| Matter of Nearpass v Seneca County Indus. Dev. Agency |
| 2017 NY Slip Op 05538 [152 AD3d 1192] |
| July 7, 2017 |
| Appellate Division, Fourth Department |
[*1]
| In the Matter of Dagmar Nearpass et al., Appellants, v SenecaCounty Industrial Development Agency et al., Respondents. |
Williams & Connolly LLP, Washington, Dc (Jeffrey R. Hoops, of the Washington, Dcand Virginia Bars, admitted pro hac vice, of counsel) and Mackenzie Hughes LLP, Syracuse, forpetitioners-appellants.
The Halpin Firm, Montour Falls (Robert L. Halpin of counsel), for respondent-respondentSeneca County Industrial Development Agency.
Kirkland & Ellis LLP, Los Angeles, California (Mark C. Holscher, of the CaliforniaBar, admitted pro hac vice, of counsel) and Harris Beach PLLC, Pittsford, forrespondents-respondents Lago Resort & Casino, LLC and others.
Appeal from a judgment (denominated order) of the Supreme Court, Seneca County (W.Patrick Falvey, A.J.), dated August 18, 2016 in a CPLR article 78 proceeding. The judgmentdismissed the petition.
It is hereby ordered that the judgment so appealed from is unanimously affirmed withoutcosts.
Memorandum: Petitioners commenced this CPLR article 78 proceeding seeking, inter alia, toannul the resolution of respondent Seneca County Industrial Development Agency (SCIDA)granting tax abatement relief in the form of a payment in lieu of taxes (PILOT) agreement andlease/leaseback agreements to the remaining respondents (hereafter, project respondents) withrespect to the Lago Resort & Casino in the Town of Tyre, Seneca County. Supreme Courtdismissed the petition. We affirm.
We begin by observing that only the first, second, and fourth causes of action in the petitionare addressed by petitioners on appeal, and we therefore confine our analysis thereto. As athreshold matter, we reject respondents' contention that this appeal is moot because petitionersdid not seek a preliminary injunction to halt the construction work on the resort and casinostructures and facilities. Petitioners allege, inter alia, economic harm flowing from the PILOTagreement and the Lago Resort & Casino's exemption from real property taxes through theyear 2037. The appeal is therefore not moot (see Matter of AT/Comm, Inc. v Tufo, 86NY2d 1, 5-6 [1995]; Matter of Hearst Corp. v Clyne, 50 NY2d 707, 713-714 [1980]; cf. City of Utica v New York Susquehanna& W. Ry. Corp., 46 AD3d 1355, 1356 [2007]).
With respect to the first cause of action, we reject petitioners' contention that the resort andcasino development was ineligible for SCIDA financial assistance because it was not a "project"pursuant to General Municipal Law § 854 (4). "It is fundamental that a court, ininterpreting a statute, should attempt to effectuate the intent of the Legislature . . . ,and where the statutory language is clear and unambiguous, the court should construe it so as togive effect to the plain meaning of the words used" (Patrolmen's Benevolent Assn. of City ofN.Y. v City of New York, 41 NY2d 205, 208 [1976]; see Matter of Synergy, LLC v Kibler, 124 AD3d 1261, 1262[2015], lv denied 25 NY3d 967 [2015]). "While as a general rule courts will not defer toadministrative agencies in matters of 'pure statutory interpretation' " (Matter of O'Brien v Spitzer, 7 NY3d239, 242 [2006], quoting Matter ofKSLM-Columbus Apts., Inc. v New York State Div. of Hous. & Community Renewal,5 NY3d 303, 312 [2005]), "deference is appropriate 'where the question is one of specificapplication of a broad statutory term' " (id. at 242, quoting Matter ofAmerican Tel. & Tel. Co. v State Tax Commn., 61 NY2d 393, 400 [1984], reargdenied 62 NY2d 943 [1984]). Here, we conclude that the broad statutory terms "commercial"and "recreation" within the definition of "project" in section 854 (4) are ambiguous insofar asthey are susceptible to conflicting interpretations. As such, SCIDA's interpretation "is entitled togreat deference, and must be upheld as long as it is reasonable" (Matter of Chin v New York City Bd. ofStds. & Appeals, 97 AD3d 485, 487 [2012], lv denied 19 NY3d 815[2012]; see Matter of Golf v New York State Dept. of Social Servs., 91 NY2d 656, 667[1998]). Contrary to petitioners' contention, we conclude that SCIDA's determination was notaffected by an error of law inasmuch as its interpretation of section 854 (4) is not "irrational orunreasonable" (Matter of Koch vSheehan, 95 AD3d 82, 89 [2012], affd 21 NY3d 697 [2013]; see Matter of Iskalo 5000 Main LLC vTown of Amherst Indus. Dev. Agency, 147 AD3d 1414, 1416 [2017]).
