| Matter of Guido v Town of Ulster Town Bd. |
| 2010 NY Slip Op 04906 [74 AD3d 1536] |
| June 10, 2010 |
| Appellate Division, Third Department |
| In the Matter of Vincent R. Guido, Jr., et al., Appellants, v Town ofUlster Town Board et al., Respondents. |
—[*1] Rusk, Wadlin, Heppner & Martuscello, L.L.P., Kingston (Jason J. Kovacs of counsel), forTown of Ulster Town Board and another, respondents. Jacobowitz & Gubits, L.L.P., Walden (Tobias A. Lake of counsel), for Ulster Land PartnersHolding, L.L.C., respondent. Andrew M. Cuomo, Attorney General, Albany (Joseph Koczaja of counsel), for New YorkState Department of Environmental Conservation, respondent.
Stein, J. Appeal from a judgment of the Supreme Court (Ceresia, Jr., J.), entered November2, 2009 in Albany County, which, in a proceeding pursuant to CPLR article 78, grantedrespondents' motions to dismiss the petition.
Petitioners are the adjoining landowners to a proposed residential development known asUlster Manor. The proposed development was subject to review pursuant to the StateEnvironmental Quality Review Act (see ECL art 8 [hereinafter SEQRA]), in whichrespondent Town of Ulster Planning Board acted as lead agency. Petitioners commenced thisCPLR article 78 proceeding challenging, among other things, the adequacy, accuracy andcompleteness of the draft environmental impact statement (hereinafter DEIS) accepted by thePlanning Board, the final environmental impact statement (hereinafter FEIS) adopted by thePlanning Board and the statement of findings issued by the Planning Board. Petitioners alsochallenged various aspects of the SEQRA process. Supreme Court granted respondents' motionsto dismiss the petition and [*2]this appeal ensued.
Petitioners first argue that Supreme Court erred when it determined that the adoption of theFEIS and issuance of the statement of findings were not ripe for review. We disagree. In orderfor an administrative decision to be ripe for judicial review in a CPLR article 78 proceeding, thechallenged action must be final (see CPLR 7801 [1]). An action is considered to be finalwhen it represents a definitive position on an issue which " 'impose[s] an obligation, den[ies] aright or fix[es] some legal relationship,' " resulting in an actual, concrete injury (Matter ofGordon v Rush, 100 NY2d 236, 242 [2003], quoting Matter of Essex County vZagata, 91 NY2d 447, 453 [1998]). The harm suffered must not be " 'amenable to furtheradministrative review and corrective action' " (Matter of Eadie v Town Bd. of Town of N. Greenbush, 7 NY3d306, 316 [2006], quoting Matter ofCity of New York [Grand Lafayette Props. LLC], 6 NY3d 540, 548 [2006]).
We have previously recognized that "[t]his rule is 'easier stated than applied' " (Matter of Catskill Regional Off-TrackBetting Corp. v New York State Racing & Wagering Bd., 56 AD3d 1027, 1028 [2008],quoting Matter of Essex County v Zagata, 91 NY2d at 453). Nevertheless, the Court ofAppeals has declined to adopt any bright-line rules designating particular actions as final,preferring instead to apply the foregoing test on a case-by-case basis in order to avoidinappropriate results in particular circumstances (see e.g. Matter of Eadie v Town Bd. ofTown of N. Greenbush, 7 NY3d at 317; Matter of Gordon v Rush, 100 NY2d at243). Thus, in applying the test, we attempt to balance the goals of preventing "piecemeal reviewof each determination made in the context of the SEQRA process [which] would subject it to'unrestrained review . . . result[ing] in significant delays in what is already adetailed and lengthy process' " (Matter of Sour Mtn. Realty v New York State Dept. of Envtl.Conservation, 260 AD2d 920, 921 [1999], lv denied 93 NY2d 815 [1999], quotingMatter of Town of Coeymans v City of Albany, 237 AD2d 856, 857 [1997], lvdenied 90 NY2d 803 [1997]) against the possibility of real harm to the complaining party(see Matter of Gordon v Rush, 100 NY2d at 243).
Here, the record reveals that the Planning Board's SEQRA determination has, indeed, fixedone aspect of the legal relationship between the involved agencies (see Matter of Gordon vRush, 100 NY2d at 242; Matter of Essex County v Zagata, 91 NY2d at 453), as allinvolved agencies must rely upon the FEIS as the basis for their review of the environmentalimpacts that they are required to consider in connection with subsequent permit applications(see 6 NYCRR 617.6 [b] [3] [iii]). However, the Planning Board has not yet granted anyof the fundamental approvals necessary to render their SEQRA decision a "final" action. Forexample, Ulster Manor has not yet been granted the special permit, site plan or subdivisionapprovals needed before the Town Building Department may consider issuing a building permitwhich, in turn, is a prerequisite for commencement of the proposed development. Because thePlanning Board's SEQRA determination continues to be subject to its own corrective action,there remains a possibility that the perceived injury to petitioners will be prevented orsignificantly ameliorated by such action and that the dispute will be rendered moot or academic(see Stop-The-Barge v Cahill, 1NY3d 218, 223 [2003]; compareWalton v New York State Dept. of Correctional Servs., 8 NY3d 186, 196, 197 [2007]).Thus, under the circumstances here, petitioners' challenges relative to the DEIS, the FEIS and thestatement of findings are not ripe for review.
Petitioners also contend that respondent Department of Environmental Conservation(hereinafter DEC) failed to fulfill its duty as an involved agency[FN*]to fully participate in the environmental review process and petitioners, therefore, seek aninjunction to compel DEC to conduct its own SEQRA review. In view of our conclusion hereinthat petitioners' challenge to the Planning Board's SEQRA determination is not ripe for review,we find that the claimed deficiencies in DEC's participation in that process are also not properlybefore us. Even if such claims were ripe for review, Supreme Court correctly determined that thepetition fails to state a cause of action against DEC. In any event, our examination of the recordsatisfies us that DEC has complied with its obligations in connection with the review processoverseen by the Planning Board (see 6 NYCRR 617.3 [e]; Matter of Gordon vRush, 100 NY2d at 243-244). Accordingly, Supreme Court properly dismissed the petitionas against DEC.
We also find no error in Supreme Court's dismissal of petitioners' cause of action seeking apermanent injunction against respondent Town of Ulster. The basis of this cause of action ispetitioners' assertion that the Town has violated Town Law § 272-a (11) by failing toupdate its Town Code to conform to its Comprehensive Plan. Petitioners request that the Townbe enjoined from continuing such violation and from taking any action implicating theComprehensive Plan pending appropriate amendment of the zoning laws. Inasmuch aspetitioners have failed to allege, let alone demonstrate, that they will suffer irreparable harm orthat there is no adequate remedy at law if an injunction is not granted, they have failed to state acause of action for such relief (see McNeary v Niagara Mohawk Power Corp., 286 AD2d522, 525 [2001]).
Petitioners' remaining contentions have been considered and found to be either academic orwithout merit.
Peters, J.P., Rose, McCarthy and Garry, JJ., concur. Ordered that the judgment is affirmed,without costs.
Footnote *: DEC is an involved agency byvirtue of its jurisdictional authority over Ulster Manor's potential need for a stormwatermanagement permit (see 6 NYCRR 617.2).