Citation Numbers: 137 A.D.3d 1566, 29 N.Y.S.3d 709
Judges: Centra, Garni, Peradotto, Scudder, Whalen
Filed Date: 3/18/2016
Status: Precedential
Modified Date: 11/1/2024
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 78 proceeding. The judgment, among other things, annulled the resolution adopted by respondent Board of Trustees of Village of Pittsford on May 1, 2014, rescinding the negative declaration made pursuant to the State Environmental Quality Review Act.
It is hereby ordered that the judgment so appealed from is unanimously modified on the law by vacating the first, seventh and eighth decretal paragraphs, dismissing in its entirety the first cause of action in the amended verified petition, granting the second and third counterclaims, and granting judgment in favor of respondents as follows:
It is adjudged and declared that Frank Galusha does not have a conflict of interest with respect to matters concerning the Project and that he may fully participate in all deliberations and in rendering determinations with respect to the Project, and it is further
Adjudged and declared that Village of Pittsford Mayor Robert Corby does not have a conflict of interest with respect to matters concerning the Project and that he may fully participate 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 of Pittsford (Village). Respondent Board of Trustees of Village of Pittsford (Board) acted as lead agency for the purpose of conducting an environmental review of the Project pursuant to the State Environmental Quality Review Act (SEQRA). Following its three-year review of the Project, the Board issued a negative declaration based upon its determination that the Project would not have a significant adverse environmental impact. The Board thereafter adopted a resolution issuing the requisite special permits for the Project and determining that “[t]he proposed development will be compatible, in terms of scale, massing, orientation, and architectural design, with the visual character of the Village.”
Supreme Court dismissed the first cause of action insofar as it sought judgment annulling the resolutions at issue based upon Lanphear’s alleged conflict of interest and granted the declaratory relief sought in the first counterclaim concerning Lanphear. Petitioner did not cross-appeal from that part of the judgment. The court granted the remainder of the relief sought in the first cause of action, annulling the resolutions at issue based upon Galusha’s alleged conflict of interest. The court denied the relief sought in the second and third counterclaims, declaring that Galusha had a conflict of interest with respect to the Project and that he may not participate in deliberations and determinations concerning the Project, and that Mayor Corby had a conflict of interest with respect to any additional SEQRA review of the Project and that he may not participate in deliberations or determinations with respect to such SEQRA review.
We agree with the contention of respondents that the court
We further conclude, however, that the court properly annulled the challenged resolutions on the ground alleged in the second cause of action in the amended verified petition, i.e., that the Board lacked authority to rescind its negative declaration under the circumstances of this case. Here, the Board was authorized to rescind its negative declaration “prior to its decision to undertake, fund, or approve an action,” and the Board made its decision to approve the action, i.e., the Project, when it issued the requisite special permits (see Matter of United Water New Rochelle v Planning Bd. of Town of 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 respondents that this Court’s decision in Matter of Allegany Wind LLC v Planning Bd. of Town of Allegany (115 AD3d 1268 [2014]) supports the conclusion that the Board had authority to rescind its negative declaration. That issue was neither raised nor addressed in Allegany Wind.