Troy Sand & Gravel Co. v. Town of Nassau

• Decision Date: 19 February 2015
• Citation: 2015 N.Y. Slip Op. 01517,3 N.Y.S.3d 785,125 A.D.3d 1188
• Court: New York Supreme Court — Appellate Division
• Parties: In the Matter of TROY SAND & GRAVEL COMPANY, INC., et al., Appellants, v. TOWN OF NASSAU et al., Respondents.

?125 A.D.3d 1188
3 N.Y.S.3d 785
2015 N.Y. Slip Op. 01517

In the Matter of TROY SAND & GRAVEL COMPANY, INC., et al., Appellants,
v.
TOWN OF NASSAU et al., Respondents.

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

Feb. 19, 2015

Affirmed.

See also 957 N.Y.S.2d 444.

Tuczinski, Cavalier & Gilchrist, P.C., Albany (Andrew W. Gilchrist of counsel), for appellants.

Donohue, Sabo, Varley & Huttner, LLP, Albany (Bruce Huttner of counsel), for respondents.

Before: McCARTHY, J.P., ROSE, EGAN JR. and DEVINE, JJ.

[3 N.Y.S.3d 786]

ROSE, J.

Appeal from a judgment of the Supreme Court (Connolly, J.), entered October 21, 2013 in Rensselaer County, which, in a proceeding pursuant to CPLR article 78, granted respondents' motion to dismiss the petition.

The underlying facts are more fully set forth in our decision in Troy Sand & Gravel Co., Inc. v. Town of Nassau, 125 A.D.3d 1170, ––– N.Y.S.3d –––– [decided herewith] ). As relevant here, petitioner Troy Sand & Gravel Company, Inc. (hereinafter petitioner) seeks to open a quarry in the Town of Nassau, Rensselaer County and has an application for site plan approval and special permit pending before respondent Town of Nassau. The Department of Environmental Conservation (hereinafter DEC) conducted a coordinated review of the project pursuant to the State Environmental Quality Review Act, including a positive declaration and final environmental impact statement, and granted petitioner a mining permit to operate the quarry. Petitioners then obtained a preliminary injunction preventing the Town from reassessing the environmental impact of the proposed project and, while that injunction was in place, respondent Town Board of the Town of Nassau issued a resolution deeming petitioner's zoning application complete and referring it to the Planning Board for review and recommendation. This Court thereafter vacated the injunction and held that the Town is “entitled to independently review [petitioner's] application for the special use permit in accord with the standards contained in its zoning regulations” ( Troy Sand & Gravel Co., Inc. v. Town of Nassau, 101 A.D.3d 1505, 1508, 957 N.Y.S.2d 444 [2012] ). As a result, the Town Board rescinded its prior resolution deeming the application complete and petitioners, among other things, commenced this proceeding to annul the recision of that resolution.¹ Supreme Court granted respondents' motion to dismiss the petition on ripeness grounds and petitioners appeal.

We...