In the Matter of Ranco Sand and Stone Corp., Appellant,v.Patrick Vecchio, et al., Respondents.BriefN.Y.February 18, 2016APL-2015-00079 Suffolk County Clerk’s Index No. 45491/09 Appellate Division, Second Department Docket No. 2012-05135 Court of Appeals STATE OF NEW YORK In the Matter of RANCO SAND AND STONE CORP., Petitioner-Appellant, against PATRICK VECCHIO, THOMAS J. MCCARTHY, EDWARD WEHRHEIM, PATRICIA BIANCANEILLO, ROBERT J. CREIGHTON, constituting the Town Board of the Town of Smithtown, Suffolk County and the TOWN OF SMITHTOWN, Respondents-Respondents. For Relief Pursuant to Article 78 of the Civil Practice Law and Rules of the State of New York >> >> BRIEF FOR RESPONDENTS-RESPONDENTS DEVITT SPELLMAN BARRETT, LLP Attorneys for Respondents-Respondents 50 Route 111, Suite 314 Smithtown, New York 11787 631-724-8833Date Completed: July 10, 2015 To Be Argued By: John M. Denby Time Requested: 30 Minutes TABLE OF CONTENTS TABLE OF AUTHORITIES ................................................................................ ii PRELIMINARY STATEMENT ........................................................................... 1 COUNTERSTATEMENT OF QUESTION PRESENTED .................................. 3 COUNTERSTATEMENT OF FACTS ................................................................. 4 The Motion To Dismiss ............................................................................... 5 The Supreme Court’s Order ........................................................................ 6 The Order Of The Appellate Division, Second Department ....................... 6 ARGUMENT THE PETITION WAS PROPERLY DISMISSED INASMUCH AS THE PROCEEDING IS NOT RIPE. ......................... 8 The Lower Courts Properly Ruled That The Petition Was Not Ripe ..................................................................... 9 The Positive Declaration Was Not Arbitrary Or Capricious. .....................................................................................22 CONCLUSION ...................................................................................................30 ii TABLE OF AUTHORITIES Cases Abele v. Dimitriadis, 53 A.D.3d 969, 862 N.Y.S.2d 182 (3d Dep’t 2008) ..................................... 26, 27 Association For A Better Long Island v. New York State Department of Environmental Conservation, 23 N.Y.3d 1, 988 N.Y.S.2d 115 (2014) ................................................... 10, 19, 25 Bergami v. Town Board of the Town of Rotterdam, 97 A.D.3d 1018, 949 N.Y.S.2d 245 (3d Dep’t 2012) ..........................................28 Bingham v. New York City Transit Authority, 99 N.Y.2d 355, 756 N.Y.S.2d 129 (2003) ............................................................23 Bower v. Town of Pleasant Valley, 2 N.Y.3d 617, 781 N.Y.S.2d 240 (2004) ..............................................................29 Brierwood Village v. Town of Hamburg, 227 A.D.2d 1051, 715 N.Y.S.2d 351 (4 th Dep’t 2000) ....................................9, 11 Capitol Real Estate Inc. v. Town Board of Town of Charlton, 23 A.D.3d 858, 804 N.Y.S.2d 449 (3d Dep’t 2005) ..................................... 23, 24 Center of Deposit, Inc. v. Village of Deposit, 90 A.D.3d 1450, 936 N.Y.S.2d 709 (3d Dep’t 2011) ................................... 15, 16 Demers v. New York State Dept. of Environmental Conservation, 3 A.D.3d 744, 770 N.Y.S.2d 807 (3d Dep’t 2004). .............................................18 Drier v. LaValle, 29 A.D.3d 790, 815 N.Y.S.2d 661 (2d Dep’t 2006) ............................................23 Druyan v. Village Bd. of Trustees of Village of Cayuga Heights, 90 A.D.3d 1207, 947 N.Y.S.2d 194 (3d Dep’t 2012) ................................... 27, 28 E.F.S. Ventures Corp., v. Foster, 71 N.Y.2d 359, 526 N.Y.S.2d 56 (1988) ................................................. 20, 25, 27 iii East End Property Company # 1, LLC v. Town Board of the Town of Brookhaven, 56 A.D.3d 773, 868 N.Y.S.2d 264 (2d Dep’t 2008) ............................................18 Essex County v. Zagata, 91 N.Y.2d 447, 672 N.Y.S.2d 281 (1998) ............................................................10 F.A.S.A. Construction Corp. v. Village of Monroe, 14 A.D.3d 532, 789 N.Y.S.2d 175 (2d Dep’t 2005) ............................................20 Featherstone v. Franco, 95 N.Y.2d 550, 720 N.Y.S.2d 93 (2000) ..............................................................22 Franchise Acquisitions Group Corp. v. Jefferson Valley Mall Limited Partnership, 73 A.D.3d 1123, 900 N.Y.S.2d 906 (2d Dep’t 2010) ..........................................21 Galvez v. Srinivasan, 71 A.D.3d 1019, 898 N.Y.S.2d 157 (2d Dep’t 2010) ............................. 20, 25, 29 Gordon v. Rush, 100 N.Y.2d 236, 762 N.Y.S.2d 18 (2003) .................................................... passim Guido v. Town of Ulster Town Board, 74 A.D.3d 1536, 902 N.Y.S.2d 710 (3d Dep’t 2010) .................................... 13-14 Haberman v. Zoning Board of Appeals of The Town of East Hampton, 85 A.D.3d 1170, 926 N.Y.S.2d 165 (2d Dep’t 2011) ..........................................24 Halperin v. City of New Rochelle, 24 A.D.3d 768, 809 N.Y.S.2d 98 (2d Dep’t 2005) ..............................................24 Highview Estates of Orange County, Inc. v. Town Board of the Town of Montgomery, 101 A.D.3d 716, 955 N.Y.S.2d 175 (2d Dep’t 2012) ................................... 16, 19 International Merchants, Inc. v. Village of Old Field, 203 A.D.2d 247, 609 N.Y.S.2d 341 (2d Dep’t 1994) ..........................................19 iv JF Capital Advisors, LLC, v. The Lighthouse Group, LLC., ___N.Y.3d___, ___N.Y.S.3d___ [July 1, 2015] ..................................................16 Khan v. New York State Department of Health, 96 N.Y.2d 879, 730 N.Y.S.2d 783 (2001) ..................................................... 22, 27 Kirquel Development, Ltd. v. Planning Board of the Town of Cortlandt, 96 A.D.3d 754, 946 N.Y.S.2d 576 (2d Dep’t 2012) ............................... 25, 27, 28 Landau, P.C. v. LaRossa, Mitchell & Ross, 11 N.Y.3d 8, 862 N.Y.S.2d 316 (2008) ................................................................21 Marino v. Town of Smithtown, 61 A.D.3d 761, 877 N.Y.S.2d 183 (2d Dep’t 2009) ............................................26 Modern Landfill, Inc. v. New York State Dept. of Environmental Conservation, 21 A.D.3d 1381, 801 N.Y.S.2d 214 (4 th Dep’t 2005) .......................... 