CUSTOM TOPSOIL INC 1070 v. Flexo Transparent, Inc., Diane M. McCarthy and Patrick J. McCarthy, Intervenors-Respondents-Appellants. (2004)

Petitioners commenced this proceeding seeking, inter alia, to annul a determination either denying or refusing to process the application of petitioner Custom Topsoil, Inc. for a use permit (see Buffalo City Code § 511-116[B] ) allowing it to engage in rock, stone and concrete crushing operations on a site in respondent City of Buffalo (City).   The application for a use permit followed the issuance of an order in a related action concluding, inter alia, that such a permit was required, and this Court has affirmed that order (Custom Topsoil v. City of Buffalo [Appeal No. 3], 12 A.D.3d 1164, 784 N.Y.S.2d 422).

 With respect to petitioners' appeal, we conclude under the circumstances that the issuance of a use permit under the Buffalo City Code may not be characterized as a ministerial or nondiscretionary act on the part of City officials.   Concrete crushing is not among the listed permitted uses of property in an M2 zone (see § 511-48[B][4] ).   Nor can we conclude on this record that concrete crushing is, necessarily and as a matter of law, a permitted “equivalent” use under Buffalo City Code § 511-48(B)(15). We are unable to determine on the record before us whether concrete crushing in general, or the proposed operations of petitioners in particular, would or might “become hazardous, noxious or offensive ․ by reason of the emission of odor, dust, smoke, ․ fumes, noise, vibration, ․ or water-carried waste” (id.).   We note, in any event, that a determination of that issue would involve an exercise of discretion by City officials.

 In accordance with the foregoing, we conclude that petitioners are not entitled to a writ of mandamus.   They failed to demonstrate that they have a clear legal right, as a ministerial matter, to a use permit authorizing them to carry out their crushing operations at the site (see Matter of Savastano v. Prevost, 66 N.Y.2d 47, 50, 495 N.Y.S.2d 6, 485 N.E.2d 213, rearg. denied 66 N.Y.2d 1036, 499 N.Y.S.2d 1031, 489 N.E.2d 1304;  Matter of Legal Aid Socy. of Sullivan County v. Scheinman, 53 N.Y.2d 12, 16, 439 N.Y.S.2d 882, 422 N.E.2d 542).   Further, we conclude that the ultimate granting or denial of the use permit application would be an agency action subject to the State Environmental Quality Review Act ( [SEQRA] ECL art. 8).   In that regard, it is well established that, where a municipal officer has a latitude of choice that takes into account the kinds of environmental concerns that may be raised during the SEQRA process, the official's function is discretionary and thus is subject to SEQRA review (see Incorporated Vil. of Atl. Beach v. Gavalas, 81 N.Y.2d 322, 325-327, 599 N.Y.S.2d 218, 615 N.E.2d 608;  Matter of Pius v. Bletsch, 70 N.Y.2d 920, 922, 524 N.Y.S.2d 395, 519 N.E.2d 306;  Matter of Filmways Communications of Syracuse v. Douglas, 106 A.D.2d 185, 186, 484 N.Y.S.2d 738, affd. 65 N.Y.2d 878, 493 N.Y.S.2d 309, 482 N.E.2d 1225).   We reject the contention of the intervenors that, once the City had filed its notice of appeal in the declaratory judgment action (see Custom Topsoil [Appeal No. 3], 12 A.D.3d 1164, 784 N.Y.S.2d 422), petitioners were barred from seeking a use permit.

Contrary to petitioners' contention, the City did not fail to take the requisite hard look at the environmental impacts of its Urban Renewal Plan (URP), and thus the City did not act arbitrarily and capriciously or abuse its discretion in issuing a negative declaration (see Matter of Jackson v. New York State Urban Dev. Corp., 67 N.Y.2d 400, 417, 503 N.Y.S.2d 298, 494 N.E.2d 429;  Matter of Lloyd v. Town of Greece Zoning Bd. of Appeals [Appeal No. 1], 292 A.D.2d 818, 819, 739 N.Y.S.2d 303, lv. dismissed in part and denied in part 98 N.Y.2d 691, 747 N.Y.S.2d 407, 775 N.E.2d 1286, rearg. denied 98 N.Y.2d 765, 752 N.Y.S.2d 4, 781 N.E.2d 916;  see also Matter of Kahn v. Pasnik, 90 N.Y.2d 569, 574, 664 N.Y.S.2d 584, 687 N.E.2d 402).   Also contrary to petitioners' contention, the City did not engage in improper segmentation in conducting its environmental review of the project (see Matter of Fleckenstein v. Town of Porter, 309 A.D.2d 1188, 1190, 765 N.Y.S.2d 123, lv. denied 1 N.Y.3d 509, 777 N.Y.S.2d 18, 808 N.E.2d 1277;  Matter of Settco, LLC v. New York State Urban Dev. Corp., 305 A.D.2d 1026, 759 N.Y.S.2d 833, lv. denied 100 N.Y.2d 508, 764 N.Y.S.2d 385, 796 N.E.2d 477).

We reject the contention of respondents on their cross appeal that Supreme Court issued an “advisory opinion” (see generally Cuomo v. Long Is. Light. Co., 71 N.Y.2d 349, 354, 525 N.Y.S.2d 828, 520 N.E.2d 546;  New York Pub. Interest Research Group v. Carey, 42 N.Y.2d 527, 529-530, 399 N.Y.S.2d 621, 369 N.E.2d 1155).

 Concerning the cross appeal by the intervenors, we reject their contention that the court should have dismissed the petition on the ground that petitioners had failed to exhaust their administrative remedies (see Matter of Gerard v. Section III of N.Y. State Pub. High School Athletic Assn., 210 A.D.2d 938, 939, 620 N.Y.S.2d 670;  cf. Matter of Michalak v. Zoning Bd. of Appeals of Town of Pomfret, 286 A.D.2d 906, 908, 731 N.Y.S.2d 129;  Matter of Preservation Assn. of Cent. N.Y. v. Marcoccia, 284 A.D.2d 948, 725 N.Y.S.2d 915).   Finally, we note that the intervenors improperly contend for the first time on appeal that petitioners lacked standing to challenge the adoption of the URP on SEQRA grounds, and thus that contention is not properly before us (see Killeen v. Crosson, 284 A.D.2d 926, 927, 726 N.Y.S.2d 198;  Sovik v. Healing Network, 244 A.D.2d 985, 988, 665 N.Y.S.2d 997).

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed without costs.

MEMORANDUM: