Constitution Rights Org Edu

What does failure to exhaust administrative remedies mean?

The doctrine of exhaustion of administrative remedies says that a person challenging an agency decision must first pursue the agency's available remedies before seeking judicial review.

It was created by courts in order to promote an efficient justice system and autonomous administrative state.

In New York, it is well settled that the doctrine of exhaustion of administrative remedies requires that where a remedy before an administrative agency is available, relief must be sought by exhausting this remedy before courts will act.

The New York Court of Appeals has observed that "hornbook law" provides that "one who objects to the act of an administrative agency must exhaust available administrative remedies before being permitted to litigate in a court of law."

This principle, the Court added, furthered the goals of relieving the courts of the burden of deciding questions entrusted to an agency, preventing premature judicial interference with administrators' efforts to develop a coordinated, consistent, and legally enforceable scheme of regulation, and affording administrators the opportunity, in advance of possible judicial review, to prepare a record reflective of their "expertise and judgment."

The general rule also is supported by statutory law.

Pursuant to CPLR 7801(1), an Article 78 proceeding may not be used to challenge a determination that can be adequately reviewed by administrative or judicial appeal.

As applied to administrative determinations, Section 7801(1) requires one who objects to the act of an administrative agency to first exhaust available administrative remedies before being permitted to litigate in the courts.

The exhaustion rule is subject to important qualifications.

It need not be followed, for example, when an agency's action is challenged as either unconstitutional or wholly beyond its grant of power, when resort to an administrative remedy would be
futile, or when its pursuit
would cause irreparable injury.


This column discusses the general rule of exhaustion of remedies in the context of land use and zoning law, as well as the significant exceptions to the rule.

Application of the Rule

A recent decision by the Appellate Department, Second Department, illustrated the basic application of the rule.[ii]

In this case, the building department of the Long Island town of Brookhaven denied an application for a building permit. The applicant went to court, seeking review of the denial of his application.

The building department and the other respondents moved to dismiss the petition on the ground that the applicant had failed to exhaust his administrative remedies.

The Supreme Court, Suffolk County, dismissed the proceeding based on the applicant's failure to exhaust administrative remedies, and he appealed to the Second Department.

The appellate court affirmed.

In its decision, it explained that the applicant had not pursued an available administrative remedy – an appeal to the town's board of zoning appeals – prior to seeking judicial intervention.

Given the applicant's failure to establish that any exception to the exhaustion doctrine was applicable, the Second Department determined that the Supreme Court had properly granted the motion to dismiss.

Futility

The Appellate Division, Third Department, issued a decision several years ago that highlighted and explored the "futility" exception to the exhaustion of remedies doctrine.[iii]

J.B. Quarry, Inc., applied for a mining permit for an 80-acre property located on a road in the upstate town of Sullivan. Litigation ensued, and J.B. Quarry and other parties filed an action seeking a declaration that they were entitled to nonconforming use status for the property and, therefore, that the town's zoning regulations governing mining operations were void as against them.

The town and the other defendants moved to dismiss, asserting that the plaintiffs had failed to exhaust their administrative remedies. The Supreme Court, Madison County, denied the motions to dismiss, concluding that the plaintiffs had demonstrated an exception to the exhaustion requirement.


The dispute reached the Third Department, where the defendants again contended that the underlying declaratory judgment action should be dismissed based on the plaintiffs' failure to exhaust their administrative remedies.

Specifically, they contended that the plaintiffs only had to apply for a "certificate of non-conformity," submit the proof they deemed appropriate to the town's zoning enforcement officer, and await his or her decision as to their entitlement to a "relaxation" of the town's zoning law.

Should a favorable decision not be forthcoming, the defendants continued, the plaintiffs then could appeal to the zoning board of appeals.

That procedure, the defendants asserted, afforded the plaintiffs a viable avenue of administrative relief –an avenue that they could not short circuit by prematurely commencing an action for declaratory judgment.

The Third Department was not persuaded by this argument.

It decided that it was "abundantly clear" that requiring the plaintiffs to pursue the administrative remedy suggested by the defendants "would be an exercise in futility, thereby demonstrating a recognized exception to the exhaustion requirement."

The appellate court explained that, throughout the course of the litigation, the defendants had "consistently demonstrated their opposition to plaintiffs' desired use of the subject parcel" and, moreover, had "thwarted each and every attempt that plaintiffs have made to engage in mining operations thereon."

Under these circumstances, the Third Department concluded, even assuming that a valid administrative review process existed, it was "readily apparent" that the plaintiffs were "unlikely to receive an unbiased evaluation from defendants."