5, 6-7, 9, 11 Neville v. Koch, 79 N.Y.2d 416, 583 N.Y.S.2d 802 (1992) .................................................... passim Parkview Associates v. City of New York, 71 N.Y.2d 274, 525 N.Y.S.2d 176 (1988) ...................................................... 19-20 Patel v. Board of Trustees of Incorporated Village of Muttontown, 15 A.D.3d 862, 115 A.D.3d 862 (2d Dep’t 2014) .................................................. 9 Pell v. Board of Educ., 4 N.Y.2d 222, 356 N.Y.S.2d 833 (1974) ..............................................................22 PVS Chemicals, Inc. v. New York State Dept. of Environmental Conservation, 256 A.D.2d 1241, 682 N.Y.S.2d 787 (4 th Dep’t 1998) ........................................11 Riverkeeper v. Planning Board of the Town of Southeast, 9 N.Y.3d 219, 851 N.Y.S.2d 76 (2007) ................................................................23 v Rochester Telephone Mobile Communications v. Ober, 251 A.D.2d 1053, 674 N.Y.S.2d 189 (4 th Dep’t 1998) ........................................14 Scalfani v. Story Book Homes, Inc., 294 A.D.2d 559, 743 N.Y.S.2d 283 (2d Dep’t 2002) ..........................................21 Schorr v. New York City Department of Housing Preservation and Development, 10 N.Y.3d 776, 857 N.Y.S.2d 1 (2008) ................................................................19 Sour Mountain Realty Inc. v. New York State Department of Environmental Conservation, 260 A.D.2d 920, 688 N.Y.S.2d 842 (3d Dep’t 1999) ............................. 11, 19, 25 Stanton v. Town of Islip Dept. of Planning and Development, 37 A.D.3d 473, 829 N.Y.S.2d 596 (2d Dep’t 2007) ............................................23 State v. White Oak Co., LLC., 13 A.D.3d 435, 787 N.Y.S.2d 333 (2d Dep’t 2004) ............................................20 Stop-The-Barge v. Cahill, 1 N.Y.3d 218, 771 N.Y.S.2d 40 (2003) ................................................................10 Tauber v. Village of Spring Valley, 56 A.D.3d 660, 868 N.Y.S.2d 239 (2d Dep’t 2008) ..................................... 20, 27 Town of Coeymans v. City of Albany, 237 A.D.2d 856, 655 N.Y.S.2d 172 (3d Dep’t 1997) .................................... 14-15 Town of Riverhead v. Central Pine Barrens Joint Planning and Policy Commission, 71 A.D.3d 679, 896 N.Y.S.2d 382 (2d Dep’t 2010) ................................ 10-11, 14 Troy Sand & Gravel Company, Inc., 125 A.D.3d 1188, 3 N.Y.S.3d 785 (3d Dep’t 2015) ............................................13 Weingarten v. Town of Lewisboro, 77 N.Y.2d 926, 569 N.Y.S.2d 599 (1991) ..................................................... 10, 15 vi Other Authorities N.Y. CIV.PRAC.LAW § 7801 (1) ...........................................................................9, 14 N.Y. CONST. ART. 6, § 3 ..........................................................................................22 SMITHTOWN TOWN CODE § 322-77 ..........................................................................21 PRELIMINARY STATEMENT In this proceeding pursuant to CPLR art. 78 petitioner-appellant (“petitioner”) appeals from an order of the Appellate Division, Second Department dated November 26, 2014, which affirmed an order of the Supreme Court, Suffolk County (Martin, J.), dated November 29, 2011, which granted the motion to dismiss made by respondents-respondents (“respondents”) and dismissed the proceeding. The proceeding which sought to set aside, as arbitrary and capricious, respondents’ issuance of a State Environmental Quality Review Act (“SEQRA”) positive declaration is not ripe for review. The positive declaration was an initial step in the environmental review of petitioner’s rezoning application not a final determination. There was no prior coordinated review or negative declaration, which would, arguably, render the matter ripe. Accordingly, the Appellate Division, Second Department properly ruled that the proceeding was not ripe. The contention that respondents are bound by the dicta contained in a 1999 order resolving a motion to amend a complaint in a different case involving different parties and different real property is devoid of merit. It is well settled that estoppel cannot be invoked against a governmental agency to prevent it from discharging its statutory duties. The unpreserved estoppel argument does not warrant upsetting the Appellate Division’s well-reasoned decision. 2 Respondents’ determination was not arbitrary or capricious merely because petitioner had not changed the use of the property. It is well-established, as a matter of environmental law, that rezoning is an action subject to SEQRA. At bar, respondents took a hard look at all relevant environmental concerns and determined that a positive declaration was warranted. It is not the province of the courts to second-guess thoughtful agency decision-making. Accordingly, the order of the Appellate Division, Second Department, dated November 26, 2014, should be affirmed in its entirety. 3 COUNTERSTATEMENT OF QUESTION PRESENTED Whether the petition was properly dismissed as premature? This question should be answered in the affirmative. 4 COUNTERSTATEMENT OF FACTS Petitioner commenced this CPLR art. 78 proceeding seeking judgment annulling, as arbitrary and capricious, a resolution adopted by respondents that issued a SEQRA positive declaration with respect to petitioner’s change of zone application and required petitioner to submit a Draft Environmental Impact Statement (“DEIS”) (8-9) 1 . Petitioner alleges that it owns real property located at 154 Old Northport Road, Kings Park New York (11). The parcel was acquired by petitioner in 1992 and consists of approximately 2.15 acres (11). The land is leased by petitioner to third parties and is used as a bus yard and trucking station (11). The zoning of the adjacent parcel of land, 152 Old Northport Road was amended to H1 pursuant to a stipulation of settlement on April 4, 2002 (15). In 2002, petitioner filed a change of zone application for the parcel located at 154 Old Northport Road, Kings Park, New York, to amend the Town’s zoning map from R-43 (residential) to H1 (heavy industrial) (11). The Town Board requested petitioner to appear before the Town Planning Board prior to a Town Board hearing on the application (12). The Planning Board recommended approval of the zone change but made no determination regarding SEQRA (12). On August 11, 2009 the Town Board adopted a resolution providing for a SEQRA positive declaration regarding the change of zone application (12). The resolution 1 Numbers in parentheses refer to page numbers in the record on appeal. 