Incorporated Village of Atlantic Beach v. Gavalas

• Decision Date: 11 May 1992
• Citation: 183 A.D.2d 750,583 N.Y.S.2d 491
• Parties: INCORPORATED VILLAGE OF ATLANTIC BEACH, Appellant, v. Artemios GAVALAS, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 491

583 N.Y.S.2d 491

183 A.D.2d 750

INCORPORATED VILLAGE OF ATLANTIC BEACH, Appellant, v. Artemios GAVALAS, Respondent.

Supreme Court, Appellate Division Second Department.

May 11, 1992.

Brown, Raysman & Millstein, New York City (Barry G. Felder, Catherine M. McGrath, and Robert A. Miller, of counsel), for appellant.

Cohn & Rosenthal, Baldwin (William S. Cohn and Howard D. Avrutine, of counsel), for respondent.

Before THOMPSON, J.P., and MILLER, RITTER and COPERTINO, JJ.

MEMORANDUM BY THE COURT.

In an action to enjoin the defendant from building upon certain of his property located in the Incorporated Village of Atlantic Beach, owing to his failure to file an environmental impact statement pursuant to Local Laws, 1977, No. 2 of the Incorporated Village of Atlantic Beach, the plaintiff appeals from an order of the Supreme Court, Nassau County (Murphy, J.), dated May 25, 1990, which granted the defendant's motion to vacate a preliminary injunction previously issued on May 15, 1989, and for summary judgment dismissing the complaint. The appeal brings up for review so much of an order of the same court, dated November 16, 1990, as, upon reargument, adhered to the original determination (see, CPLR 5517[b].

ORDERED that the appeal from the order dated May 25, 1990, is dismissed, as that order was superseded by the order dated November 16, 1990, made upon reargument; and it is further,

ORDERED that the order dated November 16, 1990, is affirmed insofar as reviewed; and it is further,

ORDERED that the respondent is awarded one bill of costs.

The defendant is the owner of property located in the Incorporated Village of Atlantic Beach in Nassau County and zoned for business use. In May 1987 he applied to the Village for a building permit to construct 11 retail stores on his premises. In March 1989 the defendant sought relief pursuant to CPLR article 78 to compel the Village to forward his application for a building permit to the Town of Hempstead so it could be acted upon. Thereafter, the defendant received building permits from both the Town and the Village. The defendant then commenced construction on or about April 10, 1989. Approximately one week later, the Village issued stop work orders directing the defendant to "stop all work" immediately on the premises on the ground, inter alia, that the defendant had failed to comply with Local Laws, 1977, No. 2 of the Incorporated Village of Atlantic Beach, which is essentially a local version of the New York State Environmental Quality Review Act (Environmental Conservation Law art. 8; hereinafter SEQRA), which required that the defendant submit an environmental assessment form detailing the possible effects of the construction on the environment. On April 25, 1989, the defendant recommenced construction on his parcel in derogation of the stop work orders, and the Village thereafter moved for a preliminary injunction. By order dated May 15, 1989, the Supreme Court, Nassau County (Murphy, J.), granted the plaintiff Village's motion for a preliminary injunction barring construction. The court held that the Village had a duty to the public to require the submission of an environmental assessment form by the defendant, and that, by issuing a building permit prior to obtaining such a form, the Village had, in fact, committed "error and perhaps even malfeasance".

In June 1989 the defendant submitted an environmental assessment form to the Village, in accordance with the local law. The Village thereafter designated itself "lead agency" for the purposes of reviewing the form and "administering the SEQRA processes", and notified a number of other involved agencies of the defendant's building application. In August 1989 the Village advised the defendant that the Village Board of Trustees, after having conducted a public hearing, had determined that the proposed construction would have a significant effect upon the environment and that he would be required to submit a full environmental impact statement (hereinafter...