Permitted Use

Another exception to the exhaustion of remedies doctrine in the land use context occurs where a property owner challenges a local government's decision that a certain use of specific property is not a permitted use.

One case[iv] arose after BBJ Associates, LLC, the owner an 88-acre parcel of land straddling the border between the towns of Kent and Carmel in Putnam County, decided to build a multi-family senior citizens' development on an 80-acre portion of the property located in Carmel and adjacent to property it owned in Kent. As part of this plan, BBJ sought to build an access road running through the two towns that would connect the development with State Route 52. The proposed road would traverse eight acres located in Kent that were zoned for commercial and single-family residential use.

Kent's building inspector decided that the "entranceway is an accessory use to a principal use and we do not have a principal use." The town's planning board refused to continue any site plan review until "the issue raised" by the building inspector was resolved.

Kent's zoning board raised the question of whether the proposed town road was a driveway prohibited by the town's zoning code. In response, BBJ argued that the "entranceway" or "access road" was not a principal use, an accessory use, or a driveway but, rather, was an "infrastructure improvement" pursuant to the town's zoning code and it asked the zoning board to reverse the building inspector and "permit" construction of the proposed road.

At a special meeting, the zoning board agreed that the proposed "entranceway" or access road was an infrastructure improvement. It concluded, however, that because the proposed town road would be constructed in areas of the town zoned for commercial use and for single-family residential use – not multi-family housing – it was not a permitted use.

BBJ brought an Article 78 proceeding, challenging the zoning board's determination that the access road was not a permitted use. The Supreme Court, Putnam County, granted the petition in its entirety.

The case reached the Second Department, which found the controversy ripe for judicial review.

It explained that the requirement that a landowner must seek a variance to exhaust administrative remedies was applicable to controversies over whether zoning regulations were confiscatory and, therefore, unconstitutional as applied to a landowner's property. The appellate court explained, however, that the exhaustion of remedies doctrine generally was "not applicable to controversies over whether a use is permitted as of right."

Legal Duty

Another notable exception to the exhaustion of remedies rule was highlighted in an Article 78 proceeding in the Third Department[v] in which the petitioners sought to require the zoning board of appeals of the Village of Lake Placid to hear and determine their administrative appeal, which sought to challenge the issuance of a certificate of occupancy to other property owners.

The zoning board of appeals moved to dismiss the petition, contending that the petitioners had failed to exhaust their administrative remedies. The Supreme Court, Essex County, granted the motion, and the petitioners appealed to the Third Department.

The appellate court reversed. It explained that exhaustion of remedies had "no application" where the purpose of the judicial proceeding was "to compel the performance of a legal duty."

Conclusion

 Property owners, developers, and other interested parties often turn to the courts to resolve land use and zoning disputes before they have exhausted all of their administrative remedies.

Unless an exception to the general rule applies, they will find the courts unwilling to hear their complaints.



Watergate II Apartments v. Buffalo Sewer Authority, 46 N.Y.2d 52 (1978).

[ii] See, Matter of LaRocca v. Department of Planning, Environment, and Development of Town of Brookhaven, 125 A.D.3d 659 (2d Dep't 2015).

[iii] See, Subdivisions, Inc. v. Town of Sullivan, 86 A.D.3d 830 (3d Dep't 2011).

[iv] See, Matter of BBJ Associates, LLC v. Zoning Board of Appeals of Town of Kent, 65 A.D.3d 154 (2d Dep't 2009).

[v] See, Matter of Milnarik v. Rogers, 298 A.D.2d 637 (3d Dep't 2002).

https://law.justia.com/cases/new-york/court-of-appeals/1995/87-n-y-2d-136-0.html

"must exhaust its administrative remedies before being able to litigate in court."

Welch v. New York State Division of Housing & Community Renewal
Opinion
Argued September 25, 2001.

October 29, 2001.

In a proceeding pursuant to CPLR article 78 to review a determination of the respondent New York State Division of Housing and Community Renewal dated March 26, 1999, which found that the petitioner overcharged the respondent Fraulene Harris for rent, the New York State Division of Housing and Community Renewal appeals from a judgment of the Supreme Court, Kings County (Mason, J.), dated June 5, 2000, which granted the petition and vacated a clerk's judgment of the same court, entered October 1, 1999, upon the order.

Marcia Hirsch, New York, N.Y. (Mary Elizabeth Lacerenza, Mary Ellen Cronly, and Susan E. Kearns of counsel), for appellant.

Regina Felton, Brooklyn, N.Y., for petitioner-respondent.

Before: DAVID S. RITTER, J.P., GLORIA GOLDSTEIN, HOWARD MILLER, SANDRA L. TOWNES, JJ.

