Ogden Citizens for Responsible Land Use, Ltd. v. Planning Board of Town of Ogden

224 A.D.2d 921, 637 N.Y.S.2d 582, 1996 N.Y. App. Div. LEXIS 1550

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 2, 1996
• Status: Published

Opinion

—Appeal unanimously dismissed without costs. Memorandum: Petitioner commenced this CPLR article 78 proceeding seeking a judgment (1) annulling the determination of respondent Planning Board of the Town of Ogden (Planning Board) to grant preliminary approval to respondent Rochester Telephone Mobile Communications (RTMC) for a permit to construct a cellular communications tower (tower); (2) annulling the April 28, 1994 determination by the Planning Board that the proposed tower will not have a significant effect on the environment (negative declaration); and (3) prohibiting the Planning Board from granting final approval for the tower unless it complies with State Environmental Quality Review Act (SEQRA), General Municipal Law former § 239-m and the Town of Ogden Code. Supreme Court dismissed the petition and adjudged that the issuance of the negative declaration and the granting of preliminary approval for the tower "were not arbitrary and capricious and were supported by substantial evidence in the record”.

Generally, a CPLR article 78 proceeding may not be used to challenge a nonfinal determination by a body or officer (see, CPLR 7801 [1]). Here, the granting of preliminary approval with regard to site plan review and the issuance of the negative declaration are preliminary or nonfinal steps in the decision-making process and therefore, are not ripe for judicial review until the decision-making process is completed (see, Matter of Young v Board of Trustees, 221 AD2d 975). (Appeal from Judgment of Supreme Court, Monroe County, Kehoe, J.— CPLR art 78.) Present — Denman, P. J., Lawton, Wesley, Balio and Davis, JJ.