Matter of Ellsworth v. Town of Malta

• Decision Date: 24 March 2005
• Docket Number: 96627.
• Citation: 2005 NY Slip Op 02346,16 A.D.3d 948,792 N.Y.S.2d 227
• Parties: In the Matter of CERYLE A. ELLSWORTH et al., Appellants, v. TOWN OF MALTA et al., Respondents.
• Court: New York Supreme Court — Appellate Division

16 A.D.3d 948

792 N.Y.S.2d 227

2005 NY Slip Op 02346

In the Matter of CERYLE A. ELLSWORTH et al., Appellants, v. TOWN OF MALTA et al., Respondents.

96627.

Appellate Division of the Supreme Court of the State of New York, Third Department.

March 24, 2005.

Appeal from a judgment of the Supreme Court (Williams, J.), entered December 5, 2003 in Saratoga County, which, upon reconsideration, in a proceeding pursuant to CPLR article 78, granted respondents' motion to dismiss the petition.

Mugglin, J.

This appeal concerns respondents' approval of an application to subdivide a 39-acre parcel on Manning Road in the Town of Malta, Saratoga County, referred to as Tiffany Estates. Following commencement of this CPLR article 78 proceeding to annul respondents' approval of the subdivision, respondents made a preanswer motion to dismiss. Initially, Supreme Court determined that respondents failed to comply with General Municipal Law § 239-m, as alleged in the petition, and annulled respondents' approval of the subdivision. Respondents then moved to renew and/or reargue, claiming that the factual information upon which Supreme Court relied in reaching its decision was inaccurate. Supreme Court granted the motion and, upon reconsideration, dismissed the petition. Petitioners appeal.

Although denominated as a motion to renew and/or reargue, respondents contended in the motion papers that Supreme Court overlooked significant facts or misapplied the law in its original decision, making this clearly a motion to reargue (see Matter of Town of Poestenkill v New York State Dept. of Envtl. Conservation, 229 AD2d 650, 651 [1996]; Spa Realty Assoc. v Springs Assoc., 213 AD2d 781, 783 [1995]). Supreme Court initially determined that respondents' approval of the subdivision application was fatally flawed, relying, as petitioners alleged, upon General Municipal Law § 239-m (3). However, the relevant provision is actually General Municipal Law § 239-n, which requires referral to the county planning board of a proposed subdivision that is within 500 feet of a highway (see General Municipal Law § 239-n [3] [a] [iii]). Since the petition did not allege a violation of this statutory provision, respondents had no obligation to come forth with evidence that the property, in fact, lies beyond the 500-foot limitation. Thus, respondents established that Supreme Court misapprehended the law and the facts in initially granting the petition (see CPLR 2221 [d] [2]; Amato v Lord & Taylor, Inc., 10 AD3d 374, 374 [2004]), and Supreme Court properly exercised its discretion in granting respondents' motion to reargue (see Foley v Roche, 68 AD2d 558, 567 [1979], lv denied 56 NY2d 507 [1982]).

Respondents' original motion to dismiss contends that petitioners' allegations concerning violations of the State Environmental Quality Review Act (ECL art 8 [hereinafter SEQRA]) are meritless. As Supreme Court dismissed the petition in its entirety, petitioners continue to assert on this appeal that respondents did not meet their obligations under SEQRA by failing to take a "hard look" at the environmental impacts of the project. Because the subdivision in question was classified as an unlisted action, a short environmental assessment form must be submitted to the lead agency "to assist it in determining the environmental significance or nonsignificance of actions" (6 NYCRR 617.2 [m]; see 6 NYCRR 617.6 [a] [3]). The lead agency must make a "positive or negative declaration as to whether the proposed action will have a significant effect on the environment" (Matter of Cathedral Church of St. John the Divine v Dormitory Auth. of State of N.Y., 224 AD2d 95, 99-100 [1996], lv denied 89 NY2d 802 [1996]). Before making the declaration, the lead agency must take a "`hard look' at relevant areas of environmental concern and . . . make a reasoned elaboration of the basis of its determination" (Matter of Holmes v Brookhaven Town Planning Bd., 137 AD2d 601, 604 [1988], lv denied 72 NY2d 807 [1988] [emphasis added]; see Matter of Cathedral Church of St. John the Divine v Dormitory Auth. of State of N.Y., supra at 100).

The record reveals that the determination of respondent Town of Malta Planning Board to issue a negative declaration was not arbitrary and capricious and did not constitute an abuse of discretion (see Matter of Wilkinson v Planning Bd. of Town of Thompson, 255 AD2d 738, 739 [1998], lv denied 93 NY2d 803 [1999]). First, the owners submitted a short form environmental assessment form...