Opinion
194 CA 22-01164
06-30-2023
In the Matter of LEAGUE OF WOMEN VOTERS OF BUFFALO/NIAGARA, INC., the 21st Century Park in the Outer Harbor, Inc., and the Western New York Environmental Alliance, Inc., Petitioners-Appellants, v. ERIE CANAL HARBOR DEVELOPMENT CORPORATION, City of Buffalo and City of Buffalo Common Council, Respondents-Respondents.
LIPPES & LIPPES, BUFFALO (RICHARD J. LIPPES OF COUNSEL), FOR PETITIONERS-APPELLANTS. HODGSON RUSS LLP, BUFFALO (DANIEL A. SPITZER OF COUNSEL), FOR RESPONDENT-RESPONDENT ERIE CANAL HARBOR DEVELOPMENT CORPORATION. CAVETTE A. CHAMBERS, CORPORATION COUNSEL, BUFFALO (CARIN S. GORDON OF COUNSEL), FOR RESPONDENTS-RESPONDENTS CITY OF BUFFALO AND CITY OF BUFFALO COMMON COUNCIL.
LIPPES & LIPPES, BUFFALO (RICHARD J. LIPPES OF COUNSEL), FOR PETITIONERS-APPELLANTS.
HODGSON RUSS LLP, BUFFALO (DANIEL A. SPITZER OF COUNSEL), FOR RESPONDENT-RESPONDENT ERIE CANAL HARBOR DEVELOPMENT CORPORATION.
CAVETTE A. CHAMBERS, CORPORATION COUNSEL, BUFFALO (CARIN S. GORDON OF COUNSEL), FOR RESPONDENTS-RESPONDENTS CITY OF BUFFALO AND CITY OF BUFFALO COMMON COUNCIL.
PRESENT: SMITH, J.P., PERADOTTO, CURRAN, BANNISTER, AND MONTOUR, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that said appeal is unanimously dismissed without costs. Memorandum: In June 2021, petitioners commenced this CPLR article 78 proceeding seeking, inter alia, to annul the determination of respondent Erie Canal Harbor Development Corporation (ECHDC) to issue a negative declaration pursuant to article 8 of the Environmental Conservation Law (State Environmental Quality Review Act [SEQRA]) with respect to a construction project, and to annul the determination of respondent City of Buffalo (City) that the project was consistent with the City's Local Waterfront Revitalization Program and the City's zoning ordinance. Petitioners did not move for preliminary injunctive relief with respect to the project. Respondents moved to dismiss the petition pursuant to CPLR 3211 and 7804 (f). Supreme Court granted the motions and dismissed the petition.
Petitioners filed a notice of appeal from the judgment on July 6, 2022, but did not seek an order from this Court enjoining construction of the project while this appeal was pending. Thereafter, in January 2023, ECHDC moved in this Court to dismiss petitioners’ appeal as moot on the ground that the project is substantially complete. We denied that motion without prejudice and with leave to renew any arguments in support of or in opposition to the motion at oral argument.
Now, after oral argument, we conclude that the appeal should be dismissed as moot (see generally Matter of Citineighbors Coalition of Historic Carnegie Hill v. New York City Landmarks Preserv. Commn. , 2 N.Y.3d 727, 728, 778 N.Y.S.2d 740, 811 N.E.2d 2 [2004] ). Litigation over construction is rendered moot when the progress of the work constitutes a change in circumstances that would prevent the court from " ‘rendering a decision that would effectively determine an actual controversy’ " ( id. at 728-729, 778 N.Y.S.2d 740, 811 N.E.2d 2 ; see Matter of Sierra Club v. New York State Dept. of Envtl. Conservation , 169 A.D.3d 1485, 1486, 94 N.Y.S.3d 741 [4th Dept. 2019] ). "In addition to the progress of the construction, other factors relevant to evaluating claims of mootness are whether the party challenging the construction sought injunctive relief, whether the work was undertaken without authority or in bad faith ..., and whether substantially completed work can be undone without undue hardship" ( Sierra Club , 169 A.D.3d at 1486, 94 N.Y.S.3d 741 [internal quotation marks omitted]). Of the "several factors significant in evaluating claims of mootness[, c]hief among them has been a challenger's failure to seek preliminary injunctive relief or otherwise preserve the status quo to prevent construction from commencing or continuing during the pendency of the litigation" ( Matter of Dreikausen v. Zoning Bd. of Appeals of City of Long Beach , 98 N.Y.2d 165, 173, 746 N.Y.S.2d 429, 774 N.E.2d 193 [2002] ). Generally, a petitioner seeking to halt a construction project must "move for injunctive relief at each stage of the proceeding" ( Matter of Weeks Woodlands Assn., Inc. v. Dormitory Auth. of the State of N.Y. , 95 A.D.3d 747, 750, 945 N.Y.S.2d 263 [1st Dept. 2012], affd 20 N.Y.3d 919, 956 N.Y.S.2d 483, 980 N.E.2d 532 [2012] ; see Sierra Club , 169 A.D.3d at 1487, 94 N.Y.S.3d 741 ).
