         SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department
1523
CA 10-01320
PRESENT: SMITH, J.P., PERADOTTO, CARNI, LINDLEY, AND SCONIERS, JJ.


IN THE MATTER OF CUSTOM TOPSOIL, INC.
AND 1070 SENECA STREET, INC.,
PETITIONERS-PLAINTIFFS-RESPONDENTS,

                    V                              MEMORANDUM AND ORDER

CITY OF BUFFALO, RESPONDENT-DEFENDANT-APPELLANT.


DAVID RODRIGUEZ, ACTING CORPORATION COUNSEL, BUFFALO (DAVID M. LEE OF
COUNSEL), FOR RESPONDENT-DEFENDANT-APPELLANT.

HARTER SECREST & EMERY LLP, BUFFALO (CRAIG A. SLATER OF COUNSEL), FOR
PETITIONERS-PLAINTIFFS-RESPONDENTS.


     Appeal from a judgment (denominated decision and order) of the
Supreme Court, Erie County (Donna M. Siwek, J.), entered January 29,
2010 in a proceeding pursuant to CPLR article 78 and a declaratory
judgment action. The judgment, among other things, declared null and
void certain conditions the City of Buffalo attached to a use permit.

     It is hereby ORDERED that the judgment so appealed from is
unanimously reversed on the law without costs and the petition is
dismissed.

     Memorandum: Petitioners-plaintiffs (petitioners) commenced this
hybrid CPLR article 78 proceeding and declaratory judgment action
seeking, inter alia, to compel respondent-defendant (respondent) to
issue a new use permit omitting certain language included in the most
recent use permit issued by respondent. That permit allowed
petitioners to operate a “portable concrete mixing plant” and to
conduct “rock and stone crushing” pursuant to Buffalo City Code § 511-
48 (B) (4). The language at issue provided that the “permit does not
allow a construction and demolition debris processing facility as
defined in 6 NYCRR 360-1.2 (b) (39). More specifically, [the] permit
does not allow any activities requiring permitting, registration or
reporting under 6 NYCRR [360-1.4]. Per [resolution of the City of
Buffalo’s] Common Council . . ., concrete crushing is not a permitted
use.” Petitioners alleged that respondent’s determination to include
such language was arbitrary and capricious. We note at the outset
that Supreme Court properly determined that the proceeding and
declaratory judgment action was only a CPLR article 78 proceeding.
“Petitioners do not challenge the constitutionality of any statutes or
regulations” (Matter of Custom Topsoil, Inc. v City of Buffalo, 63
AD3d 1511, 1511), and they have an adequate remedy by way of the CPLR
                                 -2-                          1523
                                                         CA 10-01320

article 78 proceeding (see Greystone Mgt. Corp. v Conciliation &
Appeals Bd. of City of N.Y., 62 NY2d 763, 765).

     We reject the contention of respondent that the court erred in
denying its motion to dismiss the petition on the ground that it is
barred by the doctrine of collateral estoppel and the four-month
statute of limitations. In a prior appeal with respect to a related
proceeding involving petitioners and respondent, we reversed the order
denying the respondents’ motion to dismiss as time-barred the petition
seeking, inter alia, to annul a “Stop All Work Order” issued in May
2007 (Custom Topsoil, Inc., 63 AD3d 1511). We concluded that a letter
issued by the respondents in August 2006 “gave petitioners sufficient
notice of respondents’ final determination that the amended use permit
[for the operation of a portable concrete mixing plant] had expired”
(id. at 1512). Here, however, petitioners seek to compel respondent
to issue a new permit, a matter that has not been litigated in any
prior case (see O’Donnell v Ferguson, 23 AD3d 1005, 1007), and the
letter issued by respondent in August 2006 did not unequivocally
inform petitioners that concrete crushing activities were not
permitted under a permit to operate a concrete mixing plant (see
generally CPLR 217 [1]; Nickerson v City of Jamestown, 178 AD2d 1003).
Even assuming, arguendo, that the matter had been raised in the prior
proceeding, we conclude that this proceeding is not barred inasmuch as
we dismissed the petition in the prior proceeding as time-barred
(Custom Topsoil, Inc., 63 AD3d 1511; see Town of Oyster Bay v
Commander Oil Corp., 96 NY2d 566, 575 n 5).

     Contrary to the further contention of respondent, the court
properly denied its motion to dismiss the petition on the ground that
petitioners failed to exhaust their administrative remedies. Buffalo
City Code § 511-125 (B), which pertains to the Zoning Board of
Appeals, provides: “In case it is alleged by an appellant that there
is error or misinterpretation in any order, requirement, decision,
grant or refusal made by . . . [an] administrative official having
authority to issue licenses or permits in the carrying out or
enforcement of the provisions of . . . chapter [511], an appeal may be
filed in the manner hereinbefore specified and a decision shall be
made by the [Zoning] Board of Appeals” (emphasis added). Because the
language of that provision is permissive rather than mandatory,
petitioners were not required to file such an appeal (see Triomphe
Disc Corp. v Chilean Line, 93 AD2d 228, 231; Matter of Green v Safir,
174 Misc 2d 400, 404-405, mod on other grounds 255 AD2d 107, lv
dismissed and denied 93 NY2d 882; see also Matter of Fiduciary Trust
Co. of N.Y. v State Tax Commn., 120 AD2d 848, 850).

     In its answer, respondent contended as an objection in point of
law that the language in the permit prohibiting use of petitioners’
property for a construction and demolition debris processing facility
was not arbitrary and capricious. We agree with respondent, and we
thus conclude that the court erred in determining that the language in
question was an arbitrary and capricious “condition” and in granting
the petition. In our view, the language at issue is neither a
“condition” of the permit nor a prohibition on the actual use of
crushed concrete in petitioners’ concrete-making activities. It is a
                                 -3-                          1523
                                                         CA 10-01320

mere clarification of the scope of the permit, which recognizes the
fact that concrete-crushing may fall under the ambit of 6 NYCRR part
360. Although petitioners correctly contend that there is no language
in the Buffalo City Code defining a “concrete mixing plant,” we
conclude that there is no ambiguity in the language at issue that
could be construed to grant them the right to “crush” materials from
demolished buildings or structures to be made into concrete (see
generally Incorporated Vil. of Saltaire v Feustel, 40 AD3d 586, 587).

     In addition, petitioners failed to establish that they were not
required to be registered or to obtain a permit pursuant to 6 NYCRR
part 360, which provides in-depth regulation concerning the processing
of construction and demolition debris and other solid waste. Inasmuch
as petitioners have “failed to establish that they have a clear legal
right to the relief they seek,” i.e., a permit without the language at
issue, we reverse the order and dismiss the petition (see Matter of
Eck v Mayor of Vil. of Attica, 28 AD3d 1195, 1196).




Entered:   February 10, 2011                    Patricia L. Morgan
                                                Clerk of the Court
