Save the Pine Bush, Inc. v. City of Albany
| Decision Date | 16 June 1988 |
| Citation | 530 N.Y.S.2d 295,141 A.D.2d 949 |
| Parties | In the Matter of SAVE THE PINE BUSH, INC., et al., Respondents, v. CITY OF ALBANY et al., Appellants, and State Employees Federal Credit Union et al., Intervenors-Appellants. |
| Court | New York Supreme Court — Appellate Division |
Rutnik & Rutnik (Peter A. Lynch, of counsel), Albany, for State Employees Federal Credit Union, intervenor-appellant.
Matthew H. Mataraso (Larry J. Rosen, of counsel), Albany, for Madison Avenue Extension, intervenor-appellant.
Oliver & Oliver (Lewis B. Oliver, Jr., of counsel), Albany, for respondents.
Before MAHONEY, P.J., and CASEY, MIKOLL, YESAWICH and HARVEY, JJ.
Appeals (1) from an order and judgment of the Supreme Court (Williams, J.), entered April 28, 1987 in Albany County, which, inter alia, granted petitioners' application, in a combined declaratory judgment action and proceeding pursuant to CPLR article 78, to annul a determination of respondent Planning Board of the City of Albany approving intervenors' site development plans, and (2) from two orders of said court, entered November 4, 1987 in Albany County, which denied intervenor State Employees Federal Credit Union's motions to renew and/or reargue the prior decision.
In July 1984 respondent Common Council of the City of Albany (hereinafter Common Council) enacted an ordinance which changed the zoning from residential to commercial in an area where intervenor State Employees Federal Credit Union (hereinafter SEFCU) proposed to erect a two-story office building. The proposed site plan for this commercial project, to be located within respondent City of Albany in an area known as the Pine Bush, was approved by respondent Planning Board of the City of Albany (hereinafter the Board) in March 1985. However, in related litigation the Board withdrew its approval of the site plan pending further investigation concerning compliance with the State Environmental Quality Review Act (hereinafter SEQRA) contained in ECL article 8. In November 1985 the Board became the designated lead agency for the SEFCU project with the understanding that the Board would investigate the cumulative environmental impact of pending projects in the Pine Bush area. The Board arranged for the preparation of a draft generic environmental impact statement and then a final generic environmental impact statement (hereinafter FGEIS). The FGEIS was accepted by the Board in June 1986 as a complete study of the cumulative impact of nine proposed projects in the Pine Bush area, including the SEFCU project. The Board subsequently found that the SEFCU project was a Type I action pursuant to SEQRA but did not require the preparation of a site-specific environmental impact statement (hereinafter EIS). The Board concluded "that the SEFCU site plan will not result in a significant environmental impact (Negative Declaration)" and approved SEFCU's proposed site plan.
Intervenor Madison Avenue Extension Office Park, Inc. (hereinafter MAEOPI) applied to the Board for site plan approval to construct Computer Park in the Pines, an office complex with two one-story buildings in the Pine Bush area. The MAEOPI project was found to be a SEQRA Type I action with a positive declaration of environmental significance which required preparation of an EIS. Draft and final site-specific EISes were prepared and the final site-specific EIS was accepted in July 1985. The Board approved MAEOPI's site plan finding that SEQRA requirements had been satisfied.
Petitioner Save the Pine Bush, Inc. is a not-for-profit corporation formed to work for the preservation of the Pine Bush area, said to be the only surviving large pine barrens on inland sand dunes in the country. In July 1986 petitioners, Save the Pine Bush, Inc., six of its officers and one individual proceeding as a taxpayer, began this declaratory judgment action and CPLR article 78 proceeding challenging the change from residential to commercial zoning for SEFCU's project and the Board's approval of four proposed site plans in the Pine Bush area, including site plans of SEFCU and MAEOPI. The complaint/petition also sought preliminary and permanent injunctive relief prohibiting construction of the projects until SEQRA compliance was achieved. Supreme Court granted the application to the extent of declaring the Board's approval of the SEFCU and MAEOPI site plans null and void as violative of SEQRA *. The language regarding injunctive relief was crossed out of the proposed order and judgment by Supreme Court. The City of Albany, the Board, the Common Council, SEFCU and MAEOPI appeal from this order and judgment.
Subsequently, SEFCU's motions to renew and/or reargue the prior decision were denied by Supreme Court. Since the motions were actually motions to reargue, the orders entered thereon are not appealable and the appeals therefrom should be dismissed ( see, Fashion Tanning Co. v. Shutzer Indus., 108 A.D.2d 485, 486-487, 489 N.Y.S.2d 791).
Although the SEQRA compliance issue as to SEFCU and MAEOPI is moot due to the completion of the SEFCU project and substantial completion of the MAEOPI complex during pendency of the present litigation and the failure of petitioners to obtain the appropriate injunctive relief ( see, Matter of Serafin v. Wallace, 117 A.D.2d 926, 499 N.Y.S.2d 20), we address the merits since "a question of general interest and substantial public importance is present and is likely to recur if not judicially resolved" (Matter of Friends of Pine Bush v. Planning Bd. of City of Albany, 86 A.D.2d 246, 248, 450 N.Y.S.2d 966, affd on opn below 59 N.Y.2d 849, 465 N.Y.S.2d 924, 452 N.E.2d 1252; see, Matter of Hearst Corp. v. Clyne, 50 N.Y.2d 707, 714-715, 431 N.Y.S.2d 400, 409 N.E.2d 876) and, therefore, this controversy falls within an...
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