Here, the evidentiary submissions in support of ECHDC's motion to dismiss the appeal as moot establish that work on the construction project began in late 2021 and is now substantially complete. Despite being aware of the construction, it is undisputed that petitioners "never moved for a preliminary injunction, or otherwise sought to preserve the status quo, pending the outcome of the proceeding" ( Matter of 315 Ship Canal Parkway, LLC v. Buffalo Urban Dev. Corp. , 210 A.D.3d 1395, 1396, 178 N.Y.S.3d 658 [4th Dept. 2022] ; see Citineighbors , 2 N.Y.3d at 729, 778 N.Y.S.2d 740, 811 N.E.2d 2 ; Dreikausen , 98 N.Y.2d at 174, 746 N.Y.S.2d 429, 774 N.E.2d 193 ; Sierra Club , 169 A.D.3d at 1487, 94 N.Y.S.3d 741 ). Thus, the "primary factor in the mootness analysis" weighs heavily against petitioners ( Sierra Club , 169 A.D.3d at 1486, 94 N.Y.S.3d 741 ). Moreover, ECHDC established that the construction of the project "was not performed in bad faith or without authority" ( 315 Ship Canal Parkway , LLC , 210 A.D.3d at 1396, 178 N.Y.S.3d 658 ; see Citineighbors , 2 N.Y.3d at 729, 778 N.Y.S.2d 740, 811 N.E.2d 2 ; Sierra Club , 169 A.D.3d at 1487, 94 N.Y.S.3d 741 ). Indeed, the record establishes that respondents "performed no work until ‘review pursuant to SEQRA was completed and all necessary approvals and permits were issued’ " ( Sierra Club , 169 A.D.3d at 1487, 94 N.Y.S.3d 741 ). Consequently, this is not a case in which respondents "engaged in an unseemly race to completion intended to moot petitioners’ lawsuit" ( Citineighbors , 2 N.Y.3d at 729, 778 N.Y.S.2d 740, 811 N.E.2d 2 ). Inasmuch as the court properly determined that petitioners’ challenge to the negative declaration under SEQRA is time-barred (see CPLR 217 [1] ; Matter of Eadie v. Town Bd. of Town of N. Greenbush , 7 N.Y.3d 306, 316, 821 N.Y.S.2d 142, 854 N.E.2d 464 [2006] ; Stop-The-Barge v. Cahill , 1 N.Y.3d 218, 222-223, 771 N.Y.S.2d 40, 803 N.E.2d 361 [2003] ), there is no viable cause of action upon which petitioners could legitimately claim that their environmental concerns warrant further review (see generally Matter of Dowd v. Planning Bd. of Vil. of Millbrook , 54 A.D.3d 339, 339-340, 862 N.Y.S.2d 385 [2d Dept. 2008] ; cf. Matter of Friends of Pine Bush v. Planning Bd. of City of Albany , 86 A.D.2d 246, 248-249, 450 N.Y.S.2d 966 [3d Dept. 1982], affd 59 N.Y.2d 849, 465 N.Y.S.2d 924, 452 N.E.2d 1252 [1983] ).