ORDERED that the judgment dated June 5, 2000, is reversed, on the law, with costs, the clerk's judgment dated October 1, 1999, is reinstated, the petition is denied, and the proceeding is dismissed on the merits.

The respondent Fraulene Harris filed a complaint of rent overcharge with the respondent New York State Division of Housing and Community Renewal (hereinafter DHCR).

The District Rent Administrator of the DHCR determined that, for 12 months commencing May 24, 1994, pursuant to the Rent Stabilization Code, Harris was overcharged $3,285.60 for rent.

The landlord (the petitioner herein) did not file a petition for  administrative review (hereinafter a PAR) challenging the Rent Administrator's determination.

Instead, the petitioner commenced this proceeding in the Supreme Court, Kings County, against Harris and the DHCR seeking to review the determination.

The Supreme Court erred in granting the petition and vacating the order of the Rent Administrator and the clerk's judgment entered thereon.

Where the aggrieved party fails to file a PAR, a proceeding pursuant to CPLR article 78 is premature and should be dismissed for failure to exhaust administrative remedies

(see, Matter of Glendora v. New York State Div. of Hous. and Community Renewal, 216 A.D.2d 391, 392; 9 NYCRR 2510.12, 2530.1; CPLR 7801;
Matter of Livingston Assocs. v. State of N.Y. Div. of Hous. and Community Renewal, 220 A.D.2d 504).

"It is hornbook law that one who objects to the act of an administrative agency must exhaust available administrative remedies before being permitted to litigate in a court of law"

(Watergate II Apts. v. Buffalo Sewer Auth., 46 N.Y.2d 52, 57).

The petitioner's contention that he never received a copy of the rent overcharge determination when it was issued is one which must, in the first instance, be raised before the agency in a PAR.

The Supreme Court further erred in directing the parties to make factual submissions to it on issues which were not before the Rent Administrator, and in rendering a judgment based upon those submissions.

In a CPLR article 78 proceeding where the court's inquiry is into whether the agency's decision was arbitrary and capricious, the court cannot take proof or consider facts which were not before the administrative agency

(see, Matter of Yarbough v. Franco, 95 N.Y.2d 342;

Matter of Mott v. New York State Div. of Hous. and Community Renewal, 191 A.D.2d 566;

Matter of Drizin v. Comissioner of Div. of Hous. and Community Renewal, 140 A.D.2d 605).

RITTER, J.P., GOLDSTEIN, H. MILLER and TOWNES, JJ., concur.

Welch v. New York State Division of Housing & Community Renewal, 287 A.D.2d 725, 732 N.Y.S.2d 68 (N.Y. App. Div. 2001)

Stoner v. Atl. Realty Apts., LLC
Exhaustion of Administrative Remedies "'It is hornbook law that one who objects to the act of an...

Sosa v. N.Y.C. Dep't of Hous. Pres. & Dev.
It is well settled that "judicial review of an administrative action in a CPLR Article 78 proceeding is...

In re Nilda Acevedo

67 A.D.3d 785 (N.Y. App. Div. 2009)   Cited 14 times

Thus, "in a CPLR article 78 proceeding to review a determination of the [New York State Division of Housing and Community Renewal (hereinafter the DHCR)], the court is limited to a review of the record which was before the DHCR and to the question of whether its determination was arbitrary and capricious and without a rational basis" ( Matter of 36-08 Queens Realty v New York State Div. of Hous. Community Renewal, 222 AD2d 440, 441).

Here, the petitioner did not raise any specific objections to the order of the District Rent Administrator in her petition for administrative review Hence, the petitioner's instant claims, raised for the first time in the instant proceeding, were not amenable to review by the Supreme Court

( see Matter of Welch v New York State Div. of Hous. Community Renewal, 287 AD2d 725, 726;

Matter of Mott v New York State Div. of Hous. Community Renewal, 287 AD2d 720;

Matter of Aguayo v New York State Div. of Hous. Community Renewal, 150 AD2d 565, 566-567).

In addition, the petitioner's submissions failed to establish that the rent increase she imposed on the subject tenant was valid.

In the Matter of Podolsky

21 A.D.3d 559 (N.Y. App. Div. 2005)   Cited 13 times

Adjudged that the determination is confirmed, the petition is denied, and the proceeding is dismissed on the merits, with costs.

"It is hornbook law that one who objects to the act of an administrative agency must exhaust available administrative remedies before being permitted to litigate in a court of law"

 ( Watergate II Apts. v. Buffalo Sewer Auth., 46 NY2d 52, 57).

