Villella v. Department of Transp.

• Decision Date: 10 November 1988
• Parties: In the Matter of Fillippo VILLELLA et al., Appellants, v. DEPARTMENT OF TRANSPORTATION of the State of New York et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 574

534 N.Y.S.2d 574

142 A.D.2d 46

In the Matter of Fillippo VILLELLA et al., Appellants, v. DEPARTMENT OF TRANSPORTATION of the State of New York et al., Respondents.

Supreme Court, Appellate Division Third Department.

Nov. 10, 1988.

Ronald H. Sinzheimer, Albany, for appellants.

Robert Abrams, Atty. Gen., Albany (Francis J. Keehan, of counsel), for respondents.

Before KANE, J.P., and MIKOLL, LEVINE, HARVEY and MERCURE, JJ.

KANE, Justice Presiding.

This proceeding concerns a project proposed by respondent Department of Transportation (hereinafter DOT) in 1985 to replace, inter alia, all major mounted guide, regulatory and warning signs on an 8.4-mile stretch of Interstate Route 190 which connects the North Grand Island Bridge with the Lewiston-Queenston International Bridge Plaza in Niagara County. Since the issue raised before this court involves a Statute of Limitations question, a listing of the dates, along with the pertinent facts, is required.

In June 1986, DOT classified the project as a Type II action under 17 NYCRR part 15. This classification obviated the requirement for further review under the State Environmental Quality Review Act (ECL art. 8) (hereinafter SEQRA). The Federal Department of Transportation approved the project on July 28, 1986 and approximately one year later, on June 26, 1987, it gave DOT authorization to solicit bids on the project. On June 30, 1987, respondent Commissioner of Transportation authorized, via an internal memo to DOT's contract bureau, the advertising of bids for the project. Bids were advertised in several newspapers on July 8, 1987 and July 15, 1987. On September 14, 1987, the State Comptroller awarded a contract on the project.

Thereafter, on January 12, 1988, petitioners, all of whom are merchants who own tourist-related businesses in close proximity to Route 190, commenced this proceeding challenging DOT's implementation of the project. Essentially, they argued that the proposed change in signs would cause a diversion of traffic that would negatively affect their respective businesses. Petitioners sought, among other things, an order nullifying DOT's classification of the project as a Type II action under SEQRA. In answer to the petition, DOT and the Commissioner moved to dismiss, inter alia, on the ground that the proceeding was not timely commenced pursuant to CPLR 217. Supreme Court granted the motion and this appeal by petitioners ensued.

We affirm. As an initial matter, the parties do not dispute that the four-month Statute of Limitations contained in CPLR 217 applies to proceedings challenging an agency's failure to comply with SEQRA (see, Citizens for Envtl. Safety v. New York State Dept. of Envtl. Conservation, 134 A.D.2d 935, 321 N.Y.S.2d 942, lv. denied 71 N.Y.2d 803, 527 N.Y.S.2d 769, 522 N.E.2d 1067; Vanderwoude v. Post/Rockland Assocs., 130 A.D.2d 739, 741, 515 N.Y.S.2d 838, appeal dismissed 70 N.Y.2d 796, 522 N.Y.S.2d 112, 516 N.E.2d 1225). ^* However, as this court has recently observed:

* * * since SEQRA determinations are often preliminary steps in a project's decision-making process, the Statute of Limitations begins to run only when that decision-making process is completed, i.e., when the determination is "final and binding" * * * (Matter of Wing v. Coyne, 129 A.D.2d 213, 216, 517 N.Y.S.2d 576 [citations omitted] ).

Deciding when a determination is final in these types of cases is not easy given that they often involve an ongoing planning and approval process where no permit or certificate or approval is required which would normally trigger the SEQRA Statute of Limitations (id., at 216, 517 N.Y.S.2d 576). In situations such as these, the commencement of the Statute of Limitations' period is calculated by first ascertaining what decision is actually sought to be reviewed by a petitioner and then determining when that decision had an impact upon that petitioner so that he was actually aggrieved by it (see, Matter of Martin v. Ronan, 44 N.Y.2d 374, 379-381, 405 N.Y.S.2d 671, 376 N.E.2d 1316; Matter of Wing v. Coyne, supra, 129 A.D.2d at 216, 517 N.Y.S.2d 576).

Here, petitioners claim that there was no final and binding decision to proceed with the project until September 14, 1987, when the Comptroller awarded a contract on the project. Therefore, they argue that it was not until that point that the Statute of Limitations began to run. If this were true, the proceeding would indeed be timely. However, we reject this argument. The crux of petitioners' challenge is to DOT's implementation of the project particularly its designation of the project as a Type II action. Although this designation was initially made by DOT in June 1986, petitioners were not actually aggrieved by it until the project's implementation was imminent. In our view, this occurred when the Federal Department of Transportation approved the project on July 28, 1986 and later authorized DOT to let...