In 1997, the City obtained options to two additional parcels of real property which, together with the property covered by the 1994 option, comprise Site C-2. Petitioners' challenge to the designation was dismissed on ripeness grounds and affirmed by this Court ( 237 A.D.2d 856, lv denied 90 N.Y.2d 803). On November 16, 1998, the Common Council passed resolution No. 86.113.98R (hereinafter the resolution) authorizing "the funding of the acquisition of * * * Site C-2" to "ensure continued control" over the site.

We affirm. DEC's issuance of a positive declaration requiring preparation of a SEIS to address newly discovered information (see, 6 NYCRR 617.9 [a] [7]) is not a final determination (see, CPLR 7801); rather, like other interim SEQRA determinations, it is "'a preliminary step in the decision-making process' and, [as such, is] not ripe for judicial review" until the decision-making process is completed (Matter of Town of Coeymans v. City of Albany, 237 A.D.2d 856, 857, lv denied 90 N.Y.2d 803 [lead agency designation], quoting Matter of Young v. Board of Trustees of Vil. of Blasdell, 221 A.D.2d 975, 977, affd 89 N.Y.2d 846 [negative declaration]; see, Matter of PVS Chems. v. New York State Dept. of Envtl. Conservation, ___ A.D.2d ___, 682 N.Y.S.2d 787 [positive declaration for DEIS]; Matter of Rochester Tel. Mobile Communications v. Ober, 251 A.D.2d 1053; Matter of Save the Pine Bush v. City of Albany, 117 A.D.2d 267, 269, mod on other grounds 70 N.Y.2d 193). Allowing piecemeal review of each determination made in the context of the SEQRA process would subject it to "unrestrained review which could necessarily result in significant delays in what is already a detailed and lengthy process" (Matter of Town of Coeymans v. City of Albany,supra, at 857)

Moreover, allowing a TCA lawsuit to go forward at this time will completely short-circuit the SEQRA process in violation of well-established state procedure. As Verizon was no doubt aware when commencing this federal action, a local decision to issue a positive SEQRA declaration is not a final agency action that is reviewable under New York law. Sour Mountain Realty, Inc. v. New York State Dep't of Environmental Conservation, 260 A.D.2d 920, 921, 688 N.Y.S.2d 842, 845 (3d Dep't), lv. denied, 93 N.Y.2d 815, 697 N.Y.S.2d 562, 719 N.E.2d 923 (1999); Town of Coeymans v. City of Albany, 237 A.D.2d 856, 857, 655 N.Y.S.2d 172, 173 (3d Dep't), lv. denied, 90 N.Y.2d 803, 661 N.Y.S.2d 179, 683 N.E.2d 1053 (1997); see Essex County v. Zagata, 91 N.Y.2d 447, 453-54, 672 N.Y.S.2d 281, 284-85, 695 N.E.2d 232 (1998). New York courts characterize a positive SEQRA declaration as an interim determination, which is not ripe for judicial review until the agency has made a final decision.

Decided June 27, 1997 Appeal from 3d Dept: 237 A.D.2d 856 MOTIONS FOR LEAVE TO APPEAL

To construe Rush so broadly as to permit judicial review every time a SEQRA positive declaration is issued would result in a proliferation of piecemeal review of the SEQRA process. In other words, to allow immediate challenges to these preliminary SEQRA decisions, as a matter of course, “would subject the entire SEQRA process to unrestrained review which could necessarily result in significant delays in what is already a detailed and lengthy process” (Matter of Town of Coeymans v. City of Albany, 237 A.D.2d 856, 857, 655 N.Y.S.2d 172 ). The circumstances in Rush would seem to present the exception rather than the rule.

Nevertheless, the Court of Appeals has declined to adopt any bright-line rules designating particular actions as final, preferring instead to apply the foregoing test on a case-by-case basis in order to avoid inappropriate results in particular circumstances ( see e.g. Matter of Eadie v Town Bd. of Town of N. Greenbush, 7 NY3d at 317; Matter of Gordon v Rush, 100 NY2d at 243). Thus, in applying the test, we attempt to balance the goals of preventing "piecemeal review of each determination made in the context of the SEQRA process [which] would subject it to 'unrestrained review . . . resultting] in significant delays in what is already a detailed and lengthy process'" ( Matter of Sour Mtn. Realty v New York State Dept. of Envtl. Conservation, 260 AD2d 920, 921, lv denied 93 NY2d 815, quoting Matter of Town of Coeymans v City of Albany, 237 AD2d 856, 857, lv denied 90 NY2d 803) against the possibility of real harm to the complaining party ( see Matter of Gordon v Rush, 100 NY2d at 243).