Because the petitioners failed to exhaust an available administrative remedy
( see 19 NYCRR 400.2 [k]) or establish that the pursuit of such remedy would have been futile, the petition must be denied and the proceeding dismissed
( see Segalla v. Town of Amenia, 309 AD2d 742;
Matter of Welch v. New York State Div. of Hous.

Community Renewal, 287 AD2d 725, 726;
 Matter of Priester v. Dowling, 231 AD2d 638, 639).

That the language of 19 NYCRR 400.2 (k) is couched in permissive, rather than mandatory terms, does not excuse the petitioners' failure to exhaust the administrative remedies available to them
( see Matter of Schiavone/Shea/Frontier-Kemper v. New York City Dept. of Envtl. Protection, 274 AD2d 586, 586-587).

291 Pleasant Ave LLC v. N.Y. State Div. of Hous. & Cmty. Renewal
2018 N.Y. Slip Op. 31470 (N.Y. Sup. Ct. 2018)

As petitioner did not file a PAR challenging the rent administrator's determination that the unit is regulated, it failed to exhaust its administrative remedies.

(See Matter of Ross, 125 AD3d at 435 [petitioner's failure to timely file PAR after issuance of the overcharge order constituted failure to exhaust administrative remedies justifying dismissal of article 78 proceeding];
Matter of Welch v New York State Div. of Hous. & Community Renewal, 287 AD2d 725, 726 [2d Dept 2001] [as petitioner did not file PAR, proceeding dismissed for failure to exhaust administrative remedies]).

In any event, DHCR's order is neither arbitrary nor capricious, as it is based on a careful review of the record and subsequent determination that the legal regulated rent on the base date was $925, the amount charged in Hadlock's vacancy lease, as petitioner's predecessor failed to preserve a higher legal regulated rent in that lease, and petitioner now stands in his shoes.

Eden Rock Owners, Inc. v. N.Y.C. Water Bd.
2017 N.Y. Slip Op. 31844 (N.Y. Sup. Ct. 2017)

Although the Rate Schedule does not state the length of the representative period, this court finds that respondent's application of a year long representative period prior to the malfunction of Meter K9384, was neither arbitrary and capricious nor an abuse of discretion. " 'Judicial review of administrative determinations is confined to the 'facts and record adduced before the agency' "

(Matter of Yarbough v Franco, 95 NY2d 342, 347 [2000],

quoting Matter of Fanelli v New York City Conciliation & Appeals Bd., 90 AD2d 756, 757 [1st Dept 1982], affd for reasons stated below 58 NY2d 952 [1983];
 see also Featherstone v Franco, 95 NY2d 550, 554-555 [2000];
Mott v NY State Div. of Hous. & Community Renewal, 191 AD2d 566 [2d Dept 1993];
Welch v NY State Div. ofHous. & Community Renewal, 287 AD2d 725, 726 [2d Dept 2001]).

Here, petitioner's claims that Meter K9384 may not have been functioning properly prior to June 1, 2011, and that the ADF for the period of June 1, 2010 to March 1, 2011, may have been due to a leak, were not presented in the proceedings before the DEP or the Water Board.

Stoner v. Atl. Realty Apts., LLC
2015 N.Y. Slip Op. 32052 (N.Y. Sup. Ct. 2015)

Exhaustion of Administrative Remedies "'It is hornbook law that one who objects to the act of an administrative agency must exhaust available administrative remedies before being permitted to litigate in a court of law'" (Matter of Welch v New York State Div. of Hous. & Community Renewal, 287 AD2d 725, 726 [2d Dept 2001]
quoting Watergate II Apts. v Buffalo Sewer Auth., 46 NY2d 52, 57 [1978];
see also Town of Oyster Bay v Kirkland, 19 NY3d 1035, 1038 [2012]).

While Supreme Court has the authority to adjudicate such disputes "by virtue of its constitutional role as a court of general original jurisdiction . . . [this] does not prohibit the Legislature from conferring exclusive original jurisdiction upon an agency in connection with the administration of a statutory regulatory program" (Sohn v Calderon, 78 NY2d 755, 766-767 [1991];
see also Uniformed Firefighters Assn. of Greater N. Y. v City of New York, 79 NY2d 236, 241-242 [1992]).

Sosa v. N.Y.C. Dep't of Hous. Pres. & Dev.
2013 N.Y. Slip Op. 30502 (N.Y. Sup. Ct. 2013)

It is well settled that "judicial review of an administrative action in a CPLR Article 78 proceeding is limited to the facts and record adduced before the agency when the determination was made

(see Kelly v. Safir, 96 NY2d 32, 39 [2009]).

