State of New York
Supreme Court : County of Monroe

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

ANDREW V. SIRACUSE, J.

Since the last decade of the twentieth century Mr. Cerame has been trying to develop a parcel of land in the Town of Perinton, adjacent to Interstate highway 490. When the parties first appeared before this court in 1995 Bill Clinton was President of the United States, anything having to do with the Internet was considered a good investment, and Osama Bin Laden was known, if at all, as an obscure Saudi expatriate of unreliable politics. All this had changed by February, 2002, their next court appearance, but it was still possible to nurse the hope that the Town would review the environmental impact of a proposed berm on the highway side of his property "as speedily as possible, so that the petitioner's application does not become moot."

Such a hope turned out to be as delusional as the analysts' forecasts for most tech stocks. In early 2003 the parties were again in litigation, this time because the Town's Commissioner had decided that he had insufficient information on the project to determine its status under SEQRA.

Mr. Cerame then brought a combined Article 78 and declaratory judgment action, seeking both to reverse the determination and to direct the Town to issue a permit for construction. The court, after reviewing the history of the case, decided that "[e]nough has certainly been presented to pass on the project's probable environmental impact [to make it] ... abundantly clear that most if not all of the issues raised by the Town are irrelevant to the inquiry required by SEQRA. The court, of course, cannot substitute its judgment for that of the agency (Akpan v Koch, 75 NY2d 561, 570). It can, however, remands the application to the Town with a direction as to the questions that must be considered."

In this the court was itself in error. The Town appealed the court's order, and the Appellate Division, Fourth Department, modified it by ruling that while the remand was proper, "the court exceeded its authority in fashioning its directive regarding which facts the ZBA could consider on remittal" (6 AD3d 1091, 1092).

The Zoning Board of the Town was thus directed to make the de novo determination that it had failed to make in 2002. On June 28, 2004, the ZBA determined in essence that it was unable to make a determination until the Cerame Trust had addressed certain issues which it believed had been inadequately explored.

Those issues were, in fact, exactly the same as the ones that had been cited in the earlier decision by the Commissioner regarding SEQRA. The proceeding before the court carries with it, therefore, a strong feeling of deja vu. For a number of years Mr. Cerame and the trust he represents have been making the same application, and as often as he does this the Town tells him that his application fails to address the same issues. The court has at least discovered what does happen when an irresistible force meets the proverbially immovable object: everyone ends up going in circles.

Were the court to decide this case within the limits of an Article 78 proceeding the result would only be one more turn in what has become an exhausting dance. It is time, for better or for worse, for this matter to reach a resolution, and the continuing failure of the Town to come down on one side or another--regardless of its use of language like "denial without prejudice"--justifies treating this as the declaratory judgment action that petitioner has also pleaded. The court has inherent jurisdiction to treat even a simple Article 78 proceeding as an action for declaratory judgment. In the present case, where a further remittal would have little chance of bringing the action to a close, only a declaratory judgment can give relief.

In addition, this matter is more than ripe for determination. Although the declaratory judgment causes of action have languished since early 2003, during the appeal and remand, they raise no issues that go outside the ones presented in the context of the Article 78 proceeding.

Finally, the need for such relief is manifest throughout the record. It is simply not true that Mr. Cerame has been stonewalling or less than forthcoming in his responses to the Town's demands. It is, instead, the Town that has insisted on conditions and certifications that either have no bearing on the environmental questions that it must consider under SEQRA or which are incapable of satisfaction by any applicant. The court needs to do little more than restate the conclusions it drew in 2003, and much of what follows is drawn from its February 6 decision.

The most contentious issues remain those with respect to noise level and possible damage to Town roads during construction. The court has found numerous documents by the petitioner and his engineers addressing the noise issue, but the Town appears to be requiring instead a cost-benefit analysis of construction noise weighed against the noise reduction resulting from the berm. The Town does not explain why the petitioner should be required to determine how effective the berm will be on his own property, which is the property affected. Nor is there any effective way of equating two months of construction noise against an undefined period of noise reduction as a result of the berm. Any berm will require that fill be brought on to the site, and thus that trucks will be used; at some point the Town will have to face the necessity of allowing the petitioners to do something with their land. Were it to make it impossible for the petitioners to truck any fill (or construction material) through surrounding neighborhoods the property would become valueless. The Town's position runs the risk of effecting an unconstitutional taking of the Cerame property.

