinewhether the issues tendered are appropriate for judicial resolution, and second to assess thehardship to the parties if judicial relief is denied' " (Church of St. Paul & St. Andrew vBarwick, 67 NY2d 510, 519 [1986], cert denied 479 US 985 [1986], quotingToilet Goods Assn., Inc. v Gardner, 387 US 158, 162 [1967]). Specifically, the courtmust determine whether an agency has arrived at a definitive position on the issue that inflicts anactual concrete injury and whether the resolution of the dispute requires any fact-finding, for"[e]ven if an administrative action is final, however, it will still be 'inappropriate' for judicialreview and, hence, unripe, if the determination of the legal controversy involves the resolution offactual issues" (Church of St. Paul & St. Andrew v Barwick, 67 NY2d at 519 [1986]).
Here, this matter is not ripe for several reasons. First, the Central Pine Barrens JointPlanning and Policy Commission (hereinafter the Commission) has not rendered a definitivedecision with respect to the proposed development. The petitioners/plaintiffs (hereinafter thepetitioners) have failed to provide the information requested by the Commission and haverefused to participate in the Commission's review process. Therefore, the Commission has nothad the opportunity to grant or deny any application that might be submitted by the petitioners."Until the Commission acts, it simply cannot be said that the administrative agency has taken adefinitive position 'that inflicts an actual, concrete injury' " (id. at 522, quotingWilliamson County Regional Planning Comm'n v Hamilton Bank of Johnson City, 473US 172, 193 [1985]).
Second, the petitioners have not incurred an actual, concrete injury. No fines have beenimposed, nor have any enforcement proceedings been initiated. There has been no direct orimmediate impact from any administrative action. "Indeed, as yet, there can be no such harm forthere has been no interference" (Church of St. Paul & St. Andrew v Barwick, 67 NY2d at522 [1986]). Moreover, mere participation in an ongoing administrative process is not, in and ofitself, an actual concrete injury. In the case at bar, the Commission has only requested that thepetitioners "submit suitable materials to the Commission to determine whether the Project has asignificant impact on ECL Article 57, the plan or the goals thereof." Therefore, the proceedingand action are premature.
In light of our determination, we need not consider the parties' remaining contentions.Rivera, J.P., Florio, Miller and Hall, JJ., concur.