5 requires the preparation of a Draft Environmental Impact Statement to review the issues identified in the SEQRA positive declaration (12). The Motion To Dismiss On January 24, 2011, respondents moved to dismiss the petition on the ground that it fails to state a cause of action (39-40). Respondents observed that The petition fails to state a cause of action since this matter is not ripe for judicial review (41-42). The Town Board’s resolution, adopting a SEQRA positive declaration, was not a final act which caused the infliction of harm to the petitioner. Moreover, the adoption of a positive declaration was not arbitrary and capricious, requiring that the petition be dismissed pursuant to CPLR 7804(e). Respondents concluded that it is abundantly clear that the actions of the Town Board in issuing the positive declaration was not a final agency determination, and inflicted no immediate concrete harm on the petitioner (51). The positive declaration was not arbitrary and capricious such that this court should substitute its judgment for that of the Smithtown Town Board (51). Respondent concluded that the petition fails to state a cause of action against the respondents and must be dismissed in its entirety. Petitioner neglected to submit any papers in opposition to the motion. 6 The Supreme Court’s Order On November 29, 2011, the Supreme Court, Suffolk County (Martin, J.) granted the motion to dismiss (4-7). The court held: Here, the Town Board’s SEQRA determination is not yet ripe for judicial review (citations omitted). A lead agency’s SEQRA review obligations are not considered complete until it issues a SEQRA findings statement. The Town Board’s mere issuance of a positive SEQRA declaration and requirement that the petitioner file a DEIS did not create a justiciable controversy inasmuch as there is no question at this juncture concerning a choice of lead agency, or conflicting determination by the town with respect to SEQRA and the 154 parcel, nor has a sufficient record been established on this matter (citation omitted). Petitioners appealed from the order granting the motion to dismiss and, on November 26 2014, the Appellate Division, Second Department affirmed the Supreme Court’s order (73-85). The Order Of The Appellate Division, Second Department The Appellate Division, Second Department affirmed the Supreme Court’s decision concluding that the issuance of a SEQRA positive declaration, requiring that Ranco prepare and circulate a DEIS, is a preliminary step in the decision- making process, and that, as such, this matter is not ripe for judicial review (85). The court, quoting Modern Landfill, Inc. v. New York State Dept. of Environmental Conservation, 21 A.D.3d 1381, 801 N.Y.S.2d 214 (4 th Dep’t 2005), 7 observed that, “[p]etitioner may well obtain approval of its…application following preparation of a DEIS and thus, notwithstanding the considerable expense and time associated with its preparation, it cannot be said that the Town Board’s issuance of this positive declaration constitutes a ‘definitive’ position on an issue which inflicts an actual, concrete injury” (85). The court distinguished the present case from Gordon v. Rush, 100 N.Y.2d 236, 762 N.Y.S.2d 18 (2003), where this Court found that review of a positive declaration was ripe: ….a number of factors distinguish this matter, and indeed perhaps the typical case, from the circumstances presented in Rush. Here, while the parties settled their dispute in the prior action as to the adjacent parcel without a SEQRA positive declaration and without the need for a DEIS, the instant case involves a different parcel from that involved in the prior action. There is no dispute or confusion as to which agency is the lead agency for purposes of environmental review. Ranco has not been subject to a review process coordinated by multiple governmental agencies. The Town Board did not previously forego an opportunity to be heard in any such process. A SEQRA negative declaration has not previously been issued in connection with the proposal to rezone the subject parcel, and there has not been a prior determination that a DEIS is not warranted. Finally, as the Supreme Court correctly noted, a sufficient record has yet to be established on this matter. (84). Petitioner’s motion for leave to appeal was granted by this Court on March 31, 2015 (72). 8 ARGUMENT THE PETITION WAS PROPERLY DISMISSED INASMUCH AS THE PROCEEDING IS NOT RIPE The record establishes that the petition was properly dismissed. The proceeding seeking to challenge the positive SEQRA declaration does not contest a final agency determination resulting in concrete damages. The positive SEQRA declaration did not follow a prior coordinated review and previous negative declaration as was the case in Gordon v. Rush, 100 N.Y.2d 236, 762 N.Y.S.2d 18 (2003). Petitioner’s heavy reliance on Gordon v. Rush, supra, is profoundly misplaced. At bar, the SEQRA determination continues to be subject to the Board’s action and any perceived injury to petitioner may be prevented or significantly ameliorated by subsequent decisions. Petitioner’s assertion that res judicata applies to prevent the respondents from issuing a positive declaration is equally misplaced. Petitioner’s claim that respondents are bound by the dicta contained in a 1999 order, which granted a different plaintiff’s motion to amend a complaint in a different action, is completely devoid of merit. It is well settled that estoppel cannot be invoked against a governmental agency to prevent it from discharging its statutory duties. Estoppel may not be invoked to overcome a failure to comply with SEQRA. Accordingly, respondents are not bound by the general language contained in a 1999 order involving other parties and other property. 