The Court cannot consider substantive information that was not before the decision maker at the time the challenged decision was made

(Welch v. New York State Division of Housing & Community Renewal, 287 A.D.2d 725, 726 (2nd Dept.2001); Montalbano v, Silva, 204 A.D.2d 457, 458 (2nd Dept.1994);

Matter of Celestial Food v. New York State Liquor Authority, 99 A.D.2d 25, 26-27
(2nd Dept. 1984V City of Saratoga Springs v. Zoning Bd. of Appeals of the Town of Wilton, 279 A.D.2d 756, 760 (3rd Dept.2001).

Since Petitioner was not included as an occupant of the subject apartment on the income affidavit for calendar year 2004, this Court can not disturb AHO Lippa's determination because it was rational and reasonable, is entitled to deference, and in all respects conforms with the statutes, laws and rules relating to succession rights in Mitchell Lama housing.

In re NJR Assoc. v. N.Y. State Div. of Hous.
2008 N.Y. Slip Op. 32941 (N.Y. Sup. Ct. 2008)

First, it is undisputed that Tausend did not file a PAR.

"Where [an] aggrieved party fails to file a PAR, a proceeding pursuant to CPLR article 78 is premature and should be dismissed for failure to exhaust administrative remedies."
Welch v New York State Div of Housing and Community Renewal, 287 AD2d 725, 726 [2d Dept 2001];

see, Rutherford v Bee Gee Excelsior Management, Inc, 300 AD2d 34 [1st Dept 2002].

Here, Tausend has failed to exhaust her administrative remedies and this Article 78 proceeding is premature with respect to her claims.

Scott v. City of Buffalo
2008 N.Y. Slip Op. 51739 (N.Y. Sup. Ct. 2008)

The Court cannot consider substantive information that was not before the decision maker at the time the challenged decision was made.

Welch v. New York State Division of Housing Community Renewal, 287 AD2d 725, 726 (2nd Dept. 2001); Montalbano v. Silva, 204 AD2d 457, 458 (2nd Dept. 1994);
 Matter of Celestial Food v. New York State Liquor Authority, 99 AD2d 25, 26-27 (2nd Dept. 1984).
City of Saratoga Springs v. Zoning Bd. of Appeals of the Town of Wilton, 279 AD2d 756, 760 (3rd Dept. 2001).

In Matter of Aliano v. Oliva
2007 N.Y. Slip Op. 32482 (N.Y. Sup. Ct. 2007)
2 more...

Petitioner never exhausted his administrative remedies by taking a timely administrative appeal to the Board from the Town's issuance of a stop work order as required in order to bring an action under Article 78
( see Young Men's Christian Assn. v Rochester Pure Waters Dist., 37 NY2d 371, 372 NYS2d 633 [1975 ];

12A Carmody-Wait 2d § 78:54; 2 N.Y. Zoning Law Prac. § 28:06).


Under New York law "one who objects to the act of an administrative agency must exhaust administrative remedies before being permitted to litigate in a court of law"

( Watergate IIApts. v Buffalo Sewer Auth., 46 NY2d 52, 574 NYS2d 821 citation omitted;

Matter of Jordan's Partners v Goehringer, 204 AD2d 453, 611 NYS2d 626 [2nd Dept 1994];

Matter of Padar Realty Co. v Klein, 60 AD2d 533, 400 NYS2d 46 [1st Dept 1977],
accord Welch v New York State Div. of Hous. Community Renewal, 287 AD2d 725, 732 NYS2d 68 [2nd Dept 2001]).

"The doctrine furthers the statutory goal of relieving the courts of the burden of deciding questions en trusted to an agency, preventing premature judicial interference with the administrators efforts to develop a co-ordinated, consistent and legally enforceable scheme of regulation"

 ( Watergate II Apts. v Buffalo Sewer Auth., 46 NY2d 52, supra at 57) and the courts have manifested their unwillingness to become zoning boards of appeal
( see Board of Managers v Village of Westhampton Bch., 2000 WL 33911223 [EDNY 2000], judgement affd. 10 Fed Appx. 28 [2d Cir. N.Y. 2001]).

Bolton v. Town of South Bristol Planning Bd.
2006 N.Y. Slip Op. 30431 (N.Y. Sup. Ct. 2006)

The Court's review of the Town Planning Board's decision is limited to the record made before the agency
(see, Matter of Montalbano v Silva, 204 AD2d 457).

In determining "whether the agency's decision was arbitrary and capricious, the court cannot take proof or consider facts which were not brought before the administrative agency"

( Matter of Welch v New York State Division of Housing and Community Renewal, 287 AD2d 725, 726).

 Here there is no evidence that the petitioner or anyone else appeared at the December 21, 2005 hearing and presented evidence to counter the information provided in Part 1 of the EAF.

