Opinion
05-10801.
Decided October 26, 2005.
ATKINSON HEFFRON, LLP, Cutchogue, NY, Attorney for Petitioners.
JOSEPH W. PROKOP, ESQ., PROKOP PROKOP, ESQS., East Setauket, NY, Attorney for Planning Board of the Village of Greenport.
HARVEY A. ARNOFF, ESQ., Riverhead, NY, Attorney for Resp.
ORDERED, that the motion and cross-motion by the respondents for an order dismissing the petition are denied, and it is further
ORDERED that the respondents are directed to serve and file their answer to the petition and file a certified return within 20 days after service of a copy of this order with notice of entry, and it is further
ORDERED that pursuant to CPLR 7804(f), any party may re-notice this matter for hearing.
The petitioners commenced this proceeding pursuant to CPLR article 78 challenging two determinations made by the respondent Planning Board of the Village of Greenport (hereinafter the Board) in connection with a project proposed by the respondent 123 Sterling LLC. The project seeks to create a marina as well as office space, retail stores and apartments along Sterling Basin in the Village of Greenport. The petitioners seek to annul a negative declaration issued by the Board pursuant to the State Environmental Quality Review Act (SEQRA). The petitioners also challenge the Board's approval of the site plan for the project which was conditioned upon certain approvals from the Zoning Board of Appeals. Rather than answer the petition, the respondents move and cross-move to dismiss asserting that the proceeding is not ripe for review because the decisions of the Board were not final. The Board also argues that the petitioners lack standing, that the petition fails to state a cause of action and that the petitioners failed to join necessary parties.
An administrative action is final when the decision maker arrives at a "definitive position on the issue that inflicts an actual, concrete injury" ( Stop-The-Barge v. Cahill, 1 NY3d 218, 223 quoting Matter of Essex County v. Zagata, 91 NY2d 447, 453). Here, the Board, as lead agency, issued a negative declaration under SEQRA which concluded that the project would not have a significant effect on the environment and that a Draft Environmental Impact Statement would not be prepared. The Board reached a definitive position and its SEQRA review ended. Thus, the issuance of the negative declaration constituted a final action by the Board ( see Stop-The-Barge v. Cahill, supra; Matter of Long Island Contractors Association v. Town of Riverhead, 17 AD3d 590, 593 [2nd Dept 2005]). The approval of the site plan was also a final determination. The fact that the approval was conditional did not make it any less final or conclusive ( see Matter of Elliot v. Boycott, 293 AD2d 676 [2nd Dept 2002]; Matter of O'Connell v. Zoning Board of Appeals, 267 AD2d 742 [3rd Dept 1999]; Matter of Long Island Pine Barrens Society v. Planning Board of Town of Brookhaven, 247 AD2d 395 [2nd Dept 1998]).
With respect to the issue of standing, the individual petitioners allege that they own property adjacent to and across the street from the proposed project and will be exposed to increased noise, odors and traffic. The allegations in the petition are sufficient to establish that the petitioners and the neighborhood association have standing to challenge the Board's determinations ( see Matter of Long Island Contractors Association v. Town of Riverhead, supra at 594; Matter of Defreestville Area Neigborhood Assoc v. Planning Board of Town of North Greenbush, 16 AD3d 715, 718 [3rd Dept 2005]). The Board's contention that the petitioners failed to join necessary parties such as the New York State Office of Parks, Recreation and Historic Preservation is without merit as those agencies did not conduct the SEQRA review ( see Matter of Long Island Contractors Association v. Town of Riverhead, supra at 593).
Finally, the allegations in the petition, which must be accepted as true on a motion to dismiss ( see Matter of Zaidins v. Hashmall, 288 AD2d 316 [2nd Dept 2001]), are sufficient to state a cause of action. The Board's arguments regarding documentary evidence and the record before the Board are more properly raised in answer to the petition. Accordingly, the motion and cross-motion to dismiss are denied.