Opinion
2002-09370.
December 29, 2003.
In a hybrid proceeding pursuant to CPLR article 78 to review a determination of the Town Board of the Town of East Hampton dated April 6, 2001, which approved the repaving of an East Hampton Airport aircraft parking apron with funding from the Federal Aviation Administration and agreed to an extension of Federal Aviation Administration grant assurances, and an action, inter alia, for a judgment, in effect, declaring that Resolution No. 483 of 2001 was not validly enacted, the petitioners appeal, as limited by their brief, from so much of a judgment of the Supreme Court, Suffolk County (Kitson, J.), entered September 3, 2002, as dismissed the CPLR article 78 proceeding and the cause of action for declaratory relief.
Lazer, Aptheker, Rosella Yedid, P.C., Melville, N.Y. (Zachary Murdock of counsel), for appellants.
Cahn Cahn, LLP, Melville, N.Y. (Richard C. Cahn and Daniel K. Cahn of counsel), for respondents-respondents Town Board of the Town of East Hampton, Jay Schneiderman as Town Supervisor of the Town of East Hampton, and Patrick Ryan as Airport Manager of the East Hampton Town Airport.
Burton Associates, P.C., Melville, N.Y. (Bernard L. Burton of counsel), for respondent-respondent Sound Aircraft Services, Inc.
Before: ROBERT W. SCHMIDT and REINALDO E. RIVERA, JJ.
DECISION ORDER
ORDERED that the judgment is modified by adding a provision thereto declaring that Resolution No. 483 of 2001 was validly enacted; as so modified, the judgment is affirmed insofar as appealed from, with one bill of costs to the respondents-respondents appearing separately and filing separate briefs.
The determination of the Town Board of the Town of East Hampton (hereinafter the Town Board) that the repaving of an aircraft parking apron at the East Hampton Airport was a Type II action under the State Environmental Quality Review Act ( see ECL art 8; hereinafter SEQRA) was not arbitrary and capricious and had a rational and substantial basis in the record ( see Matter of Lahey v. Kelly, 71 N.Y.2d 135, 140; Matter of Fuhst v. Foley, 45 N.Y.2d 441, 444). Such an action, by definition, does not have "a significant impact on the environment" and does not require environmental impact review under SEQRA ( see 6 NYCRR 617.5; see also Matter of Crews v. Village of Dobbs Ferry, 272 A.D.2d 540) . The Town Board also properly determined that its determination to extend Federal Aviation Administration grant assurances in exchange for Federal funding for the repaving project was not an "action" as defined by 6 NYCRR 617.2(b)(2).
The petitioners' remaining contentions are without merit.
We note that since this is, in part, a declaratory judgment action, the Supreme Court should have made a declaration in favor of the Town of East Hampton rather than dismissing the cause of action for declaratory relief ( see Lanza v. Wagner, 11 N.Y.2d 317, 334, appeal dismissed 371 U.S. 74, cert denied 371 U.S. 901).
McGINITY, J.P., LUCIANO, SCHMIDT and RIVERA, JJ., concur.