This appeal involves, among other issues, an alleged violation of the State Environmental Quality Review Act (ECL art 8 [hereinafter SEQRA]) and failure to follow a prior decision of this Court by respondent City of Albany, which is one of many municipalities in the Albany New York Solid Waste Energy Recovery System Waste Shed Planning Unit ( see generally ECL 27-0107). That Planning Unit was created in 1989 to develop a solid waste management plan for the region. The underlying facts are set forth in appeals from earlier proceedings that were commenced once the 363-acre site in the Town of Coeymans, Albany County, known as Site C-2, was indicated as the preferred site ( see Matter of Town of Coeymans v City of Albany, 284 AD2d 830, lv denied 97 NY2d 602 [hereinafter Coeymans II]; Matter of Town of Coeymans v City of Albany, 237 AD2d 856, lv denied 90 NY2d 803). The Department of Environmental Conservation, Region 4 (hereinafter DEC), was designated the lead agency. The City negotiated options to purchase the parcels that comprised Site C-2 and, thereafter, its effort to segment review for acquiring the property was nullified ( see Matter of Town of Coeymans v City of Albany, 284 AD2d at 835).

Supreme Court properly held that "the issuance of a positive declaration is not final agency action subject to CPLR article 78 review" ( Matter of Rochester Tel. Mobile Communications v. Ober, 251 A.D.2d 1053, 1054). A positive declaration requiring the preparation of a draft environmental impact statement is merely a preliminary step in the decision-making process under the State Environmental Quality Review Act (ECL art 8) and therefore not ripe for judicial review ( see, Matter of Rochester Tel. Mobile Communications v. Ober, supra, at 1054, citing Matter of Town of Coeymans v. City of Albany, 237 A.D.2d 856, 857, lv denied 90 N.Y.2d 803). Moreover, petitioner did not sustain an actual, concrete injury by the issuance of a positive declaration. Further agency proceedings may render the disputed issue moot or academic, and therefore the agency action being challenged does not constitute a definitive position ( see, Matter of Essex County v. Zagata, 91 N.Y.2d 447, 454).

Upon completion of the DEIS and other steps required by the State Environmental Quality Review Act ([SEQRA] ECL art 8), the lead agency may approve or disapprove the project. Thus, the positive declaration requiring the preparation of a DEIS is, "like other SEQRA determinations, `a preliminary step in the decision-making process' and, therefore, not ripe for judicial review" ( Matter of Town of Coeymans v. City of Albany, 237 A.D.2d 856, 857, lv denied 90 N.Y.2d 803, quoting Matter of Young v. Board of Trustees, 221 A.D.2d 975, 977, affd 89 N.Y.2d 846). Additionally, petitioner did not sustain an actual, concrete injury by the issuance of a positive declaration ( cf., Matter of Zagata v. Freshwater Wetlands Appeals Bd., 244 A.D.2d 343). The alleged harm "may be prevented or significantly ameliorated by further administrative action or by steps available to the complaining party" ( Church of St. Paul St. Andrew v. Barwick, 67 N.Y.2d 510, 520, cert denied 479 U.S. 985).

While the issue of whether the June 1994 injury occurred in the performance of his duties was decided in plaintiff's favor by the Workers' Compensation Board, we note that no findings were made by that body relative to plaintiff's future ability to perform his duties as a firefighter. Because courts in this State do not render advisory opinions, "[a] declaratory judgment is not available when the existence of a controversy is contingent upon the happening of future events which may never occur" ( Matter of Town of Coeymans v. City of Albany, 237 A.D.2d 856, 858, lv denied 90 N.Y.2d 803; see, American Ins. Assn. v. Chu, 64 N.Y.2d 379, 385, appeal dismissed, cert denied 474 U.S. 803). Even though plaintiff was injured in an accident which the Workers' Compensation Board found to be casually related to his employment, this does not automatically make plaintiff eligible for future General Municipal Law § 207-a benefits. Nor does the statute permit a firefighter the right to seek a "status" determination from a municipality in the absence of a current need for benefits.