Miracle Mile Associates v. Department of Environmental Conservation

• Decision Date: 14 December 1979
• Citation: 73 A.D.2d 807,423 N.Y.S.2d 732
• Parties: Matter of MIRACLE MILE ASSOCIATES et al., Respondents, v. DEPARTMENT OF ENVIRONMENTAL CONSERVATION of the State of New York, et al., Respondents, The City of Rochester, New York, et al., Appellants, and South Town Plaza, Inc., Intervenor-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 732

423 N.Y.S.2d 732

73 A.D.2d 807

Matter of MIRACLE MILE ASSOCIATES et al., Respondents, v. DEPARTMENT OF ENVIRONMENTAL CONSERVATION of the State of New

York, et al., Respondents,

The City of Rochester, New York, et al., Appellants,

and

South Town Plaza, Inc., Intervenor-Appellant.

Supreme Court, Appellate Division, Fourth Department.

Dec. 14, 1979.

Goldstein, Goldman, Kessler & Underberg by Russell Zuckerman, Rochester, for appellants.

Wegman, Mayberry, Burgess & Feldstein by Richard S. Mayberry, Rochester, for intervenor-appellant.

Harris, Beach, Wilcox, Rubin & Levey by James M. Hartman, Rochester, for respondents Miracle Mile et al.

Robert Abrams, Atty. Gen., Albany, for respondents DEC, Berle and Gitlen.

Before CARDAMONE, J. P., and SIMONS, HANCOCK, CALLAHAN and MOULE, JJ.

MEMORANDUM:

Petitioners in this Article 78 proceeding seek to vacate a Declaratory Ruling of the General Counsel of the Department of Environmental Conservation which held that their proposed shopping center project in the Town of Henrietta was subject to the requirements of the Freshwater Wetlands Act (Environmental Conservation Law, Art. 24, effective September 1, 1975). As Special Term noted, and all parties apparently concede, counsel for the Department erroneously relied on subdivision c of section 24-1305 in ruling that petitioners were subject to the terms of the statute. The pertinent subdivision was subdivision (b) which states that the provisions of the Act do not apply to any land development which previously received a "final approval" from the appropriate local government authority. "Final approval" means "in the case of a site plan not involving the subdivision of land, approval by the appropriate body . . . of (the town) of the site plan." Petitioners contend that their property is exempt because they received "final approval" of the site for their proposed shopping center from the Town Board in 1974. Appellants contend that the Board's action could not qualify as final approval because no site plan was required under Town ordinances and none was submitted or finally approved.

Petitioners' proposal included plans, drawings and renderings submitted to the Town Board and explained at the Public Hearing by their engineers and architects. The material was considered by the Town Board and it was a necessary part of the application to rezone. It constituted a "site plan" within the intendment of the statute and it was considered as such by the Town...