| Matter of Wallkill Cemetery Assn., Inc. v Town of Wallkill PlanningBd. |
| 2010 NY Slip Op 04600 [73 AD3d 1189] |
| May 25, 2010 |
| Appellate Division, Second Department |
| In the Matter of Wallkill Cemetery Association, Inc., et al.,Appellants, v Town of Wallkill Planning Board et al.,Respondents. |
—[*1] Ostrer Rosenwasser LLP, Chester, N.Y. (Benjamin Ostrer and Cynthia Dolan of counsel),for respondent Town of Wallkill Planning Board. Rosemary Stack, Syracuse, N.Y., for respondent E. Tetz and Sons, Inc.
In a hybrid proceeding pursuant to CPLR article 78 to review a determination of thePlanning Board of the Town of Wallkill dated December 7, 2005, which adopted a findingsstatement pursuant to the State Environmental Quality Review Act (ECL art 8), and action for ajudgment declaring that the Planning Board of the Town of Wallkill acted illegally in adoptingthe findings statement pursuant to the State Environmental Quality Review Act (ECL art 8), andenjoining the Planning Board of the Town of Wallkill from taking any action with respect to theapplication of E. Tetz and Sons, Inc., for site plan approval with respect to the construction of anasphalt plant, the petitioners/plaintiffs appeal from an order and judgment (one paper) of theSupreme Court, Orange County (Nicolai, J.), dated May 7, 2008, which denied their motion toamend the petition/complaint, inter alia, to add new parties, denied the petition, and dismissedthe proceeding.
Ordered that the appeal is dismissed as academic, with one bill of costs.
The petitioners/plaintiffs (hereinafter the petitioners) commenced this hybrid proceeding andaction to challenge a findings statement adopted by the Planning Board of the Town of Wallkillon December 7, 2005, pursuant to the State Environmental Quality Review Act (ECL art 8;hereinafter SEQRA), which found that all negative impacts from a project proposed by E. Tetzand Sons, Inc. (hereinafter Tetz), to construct an asphalt plant were sufficiently mitigated.Although such a challenge would usually be dismissed for lack of ripeness since, under mostcircumstances, the issuance of a SEQRA findings statement does not inflict injury in the absenceof an actual determination on an application for a land-use approval (see generally Matter ofEadie v Town Bd. of Town of N. Greenbush, 7 NY3d 306, 317 [2006]; Matter of Youngv Board of Trustees of Vil. of Blasdell, 89 NY2d 846, 848-849 [1996]; Matter ofSouthwest Ogden Neighborhood Assn. v Town of Ogden Planning Bd., 43 AD3d 1374,1374-1375 [2007]), here, we dismiss the appeal as academic.[*2]
In the instant matter, the petitioners failed to move in theSupreme Court for a preliminary injunction to enjoin the construction of the asphalt plant and,after the petition was denied and the proceeding dismissed by the Supreme Court, they failed toseek a stay in this Court to preserve the status quo pending the determination of this appeal. Inthe interim, the asphalt plant was fully constructed and has been operational for almost twoyears. Thus, the petitioners have failed to preserve their rights pending judicial review, and thematter is now academic (see Matter of Dreikausen v Zoning Bd. of Appeals of City of LongBeach, 98 NY2d 165, 174 [2002]; Matter of Citineighbors Coalition of Historic CarnegieHill v New York City Landmarks Preserv. Commn., 2 NY3d 727, 728-730 [2004];Matter of Imperial Improvements v Town of Wappinger Zoning Bd. of Appeals, 290AD2d 507, 508 [2002]; Matter of Gorman v Town Bd. of Town of E. Hampton, 273AD2d 235, 236 [2000]).
Contrary to the petitioners' contention, the record does not show that Tetz proceeded withconstruction of the asphalt plant in bad faith. Rather, it shows that Tetz did not beginconstruction of the asphalt plant until more than two years after this proceeding and action wascommenced, and only after review pursuant to SEQRA was completed and all necessaryapprovals and permits were issued. Thus, it cannot be said that Tetz "rush[ed] to completion" inorder to defeat the petitioners' rights to judicial review, or that it otherwise proceeded in bad faith(Matter of Dreikausen v Zoning Bd. of Appeals of City of Long Beach, 98 NY2d at 174;see Matter of Citineighbors Coalition of Historic Carnegie Hill v New York City LandmarksPreserv. Commn., 2 NY3d at 728-729). Moreover, if the petitioners prevailed on their claimsfor injunctive relief under these circumstances, the prejudice to Tetz would be substantial(see Matter of Imperial Improvements v Town of Wappinger Zoning Bd. of Appeals,290 AD2d at 508; cf. Matter of Michalak v Zoning Bd. of Appeals of Town of Pomfret,286 AD2d 906 [2001]).
Accordingly, we dismiss the appeal as academic and do not address the merits of thepetitioners' claims (see Matter of Citineighbors Coalition of Historic Carnegie Hill v NewYork City Landmarks Preserv. Commn., 2 NY3d at 729; Matter of Dreikausen v ZoningBd. of Appeals of City of Long Beach, 98 NY2d at 174; Matter of Dowd v Planning Bd.of Vil. of Millbrook, 54 AD3d 339, 340 [2008]; Matter of Imperial Improvements vTown of Wappinger Zoning Bd. of Appeals, 290 AD2d 507 [2002]; Matter of Gorman vTown Bd. of Town of E. Hampton, 273 AD2d 235 [2000]). Fisher, J.P., Balkin, Roman andSgroi, JJ., concur.