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

1266
CA 16-00062
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, NEMOYER, AND SCUDDER, JJ.


IN THE MATTER OF COR ROUTE 5 COMPANY, LLC,
PETITIONER-APPELLANT,

                    V                              MEMORANDUM AND ORDER

VILLAGE OF FAYETTEVILLE, VILLAGE OF FAYETTEVILLE
BOARD OF TRUSTEES AND GOODFELLOW CONSTRUCTION
MANAGEMENT, LTD., RESPONDENTS-RESPONDENTS.


MANNION & COPANI, SYRACUSE (GABRIELLE MARDANY HOPE OF COUNSEL), FOR
PETITIONER-APPELLANT.

MACKENZIE HUGHES LLP, SYRACUSE (W. BRADLEY HUNT OF COUNSEL), FOR
RESPONDENTS-RESPONDENTS VILLAGE OF FAYETTEVILLE AND VILLAGE OF
FAYETTEVILLE BOARD OF TRUSTEES.

WALTER D. KOGUT, P.C., FAYETTEVILLE (WALTER D. KOGUT OF COUNSEL), FOR
RESPONDENT-RESPONDENT GOODFELLOW CONSTRUCTION MANAGEMENT, LTD.


     Appeal from a judgment (denominated order) of the Supreme Court,
Onondaga County (Anthony J. Paris, J.), entered August 18, 2015 in a
CPLR article 78 proceeding. The judgment granted the motion of
respondents to dismiss the petition.

     It is hereby ORDERED that the judgment so appealed from is
unanimously reversed on the law without costs, the motion is denied,
the petition is reinstated, and the matter is remitted to Supreme
Court, Onondaga County, for further proceedings in accordance with the
following memorandum: Petitioner commenced this CPLR article 78
proceeding seeking, inter alia, to annul certain determinations of
respondent Village of Fayetteville Board of Trustees (Board of
Trustees), which resulted in the enactment of Local Law No. 1 of 2015.
That local law amended the zoning district classification of two
parcels following the issuance of a negative declaration of
environmental significance under the State Environmental Quality
Review Act ([SEQRA] ECL art 8), but provided that the amendment would
“take effect only after approval by [the] Onondaga County Department
of Transportation and final site plan approval by the Village of
Fayetteville Planning Board has been granted.”

     Before answering, respondent Village of Fayetteville (Village)
and the Board of Trustees filed a joint motion seeking, inter alia,
dismissal of the petition pursuant to CPLR 3211 and 7804 (f).
Respondent Goodfellow Construction Management, Ltd., who had applied
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                                                         CA 16-00062

for the rezoning as part of a proposed retail development project,
submitted an answer and joined in the motion. Supreme Court granted
the motion, concluding that the petitioner’s proceeding was
“premature” and that the Board of Trustee’s action under SEQRA was
“not ripe for judicial review.”

     We agree with petitioner that the court erred in granting the
motion. “Generally, a CPLR article 78 proceeding may not be used to
challenge a nonfinal determination by a body or officer” (Matter of
Young v Board of Trustees of Vil. of Blasdell, 221 AD2d 975, 977, affd
89 NY2d 846). In order to determine whether an action is “ ‘final and
binding upon the petitioner’ ” (Matter of Ranco Sand & Stone Corp. v
Vecchio, 27 NY3d 92, 98), courts follow a two-step approach:
“[f]irst, the agency must have reached a definitive position on the
issue that inflicts actual, concrete injury and second, the injury
inflicted may not be prevented or significantly ameliorated by further
administrative action or by steps available to the complaining party”
(Matter of Best Payphones, Inc. v Department of Info. Tech. & Telecom.
of City of N.Y., 5 NY3d 30, 34, rearg denied 5 NY3d 824). In our
view, the Board of Trustees’ simultaneous issuance of a negative
declaration and adoption of the zoning amendment rendered petitioner’s
challenges to the Board of Trustees’ action ripe for review (see
generally Matter of Eadie v Town Bd. of Town of N. Greenbush, 7 NY3d
306, 317). The mere fact that the zoning amendment “was conditioned
upon successful reviews and approvals by other agencies did not alter
the fact that [it] became final and binding as to petitioner[] on the
date it was filed” (Matter of O’Connell v Zoning Bd. of Appeals of
Town of New Scotland, 267 AD2d 742, 744, lv dismissed in part and
denied in part 94 NY2d 938; see Matter of Long Is. Pine Barrens Socy.
v Planning Bd. of Town of Brookhaven, 247 AD2d 395, 396; Matter of
Price v County of Westchester, 225 AD2d 217, 220).

     Moreover, although “rezoning is an ‘action’ subject to SEQRA”
(Matter of Neville v Koch, 79 NY2d 416, 426; see Matter of Bergami v
Town Bd. of Town of Rotterdam, 97 AD3d 1018, 1021; Matter of
Kirk-Astor Dr. Neighborhood Assn. v Town Bd. of Town of Pittsford, 106
AD2d 868, 869, appeal dismissed 66 NY2d 896), and the future site plan
approval process may also constitute an action under SEQRA (see Matter
of Schweichler v Village of Caledonia, 45 AD3d 1281, 1282, lv denied
10 NY3d 703; Matter of Ferrari v Town of Penfield Planning Bd., 181
AD2d 149, 151; see also 6 NYCRR 617.2 [b]), the fact that petitioner
may ultimately be aggrieved by a future SEQRA action does not affect
the judicial ripeness of the SEQRA challenge relating to a prior
action. The fact remains that, at the time the Board of Trustees
issued the negative declaration and amended the zoning laws, the Board
of Trustees’ “decision-making process with respect to [those issues]
was complete and petitioner[] became aggrieved by the SEQRA violation
of which [it] complain[s]” (Matter of Young v Board of Trustees of
Vil. of Blasdell, 89 NY2d 846, 849).

     We therefore conclude that the adoption of the zoning amendment
committed the Board of Trustees to a definitive position (see Red Wing
Props., Inc. v Town of Milan, 71 AD3d 1109, 1110-1111, lv denied 15
                                 -3-                          1266
                                                         CA 16-00062

NY3d 703; Matter of Wing v Coyne, 129 AD2d 213, 217; see generally
Matter of Gordon v Rush, 100 NY2d 236, 242) and, as a result of that
position, petitioner is aggrieved by the Board of Trustees’ alleged
failure to comply with SEQRA prior to the adoption of the zoning
amendment (see 6 NYCRR 617.3 [a]; Young, 89 NY2d at 848-849).

     We thus reverse the judgment, deny the motion, reinstate the
petition, and remit the matter to Supreme Court to allow the Village
and the Board of Trustees to submit an answer, and for further
proceedings on the petition (see CPLR 7804 [f]; Matter of Bethelite
Community Church, Great Tomorrows Elementary Sch. v Department of
Envtl. Protection of City of N.Y., 8 NY3d 1001, 1002; Matter of Degnan
v Rahn, 24 AD3d 1232, 1233).

     Based on our determination, we do not address petitioner’s
remaining contentions.




Entered:   February 3, 2017                     Frances E. Cafarell
                                                Clerk of the Court