The Town also raises the issue of "channelized" sound. This term seems to have first appeared in the testimony of a resident at one of the public hearings; he suggested that the existence of a noise barrier on the Cerame property might direct noise towards the unshielded adjacent property. No acoustical evidence is available either to support or dismiss this possibility, though the fact that the proposed barrier is on only one side of the highway surely makes such a result unlikely.

Because of this lack of information the court conducted its own research, and has found that, according to the Federal Highway Administration,

Residents adjacent to a highway sometimes feel that their noise levels have increased substantially because of the construction of a noise barrier on the opposite side of the highway. However, field studies have shown that this is not true. *** Measurements made to quantify this reflected increase have never shown an increase of greater than 1-2 dB an increase that is not perceptible to the average human ear (Keeping the Noise Down, )

The Town is also concerned about the potential for road damage during the hauling of fill. This concern is shared by the petitioners, who state:

During the May 2, 2002 public hearing, the applicant suggested that the Town make the pavement analysis a condition of approval. Transcript of May 2, 2002 Public hearing, page 44. During the October 28, 2002 Zoning Board of Appeals hearing, the applicant agreed to amend the application to state that they will perform the core samples that are requested, if the Town will commit to a particular route. Minutes 10/28/02 ZBA hearing, page 114. That offer stands.

This offer would allow an accurate quantification of the potential damage, and petitioners have agreed to post an adequate bond. In addition, it would comply with the 1995 consent order, insofar as it applies here, in that it would permit an accurate assessment of possible damage to the roads.

There is, however, something that stands in the way of this solution. The Town claims that it has told the petitioners' engineers where it wishes core samples to be taken, while the petitioners argue that the Town has never made a commitment to a specific route. At one time the court had believed that this difficulty could be resolved if a route were stipulated by the Town; from that route the position for core samples could be easily determined. It appears, however, that this issue, too, raises controversies that cannot be resolved without a third party's intervention.

A court of law, though, is not the proper third party for making this determination. It requires an engineer with sufficient experience and expertise in road damage from heavy vehicles. The court holds that this question should be submitted to a neutral expert, to act as a referee. The parties are therefore requested to agree to an expert within 20 days of the date of this decision. If they cannot agree they are each ordered to submit the name of an expert to the court. Those two experts will then appoint the referee. The cost of this procedure will be shared equally by both parties.

The Town also appears to be unwilling to accept a bond, as offered by the petitioners. It has reservations about the ease with which it can collect on such a bond. This concern is without merit. Bonds are an accepted manner of posting security against possible damage, and the Town, whatever its reservations, is compelled to accept them. The amount of such a bond will, of course, depend on the route chosen by the referee.

More speculation appears in the Town's insistence that the application does not contain adequate information on berm compaction and of landscaping. The petitioners' proposal for compaction, topsoil placement and planting are fully divulged in the papers, and the Town had adequate time to review them and decide if they were adequate or not. They are, in fact, adequate and unexceptionable, and since Mr. Cerame seems sincere in his desire to make this property usable for residential development the court has no reason to suspect that he will leave the berm "an unsightly mound of dirt", as the Town fears.

The Town also wishes to have "a licensed engineer certify that all of the fill is 'clean fill' so that we can ensure that no solid waste, construction debris, demolition debris, or hazardous fill is dumped on the site as part of the berm." The source of the material to be used is uncertain; surely the fill from the Route 31 project originally contemplated has been used, but there are generally road projects every spring which will give rise to similarly useful material. It is clear that the fill is not intended to come from brownfield or other possibly hazardous sites, and the Town does not explain what kind of certification is needed. The petitioner has indicated that it would provide certifications if such exist, and the court would be pleased to include in its order a prohibition on the use of hazardous waste, or debris that is ruled out in the generally accepted practice of construction engineers.

To the extent that the documents referenced in the Town's decision raise the issue of light abatement, the court rules once again that the positive effect the project may have on light spill from the highway is irrelevant to the possible negative impacts it might have, and thus to a SEQRA determination.

The court believes that these holdings will dispose of the Article 78 and declaratory judgment causes of action. There remains a claim by the Cerame trust for money damages. This will have to proceed on its own, and as there seems little likelihood that it can be resolved by my retirement at the end of this year the case of Cerame Trust v Town of Perinton will end up in the hands of another judge.

Counsel for the Trust may prepare the order, with neither costs nor disbursements.

DATED: Rochester, New York

November 8, 2004

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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