Jonas v. Town of Colonie
| Decision Date | 18 April 1985 |
| Citation | 488 N.Y.S.2d 263,110 A.D.2d 945 |
| Parties | , 24 Ed. Law Rep. 988 In the Matter of William JONAS et al., Appellants, v. TOWN OF COLONIE, New York, Respondent, and Siena College, Intervenor-Respondent. |
| Court | New York Supreme Court — Appellate Division |
Harder, Silber and Gillen, Albany (George W. Harder, Albany, of counsel), for appellants.
Susan Marie Tatro, Town Atty., Newtonville (Peter Gaynor Crummey, Newtonville, of counsel), for respondent.
Tobin & Dempe, Albany (Michael L. Costello, Albany, of counsel), for intervenor-respondent.
Before MAHONEY, P.J., and KANE, CASEY, WEISS and LEVINE, JJ.
Appeal from a judgment of the Supreme Court at Special Term, entered June 25, 1984 in Albany County, which, in a proceeding pursuant to CPLR article 78, inter alia, granted intervenor's and respondent's motion to dismiss the petition for failure to exhaust administrative remedies.
Petitioners are residents living in the area surrounding the proposed site of a housing project to be constructed by intervenor Siena College (Siena). Petitioners are appealing a judgment of Special Term which dismissed petitioners' application seeking (1) a preliminary injunction enjoining respondent from issuing a building permit, (2) the review of a determination of respondent's Superintendent of Buildings (Superintendent) that Siena is not required to obtain a variance under the Town of Colonie Zoning Code to construct its housing, and (3) a review of the negative declaration of environmental impact by respondent's Planning Board.
The record indicates that by letter of May 17, 1983, respondent's Engineering and Planning Services Department informed Siena of the Superintendent's determination that Siena would not need to obtain a variance in order to construct its housing facility, since Siena's proposal was consistent with respondent's zoning laws. Petitioner William Jonas objected to the Superintendent's decision, by letter dated August 25, 1983, on the basis that his interpretation of the zoning law was erroneous. No appeal of the Superintendent's decision was taken before respondent's Zoning Board of Appeals.
The second determination of respondent which petitioners claim as error is the action of the Planning Board in issuing a negative declaration of environmental impact, thereby absolving Siena of the duty to prepare and submit a full environmental impact statement. The declaration was issued at a regular meeting of the Planning Board on December 13, 1983 after extensive submission of information and questioning by petitioners. The Planning Board is the lead agency for the purposes of the State Environmental Quality Review Act (Environmental Conservation Law art. 8). A number of petitioners were present at the December 13, 1983 meeting.
By petition dated April 2, 1984, petitioners commenced this CPLR article 78 proceeding to review the above-noted determinations of respondent and to enjoin respondent from issuing a building permit to Siena. By order to show cause dated April 19, 1984, Siena moved to intervene and to dismiss the proceeding. Respondent also moved to dismiss the petition upon the grounds that (1) the proceeding was time barred, (2) petitioners failed to exhaust administrative remedies, and (3) the petition failed to state a cause of action. Special Term granted Siena's motion to intervene, dismissed the petition for failure to exhaust administrative remedies and denied petitioners' application for a preliminary injunction. This appeal by petitioners ensued.
Initially, we note that Siena was properly granted intervenor status (see CPLR 7802[d]; Matter of Wilcox v. Dwyer, 73 A.D.2d 1016, 1017, 423 N.Y.S.2d 964).
Turning to Special Term's decision that p...
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