Skenesborough Stone Inc. v. Village of Whitehall

• Decision Date: 29 October 1998
• Citation: 254 A.D.2d 664,679 N.Y.S.2d 727
• Parties: 1998 N.Y. Slip Op. 9300 In the Matter of SKENESBOROUGH STONE INC., Appellants, v. VILLAGE OF WHITEHALL et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 727

679 N.Y.S.2d 727

1998 N.Y. Slip Op. 9300

In the Matter of SKENESBOROUGH STONE INC., Appellants, v. VILLAGE OF WHITEHALL et al., Respondents.

Supreme Court, Appellate Division Third Department.

Oct. 29, 1998.

Lustberg & Ferretti (Robert M. Lustberg of counsel), Glens Falls, for appellants.

Michael S. Martin, Whitehall, for respondents.

Before MIKOLL, J.P., MERCURE, CREW, YESAWICH and PETERS, JJ.

CREW, Justice.

Appeal from a judgment of the Supreme Court (Dier, J.), entered January 5, 1998 in Washington County, which dismissed petitioners' application, in a combined proceeding pursuant to CPLR article 78 and action for declaratory judgment, to, inter alia, set aside Local Laws, 1996, No. 3 of the Village of Whitehall.

In August 1994, petitioner Gilles Lariviere formed petitioner Skenesborough Stone Inc. for the purpose of acquiring and mining approximately 400 acres of land located in the Village of Whitehall, Washington County. Thereafter, in December 1994, Skenesborough applied to the Department of Environmental Conservation for a permit to extract in excess of 1,000 tons of gneiss, a quarriable stone material, from the property within any 12-month period. Approval of such permit apparently is still pending.

At the time that Skenesborough acquired the subject property, respondent Village of Whitehall apparently lacked a comprehensive zoning law and, more particularly, any regulations governing mineral extraction. In February 1995, however, respondent Village Board of Trustees adopted Local Laws, 1995, No. 1 of the Village of Whitehall, which prohibited the extraction of minerals within the Village without approval of the Village Board. This court subsequently declared this local law null and void due the Village Board's failure to comply with the requirements of the State Environmental Quality Review Act (ECL art 8) (hereinafter SEQRA) (see, Matter of Skenesborough Stone v. Village of Whitehall, 229 A.D.2d 780, 645 N.Y.S.2d 579).

In the interim, in October 1995 the Village Board established a zoning commission, which was charged with the task of examining the existing conditions within the Village and making appropriate recommendations for regulating future development. As is relevant to this appeal, the Village Board then enacted Local Laws, 1995, No. 2 of the Village of Whitehall, which imposed a nine-month moratorium upon, inter alia, mining activities within the Village. Finally, in October 1996 the Village Board enacted Local Laws, 1996, No. 3 of the Village of Whitehall (hereinafter Local Law No. 3), which established comprehensive zoning regulations for the Village. Under these regulations, mining activities were prohibited within the Village except to the extent that such qualified as a prior nonconforming use.

Petitioners thereafter commenced this combined proceeding pursuant to CPLR article 78 and action for declaratory judgment seeking, inter alia, the invalidation of Local Law No. 3. Respondents answered and cross motions for summary judgment ensued. Supreme Court, inter alia, subsequently dismissed petitioners' application in its entirety and granted summary judgment in favor of respondents. This appeal by petitioners followed.

The various arguments raised by petitioners on appeal do not warrant extended discussion. Initially, we reject petitioners' contention that Local Law No. 3 should be deemed void ab initio due to the manner in which the zoning commission was appointed by the Village Board. In support of their cross motion for summary judgment, respondents submitted the affidavit of Village Mayor Patricia Norton, who, during the relevant time period, served as a member of the Village Board. In this regard, Norton averred that the zoning commission members were appointed at the Village Board's October 5, 1995 regular meeting. Because the minutes of such meeting, however, were omitted from the record on appeal, petitioners ask this court to conclude that the zoning commission was therefore secretly appointed in violation of Village Law § 7-710. We find no support for such speculation in the record. The mere fact that the minutes of the October 5, 1995 meeting were, according to respondents, inadvertently omitted from the record on appeal, in no way contradicts Norton's averment regarding the establishment of the zoning commission.

Nor are we persuaded that the zoning commission violated Village Law § 7-710(3), which requires that "[s]uch commission * * * make a preliminary report and hold one or more public hearings thereon as deemed appropriate by the commission before submitting its final report [to the village board of trustees]". Here, the record reveals that the zoning commission held a public hearing on a draft of the proposed zoning law on July 9, 1996 and thereafter transmitted its final report to the Village Board on July 10, 1996.

Equally unavailing is petitioners' assertion that the Village Board's failure to comply with the substantive and procedural requirements of SEQRA invalidates Local Law No. 3. Although the record before us certainly could have been compiled with greater precision and clarity, when read as a whole it demonstrates that the Village Board, which designated itself as the lead agency for...