In re 1381 Myrtle Ave. Realty Corp.
2005 N.Y. Slip Op. 50126 (N.Y. Sup. Ct. 2005)

Further, it is well settled that a declaratory judgment action is not the proper vehicle to challenge an administrative act, when other remedies, including an article 78, proceeding are available

( see e.g. Gaynor v. Rockefeller, 15 NY2d 120;

Greystone Mgt. v. Conciliation Appeals Bd., 94 AD2d 614, 616, affd 62 NY2d 763).

Similarly, "'t is hornbook law that one who objects to the act of an administrative agency must exhaust available administrative remedies before being permitted to litigate in a court of law'"

( Welch v. DHCR, 287 AD2d 725, 726, quoting Watergate II Apts. v. Buffalo Sewer Auth., 46 NY2d 52, 57). Further, denial of declaratory relief is appropriate pursuant to the State Administrative Procedure Act § 204, which also requires dismissal of an action on the ground of failure to seek and exhaust administrative opportunities for relief

( see generally Lehigh Portland Cement Co. v. New York State Dept. of Envtl. Conservation, 87 NY2d 136, 144).

In Matter of Corrini v. Village of Scarsdale
2003 N.Y. Slip Op. 51553 (N.Y. Sup. Ct. 2003)

In determining "whether the agency's decision was arbitrary and capricious, the court cannot take proof or consider facts which were not brought before the administrative agency."

(See Matter of Welch v. New York State Division of Housing and Community Renewal, 287 AD2d 725, 726;

see also Matter of Dearborn Assoc. v. Environmental Control Board, 144 AD2d 556).

In this regard, the Court did not consider the Affidavit of Elizabeth Marrinan, the Village's Environmental Review Officer, nor the Affidavit of Peter Strauss because they were not part of the administrative record forming the basis for the administrative determinations being challenged in this Article 78 proceeding.

In Matter of Corrini v. Village of Scarsdale
Opinion
Decided December 23, 2003.

Wilson, Elser, Moskowitz, Edelman Dicker LLP, Attorneys for Petitioners.

Attn: Steven M. Silverberg, Esq., Wayne D. Esannason, Esq., Attorney for Village Respondents, Office of the Village Attorney.

MARY H. SMITH, J.,

This is a CPLR Article 78 proceeding in which petitioners Christopher Corrini and Dina Corrini, husband and wife (hereinafter "Petitioners"), seek a judgment pursuant to CPLR Article 78 reversing, annulling and setting aside two resolutions adopted on October 22, 2002 by respondents The Village of Scarsdale (the "Village"), David Kroenlein, Mayor, Tom Cusick, Noreen Fisher, James O'Connor, Carl H. Pforzheimer III, Peter Strauss and Joseph A. Zock, Trustees, together constituting the Village Board of the Village of Scarsdale (hereinafter collectively the "Village Respondents").

These resolutions involve the Village Respondents' decision to lease currently vacant, undeveloped property (approximately 25,000 square feet), located at 5 Weaver Street in a single family residence zone (hereinafter "the property") but abutting a commercial zone, to the Scarsdale Volunteer Ambulance Corps. ("SVAC") for its use to construct a new ambulance facility once it has raised the necessary funds.

The resolutions: (1) authorized the entering into of a proposed lease between the Village and SVAC; and (2) issued a Negative Declaration under the State Environmental Quality Review Act ("SEQRA") with regard to the proposed lease. Petitioners seek to have the resolutions set aside on the ground that there was an inadequate SEQRA review in connection with their adoption. Petitioners also seek to set aside the lease on the grounds that: (1) the lease violates the Village's zoning code (Verified Petition at ¶¶ 38-43); (2) the lease violates the public trust that has been imposed on the property because its use violates the purpose for which the property was acquired (Verified Petition at ¶¶ 44-48); and (3) the lease further violates the public trust that has been imposed on the property because its use may be diverted to a private purpose which is contrary to that public trust. (Verified Petition at ¶¶ 49-54).

SVAC requested that the Village Respondents authorize the lease ahead of having fully developed plans because the lease would assist SVAC in its fund-raising campaign, the purpose of which is to raise the $1.5 million dollars needed for the construction of the new ambulance facility. SVAC has already received an anonymous donation of $750,000. (See Amended Return 13 at 315).

In a Decision Order dated July 11, 2003, this Court denied the Village Respondents' motion to dismiss the petition, but granted SVAC's motion to dismiss the petition without prejudice to any further proceedings wherein SVAC was named as a necessary party.

