APPEAL by the petitioners, as limited by their brief, in a hybrid proceeding pursuant to CPLR article 78 to review two resolutions of the Board of Trustees of the Village of Elmsford, both dated January 9, 2006, discontinuing a portion of Vreeland Avenue in the Village of Elmsford, and discontinuing a portion of River Street in the Village of Elmsford, respectively, and action, inter alia, for a judgment declaring the resolutions null and void, from so much of a judgment of the Supreme Court (Robert A. Neary, J.), entered September 14, 2007, in Westchester County, as denied the petition and dismissed the proceeding.
The opinion of the court was delivered by: Dillon, J.P.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
MARK C. DILLON, J. P., DANIEL D. ANGIOLILLO, JOHN M. LEVENTHAL, CHERYL E. CHAMBERS, JJ.
By contract dated December 6, 2005, the respondent Village of Elmsford agreed to purchase from the respondent Brookfield Automotive Exporting Corp. (hereinafter Brookfield) a 30,060-square-foot parcel of property for the sum of $1,550,000. The property was located on Vreeland Avenue, was identified in the contract by section, block, and lot number, and was intended by the Village to be used as a service and storage area for its Department of Public Works. Paragraph 4 of a rider to the contract conditioned the contract upon the Village demapping a 21,010-square-foot portion of Vreeland Avenue and a 632½-square-foot portion of River Street, and transferring title to the demapped property to Brookfield in exchange for a credit to the Village in the sum of $200,000 against the contract price at closing.
The petitioners, William Baker and Ronald Baker (hereinafter together the Bakers), own properties located at 12 River Street*fn1 and 17 Hayes Street, contiguous to the streets that the Village intended to demap. The premises at 12 River Street is a 7,600-square-foot structure that houses two tenants, the New York State Department of Motor Vehicles (hereinafter the DMV) and an automotive transmission repair shop. The premises at 17 Hayes Street is also a 7,600-square-foot structure and is leased to a tree service company that uses the property's driveway for the ingress and egress of trucks and equipment. The Bakers allege that Vreeland Avenue has always been open and accessible to public traffic and for parking, and that both Vreeland Avenue and River Street have been specifically used for vehicular access and parking by their buildings' tenants and their employees.
Vreeland Avenue and River Street have been mapped by the Village for almost 80 years, as evidenced by zoning maps filed in 1930 and 1966. In 1988, Brookfield was required to make improvements to Vreeland Avenue as a condition of obtaining a building permit, and in 1990 the Bakers were required to repave a portion of River Avenue as a condition of obtaining a certificate of occupancy for one of their buildings.
The area where the subject portions of Vreeland Avenue and River Street are located is near the Saw Mill River and is subject to severe and periodic flooding. Indeed, the Bakers claim that the area is within a flood zone designated by the Federal Emergency Management Agency (hereinafter FEMA), and that flood waters are routinely two- to three-feet high and can sometimes rise to four feet. Photographs of actual flood conditions are contained in the record.
By notice of the Board of Trustees of the Village of Elmsford (hereinafter the Board) dated December 8, 2005, the Village scheduled a public hearing on the proposed demapping of portions of Vreeland Avenue and River Street. The public hearing was held on January 9, 2006. The Village prepared Short Environmental Assessment Forms (hereinafter EAFs) for each road pursuant to the State Environmental Quality Review Act (ECL art 8; hereinafter SEQRA), indicating, inter alia, that the proposed demapping of Vreeland Avenue and River Street would not affect the area's air quality, surface and ground water, noise levels, traffic patterns, waste disposal, erosion, drainage, or flooding problems. At the hearing, the Village heard from a variety of municipal officials, including the assessor, via written correspondence, that the demapping would not measurably impact the fair market values of nearby properties; the Village's fire chief, water foreman, and police chief that the demapping would not affect fire, water, and law enforcement services; the Village's engineer, building inspector, and highway superintendent that the roads in question were never improved or maintained by the municipality; and the deputy mayor regarding the Village's plans to secure a proper location for a highway garage.
Edward Baker also spoke at the public hearing. He advised that during episodes of flooding, Vreeland Avenue and River Street are used as an egress to Routes 9A and 119. A demapping of the roads, he argued, would landlock property owners and tenants and "negate access that ha[d] been used continuously." Baker's counsel took issue with the portion of the EAFs and the representations of municipal officials that the roads had never been improved or traveled. Counsel noted that improvements had been made to the roads as conditions of an earlier building permit and a certificate of occupancy, which were then further described by Edward Baker. Additionally, a Revised Subdivision Map dated December 31, 2005, which was valid on the date of the public hearing, contains notations that the streets at issue are "traveled and paved."
At the conclusion of the hearing, the Board adopted two resolutions that discontinued identified portions of Vreeland Avenue and River Street, respectively, pursuant to Village Law § 6-612.
By notice of petition and verified petition filed February 3, 2006, the Bakers sought, pursuant to CPLR article 78, review of the resolutions that demapped the relevant portions of Vreeland Avenue and River Street. The Bakers alleged, among other things, that the roadways were not useless, and that the Village failed to take the requisite "hard look" at the environmental impact of the discontinuances as required by SEQRA. The Bakers argued that the demapped roads were used during flooding, which occurred at least six times per year, as the sole means of ingress to and egress from ...