A & M Bros., Inc. v. Waller, 1

• Decision Date: 15 May 1989
• Docket Number: No. 1,No. 2,1,2
• Citation: 150 A.D.2d 563,541 N.Y.S.2d 237
• Parties: In the Matter of A & M BROTHERS, INC., Appellant, v. Robert WALLER, et al., Respondents. (Matter). TOWN OF DOVER, Respondent, v. A & M BROTHERS, INC., sued herein as A & M Carting, Inc., Appellant. (Matter).
• Court: New York Supreme Court — Appellate Division

Page 237

541 N.Y.S.2d 237

150 A.D.2d 563

In the Matter of A & M BROTHERS, INC., Appellant, v. Robert WALLER, et al., Respondents. (Matter No. 1).

TOWN OF DOVER, Respondent, v. A & M BROTHERS, INC., sued herein as A & M Carting, Inc.,

Appellant. (Matter No. 2).

Supreme Court, Appellate Division,

Second Department.

May 15, 1989.

Lundy and Rossi, Brewster (Donald M. Rossi and Mark A. Smith, of counsel), for appellant.

Quartararo and Quartararo, Poughkeepsie (Peter M. Forman, of counsel), for respondents.

Before MANGANO, J.P., and THOMPSON, BRACKEN and EIBER, JJ.

MEMORANDUM BY THE COURT.

In a hybrid proceeding pursuant to CPLR article 78, inter alia, to review a determination of the Zoning Board of Appeals of the Town of Dover, dated May 18, 1988, which held that the petitioner's parking of trucks on the premises in question did not constitute a continuation of a prior nonconforming use, and action for a judgment declaring that Local Laws, 1978, No. 6 of the Town of Dover is invalid for lack of compliance with the requirements of the New York State Environmental Quality Review Act (ECL art. 8) in its enactment, which was consolidated with an action by the Town of Dover, inter alia, to enjoin A & M Brothers, Inc., from using various properties in the town as garbage transfer stations without acquiring required permits, A & M Brothers, Inc., appeals, as limited by its brief, from stated portions of an order and judgment (one paper) of the Supreme Court, Dutchess County (Hillery, J.), entered December 20, 1988, which, inter alia, (1) denied its cross motion for summary judgment, and, upon searching the record, granted the Town of Dover and members of the Zoning Board of Appeals of the Town of Dover summary judgment, (2) permanently enjoined the appellant from using any properties located in the Town of Dover for the transfer of refuse from truck to truck, finding that those activities constitute the operation of a "solid waste management facility" without a permit as required by 6 NYCRR part 360, (3) declared that Local Laws, 1978, No. 6 of the Town of Dover was not an "initial" enactment of a comprehensive zoning ordinance which would require the preparation of an Environmental Impact Statement (6 NYCRR 617.12[a], [b][1], [3], and therefore was not invalid, and (4) confirmed the determination of the Zoning Board of Appeals of the Town of Dover dated May 18, 1988.

ORDERED that the order and judgment is affirmed insofar as appealed from, with costs.

We reject the appellant's claim that Local Laws, 1978, No. 6 of the Town of Dover is invalid for failure to fully comply with the New York State Environmental Quality Review Act (ECL article 8) (hereinafter SEQRA), but for a reason different from that set forth by the Supreme Court, Dutchess County. Although the general rule is that relief pursuant to CPLR article 78 is unavailable to challenge the validity of legislation such as a zoning ordinance (see, Matter of Save The Pine Bush v. City of Albany, 70 N.Y.2d 193, 518 N.Y.S.2d 943, 512 N.E.2d 526), a challenge to the procedures followed in the enactment of such legislation is maintainable in a proceeding pursuant to CPLR article 78 (see, Matter of Save The Pine Bush v. City of Albany, supra ) and the four-month Statute of Limitations is applicable (CPLR 217). Therefore, the appellant's challenge to Local Laws, 1978, No. 6 of the Town of Dover for an alleged failure to follow the procedural requirements of the SEQRA in its enactment is time-barred (see, CPLR 217; Matter of Save The Pine Bush v. City of Albany, supra, at 202-203, 518 N.Y.S.2d...