Based on record of the proceedings held before the Village Respondents, as well as the papers submitted in support of, and in opposition to, the petition, this proceeding is decided as follows:

FACTUAL BACKGROUND

For many years, the Village Respondents and SVAC have entered into a number of operating agreements, the latest being the Operating Agreement dated January 22, 2002 and amended October 8, 2002, which obligates SVAC to provide pre-hospital emergency ambulance services to "all persons within the geographic boundaries of the Village of Scarsdale." (Amended Return, Ex. 6 at 1). The Operating Agreement was entered into pursuant to General Municipal Law § 122-b. That statute authorizes municipalities to independently contract for ambulance services. However, a necessary prerequisite to such an operating agreement is that the ambulance service obtain a voluntary ambulance service statement of registration pursuant to Public Health Law Article 30 (§§ 3000-3016), which in turn requires a showing of public need for the service. (Public Health Law at § 3005(6)).

Indeed, there has been an ever-increasing demand for such services within the Village as the Village Respondents acknowledged when they authorized the leasing of a second ambulance vehicle: "[T]he demographics of the Village of Scarsdale have changed creating an ever increasing burden on SVAC to provide 24-hour per day ambulatory service to residents, teens, the elderly and at community events and sporting events." (Resolution dated October 8, 2002, Amended Return, Ex. 6).

SVAC has been leasing its current ambulance facility from the Village since December 1970. (Resolution dated January 22, 2002, Amended Return, Ex. 6). Given the current ambulance facility's age, the Village Respondents determined that it "will continue to require increasing investment of funds for maintenance and capital improvements . . . [and is] deemed inadequate to provide for the rigorous demands of modern 24-hour per day ambulatory service." (Resolution dated October 22, 2002, Verified Petition, Ex. C). To address this issue, the Village Respondents reviewed various options, including the reconstruction of a new facility on the current site versus the construction of a new facility on other Village-owned property. At the public hearing on October 22, 2002, Trustee Strauss explained that the choice to lease the property to SVAC was not hasty, and "balanced all important considerations." (Amended Return, Ex. 13 at 320). Nevertheless, the issue in this proceeding is not whether the Village Respondents' decision to choose this Village property (as opposed to others) was sufficiently deliberated, but rather, whether the Village Respondents followed SEQRA's procedural and substantive requirements prior to adopting the negative declaration resolution and the resolution which authorized the Village's entering into of the lease.

The SVAC lease is for a term of 99 years, with an annual rent of $10.00. The property is located within 100 yards of SVAC's current facility on Weaver Street, but the new facility would no longer be located at the traffic light at the Heathcote Five Corners' intersection. It is undisputed that at its current location, SVAC "can control traffic signals at the intersection to stop all traffic and to allow ambulances to enter and leave." (Affidavit of Dina Corrini, sworn to February 13, 2003, "Corrini Aff." at ¶ 5). It is also undisputed that Weaver Street is a fairly congested street from a traffic perspective. In addition, the current facility is located in a commercial zone whereas the leased property is located in a single-family residence zone abutting that same commercial zone with retail stores adjacent to the property and directly opposite from it. ((Affirmation of Wayne Esannason, Esq. dated 8/21/03 "Esannason Aff." at ¶ 30). Based on a color photo attached to the Corrini Aff., Petitioners' house abuts the property to the rear. It also appears that there are other residential properties facing Heathcote Road that will be impacted by the new facility.

While the Village Respondents "denied knowledge or information sufficient to form a belief" (Verified Answer at ¶ 3) in response to Petitioners' claim that the property "is located on a busy street near the Scarsdale five corners, one of the busiest intersections in the Village" (Verified Petition at ¶ 7), the Court finds sufficient evidence to establish that Weaver Street is a fairly busy street based on (1) the photograph attached to the Corrini Aff. showing a backup of traffic along Weaver Street, (2) Mrs. Corrini's averment that "[t]he 'five corners' is an extremely busy intersection at which traffic backs up during a large part of the day and evening" (Corrini Aff. at ¶ 4), (3) the statement made by John McKenna, the original owner of the property in question at the Village Board Meeting on 10/22/02 wherein Mr. McKenna stated that the reason for the Village's condemnation proceeding against his property was to widen the road and bury utility lines (presumably to address traffic concerns) (Return 13 at 315) and (4) the fact that Westchester County has commissioned a traffic study concerning Weaver Street and the Five Corners' intersection "to collect traffic data and provide alternatives for possible improvements." (Amended Return, Ex. 13 at 313).

