FUSS v. HANNIBAL TOWN PLANNING BOARD SBA

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Supreme Court, Appellate Division, Fourth Department, New York.

Matter of Joseph P. FUSS and Lucy C. Fuss, Petitioners-Appellants, v. HANNIBAL TOWN PLANNING BOARD, Douglas Fisk, Planning Board Chairman, Lester Fowler, Judy Prosser, Henry T. Baumgren, Theresa Blackwell, Anthony Morabito, Diane Miller, and Susan De Mey, Planning Board Members, Town of Hannibal, Allen De Mey, Supervisor, Hannibal Town Board, Allen De Mey, Chairman, and SBA, Inc., Respondents-Respondents.  (Appeal No. 1.).

Decided: June 14, 2002

Present:  PIGOTT, Jr., P.J., PINE, WISNER, SCUDDER, and LAWTON, JJ. Adair, Kaul, Murphy, Axelrod & Santoro, Rochester (Richard A. Kaul of Counsel), for Petitioners-Appellants. Dennis N. Hawthorne, Jr., Fulton, for Respondents-Respondents Hannibal Town Planning Board, Douglas Fisk, Planning Board Chairman, Lester Fowler, Judy Prosser, Henry T. Baumgren, Theresa Blackwell, Anthony Morabito, Diane Miller, and Susan De Mey, Planning Board Members, Town of Hannibal, Allen De Mey, Supervisor, Hannibal Town Board, and Allen De Mey, Chairman. Grossman Kinney Dwyer & Harrigan, P.C., Syracuse (James F. Dwyer of Counsel), for Respondent-Respondent SBA, Inc.

Petitioners commenced a proceeding pursuant to CPLR article 78 seeking to annul the determination of respondent Hannibal Town Planning Board (Planning Board) approving the application of respondent SBA, Inc. for a special permit to construct a telecommunications tower in the Town of Hannibal.   By its judgment in that proceeding, which is the subject of appeal No. 1, Supreme Court determined, among other things, that the Planning Board complied with the State Environmental Quality Review Act (SEQRA) (ECL art. 8) and that alleged defects in the published notice of the May 3, 2001 public hearing were “de minimis,” and the court remitted the matter to the Planning Board to set forth written findings of fact supporting its determination to grant the special permit.   Following the Planning Board's issuance of findings of fact, petitioners commenced a second proceeding, again seeking to annul the Planning Board's determination.   The judgment in that proceeding is the subject of appeal No. 2. The court determined therein that the findings of fact adopted by the Planning Board are supported by substantial evidence and dismissed the second petition.

 We reject petitioners' contention that alleged defects in the published notice of the May 3rd public hearing deprived the Planning Board of jurisdiction to act (cf. Matter of Buffalo Cremation Co. v. March, 222 App.Div. 447, 448, 226 N.Y.S. 477, affd. 249 N.Y. 531, 164 N.E. 572).   “Further, petitioners had actual knowledge of and appeared at the hearing” (Matter of Baer v. Town of Waterford, 186 A.D.2d 850, 851, 587 N.Y.S.2d 817;  see Matter of Brew v. Hess, 124 A.D.2d 962, 963, 508 N.Y.S.2d 712).

 Petitioners further contend that the Planning Board violated SEQRA by issuing a negative declaration without receiving any information concerning three areas of environmental concern identified in the full environmental assessment form.   That contention, however, is not raised in either petition, and thus it is not properly before us (see Matter of Krossber v. Jackson, 263 A.D.2d 960, 961, 695 N.Y.S.2d 451, lv. denied 94 N.Y.2d 756, 703 N.Y.S.2d 73, 724 N.E.2d 769;  see also Klein v. City Council for City of Long Beach, 236 A.D.2d 446, 654 N.Y.S.2d 608;  Matter of Crawford v. Kelly, 124 A.D.2d 1018, 508 N.Y.S.2d 961).

 Petitioners also contend that the determination of the Planning Board should be annulled because the Planning Board failed to consider alternative sites for the tower.   We disagree.   There is no provision in the Town of Hannibal Zoning Law (Zoning Law) requiring the Planning Board to consider alternative sites for the tower (see §§ 630, 640, 650).   Although an environmental impact statement (EIS) prepared under SEQRA must include a detailed statement setting forth “alternatives to the proposed action” (ECL 8-0109[2][d] ), an EIS is not required where, as here, a negative declaration is issued by the Planning Board (see Matter of Village of Westbury v. Department of Transp. of State of N.Y., 75 N.Y.2d 62, 68, 550 N.Y.S.2d 604, 549 N.E.2d 1175).

 Petitioners' additional contention that the findings of fact are legally insufficient because they do not address criteria set forth in subdivisions (2) and (4) of Zoning Law § 640 is not properly before us because it is raised for the first time on appeal (see Krossber, 263 A.D.2d at 961, 695 N.Y.S.2d 451;  Matter of Town of Mentz v. County of Cayuga, 248 A.D.2d 1020, 1021, 670 N.Y.S.2d 141).   In any event, the “perceived deficiencies in this planning board's formal findings * * * do not invalidate the determination” (Matter of Committee to Preserve Brighton Beach & Manhattan Beach v. Council of City of N.Y., 214 A.D.2d 335, 337, 625 N.Y.S.2d 134, lv. denied 87 N.Y.2d 802, 638 N.Y.S.2d 425, 661 N.E.2d 999).

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

MEMORANDUM: