Opinion
May 15, 1989
Appeal from the Supreme Court, Dutchess County (Hillery, J.).
Ordered that the order and judgment is affirmed insofar as appealed from, with costs.
We reject the appellant's claim that Local Laws, 1978, No. 6 of the Town of Dover is invalid for failure to fully comply with the New York State Environmental Quality Review Act (ECL art 8 [hereinafter SEQRA]), but for a reason different from that set forth by the Supreme Court, Dutchess County. Although the general rule is that relief pursuant to CPLR article 78 is unavailable to challenge the validity of legislation such as a zoning ordinance (see, Matter of Save the Pine Bush v City of Albany, 70 N.Y.2d 193), a challenge to the procedures followed in the enactment of such legislation is maintainable in a proceeding pursuant to CPLR article 78 (see, Matter of Save the Pine Bush v City of Albany, supra) and the four-month Statute of Limitations is applicable (CPLR 217). Therefore, the appellant's challenge to Local Laws, 1978, No. 6 of the Town of Dover for an alleged failure to follow the procedural requirements of the SEQRA in its enactment is time barred (see, CPLR 217; Matter of Save the Pine Bush v City of Albany, supra, at 202-203).
We note that the courts may invoke a different Statute of Limitations where a party has standing under SEQRA. However, the appellant does not have such standing. "In order to establish standing, the petitioners must show that they have suffered an actual injury and show that such injury comes within the zone of interests to be protected by the statute in question. [SEQRA] was enacted in order to preserve and protect the environment for the people of the State of New York" (Matter of New York State Bldrs. Assn. v State of New York, 98 Misc.2d 1045, 1049; see also, Weinberg, Practice Commentary, McKinney's Cons Laws of NY, Book 17 1/2, ECL C8-0109:6, at 79). Here, the appellant is merely attempting to circumvent SEQRA and the regulations promulgated thereunder and to frustrate the spirit of the statute. Clearly, our reading of the ECL and the regulations promulgated thereunder shows that the use of the Dover Elementary School and the J.H. Ketchum Fire Department premises to shift garbage from satellite trucks to compactor trucks constitutes the operation of solid waste management facilities (ECL 27-0707; 6 NYCRR part 360).
We also note that a zoning board of appeals is not constrained by the rules of evidence and is not limited to a consideration of the testimony and exhibits presented to it at the public hearing (see, Matter of Von Kohorn v Morrell, 9 N.Y.2d 27, 32; Matter of Holy Spirit Assn. v Rosenfeld, 91 A.D.2d 190, 201).
In view of our determination, we need not address the appellant's remaining contentions. Mangano, J.P., Thompson, Bracken and Eiber, JJ., concur.