The resolutions at issue were adopted during a public meeting of the Village Respondents on October 22, 2002 (the "meeting"). Prior to the meeting, the Village Respondents had their Environmental Review Officer fill out a Short Environmental Assessment Form ("EAF"), which determined that the action of leasing the property to SVAC for a new ambulance facility would have no significant environmental effects. During the meeting's public comment session, Petitioner Dina Corrini spoke, as did her attorney and another adjoining property owner, Mr. John McKenna. Mr. McKenna advised the Board that the property at issue was originally his property and that it had been taken by eminent domain to widen the street and bury utility lines. Mr. McKenna "stated that the property should be preserved as open space, and added his concerns about traffic impacts." (Amended Return, Ex. 13 at 315). Mrs. Corrini "expressed her concerns about . . . the change in zoning . . . that the future neighbors should have been involved in the process . . . [and] she requested that a study be done concerning traffic impacts." ( Id.). After the public comment session, the Village Board adopted the resolution at issue which declared the Village Board to be lead agency for purposes of SEQRA review, resolved that the lease was an unlisted action pursuant to 6 NYCRR Part 617.2(ak) and, therefore, did not require coordinated review, and further determined "that the action will not have a significant adverse impact on the environment based on information contained in the [Environmental Assessment Form (the "EAF")]." (Verified Petition, Ex. B).

After the adoption of the negative declaration, Trustee Strauss weighed in by stating that "[w]herever construction of the facility would occur, objections would be raised by residents" and that "the residents should be assured that their [major] concerns [regarding noise and screening] will be heard and considerations will be made." (Amended Return, Ex. 13 at 320). He further explained that the traffic concerns were overstated because "SVAC has been in that area and is currently part of the traffic pattern. A move of 100 yards will not change that." ( Id.). The Village's Manager also explained that "the Planning Board will review the application for the new facility, will declare itself as the Lead Agency and will determine the level of SEQR analysis to be done in connection with its review and approval." ( Id.).

Because the Village Respondents' written negative declaration determination was based entirely on the answers set forth in the EAF, a brief review of the EAF is in order. Part I of the EAF describes the action that was being taken ( i.e., the lease of the property to SVAC for a new ambulance facility), and states: (1) that the proposed action will comply with the existing zoning restrictions; (2) that the property is located in the vicinity of residential and commercial uses; and (3) that there were approvals that had to be obtained from New York State Department of Transportation (curb cuts), and from the Village's Planning Board (site plan approval) and Board of Architectural Review. (Verified Petition, Ex. E).

Part II of the EAF the environmental assessment section states that the action would not exceed any Type I threshold and that the action would not receive coordinated review. The remainder of the form has questions designed to elicit whether the action may result in any significant adverse environmental effect. There, the Village's Environmental Review Officer answers, "No" with no further elaboration in response to the questions concerning whether the action could result in any adverse effect to "[e]xisting . . . noise levels . . . [or] traffic patterns," whether the action could impact the "community or neighborhood character," and whether the action could result in a "change in use of land." (Verified Petition, Ex. E).

SEQRA COMPLIANCE

Petitioners argue that the Village Respondents issued a negative declaration without considering the following detrimental environmental impacts that would occur as a result of this project:

"(i) traffic — caused by both the ambulances entering and existing as well as the use of the garage, parking lot, offices and meeting rooms, at various times of the day and night; (ii) noise resulting from the increase in activity, the ambulances themselves, people and vehicles arriving and leaving all hours of the day and night; and (iii) lights from both the ambulances and the automobiles disturbing neighbors."

(Memorandum of Law in Support of Petition at 4; see also Verified Petition at ¶¶ 16-19, 23-24). Petitioners assert that "[w]hen the issue of potential impacts was raised before the Board, the Board members indicated that consideration of such issues would be deferred to another time when a formal site plan application is made." (Verified Petition at ¶ 25). The Village Respondents do not deny these facts, and instead, in their answer deny knowledge or information sufficient to form a belief as to their truth. (Verified Answer at ¶ 3).

By contrast, the Village Respondents argue that even though no project plan was formulated, the Village Board complied with SEQRA by taking the requisite "'hard look' at the cumulative impact of the lease." (Esannason Aff. at ¶ 17). Pointing to the October 22, 2003 Village Board Minutes and the affidavit of Trustee Peter Strauss, it is argued that the Village Board reviewed and considered the impacts of traffic and visual aesthetics.

The Village Respondents cannot be heard to argue that it was impossible to analyze the potential impacts due to the lack of a project plan. The Village Respondents knew the use that was going to be put to the property and knew approximately how large the facility would be to accommodate all the needs that were not being accommodated in the current facility. In addition, the Village Respondents knew that the access to the facility would no longer be at a traffic light, but instead, in the middle of a busy street. The Village Respondents could have easily undertaken a worst case scenario approach in analyzing the potential environmental effects of a project-less proposal. (See Matter of Neville v. Koch, 79 NY2d 416).