9 Finally, the record confirms that the issuance of a positive declaration was not arbitrary or capricious. It is well-established, as a matter of environmental law, that rezoning is an action subject to SEQRA. Respondents took a hard look at all relevant environmental concerns and determined that a positive declaration was warranted. It is not the province of the courts to second-guess thoughtful agency decision-making. Accordingly, the order of the Appellate Division, Second Department, dated November 26, 2014, should be affirmed in its entirety. The Lower Courts Properly Ruled That The Petition Was Not Ripe An action taken by an agency pursuant to SEQRA may be challenged only when such action is final. Patel v. Board of Trustees of Incorporated Village of Muttontown, 15 A.D.3d 862, 115 A.D.3d 862 (2d Dep’t 2014); CPLR 7801[1]. A positive SEQRA declaration is not a final agency action and thus is not ripe for judicial review. Modern Landfill, Inc. v. New York State Dept. of Environmental Conservation, 21 A.D.3d 1381, 801 N.Y.S.2d 214 (4 th Dep’t 2005); Brierwood Village v. Town of Hamburg, 227 A.D.2d 1051, 715 N.Y.S.2d 351 (4 th Dep’t 2000). For a challenge to administrative action to be ripe, the administrative action sought to be reviewed must be final, and the anticipated harm caused by the action must be direct and immediate. Weingarten v. Town of Lewisboro, 77 N.Y.2d 926, 569 N.Y.S.2d 599 (1991). This rule not only prevents the dissipation of judicial 10 resources, but more importantly, it prevents devaluation of the force of judicial decrees which decide concrete disputes. Weingarten v. Town of Lewisboro, supra. An agency action is final when the decisionmaker arrives at a definitive position on the issue that inflicts an actual, concrete injury. Stop-The-Barge v. Cahill, 1 N.Y.3d 218, 771 N.Y.S.2d 40 (2003); see also, Association For A Better Long Island v. New York State Department of Environmental Conservation, 23 N.Y.3d 1, 988 N.Y.S.2d 115 (2014). A determination will not be deemed final because it stands as the agency’s last word on a discrete legal issue that arises during an administrative proceeding. Essex County v. Zagata, 91 N.Y.2d 447, 672 N.Y.S.2d 281 (1998). There must additionally be a finding that the injury purportedly inflicted by the agency may not be prevented or significantly ameliorated by further administrative action or by steps available to the complaining party. Essex County v. Zagata, supra. If further agency proceedings might render the disputed issue moot or academic, then the agency position cannot be considered definitive or the injury actual or concrete. Essex County v. Zagata, supra. Mere participation in an ongoing administrative process is not, in and of itself, an actual concrete injury in the ripeness context. Town of Riverhead v. Central Pine Barrens Joint Planning and Policy Commission, 71 A.D.3d 679, 896 N.Y.S.2d 382 (2d Dep’t 2010). 11 At bar, the participation in the ongoing administrative process through the submission of a Draft Environmental Impact Statement (“DEIS”) is not an injury for ripeness purposes. The present case does not involve an already completed review process and negative declaration issued by another agency. Cf., Gordon v. Rush, 100 N.Y.2d 236, 762 N.Y.S.2d 18 (2003). The Town Board, as lead agency, issued a positive declaration requiring the preparation of a DEIS as part of the SEQRA process. The positive declaration is merely a preliminary step in the SEQRA process not a final determination. Modern Landfill, Inc. v. New York State Dept. of Environmental Conservation, supra; Brierwood Village v. Town of Hamburg, supra. The resolution to adopt a positive declaration was an initial SEQRA declaration not a detailed and final assessment of the application’s environmental impact under SEQRA. Sour Mountain Realty Inc. v. New York State Department of Environmental Conservation, 260 A.D.2d 920, 688 N.Y.S.2d 842 (3d Dep’t 1999); PVS Chemicals, Inc. v. New York State Dept. of Environmental Conservation, 256 A.D.2d 1241, 682 N.Y.S.2d 787 (4 th Dep’t 1998). Petitioner’s reliance on this Court’s determination in Gordon v. Rush, supra, is unavailing. In Gordon v. Rush, supra petitioners brought an article 78 proceeding to review a determination of the Southampton Town Coastal Erosion Hazard Board of Review, which, following a Department of Environmental 12 Conservation’s issuance of a negative environmental impact declaration, assumed lead agency status and issued its own SEQRA positive environmental impact declaration. This Court rejected a bright-line rule that a positive declaration requiring a DEIS is not final or ripe for review 2 . The bright-line rule was rejected because, “ [h]ere the Board issued its own positive declaration for the project after the DEC had previously conducted a coordinated review resulting in a negative declaration, in which the Board had an opportunity but failed to participate.” 100 N.Y.2d at 243; 762 N.Y.S.2d at 22-23. As noted above, in this case there was no prior coordinated review or negative declaration by another lead agency. This Court in Gordon v. Rush, supra found that the proceeding was ripe for review because the harm inflicted was definite and concrete: …..the harm was the issuance of the positive declaration directing petitioners to prepare a DEIS, involving the expenditure of time and resources, after petitioners had already been through the coordinated review process and a negative declaration had been issued by the DEC as lead agency. As a result, the Board’s action in issuing a positive declaration is a final administrative action ripe for review. 100 N.Y.2d at 243; 762 N.Y.S.2d at 22-23. This Court further explained that the Board’s decision to conduct its own SEQRA review was unauthorized inasmuch as 2 Petitioner’s contention that an applicant’s challenge to a decision requiring the preparation of a DEIS is somehow more significant than a challenge by an adjoining property owner, petitioner’s brf. at 13, is without merit. A positive SEQRA declaration is, generally, not a final agency action, and thus is not ripe for judicial review, regardless of the status of the petitioner. Modern Landfill, Inc. v. New York State Dept. of Environmental Conservation, 21 A.D.3d 1381, 801 N.Y.S.2d 214 (4 th Dep’t 2005). 