Municipal Law Update
July 13, 2018

Hearing Officer’s Determination Supported by Substantial Evidence

In the Matter of Thomas Cordway v. Cayuga County, et al., (4th Dept. 2018), petitioner Cordway was a deputy sheriff who commenced an Article 78 proceeding challenging the termination of the disability benefits he was receiving pursuant to General Municipal Law Section 207-c. 

The Fourth Department held that the Hearing Officer’s determination terminating his disability benefits was supported by substantial evidence.  In opposition to the petitioner’s evidence that his injuries were causally related to his work-related slip and fall, the county presented evidence to the contrary.  “[T]he Hearing Officer was entitled to weigh the parties’ conflicting medical evidence and to assess the credibility of the witnesses, and [w]e may not weigh the evidence or reject [the Hearing Officer’s] choice where the evidence is conflicting and room for a choice exists.”  Therefore, the Fourth Department upheld the termination of benefits.

Petitioner’s Claim Barred by Six-Year Statute of Limitations

In the Matter of Jerry Weikel, Sr. v. Town of West Turin and Richard Failing, (4th Dept. 2018), the Town of West Turin acting pursuant to Local Law No. 1 of 1997 permitted the Town to classify certain roads as “minimum maintenance roads.”  Under the same law, the Superintendent of Highways had the authority to determine the amount of maintenance provided to those roads, which included snow plowing. 

In 2004, Weikel purchased property along Bower Road.  In 2014, Weikel decided to permanently relocate to the property and requested that the Town resume its responsibility to plow Bower Road.  The Town declined the request to plow Bower Road. 

Subsequently, Weikel commenced a hybrid declaratory judgment action and Article 78 proceeding seeking among other relief that the Local Law was invalid.  The trial court determined that Weikel’s challenge to the Local Law was not time barred and granted his motion in part by declaring that the Local Law was invalid on the ground that it conflicts with the State Highway Law Section 140.  Weikel argued that Section 140 imposed a duty on the Superintendent of Highways to remove snow obstructing all Town highways.

On appeal, however, the Fourth Department agreed with the Town holding that Weikel’s complaint was untimely.  Although the Town did not cross-move for summary judgment dismissing the second cause of action seeking a declaration that the Local Law was invalid, the Fourth Department nonetheless granted summary judgment in favor of the Town.  The Appellate Division noted that the Weikel’s challenge was to the substance of the Local Law and was therefore subject to the six-year statute of limitations pursuant to CPLR Section 213(1), which would have accrued in August 2004 when Weikel purchased the property on Bower Road.  Therefore, the Fourth Department reversed the lower court.

Planning Board’s Declaration was not Arbitrary or Capricious

In the Matter of Pilot Travel Centers, LLC v. Town Board of Town of Bath, et al., (4th Dept. 2018), the petitioner operated a truck stop directly across from the Kanona Truck Stop, which was under a contract for sale by Love’s Travel Stops & Country Stores, Inc. (hereinafter “Love’s”).  Love’s informed the Town’s Planning Board that it intended to construct a state-of-the-art travel center.  The Planning Board then published a notice for a public hearing relative to Love’s site plan application.  Counsel for the petitioner attended the hearing but did not raise any objections during the hearing. 

After the hearing, the Planning Board issued a negative declaration under the State Environmental Quality Review Act (“SEQRA”) and classified the project as a SEQRA Type I action with no significant adverse environmental impact.  Therefore, an Environmental Impact Statement (“EIS”) was not required.

In March 2017, the petitioner commenced an Article 78 proceeding to enjoin the construction of the project and annul the negative declaration of the Planning Board in light of the fact it failed to require an EIS for the project pursuant to Chapter 59 of the Town Code.  Subsequently, the Town repealed Chapter 59 of the Town Code in light of the fact it was no longer consistent with SEQRA.  The trial court denied the relief sought in the petition.  While that matter was pending, the petitioner commended a second Article 78 proceeding seeking to annul the Town’s repeal of Chapter 59 of the Town Code, which was also denied by the trial court. 

Although the petitioner maintained standing to challenge the construction of the project, the Fourth Department held that it failed to exhaust its administrative remedies with respect to the Planning Board’s negative declaration.  Petitioner’s attorney attended the public hearing but raised no objection.  Further, even if the petitioner exhausted its administrative remedies there was no merit to the petitioner’s contention that the Planning Board’s determination was arbitrary and capricious because “[a] local law that is inconsistent with SEQRA must be invalidated.”  Chapter 59 of the Town Code was “inconsistent with SEQRA because SEQRA permits a negative declaration for Type I actions, whereas Chapter 59 effectively precluded a negative declaration in such actions.”  Additionally, where “an agency has followed the procedures by SEQRA, a court’s review of the substance of the agency’s determination is limited.” 

Therefore, a court “will not substitute its judgment for that of the agency if the agency reached its determination in some reasonable fashion.”  The Fourth Department concluded that “the Planning Board properly identified the relevant areas of environmental concern, took a hard look at them, and made a reasoned elaboration of the basis for its determination” thereby upholding the trial court’s decision.

With respect to the second appeal, the Fourth Department upheld the lower court’s determination that the petitioner lacked standing to challenge the Town’s repeal of Chapter 59 of the Town Code.  To demonstrate standing, a petitioner “must not only allege, but if the issue is disputed must prove, that [its] injury is real and different from the injury most members of the public face.  Standing requirements are not mere pleading requirements but rather an indispensable part of the [petitioner’s] case’ and therefore each element must be supported in the same way as any other matter on which the [petitioner] bears the burden of proof.” 

Petitioner’s “status of neighbor…does not automatically provide the admission ticket to judicial review in a land use case…”  More importantly, the repeal of Chapter 59 of the Town Code does not eliminate the environmental review requirements for the Town as they are still subject to the requirements of SEQRA.  In light of the fact the petitioner failed to demonstrate an injury distinct from the public at large, it lacked standing to challenge the repeal of Chapter 59 of the Town Code.

Prepared by Nicholas M. Hriczko, Esq.

If you have questions about these cases or any other municipal law issues, please do not hesitate to contact Michael J. Chmiel or Kevin E. Loftus.

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