Save Harrison, Inc. v. Town/Vill. of Harrison, 2017–02349

• Decision Date: 23 January 2019
• Docket Number: Index No. 58503/16,2017–02349,2017–09096
• Citation: 168 A.D.3d 949,93 N.Y.S.3d 74
• Parties: In the Matter of SAVE HARRISON, INC., et al., Appellants, v. TOWN/VILLAGE OF HARRISON, NY, et al., Respondents.
• Court: New York Supreme Court — Appellate Division

168 A.D.3d 949

93 N.Y.S.3d 74

In the Matter of SAVE HARRISON, INC., et al., Appellants,

v.TOWN/VILLAGE OF HARRISON, NY, et al., Respondents.

2017–02349

2017–09096

Index No. 58503/16

Supreme Court, Appellate Division, Second Department, New York.

Argued—September 14, 2018

January 23, 2019

Albert J. Pirro, Jr., White Plains, N.Y., and Lippes & Lippes, Buffalo, N.Y. (Richard Lippes of counsel), for appellants (one brief filed).

Bond, Schoeneck & King PLLC, Garden City, N.Y. (Richard S. Finkel of counsel), for respondents Town/Village of Harrison, NY, Town/Village of Harrison, N.Y. Planning Board, and Town/Village of Harrison, N.Y. Town Board.

DelBello, Donnellan, Weingarten, Wise & Wiederkehr, LLP, White Plains, N.Y. (Michael J. Schwarz, Lee S. Wiederkehr, Annie E. Kline, and Eric Mandell of counsel), for respondent Lake Street Granite Quarry, Inc.

Zarin & Steinmetz, White Plains, N.Y. (David S. Steinmetz and David J. Cooper of counsel), for respondent Shelter Development, LLC, also known as Brightview Living, Inc.

WILLIAM F. MASTRO, J.P., SANDRA L. SGROI, JOSEPH J. MALTESE, VALERIE BRATHWAITE NELSON, JJ.

DECISION & ORDER

In a hybrid proceeding pursuant to CPLR article 78 and action, inter alia, for declaratory relief, the petitioners/plaintiffs appeal from (1) an order of the Supreme Court, Westchester County (Gretchen Walsh, J.), dated February 22, 2017, and (2) a judgment of the same court dated March 30, 2017. The order, insofar as appealed from, granted those branches of the separate motions of the respondents/defendants which were pursuant to CPLR 3211(a) and 7804(f) to dismiss the first and second causes of action, and for summary judgment dismissing the fourth cause of action and a portion of the fifth cause of action as untimely, and with respect to the sixth, seventh, and ninth causes of action and the remaining portion of the fifth cause of action, making certain declarations in their favor. The judgment, insofar as appealed from, upon the order, in effect, denied the first and second causes of action and dismissed the CPLR article 78 proceeding, dismissed the fourth cause of action and a portion of the fifth cause of action, and made certain declarations in favor of the respondents/defendants with respect to the sixth, seventh, and ninth causes of action and a portion of the fifth cause of action.

Separate cross motions by the respondents/defendants, inter alia, to dismiss the appeal from the order dated February 22, 2017, on the ground that no appeal lies as of right from the portion of the intermediate order which was entered in the proceeding pursuant to CPLR article 78 and on the further ground that the right of direct appeal from the portions of the intermediate order which concern the declaratory judgment causes of action terminated with the entry of the judgment dated March 30, 2017. By decision and order on motion of this Court dated September 13, 2017, those branches of the separate cross motions which were to dismiss the appeal from the order dated February 22, 2017, were held in abeyance and referred to the panel of Justices hearing the appeals for determination upon the argument or submission thereof.

Upon the papers filed in support of the separate cross motions and the papers filed in relation thereto, and upon the argument of the appeals, it isORDERED that those branches of the separate cross motions which were to dismiss the appeal from the order dated February 22, 2017, are granted; and it is further,

ORDERED that the appeal from the order dated February 22, 2017, is dismissed; and it is further,

ORDERED that the judgment is modified, on the law, by deleting the provision thereof declaring that Local Law No. 2–2016 of the Town/Village of Harrison was enacted in accordance with General Municipal Law § 239–m ; as so modified, the judgment is affirmed insofar as appealed from, those branches of the separate motions of the respondents/defendants which were for summary judgment with respect to the ninth cause of action declaring that Local Law No. 2–2016 was enacted in accordance with General Municipal Law § 239–m are denied, and the order dated February 22, 2017, is modified accordingly; and it is further,

ORDERED that one bill of costs is awarded to the petitioners/plaintiffs.