13 it was bound by the DEC’s negative declaration. Thus, the time and money spent by petitioner to prepare the DEIS amounted to unauthorized expenditures for which petitioner had no remedy. At bar, the facts contrast sharply with the facts of Gordon v. Rush, supra. In the present case, there was no previous coordinated review resulting in a negative declaration. The Town Board’s positive declaration in the present case was fully authorized insofar as it was the lead agency and was not bound by a prior determination. The time and money that may be expended in preparing a DEIS are not unauthorized or unnecessary expenses. Cf., Troy Sand & Gravel Company, Inc., 125 A.D.3d 1188, 3 N.Y.S.3d 785 (3d Dep’t 2015). Petitioner is not entitled to a remedy in the present case for the proper application of SEQRA and attendant expenses. The absence of a remedy to recoup necessary expenses is not a legitimate concern. The issuance of a positive declaration, at bar, was not a final determination and the matter is not ripe for review. Petitioner’s application has not been denied and may be granted following the preparation of DEIS. The SEQRA determination continues to be subject to the Board’s action and any perceived injury to petitioner may be prevented or significantly ameliorated by subsequent decisions. Guido v. Town of Ulster Town Board, 74 A.D.3d 1536, 902 N.Y.S.2d 710 (3d Dep’t 2010). As noted above, the mere participation in the agency review is not an injury in the ripeness context. 14 Town of Riverhead v. Central Pine Barrens Joint Planning and Policy Commission, supra. Thus, the proceeding is not ripe. Rochester Telephone Mobile Communications v. Ober, 251 A.D.2d 1053, 674 N.Y.S.2d 189 (4 th Dep’t 1998); CPLR § 7801 (1). The Appellate Division, Second Department properly recognized that a number of factors distinguish this case from Gordon v. Rush, supra: There is no dispute or confusion as to which agency is the lead agency for purposes of environmental review. Ranco has not been subject to a review process coordinated by multiple governmental agencies. The Town Board did not previously forego an opportunity to be heard in any such process. A SEQRA negative declaration has not previously been issued in connection with the proposal to rezone the subject parcel, and there has not been a prior determination that a DEIS is not warranted. Finally, as the Supreme Court correctly noted, a sufficient record has yet to be established on this matter. (84). The Appellate Division, Second Department further noted that, “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’” (84), quoting Town of Coeymans v. City of Albany, 237 A.D.2d 856, 655 N.Y.S.2d 172 (3d Dep’t 1997). As noted above, the rule of finality in administrative proceedings is intended to prevent the dissipation of judicial 15 resources, and the devaluation of the force of judicial decrees which decide concrete disputes. Weingarten v. Town of Lewisboro, supra. This purpose would be subverted by a bright-line rule permitting immediate review of every positive SEQRA declaration. Petitioner has not provided a persuasive rationale for adopting a bright-line rule permitting immediate review of every positive SEQRA declaration and the position, which is contrary to this Court’s decisions in Weingarten v. Town of Lewisboro, supra and Gordon v. Rush, supra, should be rejected. Petitioner argues that it can be harmed by being required to make such a expenditure [for the preparation of a DEIS] if there is no legal requirement or limited potential benefit from the ultimate result. Petitioner acknowledges that his alleged injury is hypothetical and dependent on future events. There was no prior coordinated review and negative declaration which would arguably subvert the Town’s positive declaration. Cf., Gordon v. Rush, supra. In any event, the expenditure for the preparation of a DEIS, at bar, is legitimate and necessary. In Center of Deposit, Inc. v. Village of Deposit, 90 A.D.3d 1450, 936 N.Y.S.2d 709 (3d Dep’t 2011), heavily relied on by petitioner, the court determined that where the ultimate resolution of a matter is still pending, a determination within the context of that matter may be final if the governmental entity acts beyond its statutory authority and causes injury. At bar, petitioner does 16 not argue that its application is not subject to SEQRA. Cf., Center of Deposit, Inc. v. Village of Deposit, supra. It cannot be successfully argued, moreover, that the Town Board acted beyond its statutory authority and caused injury 3 . Cf., Center of Deposit, Inc. v. Village of Deposit, supra. Indeed, the application for a change of zoning is subject to SEQRA. See e.g., Neville v. Koch, 79 N.Y.2d 416, 583 N.Y.S.2d 802 (1992); Highview Estates of Orange County, Inc. v. Town Board of the Town of Montgomery, 101 A.D.3d 716, 955 N.Y.S.2d 175 (2d Dep’t 2012). Petitioner’s reliance on Center of Deposit, Inc. v. Village of Deposit, supra, is obviously misplaced. Furthermore, the record is replete with evidence of potential significant environmental impact from petitioner’s application. In support of the motion to dismiss respondents submitted a memorandum from the Town’s Director of Planning, Frank DeRubeis. The observations and conclusions in the memorandum were not challenged by petitioners. The DeRubeis memo painstakingly details planning concerns for all of the developments in this area. DeRubeis notes that buffers have been maintained and nearby development has been required to conform to standards that protect the visual integrity of the adjacent Sunken Meadow Parkway. DeRubeis also notes 3 The issue is not preserved for review insofar as it is not contained in the petition. See, JF Capital Advisors, LLC, v. The Lighthouse Group, LLC., ___N.Y.3d___, ___N.Y.S.3d___ [July 1, 2015]. 