November 6, 2015

In Ranco Sand and Stone Corp. v. Vecchio, 2014 N.Y. Slip Op. 08338, Ranco Sand and Stone Corp. (“Ranco”) filed an application in 2002 with the Town of Smithtown to rezone its parcel from residential (R-43) to heavy industrial (HI) for use primarily as a bus yard and trucking station. More than five years later, respondents Town Board of the Town of Smithtown (“Town Board”) adopted a resolution issuing a positive declaration under the State Environmental Quality Review Ace, requiring Ranco to prepare a Draft Environmental Impact Statement (DEIS) because they were worried that the zoning change may have a significant effect on the environment. Ranco commenced a CPLR article 78 proceeding seeking to annul the Town Board’s determination approving the resolution on the grounds that the approval was arbitrary and capricious.

Respondents argued that the Petition must be dismissed because the actions of the Town Board in issuing the positive declaration was a preliminary step in the zoning process and did not constitute a final agency determination and inflicted no harm on Ranco. The Court held that “the expense to be incurred in the preparation and circulation of a DEIS, substantial though it may be, is not sufficient, in and of itself, to require us to conclude that the matter is ripe for judicial review.”

The Court agreed, stating that “Petitioner may well obtain approval of its … application following preparation of a [DEIS] and thus, notwithstanding the considerable expenses 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.

The Supreme Court therefore dismissed the proceeding.

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