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

41
CA 15-00687
PRESENT: WHALEN, P.J., CENTRA, PERADOTTO, CARNI, AND SCUDDER, JJ.


IN THE MATTER OF PITTSFORD CANALSIDE
PROPERTIES, LLC, PETITIONER-RESPONDENT,

                    V                              MEMORANDUM AND ORDER

VILLAGE OF PITTSFORD, BOARD OF TRUSTEES OF
VILLAGE OF PITTSFORD, LINDA LANPHEAR AND FRANK
GALUSHA, IN THEIR OFFICIAL CAPACITIES AS MEMBERS
OF BOARD OF TRUSTEES OF VILLAGE OF PITTSFORD,
FRIENDS OF PITTSFORD VILLAGE, INC.,
RESPONDENTS-APPELLANTS,
VILLAGE OF PITTSFORD PLANNING BOARD, ET AL.,
RESPONDENTS.


HODGSON RUSS LLP, BUFFALO (DANIEL A. SPITZER OF COUNSEL), FOR
RESPONDENTS-APPELLANTS VILLAGE OF PITTSFORD, BOARD OF TRUSTEES OF
VILLAGE OF PITTSFORD, LINDA LANPHEAR AND FRANK GALUSHA, IN THEIR
OFFICIAL CAPACITIES AS MEMBERS OF BOARD OF TRUSTEES OF VILLAGE OF
PITTSFORD.

KNAUF SHAW LLP, ROCHESTER (ALAN J. KNAUF OF COUNSEL), FOR
RESPONDENT-APPELLANT FRIENDS OF PITTSFORD VILLAGE, INC.

HARRIS BEACH PLLC, PITTSFORD (JOHN A. MANCUSO OF COUNSEL), FOR
PETITIONER-RESPONDENT.


     Appeals from a judgment (denominated order and judgment) of the
Supreme Court, Monroe County (John J. Ark, J.), entered October 29,
2014 in a CPLR article 78 proceeding. The judgment, among other
things, annulled the resolution adopted by respondent Board of
Trustees of Village of Pittsford on May 1, 2014, rescinding the
negative declaration made pursuant to the State Environmental Quality
Review Act.

     It is hereby ORDERED that the judgment so appealed from is
unanimously modified on the law by vacating the first, seventh and
eighth decretal paragraphs, dismissing in its entirety the first cause
of action in the amended verified petition, granting the second and
third counterclaims, and granting judgment in favor of respondents as
follows:

          It is ADJUDGED and DECLARED that Frank Galusha does not
     have a conflict of interest with respect to matters
     concerning the Project and that he may fully participate in
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                                                          CA 15-00687

     all deliberations and in rendering determinations with
     respect to the Project, and it is further

          ADJUDGED and DECLARED that Village of Pittsford Mayor
     Robert Corby does not have a conflict of interest with
     respect to matters concerning the Project and that he may
     fully participate in all deliberations and in rendering
     determinations with respect to the Project,

and as modified the judgment is affirmed without costs.

     Memorandum: Petitioner is the owner and developer of Westport
Crossing (hereafter, Project), a proposed mixed-use development in
respondent Village of Pittsford (Village). Respondent Board of
Trustees of Village of Pittsford (Board) acted as lead agency for the
purpose of conducting an environmental review of the Project pursuant
to the State Environmental Quality Review Act (SEQRA). Following its
three-year review of the Project, the Board issued a negative
declaration based upon its determination that the Project would not
have a significant adverse environmental impact. The Board thereafter
adopted a resolution issuing the requisite special permits for the
Project and determining that “[t]he proposed development will be
compatible, in terms of scale, massing, orientation, and architectural
design, with the visual character of the Village.”

