New Scotland Ave. Neighborhood Ass'n v. Planning Bd. of City of Albany
| Decision Date | 08 December 1988 |
| Citation | 142 A.D.2d 257,535 N.Y.S.2d 645 |
| Parties | In the Matter of NEW SCOTLAND AVENUE NEIGHBORHOOD ASSOCIATION et al., Appellants, v. PLANNING BOARD OF the CITY OF ALBANY et al., Respondents, and Jason Minick et al., Intervenors-Respondents. |
| Court | New York Supreme Court — Appellate Division |
Oliver & Oliver (Lewis B. Oliver, Jr., of counsel), Albany, for appellants.
Vincent J. McArdle, Jr. (Gerard E. Maney, of counsel), Albany, for respondents.
Tabner & Laudato (William F. Ryan, Jr., of counsel), Albany, for intervenors-respondents.
Before CASEY, J.P., and WEISS, MIKOLL, YESAWICH and LEVINE, JJ.
CASEY, Justice Presiding.
In January 1987 respondent Planning Board of the City of Albany, by a vote of 3 to 0, granted the initial application of intervenor Jason Minick for subdivision plat approval for the construction of a 124-unit town house project on a 25.3-acre site known as the New Scotland Woods subdivision, pursuant to the provisions of the Residential Cluster Development Ordinance enacted by the City's Common Council on September 6, 1984. This approval was revoked, however, when it was discovered that the approval lacked the enhanced majority required by General Municipal Law §§ 239-m and 239-n. As a result, petitioners' CPLR article 78 proceeding that had been commenced in February 1987 was dismissed for mootness.
On April 24, 1987 Minick recommenced the plat approval process. Accompanying this application was the original plat plan, an amended subdivision plan, an amended environmental assessment form (hereinafter EAF) and a grading plan for the proposed site. At the first of several public hearings, held on April 28, 1987, residents voiced their opposition and a physical engineer, who was an associate professor at Rensselaer Polytechnic Institute, stated that only 80 to 90 of the 124 proposed units were realistically buildable because of the contour of the site that contained steep slopes and had a grade of soil called "Albany Clay", which is unique to the Albany area in its unstable components. After this hearing, Minick submitted a new grading plan that altered the location of approximately 25% of the clustered units and also a geotechnical engineering report of the soil conditions at the site. As a result, petitioners, consisting of the New Scotland Avenue Neighborhood Association, its president and two nearby residents and homeowners, requested that the Planning Board require the preparation of an environmental impact statement (hereinafter EIS) before approval of the subdivision. The Planning Board ultimately determined that an EIS was unnecessary and issued a negative declaration of environmental impact, and conditionally approved the plat in June 1987 subject to the filing of a performance bond sufficient for the completion of all site improvements.
On July 23, 1987 petitioners commenced this proceeding against the City of Albany and its Planning Board, challenging the validity of both the Residential Cluster Development Ordinance and the Planning Board's approval of the subdivision, and seeking a combination of CPLR article 78, declaratory and injunctive relief. The parties stipulated to the intervention of Minick and Fort Orange Realty, Inc. as parties, and Supreme Court issued an order to that effect. Prior to the return date of the petition, petitioners sought judicial enforcement of the automatic stay provided by General City Law § 38 during the pendency of the Supreme Court proceeding, inasmuch as Minick and the City had permitted grading and filling at the site to begin. Supreme Court conditioned the stay on the posting of a $125,000 bond by petitioners. Since the bond was not posted, construction commenced at the site in the summer of 1987. In a cursory one-page decision, Supreme Court dismissed the six causes of action in the petition. Petitioners appeal from the judgment entered thereon.
We first note that petitioners' failure to post the undertaking in the amount of $125,000, as ordered by Supreme Court and affirmed by this court, resulted in the construction of a substantial portion of the project at a cost in excess of $5,000,000. Petitioners thereby lost any entitlement to injunctive relief, since, as a general rule, an injunction will not issue to prohibit a fait accompli (E.F.S. Ventures Corp. v. Foster, 71 N.Y.2d 359, 372, 526 N.Y.S.2d 56, 520 N.E.2d 1345; Matter of Friends of the Pine Bush v. Planning Bd. of City of Albany, 86 A.D.2d 246, 450 N.Y.S.2d 966, affd. 59 N.Y.2d 849, 465 N.Y.S.2d 924, 452 N.E.2d 1252).
As to the validity of the Residential Cluster Development Ordinance, petitioners' sixth cause of action, alleging the City's failure to comply with the State Environmental Quality Review Act (ECL art. 8) (hereinafter SEQRA) in enacting the ordinance on September 6, 1984, is barred by the Statute of Limitations. We reject petitioners' argument that their challenge to the ordinance based on SEQRA violations is timely since they were not aggrieved by the enactment of the ordinance until it was applied to property in their neighborhood. This court used similar reasoning in Matter of Save the Pine Bush v. City of Albany, 117 A.D.2d 267, 269, 502 N.Y.S.2d 540, mod. 70 N.Y.2d 193, 518 N.Y.S.2d 943, 512 N.E.2d 526, but the Court of Appeals held that the time to complain of SEQRA violations in the enactment of a zoning ordinance was within four months of the date of the enactment. In the Save the Pine Bush case, the Court of Appeals found that the effect of the enactment of the zoning ordinance, with its new classification applicable to the Pine Bush area of the City of Albany, coupled with the Common Council's concurrent announcement of a policy to permit commercial development in the Pine Bush area, committed the City to a definite course of future decisions (Matter of Save the Pine Bush v. City of Albany, 70 N.Y.2d 193, 203, 518 N.Y.S.2d 943, 512 N.E.2d 526). This commitment did not, however, trigger the running of the Statute of Limitations. Rather, the court held that it constituted an "action" within the meaning of SEQRA, triggering the requirement of "SEQRA review * * * before any specific applications were needlessly studied" (id.). The court concluded, "Inasmuch as consideration of possible detrimental effects of this action should have been given at the earliest possible time * * * the time to complain of SEQRA violations in the enactment of this ordinance was within four months of the date of the enactment" (id. [citations omitted] ). In the case at bar, the ordinance authorizing the Planning Board to permit or require residential cluster developme does not apply to a specific area of the City. Nor was there an announcement of a policy to apply the ordinance. Nevertheless, the enactment of the ordinance clearly constituted an "action" within the meaning of SEQRA (6 NYCRR 617.2[b][3] ), triggering the requirement of SEQRA review before any specific applications of the ordinance were needlessly studied. Since the enactment of the ordinance was an action requiring SEQRA review at the earliest possible time, "the time to complain of SEQRA violations in the enactment of this ordinance was within four months of the date of the enactment" (Matter of Save the Pine Bush v. City of Albany, 70 N.Y.2d 193, 203, 518 N.Y.S.2d 943, 512 N.E.2d 526, supra ).
Petitioners further attack the validity of the Residential...
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