17 that potential HI uses could also have impacts on the single family residences that are located within about 400 feet of the site, east of the parkway. DeRubeis notes that, “these homes are close enough to the site to be affected by noise, odors, vibration, air pollution, glare and other visual impacts, and traffic generation” (55). DeRubeis also notes that the size and shape of the parcel is not appropriate for certain permitted uses in the HI zoning classification given the proximity to residences and residentially zoned properties. DeRubeis explained that, “some uses permitted in HI zoning could not be accommodated on a site this size and shape without being intrusive into the nearby buffers, properties and roadways. It may be appropriate to place limitations on the development of this site if it is developed separately from the adjacent sites” (55). The positive declaration is well supported and based upon indisputable facts in the record. Indeed, annexed to the petition is a copy of the SEQRA Positive Declaration Determination of Significance dated August 11, 2009 (23-26). In the document, the clearly non-arbitrary, rational and legitimate reasons supporting the positive declaration are set forth in detail including: (a) The Proposal is inconsistent with the planned use of the subject parcel and with the Town of Smithtown Comprehensive Master Plan; (b) the Proposal appears to be incompatible with existing residential land uses in the vicinity of the subject parcel; 18 (c) development of the subject parcel under the proposed zoning has the potential to result in increased environmental impacts upon neighboring residentially developed properties and upon the Sunken Meadow Parkway corridor relative to development of the subject parcel in accordance with the existing zoning including: (1) increased generation of noise and mechanical vibrations; (2) increased air quality impacts, including production of odors and fugitive dust; (3) increased visual impacts, including fugitive light and increased visibility of structures and onsite activities; (4) increased traffic generation, including increases in heavy truck traffic; and (5) increased use, storage, handling of toxic and hazardous materials. (24). In light of the foregoing uncontested facts, petitioner’s tacit assertion that the Town Board acted beyond its statutory authority is thoroughly meritless. Demers v. New York State Dept. of Environmental Conservation, 3 A.D.3d 744, 770 N.Y.S.2d 807 (3d Dep’t 2004). The Town Board was authorized to act as lead agency and its positive declaration was not arbitrary or capricious. See, East End Property Company # 1, LLC v. Town Board of the Town of Brookhaven, 56 A.D.3d 773, 868 N.Y.S.2d 264 (2d Dep’t 2008). Petitioner’s application, at bar, is 19 unquestionably a proper subject for a DEIS. Neville v. Koch, supra; Highview Estates of Orange County, Inc. v. Town Board of the Town of Montgomery, supra. The mere fact that petitioner is subjected to SEQRA regulations requiring the submission of a DEIS is insufficient, by itself, to constitute an injury. Association For A Better Long Island, Inc. v. New York State Department of Environmental Conservation, supra. The positive declaration, which does not amount to approval or rejection of the application, does not constitute a definitive position on the issue which inflicts a concrete injury, notwithstanding the expense of preparing a DEIS. See, Sour Mountain Realty Inc. v. New York State Department of Environmental Conservation, supra. Accordingly, the Appellate Division, Second Department properly determined that the petition was not ripe and the order should be affirmed. Petitioner contends that the Town is bound by a settlement in another case involving different parties and different property. Nonetheless, governmental agencies are generally not subject to the defense of estoppel. International Merchants, Inc. v. Village of Old Field, 203 A.D.2d 247, 609 N.Y.S.2d 341 (2d Dep’t 1994). It is well settled that estoppel cannot be invoked against a governmental agency to prevent it from discharging its statutory duties. Schorr v. New York City Department of Housing Preservation and Development, 10 N.Y.3d 776, 857 N.Y.S.2d 1 (2008); Parkview Associates v. City of New York, 71 N.Y.2d 20 274, 525 N.Y.S.2d 176 (1988). Estoppel is not available against a local government unit for the purposes of ratifying an administrative error. Parkview Associates v. City of New York, supra; Palm Management Corporation v. Goldstein, 29 A.D.3d 801, 815 N.Y.S.2d 670 (2d Dep’t 2006). A state agency generally cannot be equitably estopped from exercising its governmental functions. State v. White Oak Co., LLC., 13 A.D.3d 435, 787 N.Y.S.2d 333 (2d Dep’t 2004). Furthermore, estoppel may not be invoked to relieve a party from the mandatory operation of a statute. F.A.S.A. Construction Corp. v. Village of Monroe, 14 A.D.3d 532, 789 N.Y.S.2d 175 (2d Dep’t 2005). Critically, it is established that estoppel may not be invoked to overcome a failure to comply with SEQRA. E.F.S. Ventures Corp., v. Foster, 71 N.Y.2d 359, 526 N.Y.S.2d 56 (1988); Tauber v. Village of Spring Valley, 56 A.D.3d 660, 868 N.Y.S.2d 239 (2d Dep’t 2008). A municipality is not estopped from enforcing its zoning laws either by the issuance of a permit or by laches. Galvez v. Srinivasan, 71 A.D.3d 1019, 898 N.Y.S.2d 157 (2d Dep’t 2010). Petitioner, at bar, seeks to apply the dicta in a different case involving a different plaintiff 4 and different real property to preclude respondents from enforcing SEQRA. The record is devoid of any final judgment involving the parties to this action. The record is devoid of any final adjudication involving the 4 Petitioner in this proceeding, Ranco Sand and Stone Corp., is owned by Marilyn Horan and Matthew Metz (13). 21 parties to this action. See, Landau, P.C. v. LaRossa, Mitchell & Ross, 11 N.Y.3d 8, 862 N.Y.S.2d 316 (2008). Instead, petitioner relies on a 1999 order involving a motion to amend a complaint in a different case involving a different plaintiff and different real property to argue that res judicata bars respondent from applying SEQRA. The prior order granted the motion to amend in that action and specifically declined to prejudge the merits (38). Res judicata does not apply unless there has been a dismissal on the merits. Franchise Acquisitions Group Corp. v. Jefferson Valley Mall Limited Partnership, 73 A.D.3d 1123, 900 N.Y.S.2d 906 (2d Dep’t 2010). Under the doctrine of res judicata, only a final adjudication of a claim on the merits precludes relitigation of that claim and all claims arising out of the same transaction by a party or those in privity with a party. Scalfani v. Story Book Homes, Inc., 294 A.D.2d 559, 743 N.Y.S.2d 283 (2d Dep’t 2002). Petitioner’s res judicata argument is devoid of substance. Petitioner argues that its application is intended to legalize a long-standing use which the Town has purportedly accepted without issue. To the extent that petitioner is seeking to legalize a long-standing use it should have applied to the Board of