     On March 11, 2014, following approval by respondent Village of
Pittsford Planning Board (Planning Board) of the preliminary site plan
for the Project, the Board adopted two resolutions determining that
there had been “substantive changes” to certain aspects of the Project
that would have a “potential significant adverse impact” that was not
considered in the original SEQRA review. On May 1, 2014, the Board
passed a resolution rescinding the negative declaration and issuing a
positive declaration. Petitioner commenced this CPLR article 78
proceeding seeking, inter alia, a judgment “reversing, annulling and
vacating and/or setting aside” the March 11, 2014 resolutions, and the
May 1, 2014 resolution and positive declaration, and reinstating the
negative declaration. Petitioner alleged in the first cause of action
in its amended verified petition that respondents Linda Lanphear and
Frank Galusha, members of the Board who voted in favor of the
challenged resolutions, had demonstrated bias against the Project,
which constituted conflicts of interest disqualifying them from
participating in deliberations or determinations with respect to the
Project. In their first counterclaim, the Village, the Board,
Lanphear and Galusha (hereafter, respondents) sought a judgment
declaring that Lanphear does not have a conflict of interest with
respect to matters concerning the Project and that she may fully
participate in all deliberations and determinations with respect to
the Project. In their second and third counterclaims, respondents
respectively sought identical declarations covering Galusha and
Village of Pittsford Mayor Robert Corby, who is also a member of the
Board.

     Supreme Court dismissed the first cause of action insofar as it
sought judgment annulling the resolutions at issue based upon
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                                                         CA 15-00687

Lanphear’s alleged conflict of interest and granted the declaratory
relief sought in the first counterclaim concerning Lanphear.
Petitioner did not cross-appeal from that part of the judgment. The
court granted the remainder of the relief sought in the first cause of
action, annulling the resolutions at issue based upon Galusha’s
alleged conflict of interest. The court denied the relief sought in
the second and third counterclaims, declaring that Galusha had a
conflict of interest with respect to the Project and that he may not
participate in deliberations and determinations concerning the
Project, and that Mayor Corby had a conflict of interest with respect
to any additional SEQRA review of the Project and that he may not
participate in deliberations or determinations with respect to such
SEQRA review.

     We agree with the contention of respondents that the court erred
in determining that Galusha had a conflict of interest that
disqualified him from participating in deliberations or determinations
concerning the Project and that Mayor Corby had a conflict of interest
that disqualified him from participating in deliberations or
determinations concerning SEQRA review of the Project, and we
therefore modify the judgment accordingly. “Resolution of questions
of conflict of interest requires a case-by-case examination of the
relevant facts and circumstances” (Matter of Parker v Town of Gardiner
Planning Bd., 184 AD2d 937, 938, lv denied 80 NY2d 761). Here, both
Galusha and Mayor Corby had expressed opposition to the Project before
and after their elections, and prior to voting on the challenged
resolutions. They were not disqualified from participating in the
deliberations or voting on those resolutions, however, inasmuch as
their “alleged bias involved only expressions of personal opinion”
that did not constitute a basis for finding a conflict of interest
(Matter of Laird v Town of Montezuma, 191 AD2d 986, 987). Indeed, we
agree with respondents that the expression of opinion by Galusha and
Mayor Corby on matters of public concern “is to be encouraged, not
penalized” (Matter of Byer v Town of Poestenkill, 232 AD2d 851, 853;
see Webster Assocs. v Town of Webster, 59 NY2d 220, 227).

     We further conclude, however, that the court properly annulled
the challenged resolutions on the ground alleged in the second cause
of action in the amended verified petition, i.e., that the Board
lacked authority to rescind its negative declaration under the
circumstances of this case. Here, the Board was authorized to rescind
its negative declaration “prior to its decision to undertake, fund, or
approve an action,” and the Board made its decision to approve the
action, i.e., the Project, when it issued the requisite special
permits (see Matter of United Water New Rochelle v Planning Bd. of
Town of Eastchester, 2 AD3d 627, 628, lv denied 2 NY3d 703; see also 6
NYCRR 617.7 [f] [1]). Finally, we reject the contention of
respondents that this Court’s decision in Matter of Allegany Wind LLC
v Planning Bd. of Town of Allegany (115 AD3d 1268) supports the
conclusion that the Board had authority to rescind its negative
declaration. That issue was neither raised nor addressed in Allegany
Wind.
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                                           CA 15-00687




Entered:   March 18, 2016         Frances E. Cafarell
                                  Clerk of the Court
