IN RE: Nora LUCAS (2008)

In a proceeding pursuant to CPLR article 78, inter alia, (1) to review a determination of the Director of Building of Village of Mamaroneck dated July 6, 2007, granting a building permit authorizing the construction of a single-family home by Benmar Properties, LLC, and (2), in effect, to compel the Village of Mamaroneck to make a threshold determination as to whether the issuance of the building permit is a Type I, Type II, or Unlisted Action within the meaning of the regulations implementing the State Environmental Quality Review Act (ECL art. 8), the petitioners Nora Lucas, Anthony Weiner, Jeffrey Falk, Martha Falk, Stuart Tiekert, and Robert Balin appeal, as limited by their brief, from so much of an order and judgment (one paper) of the Supreme Court, Westchester County (Cohen, J.), entered October 23, 2007, as denied the petition and dismissed the proceeding.

ORDERED that the order and judgment is modified, on the law, by deleting the provision thereof denying that branch of the petition which was, in effect, to compel the Village of Mamaroneck to make a threshold determination as to whether the issuance of the building permit is a Type I, Type II, or Unlisted Action within the meaning of the regulations implementing the State Environmental Quality Review Act, and substituting therefor a provision granting that branch of the petition and remitting the matter to the Village of Mamaroneck for such a determination by the appropriate lead agency;  as so modified, the order and judgment is affirmed insofar as appealed from, without costs or disbursements.

 The petitioners alleged that the Director of Building of Village of Mamaroneck (hereinafter the Director) improperly granted a building permit to Benmar Properties, LLC. The Supreme Court properly denied that branch of the petition which was to annul the Director's determination on the ground that the petitioners failed to exhaust their administrative remedies.   The petitioners were required to challenge the issuance of the building permit before the Village's Zoning Board of Appeals prior to commencing this proceeding (see Matter of Levine v. Town of Clarkstown, 307 A.D.2d 997, 999, 763 N.Y.S.2d 661;  Sabatini v. Incorporated Vil. of Kensington, 284 A.D.2d 320, 725 N.Y.S.2d 567).

 However, the Supreme Court erred in denying that branch of the petition which was, in effect, to compel the Village of Mamaroneck to make a threshold determination under SEQRA as to whether the issuance of the building permit is a Type I, Type II, or Unlisted Action within the meaning of the regulations implementing the State Environmental Quality Review Act (ECL art. 8) (hereinafter SEQRA).   Inasmuch as there has yet to be a determination as to whether, pursuant to SEQRA, the subject action is properly categorized as Type I (see 6 NYCRR 617.4), Type II (see 6 NYCRR 617.5), or Unlisted (see 6 NYCRR 617.2[ak] ), that branch of the petition should have been granted and the matter remitted to the Village for such a determination by the appropriate lead agency, either the Village Planning Board, Zoning Board of Appeals, or the Village Board of Trustees.

The parties' remaining contentions are without merit.