Incorporated Village of Atlantic Beach v. Gavalas

• Decision Date: 06 May 1993
• Parties: , 615 N.E.2d 608 INCORPORATED VILLAGE OF ATLANTIC BEACH, Appellant, v. Artemios GAVALAS, Respondent.
• Court: New York Court of Appeals Court of Appeals

Page 218

599 N.Y.S.2d 218

81 N.Y.2d 322, 615 N.E.2d 608

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

Court of Appeals of New York.

May 6, 1993.

Brown, Raysman & Millstein, New York City (Barry G. Felder, John J. Lynch and Robert G. Miller, of counsel), for appellant.

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

OPINION OF THE COURT

TITONE, Judge.

The question presented by this appeal is whether a municipal agency responsible for issuing building permits may require a developer to submit an Environmental Impact Statement (EIS) as a prerequisite to approving the permit application. Because the Village Ordinance at issue here does not entrust the Building Inspector with the type of discretion which would allow a permit grant or denial to be based on the environmental concerns detailed in an EIS, building permit issuance does not constitute an agency "action" within the purview of the State Environmental Quality Review Act (SEQRA) or the parallel Local Law. Accordingly, we conclude that the courts below properly vacated the preliminary injunction barring construction and dismissed the Village's complaint.

The parties' dispute arose from defendant developer's applications to plaintiff Village of Atlantic Beach and the Town of Hempstead for building permits to construct 11 retail stores on a parcel of commercially zoned real property. Although both localities subsequently issued building permits, defendant was forced to halt construction on the week-old project after the Village issued "stop work orders" on the ground that defendant had failed to comply with a local version of SEQRA that required submission of a statement detailing the project's possible environmental effects (see, Local Laws, 1977, No. 2 of Incorporated Village of Atlantic Beach). When defendant defied the stop work orders and recommenced construction, plaintiff Village instituted the present action to enjoin defendant from undertaking any further construction on the property in the absence of compliance with SEQRA.

Supreme Court granted the Village's motion for a preliminary injunction seeking to bar further construction. The court later vacated the injunction, however, and awarded defendant partial summary judgment dismissing the complaint on the ground that the Village, in effect, had impermissibly involved itself in zoning and land use matters in violation of the Nassau County Charter, which exclusively delegated such concerns to the Town of Hempstead. Supreme Court adhered to its initial determination on reargument and the Appellate Division affirmed, holding that issuance of a building permit under the regulatory scheme in question was a ministerial act, not qualifying as an agency "action" which would require preparation of an EIS. 183 A.D.2d 750, 583 N.Y.S.2d 491. We now affirm.

At the core of the parties' dispute here, and the predicate for the stop work orders, is defendant developer's failure to submit a statement, pursuant to Local Law No. 2 of the Incorporated Village of Atlantic Beach, assessing the proposed project's potential impact on the environment. Local Law No. 2 was modelled after SEQRA, which was enacted to compel agencies to consider the environmental effects of their activities "[a]s early as possible" in the planning process (ECL 8-0109[4] and to encourage them to develop alternatives to a proposed action in order to mitigate environmental damage. Thus, the Local Law's proper application depends, in this context, on our construction of SEQRA.

To promote the Legislature's goals, and to provide an informational tool to aid in the decision-making process, SEQRA requires agencies to prepare an EIS "on any action they propose or approve which may have a significant effect on the environment" (ECL 8-0109[2] [emphasis supplied]. The statute broadly defines the term "action" to include projects or activities that the agency either directly undertakes or funds, policy and procedure-making and the issuance of permits, licenses or leases (ECL 8-0105[4][i], [ii]. Expressly exempted from the definition, however, are "official acts of a ministerial nature, involving no exercise of discretion" (ECL 8-0105[5][ii].

Issuance of a building permit may qualify as an exempt ministerial act (see, e.g., Matter of Filmways Communications v. Douglas, 106 A.D.2d 185, 484 N.Y.S.2d 738, affd. 65 N.Y.2d 878, 493 N.Y.S.2d 309, 482 N.E.2d 1225), or may instead constitute agency "action" subject to SEQRA (see, e.g., Matter of Pius v. Bletsch, 70 N.Y.2d 920, 524 N.Y.S.2d 395, 519 N.E.2d 306), depending on the regulatory scheme underlying the act. In Filmways, we affirmed, on the opinion below, the Appellate Division's holding that SEQRA was not implicated by the building inspector's decision to grant or deny a building permit application because that activity involved "no latitude of choice" (106 A.D.2d at 187, 484 N.Y.S.2d 738). Since under the applicable regulations a decision on the permit application could only be predicated on the applicant's compliance or noncompliance with the Building Code, the determination constituted a SEQRA-exempt ministerial act. In contrast, the regulations for building permit issuance involved in Pius permitted the issuing agency to exercise "site plan approval powers" and "the authority to make certain case-by-case judgments on site plan design" (70 N.Y.2d at 922, 524 N.Y.S.2d 395, 519 N.E.2d 306). Thus, because the Director was not required to issue a permit upon the applicant's compliance with a prescribed set of conditions, but could exercise considerable discretion in acting on the application, the regulations in question removed permit issuance from the realm of ministerial acts exempt from SEQRA's provisions.

In determining whether an agency decision falls within SEQRA's purview, however, the courts cannot rely on a mechanical distinction between ministerial and discretionary acts alone. Nor should they rely, as the Appellate Division did here, on distinctions based on whether the acting agency is ultimately vested with zoning or "land use" authority. Rather, the pivotal inquiry, which was alluded to in Filmways and Pius and which emerges here, is whether the information contained in an EIS may " 'form the basis for a decision whether or not to undertake or approve such action' " (Filmways, 106 A.D.2d at 187, supra, 484 N.Y.S.2d 738, citing ECL 8-0109[2]; see also, Pius, 70 N.Y.2d at 922, supra, 524 N.Y.S.2d 395, 519 N.E.2d 306; SEQR Handbook, at 12-13 [1992]. In other words, when an agency has some discretion, but that discretion is circumscribed by a narrow set of criteria which do not bear any relationship to the environmental concerns that may be raised in an EIS, its decisions will not be considered "actions" for purposes of SEQRA's EIS requirements.

Logically, where an agency is empowered to "act" by granting or denying a permit based only on compliance...