The subject premises in the Town of Harrison were previously used as a quarry. Litigation related to the quarry's operation was resolved in a December 2014, settlement agreement between the owner of the premises and the Town, whereby the owner would discontinue quarry operations and the Town would entertain an application for approval of a senior living facility on the site. In March 2015, Shelter Development, LLC, also known as Brightview Living, Inc. (hereinafter the applicant), submitted a proposed zoning amendment to the Town Board of the Town of Harrison (hereinafter Town Board) to add a new special exception use for senior living facilities. The applicant further submitted applications to the Town's Planning Board for a special exception use permit, site plan approval, and steep slope and wetlands permits to construct a 160–unit senior living facility on the property. The Town Board referred the rezoning application to the Planning Board, which declared its intent to be the lead agency for review of the zoning amendment and project pursuant to the State Environmental Quality Review Act (ECL art 8; hereinafter SEQRA). Following public hearings, the Planning Board recommended the zoning amendment to the Town Board, as required by the Town Code. On April 26, 2016, the Planning Board formally declared itself lead agency and issued a negative declaration pursuant to SEQRA. On May 19, 2016, the Town Board approved the rezoning amendment in Local Law No. 2–2016.

In June 2016, the petitioners/plaintiffs (hereinafter the petitioners) commenced this hybrid proceeding pursuant to CPLR article 78 and declaratory judgment action seeking to annul the December 2014 settlement agreement and the Planning Board's lead agency declaration and negative declaration for violations of SEQRA and to declare the settlement agreement and Local Law No. 2–2016 void on numerous grounds. The respondents/defendants (hereinafter the respondents) separately moved to dismiss the CPLR article 78 causes of action and for summary judgment with respect to the declaratory relief causes of action. In an order dated February 22, 2017, the Supreme Court granted most branches of the motions. A judgment dated March 30, 2017, dismissed the article 78 causes of action and awarded summary judgment with respect to the declaratory relief causes of action, making declarations in favor of the respondents. The petitioners appeal from portions of the order and the judgment.

The appeal from so much of the intermediate order as granted those branches of the respondents' motions which were pursuant to CPLR 3211(a) and 7804(f) to dismiss the first and second causes of action must be dismissed because no appeal lies as of right from an intermediate order entered in a proceeding pursuant to CPLR article 78 (see CPLR 5701[b][1] ), and we decline to grant leave to appeal in light of the entry of a final judgment in this matter. The appeal from the portions of the intermediate order which concern the declaratory judgment causes of action must be dismissed because the right of direct appeal therefrom terminated with the entry of the judgment in the action (see Matter of Aho, 39 N.Y.2d 241, 248, 383 N.Y.S.2d 285, 347 N.E.2d 647 ). The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the judgment (see CPLR 5501[a][1] ).

We agree with the Supreme Court's determination that the petitioners' challenges to the December 2014 settlement agreement were untimely (see CPLR 217[1] ; Matter of Young v. Board of Trustees of Vil. of Blasdell, 89 N.Y.2d 846, 848–849, 652 N.Y.S.2d 729, 675 N.E.2d 464 ). The SEQRA review of the zoning amendment did not toll the statutory period for the petitioners' challenge to the earlier settlement agreement (see Matter of Young v. Board of Trustees of Vil. of Blasdell, 89 N.Y.2d at 848–849, 652 N.Y.S.2d 729, 675 N.E.2d 464 ). Moreover, the six-year statute of limitations applicable to challenges to the substance of a local law (see CPLR 213[1] ) does not apply to administrative determinations which may be reviewed pursuant to CPLR article 78, such as the Town's execution of the December 2014 settlement agreement (see International Paper Co. v. Sterling Forest Pollution Control Corp., 105 A.D.2d 278, 282, 482 N.Y.S.2d 827 ). Accordingly, we agree with the Supreme Court's determination granting those branches of the respondents' motions which were for summary judgment dismissing, as untimely, the fourth cause of action and that portion of the fifth cause of action which challenged the December 2014 settlement agreement.

The petitioners contend that the Planning Board was not a proper lead agency for the purposes of SEQRA review. We agree with the Supreme Court's determination that this contention was improperly raised before the Supreme Court, since the petitioners did not challenge the designation during the administrative proceeding (see Matter of Long Is. Pine Barrens Socy. v. Planning Bd. of Town of Brookhaven, 204 A.D.2d 548, 550, 611 N.Y.S.2d 917 ; Aldrich v. Pattison, 107 A.D.2d 258, 268, 486 N.Y.S.2d 23 ). In any event, since the Planning Board had decision-making authority with respect to aspects of the project, it was a proper lead agency, despite not having final approval over the zoning amendment (see 6 NYCRR 617.2 [u]; Matter of Wooster v. Queen City Landing, LLC, 150 A.D.3d 1689, 1691, 54 N.Y.S.3d 812 ; Matter of Seaboard Contr. & Material v. Department of Envtl. Conservation of State of N.Y., 132 A.D.2d 105, 111, 522 N.Y.S.2d 679 ; Matter of Citizens Against Sprawl–Mart v. City of Niagara Falls, 35 A.D.3d 1190, 1192, 827 N.Y.S.2d 803 ). Further, the Planning Board identified the relevant areas...