                           State of New York
                    Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: February 19, 2015                    519413
________________________________

In the Matter of TROY SAND &
   GRAVEL COMPANY, INC.,
   et al.,
                    Appellants,
      v                                      MEMORANDUM AND ORDER

TOWN OF NASSAU et al.,
                    Respondents.
________________________________


Calendar Date:    January 9, 2015

Before:    McCarthy, J.P., Rose, Egan Jr. and Devine, JJ.

                              __________


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

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

                              __________


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,
AD3d     [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
                              -2-                519413

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 AD3d 1505,
1508 [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 affirm. A municipal action is ripe for judicial review
if it "impose[s] an obligation, den[ies] a right or fix[es] some
legal relationship as a consummation of the administrative
process" (Matter of Gordon v Rush, 100 NY2d 236, 242 [2003]
[internal quotation marks and citations omitted]; see Matter of
Essex County v Zagata, 91 NY2d 447, 453 [1998]). Such a
determination requires a "pragmatic evaluation of whether the
decision-maker has arrived at a definitive position on the issue
that inflicts an actual, concrete injury" (Church of St. Paul &
St. Andrew v Barwick, 67 NY2d 510, 519 [1986], cert denied 479 US
985 [1986] [internal quotation marks and citation omitted];


    1
        In a separate declaratory judgment action, petitioners
seek a declaration limiting the Town's review of the
environmental impact of the project to the record already
produced as part of the full State Environmental Quality Review
Act process. We have granted petitioners this relief in Troy
Sand & Gravel Co., Inc. v Town of Nassau,     AD3d    , supra).
                              -3-                  519413

accord Matter of Essex County v Zagata, 91 NY2d at 453).

      Petitioners argue that an injury has been inflicted upon
them that cannot be ameliorated by further proceedings because
petitioner will have to incur additional expenses in undergoing a
review process that it alleges the Town Board is not authorized
to conduct. However, at this stage of the proceeding, the Town
Board has merely rescinded its resolution in response to our
prior decision vacating the preliminary injunction (see Troy Sand
& Gravel Co., Inc. v Town of Nassau, 101 AD3d at 1506-1507), and
we have now held in the declaratory judgment action that the
Town's determination of the proposed quarry's environmental
impact must necessarily be based on the environmental impact
statement record (Troy Sand & Gravel Co., Inc. v Town of Nassau,
  AD3d at    ). Accordingly, any harm to petitioner at this
stage is merely speculative, may be ameliorated by further
proceedings and is insufficient to warrant judicial review (see
Matter of New York State Inspection, Sec. & Law Enforcement
Empls., Dist. Council 82, AFSCME, AFL-CIO v Cuomo, 64 NY2d 233,
240 [1984]; Matter of Adirondack Council, Inc. v Adirondack Park
Agency, 92 AD3d 188, 191 [2012]; Matter of Wal-Mart Stores v
Campbell, 238 AD2d 831, 832-833 [1997]).

     McCarthy, J.P., Egan Jr. and Devine, JJ., concur.



     ORDERED that the judgment is affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