With respect to the second cause of action, we reject petitioners' further contention thatSCIDA's award of financial assistance to the Lago Resort & Casino project was arbitraryand capricious or unlawful because such assistance was unnecessary to induce the projectrespondents to undertake development in Seneca County. We conclude that the recorddemonstrates that SCIDA had an "adequate and rational basis" for its determination (Matterof Central NY Coach Lines v Larocca, 120 AD2d 149, 152 [1986]). Moreover, there is norequirement in the Industrial Development Agency Act that a particular project be financiallyneedy in order to qualify for assistance. An express purpose of the Act is "to actively promote,attract, encourage and develop recreation, economically sound commerce and industry" (GeneralMunicipal Law § 852), a purpose which SCIDA rationally determined would befurthered by providing assistance to the subject project. We reject the position of petitioners thatour decision in Matter of Barker Cent.School Dist. v Niagara County Indus. Dev. Agency (62 AD3d 1239 [2009]) iscontrolling on the issue of financial necessity as a prerequisite for SCIDA financial assistance. InBarker, the Niagara County Industrial Development Agency's (NCIDA) Uniform TaxExemption Policy (UTEP) specifically required companies seeking a tax exemption to show thatthe benefits obtained through such financial assistance were necessary to make the project forwhich tax exemption was sought economically feasible. Because the applicants in Barkerfailed to present the required financial statements, we determined that NCIDA's determination toaward financial assistance was not supported by substantial evidence (id. at 1241). Here,SCIDA's UTEP did not require a showing that the benefits obtained were necessary to make theproject economically feasible, and there is no dispute that SCIDA complied with all relevantprocedural requirements (see General Municipal Law §§ 859-a [1]-[3];862 [1]; 874 [4] [a]).
Respondents argue as an alternative ground for affirmance that petitioners lack standing toassert the first, second, and fourth causes of action. With respect to petitioners' fourth cause ofaction alleging that SCIDA's determination was arbitrary and capricious because it was based ona flawed appraisal which allegedly undervalued the project for tax assessment calculations, weagree with respondents that petitioners lack common-law taxpayer standing to assert that claimand further conclude that, by failing to raise it in their briefs, petitioners have in any eventabandoned any claim to common-law taxpayer standing with respect to the fourth cause of action(see Ciesinski v Town of Aurora, 202 AD2d 984, 984 [1994]).
We conclude that the court properly determined that petitioners have common-law taxpayerstanding with respect to the first and second causes of action (see generally Saratoga CountyChamber of Commerce v Pataki, 100 NY2d 801, 814-815 [2003], cert denied 540US 1017 [2003]). However, we agree with respondents that petitioners lack traditional standingwith respect to the environmental injuries alleged in the second cause of action becausepetitioners allege that the resort and casino would have been constructed even without SCIDAassistance. Thus, there is no causal nexus between the alleged environmental injuries and thegranting of financial assistance by SCIDA (see generally Matter of Transactive Corp. v NewYork State Dept. of Social Servs., 92 NY2d 579, 587 [1998]). We further conclude thatpetitioners lack traditional standing with respect to the first, second, and fourth causes of actionchallenging SCIDA's determination inasmuch as the economic injuries alleged are not distinctfrom other members of the general public (see Matter of Quigley v Town of Ulster, 66 AD3d 1295, 1296[2009]).
Even assuming, arguendo, that petitioners have traditional standing with respect to the fourthcause of action challenging the appraisal of the project respondents, we note that there is norequirement in the Industrial Development Agency Act that the agency or applicant obtain anappraisal as part of the application process, and that "it is not the role of the court to resolvedisagreements among experts, so long as the agency's conclusions are not affected by error oflaw, arbitrary and capricious, or an abuse of discretion" (Matter of Chu v New York State Urban Dev. Corp., 47 AD3d 542,543 [2008]). Here, we perceive no reason to disturb SCIDA's conclusions.
We have considered petitioners' remaining contentions and conclude that they are withoutmerit. Present—Peradotto, J.P., Carni, Lindley, Troutman and Scudder, JJ. [Prior CaseHistory: 53 Misc 3d 737.]