Zoning Appeals for a certificate of existing use rather than an application for a zoning change. Smithtown Town Code § 322-77. Petitioner’s intention is not merely to legalize an existing use, but to change the applicable zoning to allow for different and more environmentally deleterious uses of the property. The 22 SEQRA positive declaration and DEIS requirement were entirely proper under the circumstances and need not await petitioner’s actual change of use. Neville v. Koch, supra. The positive declaration in the instant case is merely a preliminary step in the SEQRA review process and not a final determination. Thus, the petition is not ripe and the Appellate Division, Second Department properly affirmed the dismissal of the proceeding. The Positive Declaration Was Not Arbitrary Or Capricious The jurisdiction of the Court of Appeals is generally limited to questions of law. N.Y. Const. Art. 6, § 3. Moreover, judicial review of administrative determinations pursuant to article 78 is limited to questions of law. Khan v. New York State Department of Health, 96 N.Y.2d 879, 730 N.Y.S.2d 783 (2001). The Court of Appeals does not have the power to upset the determination of an administrative tribunal on a question of fact. Pell v. Board of Educ., 4 N.Y.2d 222, 356 N.Y.S.2d 833 (1974); see also, Featherstone v. Franco, 95 N.Y.2d 550, 720 N.Y.S.2d 93 (2000). The notion that this Court should review the factual context to determine whether the resolution is void as arbitrary and capricious on due process grounds 5 is foreclosed by the above referenced jurisdictional limitations. Significantly, the 5 Petitioner bemoans the delay in rendering the positive declaration yet it completely fails to identify the actions it took to accelerate the application. 23 record is devoid of any claim of a due process violation. The issue is not preserved for appellate review. Bingham v. New York City Transit Authority, 99 N.Y.2d 355, 756 N.Y.S.2d 129 (2003). In any event, the record does not support petitioner’s assertion that the resolution was arbitrary and capricious. Petitioner has the burden of proving the allegations of its petition in a CPLR article 78 proceeding. Stanton v. Town of Islip Dept. of Planning and Development, 37 A.D.3d 473, 829 N.Y.S.2d 596 (2d Dep’t 2007). In a proceeding pursuant to CPLR article 78 to review the determination of a municipality, it is well settled that a court may not substitute its judgment for that of the board or body it reviews unless the decision under review is arbitrary and unreasonable and constitutes an abuse of discretion. Drier v. LaValle, 29 A.D.3d 790, 815 N.Y.S.2d 661 (2d Dep’t 2006). A court may not substitute its own judgment for that of the board, even if such a contrary determination is itself supported by the record. Capitol Real Estate Inc. v. Town Board of Town of Charlton, 23 A.D.3d 858, 804 N.Y.S.2d 449 (3d Dep’t 2005). It is not the province of the courts to second-guess thoughtful agency decision making and, accordingly, an agency decision should be annulled only if it is arbitrary, capricious or unsupported by the evidence. Riverkeeper v. Planning Board of the Town of Southeast, 9 N.Y.3d 219, 851 N.Y.S.2d 76 (2007). A court may not substitute its own judgment for that of the board, even if such a contrary 24 determination is itself supported by the record. Capitol Real Estate Inc. v. Town Board of Town of Charlton, 23 A.D.3d 858, 804 N.Y.S.2d 449 (3d Dep’t 2005). In applying the arbitrary and capricious standard of review in an article 78 proceeding, a court inquires whether the determination under review had a rational basis. Halperin v. City of New Rochelle, 24 A.D.3d 768, 809 N.Y.S.2d 98 (2d Dep’t 2005). A determination of a municipal land use agency will be deemed rational if it has some objective factual basis, as opposed to resting entirely on subjective considerations such as general community opposition. Halperin v. City of New Rochelle, supra. The determination of a zoning board made after a public hearing should be sustained if it has a rational basis and is supported by evidence in the record. Haberman v. Zoning Board of Appeals of The Town of East Hampton, 85 A.D.3d 1170, 926 N.Y.S.2d 165 (2d Dep’t 2011). Instead of the foregoing principles petitioner’s contends that a balancing test should be employed to determine if respondents’ determination was arbitrary. Petitioner’s brf. at 19. Petitioner maintains that its costs in complying with SEQRA should be considered in determining whether respondents’ determination was arbitrary, albeit petitioner neglects to point to any SEQRA provision permitting such a consideration 6 . The cost of complying with SEQRA is not 6 The issue, is not preserved for appellate review insofar as it was not raised in the Supreme Court. Petitioner neglected to oppose respondents’ motion to dismiss and the only issues 25 cognizable injury worthy of consideration in determining whether a determination is arbitrary and capricious. Association For A Better Long Island, Inc. v. New York State Department of Environmental Conservation, supra; Sour Mountain Realty Inc. v. New York State Department of Environmental Conservation, supra. Judicial review of a SEQRA decision does not involve an analysis of the applicant’s costs of compliance. Cf., Kirquel Development, Ltd. v. Planning Board of the Town of Cortlandt, 96 A.D.3d 754, 946 N.Y.S.2d 576 (2d Dep’t 2012). Petitioner’s averment that respondents did not object to the improper use of the premises is equally unavailing. As noted above, a municipality is not estopped from enforcing its zoning laws either by the issuance of a permit or by laches. Galvez v. Srinivasan, 71 A.D.3d 1019, 898 N.Y.S.2d 157 (2d Dep’t 2010). Estoppel may not be invoked to overcome a failure to comply with SEQRA. E.F.S. Ventures Corp., v. Foster, supra. Petitioner’s deliberate violation of respondents’ Code provisions and zoning regulations does not provide a legitimate basis for alleging that respondents’ determination was arbitrary and capricious. The record is replete with evidence supporting the positive declaration and the notion that respondents did not provide a “reasoned elaboration” for the determination, is devoid of serious merit. Respondents’ alleged acquiescence in petitioner’s prolonged violation of respondents’ zoning regulations does not estop preserved for review are those contained in the petition seeking to set aside the resolution as arbitrary and capricious. 