Matter of Save the Pine Bush v. City of Albany

• Decision Date: 22 March 2001
• Citation: 281 AD2d 832,722 N.Y.S.2d 310
• Parties: (A.D. 3 Dept. 2001) In the Matter of SAVE THE PINE BUSH INC. et al., Appellants, v CITY OF ALBANY et al., Respondents. 87271 : THIRD JUDICIAL DEPARTMENT
• Court: New York Supreme Court — Appellate Division

Page 310

722 N.Y.S.2d 310 (A.D. 3 Dept. 2001)

In the Matter of SAVE THE PINE BUSH INC. et al., Appellants, v CITY OF ALBANY et al., Respondents.

87271

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION: THIRD JUDICIAL DEPARTMENT

March 22, 2001

Oliver & Oliver (Mark A. Edwards of counsel), Albany, for appellants.

Shanley, Sweeney, Reilly & Allen P.C. (J. Michael Naughton of counsel), Albany, for Touhey Associates and another, respondents.

Phelan, Burke & Scolamiero L.L.P. (John J. Phelan III of counsel), Albany, for Prime Management L.L.C. and another, respondents.

Before: Mercure, J.P., Peters, Spain, Carpinello and Rose, JJ.

Carpinello, J.

Appeal from a judgment of the Supreme Court (Teresi, J.), entered January 21, 2000 in Albany County, which dismissed petitioners' application, in a combined proceeding pursuant to CPLR article 78 and action for a declaratory judgment, to, inter alia, declare invalid the rezoning of a certain parcel of land from residential to commercial.

This appeal involves a challenge to the rezoning of a 12-acre parcel located at 300 Washington Avenue Extension in the City of Albany from residential to commercial. Petitioners allege that in enacting the zoning change, respondent Common Council of the City of Albany violated the State Environmental Quality Review Act (ECL art 8) (hereinafter SEQRA) by considering updated land use and transportation studies filed after the close of the public comment period, by failing to take the requisite "hard look" at the cumulative impact of other pending projects on the minimum 2,000 fire-manageable acres essential for maintenance of the Pine Bush ecology (see, Matter of Save the Pine Bush v Common Council of City of Albany, 188 A.D.2d 969, 971) and by failing to consider the impact of the proposed development on neighboring residential areas. After respondents filed an answer and objections in point of law, Supreme Court dismissed the petition in its entirety in a lengthy and detailed decision. Citing its own substantive review of the administrative record, Supreme Court found that petitioners' claims had either been waived or were without merit as the rezoning determination had been rationally based. Petitioners appeal.

Notwithstanding petitioners' contentions to the contrary, we find that the amount of construction which occurred on the subject parcel after Supreme Court's determination renders petitioners' claims moot and precludes further review by this Court. During the pendency of this appeal, the current owner of the parcel expended over $1 million by clearing 9 of the 12 acres, installing infrastructure and substantially completing the larger of two proposed office buildings for the site. Petitioners had failed to affirmatively move before Supreme Court for injunctive relief precluding such construction. In addition, they then waited nearly nine months after Supreme Court's decision to seek such relief from this Court. The owner's investment of these significant funds prior to petitioners' belated application for injunctive relief mandates dismissal of the instant appeal on mootness grounds (see, Matter of Many v Village of Sharon Springs Bd. of Trustees, 234 A.D.2d 643, 644, lv denied 89 N.Y.2d 811; Ughetta v Barile, 210 A.D.2d 562, 563, lv...