| Matter of Pittsford Canalside Props., LLC v Village ofPittsford |
| 2016 NY Slip Op 01929 [137 AD3d 1566] |
| March 18, 2016 |
| Appellate Division, Fourth Department |
[*1]
| In the Matter of Pittsford Canalside Properties, LLC,Respondent, v Village of Pittsford et al., Appellants, et al.,Respondents. |
Hodgson Russ LLP, Buffalo (Daniel A. Spitzer of counsel), forrespondents-appellants Village of Pittsford, Board of Trustees of Village of Pittsford,Linda Lanphear and Frank Galusha, in Their Official Capacities as Members of Board ofTrustees of Village of Pittsford.
Knauf Shaw LLP, Rochester (Alan J. Knauf of counsel), for respondent-appellantFriends of Pittsford Village, Inc.
Harris Beach PLLC, Pittsford (John A. Mancuso of counsel), forpetitioner-respondent.
Appeals from a judgment (denominated order and judgment) of the Supreme Court,Monroe County (John J. Ark, J.), entered October 29, 2014 in a CPLR article 78proceeding. The judgment, among other things, annulled the resolution adopted byrespondent Board of Trustees of Village of Pittsford on May 1, 2014, rescinding thenegative declaration made pursuant to the State Environmental Quality Review Act.
It is hereby ordered that the judgment so appealed from is unanimously modified onthe law by vacating the first, seventh and eighth decretal paragraphs, dismissing in itsentirety the first cause of action in the amended verified petition, granting the second andthird counterclaims, and granting judgment in favor of respondents as follows:
It is adjudged and declared that Frank Galusha does not have a conflict of interestwith respect to matters concerning the Project and that he may fully participate in alldeliberations and in rendering determinations with respect to the Project, and it isfurther
Adjudged and declared that Village of Pittsford Mayor Robert Corby does not have aconflict of interest with respect to matters concerning the Project and that he may fullyparticipate in all deliberations and in rendering determinations with respect to the Project,and as modified the judgment is affirmed without costs.
Memorandum: Petitioner is the owner and developer of Westport Crossing(hereafter, Project), a proposed mixed-use development in respondent Village ofPittsford (Village). Respondent Board of Trustees of Village of Pittsford (Board) acted aslead agency for the [*2]purpose of conducting anenvironmental review of the Project pursuant to the State Environmental Quality ReviewAct (SEQRA). Following its three-year review of the Project, the Board issued a negativedeclaration based upon its determination that the Project would not have a significantadverse environmental impact. The Board thereafter adopted a resolution issuing therequisite special permits for the Project and determining that "[t]he proposeddevelopment will be compatible, in terms of scale, massing, orientation, and architecturaldesign, with the visual character of the Village."
On March 11, 2014, following approval by respondent Village of Pittsford PlanningBoard (Planning Board) of the preliminary site plan for the Project, the Board adoptedtwo resolutions determining that there had been "substantive changes" to certain aspectsof the Project that would have a "potential significant adverse impact" that was notconsidered in the original SEQRA review. On May 1, 2014, the Board passed aresolution rescinding the negative declaration and issuing a positive declaration.Petitioner commenced this CPLR article 78 proceeding seeking, inter alia, a judgment"reversing, annulling and vacating and/or setting aside" the March 11, 2014 resolutions,and the May 1, 2014 resolution and positive declaration, and reinstating the negativedeclaration. Petitioner alleged in the first cause of action in its amended verified petitionthat respondents Linda Lanphear and Frank Galusha, members of the Board who votedin favor of the challenged resolutions, had demonstrated bias against the Project, whichconstituted conflicts of interest disqualifying them from participating in deliberations ordeterminations with respect to the Project. In their first counterclaim, the Village, theBoard, Lanphear and Galusha (hereafter, respondents) sought a judgment declaring thatLanphear does not have a conflict of interest with respect to matters concerning theProject and that she may fully participate in all deliberations and determinations withrespect to the Project. In their second and third counterclaims, respondents respectivelysought identical declarations covering Galusha and Village of Pittsford Mayor RobertCorby, who is also a member of the Board.
Supreme Court dismissed the first cause of action insofar as it sought judgmentannulling the resolutions at issue based upon Lanphear's alleged conflict of interest andgranted the declaratory relief sought in the first counterclaim concerning Lanphear.Petitioner did not cross-appeal from that part of the judgment. The court granted theremainder of the relief sought in the first cause of action, annulling the resolutions atissue based upon Galusha's alleged conflict of interest. The court denied the relief soughtin the second and third counterclaims, declaring that Galusha had a conflict of interestwith respect to the Project and that he may not participate in deliberations anddeterminations concerning the Project, and that Mayor Corby had a conflict of interestwith respect to any additional SEQRA review of the Project and that he may notparticipate in deliberations or determinations with respect to such SEQRA review.
We agree with the contention of respondents that the court erred in determining thatGalusha had a conflict of interest that disqualified him from participating in deliberationsor determinations concerning the Project and that Mayor Corby had a conflict of interestthat disqualified him from participating in deliberations or determinations concerningSEQRA review of the Project, and we therefore modify the judgment accordingly."Resolution of questions of conflict of interest requires a case-by-case examination of therelevant facts and circumstances" (Matter of Parker v Town of Gardiner PlanningBd., 184 AD2d 937, 938 [1992], lv denied 80 NY2d 761 [1992]). Here, bothGalusha and Mayor Corby had expressed opposition to the Project before and after theirelections, and prior to voting on the challenged resolutions. They were not disqualifiedfrom participating in the deliberations or voting on those resolutions, however, inasmuchas their "alleged bias involved only expressions of personal opinion" that did notconstitute a basis for finding a conflict of interest (Matter of Laird v Town ofMontezuma, 191 AD2d 986, 987 [1993]). Indeed, we agree with respondents that theexpression of opinion by Galusha and Mayor Corby on matters of public concern "is tobe encouraged, not penalized" (Matter of Byer v Town of Poestenkill, 232 AD2d851, 853 [1996]; see Webster Assoc. v Town of Webster, 59 NY2d 220, 227[1983]).
We further conclude, however, that the court properly annulled the challengedresolutions on the ground alleged in the second cause of action in the amended verifiedpetition, i.e., that the Board lacked authority to rescind its negative declaration under thecircumstances of this case. Here, the Board was authorized to rescind its negativedeclaration "prior to its decision to undertake, fund, or approve an action," and the Boardmade its decision to approve the action, [*3]i.e., theProject, when it issued the requisite special permits (see Matter of United Water New Rochelle v Planning Bd. of Townof Eastchester, 2 AD3d 627, 628 [2003], lv denied 2 NY3d 703 [2004];see also 6 NYCRR 617.7 [f] [1]). Finally, we reject the contention of respondentsthat this Court's decision in Matter of Allegany Wind LLC v Planning Bd. of Town ofAllegany (115 AD3d 1268 [2014]) supports the conclusion that the Board hadauthority to rescind its negative declaration. That issue was neither raised nor addressedin Allegany Wind. Present—Whalen, P.J., Centra, Peradotto, Carni andScudder, JJ. [Prior Case History: 45 Misc 3d 1217(A), 2014 NY Slip Op51614(U).]