26 respondent from enforcing its zoning regulations and SEQRA. Marino v. Town of Smithtown, 61 A.D.3d 761, 877 N.Y.S.2d 183 (2d Dep’t 2009). The conclusory allegation that the value of a DEIS to the decision maker is negligible ignores the extensive proof in the record supporting the positive declaration and the complete absence of contrary proof. As noted above, petitioner provides no support for its contention that a change of use consistent with the new zoning ordinance would require a separate SEQRA review. Cf., Neville v. Koch, supra. The conclusory averments made on appeal do not suffice to defeat the motion to dismiss, notwithstanding that they were never made in the Supreme Court. More is needed to state a claim than factual allegations which are conclusory, vague or inherently incredible or contradicted by documentary evidence. Abele v. Dimitriadis, 53 A.D.3d 969, 862 N.Y.S.2d 182 (3d Dep’t 2008). The unpreserved averment that petitioner’s use of the premises is consistent with the surrounding area, is equally unavailing insofar as it merely restates the meritless estoppel argument. In any event, the consistency argument does not subvert the positive declaration inasmuch as the record establishes that respondents took a hard look at all relevant areas of environmental concern and fully supported their determination. Judicial review of an agency determination under SEQRA is limited to whether the agency identified the relevant areas of environmental 27 concern, took a hard look at them and made a reasoned elaboration of the basis for its determination. Kirquel Development, Ltd. v. Planning Board of the Town of Cortlandt, supra; Druyan v. Village Bd. of Trustees of Village of Cayuga Heights, 90 A.D.3d 1207, 947 N.Y.S.2d 194 (3d Dep’t 2012). A factual review of the Board’s determination is not permissible in the context of this appeal. Khan v. New York State Department of Health, supra. Moreover, as noted above, petitioner cannot rely on the dicta in a 1999 order granting a motion to amend a complaint to contend that respondents are precluded from conducting an environmental review of petitioner’s application. E.F.S. Ventures Corp., v. Foster, supra; Tauber v. Village of Spring Valley, supra. Res judicata and collateral estoppel do not apply and petitioner’s misplaced reliance on the 1999 interlocutory order does not demonstrate that respondents’ determination was improper. In fact, the court in the prior proceeding refused to prejudge the merits of the case (38). Petitioner’s conclusory and unpreserved claim that its application does not amount to an action for SEQRA purposes is based only on its averments which are contradicted by the record and insufficient to sustain the petition. Abele v. Dimitriadis, supra. In any event it is well-established, as a matter of environmental law, that rezoning is an action subject to SEQRA. Neville v. Koch, supra. 28 Similarly, the allegation that the positive declaration lacks a rational basis is belied by the uncontradicted proof in the record. Petitioner has not adduced any proof, expert or otherwise, to contradict respondents’ findings and conclusions. Cf., Kirquel Development, Ltd. v. Planning Board of the Town of Cortlandt, supra. The assertion that the rezoning is merely a designation not a change of use, is unavailing insofar as the designation authorizes the change of use. Respondents were obligated to take a hard look at environmental concerns and their review may be conducted on a conceptual basis. Neville v. Koch, supra. An agency complying with SEQRA need not investigate every conceivable environmental problem; it may, within reasonable limits, use its discretion in selecting which ones are relevant. Druyan v. Village Bd. of Trustees of Village of Cayuga Heights, supra. It is not the province of the courts to second-guess thoughtful agency decision-making. Druyan v. Village Bd. of Trustees of Village of Cayuga Heights, supra. A SEQRA review of rezoning action may take place long before any project is proposed and may be conducted on a conceptual basis. Neville v. Koch, supra. In fact, the Town would be remiss if it waited until petitioner applied to change the use of the premises to take a hard look at the environmental concerns. See e.g., Bergami v. Town Board of the Town of Rotterdam, 97 A.D.3d 1018, 949 N.Y.S.2d 245 (3d Dep’t 2012). Thus, petitioner’s 29 assertion that respondents’ determination is arbitrary because the rezoning does not alter the present use of the property is legally baseless. Petitioner’s unpreserved due process argument is vacuous insofar as petitioner has been permitted to illegally use the property for many years. Petitioner has not been deprived of a property interest and the newly crafted due process argument lacks substance. Bower v. Town of Pleasant Valley, 2 N.Y.3d 617, 781 N.Y.S.2d 240 (2004). Petitioner’s land use moratorium analogy is obviously misplaced insofar as petitioner has not been prohibited from using the property in violation of the Town’s Code. The newly asserted claim merely recasts the nonviable laches argument in due process terms. Nonetheless, as noted above a municipality cannot be estopped from enforcing its zoning laws by laches. Galvez v. Srinivasan, supra. The purported delay in issuing the positive declaration does not affect the validity of the findings and conclusions underlying the positive declaration. The purported delay does ameliorate the serious environmental concerns arising out of petitioner’s application. The mere delay in issuing the positive declaration does not provide a basis for concluding that the determination was arbitrary or capricious. Accordingly, the order of the Appellate Division, Second Department, dated November 26, 2014, should be affirmed in its entirety. 30 CONCLUSION For the reasons set forth above, the order of the Appellate Division, Second Department, dated November 26, 2014, should be affirmed in its entirety. Dated: Smithtown, New York July 10, 2015 Respectfully Submitted, DEVITT SPELLMAN BARRETT, LLP Attorneys for Respondents By________________________________ JOHN M. DENBY, ESQ. 50 Route 111 Smithtown, New York 11787 (631) 724-8833 Of Counsel: John M. Denby, Esq.