State of New York
Supreme Court : County of Monroe

Concetta T. Cerame Irrevocable Family Trust
and Anthony M. Cerame,

Petitioners-plaintiffs,

for a judgment, inter alia,
pursuant to CPLR Article 78,

- against -

Index No. 2002/2125

This opinion is uncorrected and is subject to revision in the official Reports

ANDREW V. SIRACUSE, J.

This case involves a wedge of land in a bend of Interstate 490, once a farm, that the petitioner has wanted to develop for residences. In 1994 and 1995 the parties were before this court on zoning issues, and that case was settled by a consent order. The present action is fairly narrow in scope. Because of the noise from the highway the trust wishes to build a berm to reduce noise. The petitioner realized near the end of 2001 that, due to a change in the construction schedule for the rebuilding of Route 31 in the vicinity, rubble from that project would be available for its use. It would be significantly less expensive for the berm to be built from discarded rubble from the Route 31 project than it would be to get fill from further away. As a side benefit, this would lower the disposal costs for the reconstruction.

The trust applied to the Town, arguing that this was a regrading of land, as permitted by the Town Code, so that approval should be merely ministerial. The Town, on the other hand, was concerned with the thousands of truck loads of material that would be shipped through a residential area on the way to the Cerame property. Claiming to rely on the consent agreement, which lists the noise and road wear involved in bringing fill in as matters to be resolved through the SEQRA process at the time the subdivision plans are approved, and on general mandates contained in SEQRA, the Town asked for a short form EIS and planned to schedule public hearings.

There are clear time constraints on the availability of the fill from the Route 31 project, and the petitioner suggests that the Town's actions amount to an improper delay of its application. The decision to accept the material needs to be made some time in April, and so the trust brought a hybrid plenary action and proceeding under CPLR Article 78 to compel the Town to issue a permit.

There are a number of causes of action here, and the Town mounts a large number of defenses. But the heart of the case is the appropriateness of the SEQRA requirement imposed by the Town. The Town argues vigorously that the action falls within both the consent order and general SEQRA principles. The petitioner, on the other hand, points out that according to the Town Code fill used "to establish grade" can be brought in from the premises or elsewhere, as long as the Commissioner of Public Works approves the plan. There would be no SEQRA issue involved, especially because any disruption from the trucking of material seems to be omitted from the scope of the Commissioner's review by the language setting out the bases for a decision. In this interpretation, the petitioner's original application called for simply a ministerial act, which is exempt from SEQRA.

The parties have not argued whether the construction of berms should be considered a simple "regrading" of the property. It is not necessary to decide this issue, though, because resolution of this dispute depends on the discretion given the officer and the considerations that must be weighed according to the Town Code for applications such as the one in issue. Both parties cite Incorporated Village of Atlantic Beach v Gavalas (81 NY2d 322), and this case is extremely helpful in answering this question. That answer favors the Town's interpretation.

In Atlantic Beach the Court of Appeals refused to divide SEQRA from non-SEQRA actions based on any distinction between ministerial and discretionary acts. The important consideration, it held, was whether the permit in question could be demanded once certain conditions were met. A building permit cannot be withheld once there is compliance with the building code. In addition, the information that would be found in an EIS, on topics such as land use changes, effects on vegetation and traffic, and so on, has no bearing on the decision-making process that is required for a building permit.

In the Court's words:

Logically, where an agency is empowered to "act" by granting or denying a permit based only on compliance with a conventional Building Code or fire safety regulations, it makes little sense to require preparation of an EIS. Such a requirement would certainly not advance the Legislature's clear intent that an EIS be used as an informational tool to aid in the planning process (see, ECL 8-0109 [2]).

In contrast, the discretion involved in the exercise of site plan approval powers which was vested in the issuing agency in Pius is illustrative of agency "action" because a relationship exists between the types of decisions to be made and the environmental concerns enumerated in an EIS. In Matter of E.F.S. Ventures Corp. v Foster (71 NY2d 359), we recognized that the exercise of site plan approval powers requires "[a] large measure of discretion" ( id., at 370). Indeed, this function involves analysis of "the proposed location of the buildings, parking areas, and other installations on the plot, and their relation to existing conditions, such as roads, neighboring land uses, natural features, public facilities, ingress and egress roads, interior roads, and similar features" (5 Ziegler, Rathkopf's The Law of Zoning and Planning, Site Plan Review § 62.01 [1] [4th ed]). Thus, site plan approval necessarily encompasses land use and environmental considerations, and a building inspector vested with that type of discretion or decision-making authority clearly would be aided by, and entitled to rely upon, the information contained in an EIS. (81 NY2d, 326-327)

The respondent here made a determination that the petitioner's application was an unlisted action and therefore required environmental review, and this court's review is not one de novo; it is to decide if this determination is arbitrary and capricious. It was not. Furthermore, the court is not permitted to review whether the trucking route offered by the petitioners is shorter or less disruptive than the routes that would be taken to dispose of the fill otherwise; this remains a matter for the Town, once the decision to require SEQRA review is upheld.

The petition is therefore dismissed, without costs or disbursements. Because the Town acted within its powers, the other causes of action, which seek damages for delaying the approval--sounding in prima facie tort, conspiracy, due process violations, and so on--should also be dismissed. The court would certainly urge the Town to complete its review as speedily as possible, so that the petitioner's application does not become moot.

DATED: Rochester, New York

April 3, 2002

Andrew V. Siracuse, J.S.C.

This opinion is not available for publication in any official or unofficial reports, except the New york Law journal, without the approval of the State Reporter or the Committee on Opinions (22 NYCRR 7300.1)

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