        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

132
CA 10-01274
PRESENT: SCUDDER, P.J., FAHEY, PERADOTTO, LINDLEY, AND MARTOCHE, JJ.


IN THE MATTER OF BROCKPORT SWEDEN PROPERTY
OWNERS ASSOCIATION, BY ITS TREASURER, NORMAN
GIANCURSIO, PETITIONER-PLAINTIFF-APPELLANT,

                    V                             MEMORANDUM AND ORDER

VILLAGE OF BROCKPORT,
RESPONDENT-DEFENDANT-RESPONDENT.


KNAUF SHAW LLP, ROCHESTER (ALAN J. KNAUF OF COUNSEL), FOR
PETITIONER-PLAINTIFF-APPELLANT.

HARRIS, CHESWORTH, O’BRIEN, JOHNSTONE, WELCH & LEONE, LLP, ROCHESTER
(MICHAEL P. LEONE OF COUNSEL), FOR RESPONDENT-DEFENDANT-RESPONDENT.


     Appeal from a judgment (denominated order) of the Supreme Court,
Monroe County (Matthew A. Rosenbaum, J.), entered September 9, 2009 in
a CPLR article 78 proceeding and declaratory judgment action. The
judgment, among other things, dismissed the petition-complaint.

     It is hereby ORDERED that the judgment so appealed from is
unanimously modified on the law by granting judgment in favor of
respondent-defendant as follows:

          It is ORDERED, ADJUDGED and DECREED that Village of
     Brockport Local Law No. 8 of 2008 is constitutional and is
     not preempted by or inconsistent with state law

and as modified the judgment is affirmed without costs.

     Memorandum: Petitioner-plaintiff (petitioner), an association of
landlords in the Village of Brockport and the Town of Sweden,
commenced this hybrid CPLR article 78 proceeding and declaratory
judgment action seeking to annul the determination enacting Local Law
No. 8 of 2008 (hereafter, Local Law No. 8), which added chapter 36 to
the Brockport Village Code. Petitioner also sought a declaration that
Local Law No. 8 is preempted by and inconsistent with state law and
that it is unconstitutional.

     We reject petitioner’s contention that the Village Board of
respondent-defendant (respondent) failed to comply with article 8 of
the Environmental Conservation Law (State Environmental Quality Review
Act [SEQRA]) in enacting Local Law No. 8. It is axiomatic that the
role of the court in reviewing SEQRA determinations is limited to
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                                                         CA 10-01274

determining “whether a determination was made in violation of lawful
procedure, was affected by an error of law or was arbitrary and
capricious or an abuse of discretion” (CPLR 7803 [3]; see Matter of
Dunk v City of Watertown, 11 AD3d 1024, 1024-1025; Matter of Forman v
Trustees of State Univ. of N.Y., 303 AD2d 1019, 1020). Contrary to
petitioner’s contention, Supreme Court properly concluded that the
determination of the Village Board that the enactment of Local Law No.
8 constituted a Type II action pursuant to SEQRA was not arbitrary and
capricious (see CPLR 7803 [3]), inasmuch as such action constitutes
“routine or continuing agency administration and management [that
does] not include[ ] new programs or major reordering of priorities
that may affect the environment” (6 NYCRR 617.5 [c] [20]). We reject
petitioner’s contention that those parts of Local Law No. 8 requiring,
inter alia, that owners of residential rental properties register
their properties with the Village Code Enforcement Officer (Code
Enforcement Officer) (see Brockport Village Code § 36-4) and that
certificates of occupancy be issued upon the transfer of title of
those properties (see § 36-5) constitute “new programs or major
reordering of priorities that may affect the environment” (6 NYCRR
617.5 [c] [20]). Thus, we conclude that the court properly dismissed
the petition.

     Contrary to petitioner’s further contention, that part of Local
Law No. 8 permitting the Code Enforcement Officer to apply for an
administrative warrant to inspect rental properties does not violate
the probable cause requirement of the Fourth Amendment. “The
challenged [local law], like all legislative enactments, enjoys an
‘exceedingly strong presumption of constitutionality’ ” (Arrowsmith v
City of Rochester, 309 AD2d 1201, 1201, quoting Lighthouse Shores v
Town of Islip, 41 NY2d 7, 11), and we conclude that, “on its face,
[Local Law No. 8] does not unconstitutionally penalize a property
owner for refusing to consent” to an inspection of his or her rental
property (McLean v City of Kingston, 57 AD3d 1269, 1271, appeal
dismissed 12 NY3d 848; see Pashcow v Town of Babylon, 53 NY2d 687; cf.
Camara v Municipal Ct. of City & County of San Francisco, 387 US 523,
527-531; Sokolov v Village of Freeport, 52 NY2d 341, 346).
Furthermore, we conclude that Local Law No. 8 “bears a reasonable
relationship to [respondent’s] legitimate goals of promoting public
health and safety and maintaining property values” (Arrowsmith, 309
AD2d at 1202).

     We conclude that petitioner’s contention regarding that part of
Local Law No. 8 limiting respondent’s liability with respect to the
inspection of rental properties is not ripe for review. “The only
exception to [the] general prohibition [against such liability] is
when a special relationship exists between the municipality and the
[property owner],” and none is alleged here (Okie v Village of
Hamburg, 196 AD2d 228, 231-232). Petitioner’s further contention that
Local Law No. 8 may abrogate nonconforming uses also is not ripe for
review inasmuch as there is no actual controversy that is “ ‘real and
present or imminent’ ” but, rather, that claim is abstract and
hypothetical (Church of St. Paul & St. Andrew v Barwick, 67 NY2d 510,
518, cert denied 479 US 985; see generally Matter of Town of Riverhead
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                                                        CA 10-01274

v Central Pine Barrens Joint Planning & Policy Commn., 71 AD3d 679,
681). Finally, we reject petitioner’s contention that Local Law No. 8
is preempted by the Uniform Fire Prevention and Building Code (see
generally Executive Law § 379 [3]).

     We conclude, however, that the court erred in dismissing the
complaint rather than declaring the rights of the parties (see Pless v
Town of Royalton, 185 AD2d 659, 660, affd 81 NY2d 1047), and we
therefore modify the judgment by declaring that Village of Brockport
Local Law No. 8 of 2008 is constitutional and is not preempted by or
inconsistent with state law.




Entered:   February 18, 2011                   Patricia L. Morgan
                                               Clerk of the Court
