Allens Creek/Corbett's Glen Preservation Group v. Town of Penfield Planning Board

267 A.D.2d 1074, 700 N.Y.S.2d 879, 1999 N.Y. App. Div. LEXIS 13888

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 30, 1999
• Status: Published

Opinion

—Judgment unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: Petitioners commenced this CPLR article 78 proceeding to annul the approvals of respondent, Town of Penfield Planning Board (Board), for construction of a two-story 54,000 square foot building on property owned by intervenor, Linden Associates, on the ground that the Board failed to comply with the requirements of the State Environmental Quality Review Act ([SEQRA] ECL art 8) and the Penfield Zoning Ordinance. Supreme Court properly granted the motion of the Board and Linden Associates for summary judgment and dismissed the petition. We modify the judgment, however, by vacating the third decretal paragraph. Petitioners are not collaterally estopped from challenging the Board’s SEQRA review (see, Matter of Eggert v Town Bd., 217 AD2d 975, 977, Iv denied 86 NY2d 710). The issue determined in the prior proceeding was whether the County of Monroe Industrial Development Agency was required to approve the Board’s findings statement by formal resolution, not whether the Board’s SEQRA review was adequate. We have reviewed petitioners’ remaining contentions and conclude that they are without merit. (Appeal from Judgment of Supreme Court, Monroe County, Polito, J. — CPLR art 78.) Present — Green, J. P., Hayes, Scudder and Balio, JJ.