STATE OF NEW YORK SUPREME COUNTY COUNTY OF ERIE ‘VILLAGE OF EAST AURORA, PETITIONER-PLAINTIFF, vs. DECISION AND ORDER EAST AURORA UNION FREE SCHOOL DISTRICT, Index No. 2015-000220 BOARD OF EDUCATION OF THE EAST AURORA. UNION FREE SCHOOL DISTRICT, NEW YORK, STATE EDUCATION DEPARTMENT, and MARY ELLEN ELIA, in her official capacity as COMMISSIONER OF THE NEW YORK STATE EDUCATION DEPARTMENT, RESPONDENTS-DEFENDANTS. APPEARANCES: BARTLO, HETTLER, WEISS & TRIPI Paul D. Weiss, Esq. and Yvonne 8. Trippi, Esq., for Petitioner- Plaintiffs ATTORNEY GENERAL OF THE STATE OF NEW YORK, ‘Timothy Hoffman, Esq. for Respondent-Defendants State Education Department and Mary Ellen Elia, as Commissioner of the New York State Education Department HARRIS BEACH, PLLC Richard T. Sullivan, Esq. and Marnie E. Smith, Esq., of Counsel for Respondent-Defendants East Aurora Union Free School District and Board of Education of the East Aurora Union Free School District PLEADINGS REVIEWED: __Petitioner-Plaintiff’s Notice of Verified Petition for Judgment Pursuant to Article 78 of the CPLR and Declaratory Judgment Pursuant fo Section 3001 of the CPRL, dated December 21, 2015, with exhibits Respondent-Defendants New York State Education Department and Commissioner Mary Ellen Elia’s Notice of Motion to ‘Dismiss or in the Alternative to Change Venue, dated January 19,2016Respondent-Defendants State Respondents’ Memorandum of ‘Law in Support of Motion to Dismiss and in the Alternative for Change of Venue, dated January 20, 2016 Respondent-Defendants East Aurora Union Free School District ‘and Board of Education of the Hast Aurora Union Free School District's Notice of Motion to Dismiss, dated January 21, 2016, with exhibits Affidavit of Brian D. Russ in support of Respondent-Defendants East Aurora Union Free School District and Board of Education of the East Aurora Union Free School District’s Motion to Dismiss, dated January 21, 2016, with exhibits Respondent-Defendants East Aurora Union Free School District and Board of Education of the East Aurora Union Free School District's Memorandum of Law dated January 21, 2016 Affidavit of William R. Kramer in opposition to Respondents- Defendants Motion to Dismiss dated February 24, 2016 Petitioner-Plaintiff’s Memorandum of Law in Opposition to ‘State Respondent/Defendants Motion to Dismiss and in the Alternative, for a Change in Venue, dated March 2, 2016 Petitioner-Plaintiff’s Memorandum of Law in Opposition to the District Respondents/Defendants Motion to Dismiss, dated March 2, 2016 Affidavit of Paul D. Weiss, 'sq., in opposition to Respondents Defendants Motions to Dismiss and in the Alternative, to Change Venue, dated March 2, 2016 Respondent-Defendants New York State Education Department and Commissioner Mary Ellen Blia’s Responding Brief in Further Support of Motion to Dismiss and in the Alternative, to Change Venue, dated March 9, 2016 Respondent-Defendants’ Defendants East Aurora Union Free School District and Board of Education of the East Aurora ‘Union Free Schoo! District's Reply Memorandum of Law dated March 9, 2016 Petitioner-Plaintif?’s First Amended Verified Article 78 Petition and Complaint, dated April 4, 2016Respondent-Defendants’ Defendants East Aurora Union Free ‘Schoo! District and Board of Education of the East Aurora Union Free Schoo! District’s Memorandum of Law dated May 16, 2016 Affidavit of Brian D. Russ in support of Respondents- Defendants Fast Aurora Union Free School District and Board of Education of the East Aurora Union Free Schoo! District's Motion to Dismiss Plaintiff's First Amended Verified Article 78 Petition and Complaint, dated May 16, 2016 Affidavit of William R. Kramer in opposition to Respondents- Defendants Motion to Dismiss dated May 16, 2016 ‘Affidavit of Allan A. Kasprzak in support of Petitioner- Plaintiff's First Amended Article 78 Petition and First Amended ‘Complaint, dated May 17, 2016, with exhibits Affidavit of Michael Croft in support of Petitioner-Plaintiff’'s First Amended Article 78 Petition and First Amended ‘Complaint, dated May 18, 2016, with exhibits ‘Affidavit of Paul D. Weiss, Esq., in opposition to Respondent- Defendants Collective Motions to Dismiss and in response to State Respondent-Defendants Demand to Change Venue, dated May 19, 2016, with exhibits Petitioner-Plaintifi's Memorandum of Law in Opposition to State Respondent-Defendants Motion to Dismiss Plaintiff's First ‘Amended Petition and Verified Complaint and in the Alternative for a Change in Venue, dated May 20, 2016 Petitioner-Plaintiff's Memorandum of Law in Opposition to Respondent-Defendants Motion to Dismiss Plaintiff's First, Amended Petition, dated May 20, 2016, with exhibits ‘This action comes before the Court upon combined proceedings pursuant to CPLR Article 78 and an action for declaratory judgment pursuant to CPLR §3001. Petitioner and challenges Respondents’ authority forthe issuance of a permit for the construct instalation of an electronic message sign with a video display board at the East Aurora Middle School, located at 430 Main Street, East Aurora, New York asserting that the permit issuanceviolated State Environmental Quality Review Act (“SEQRA") regulations, §416 of the New ‘York State Education Law and sections of the New York State Local Finance Law. Petitioner also seeks an order enjoining the use and operation of the sign as well as its removal alleging that itis out of the character with the historical landmarks and design of the neighborhood and character of the community and is otherwise a public nuisance, Respondents argue that Petitioners motion is time barred by the applicable statute of limitations, ‘The Petitioner-Plaintiff, VILLAGE OF EAST AURORA (‘Petitioner-Plaintif?”), by and through its attomeys, BARTLO, HETTLER, WEISS & TRIPI, Paul D, Weiss, Esq., of Counsel, petitions this Court for an Order, pursuant to Civil Practice Law and Rules (“CPLR”) Article 78, declaring null and void (1) the determinations of Respondents-Defendants State Education Department and Mary Ellen Elia, in her official capacity as Commissioner of the New York State Education Department (“SED”), approving the building permit application of Respondent- Defendant Board of Education of the East Aurora Union Free Schoo! District ("BOARD") and the East Aurora Union Free School District, collectively referred to as the (“DISTRICT”), for the school reconstruction and rehabilitation project which included the construction and installation ofan electronic message signage with a video display board (“Project”) at East Aurora Middle ‘School, located at 430 Main Street, East Aurora, New York, and (2) the decision to abdicate its role as lead agency under SEQRA by entering into a Letter of Resolution that exempts certain classifications of site work from review by the New York State Office of Parks, Recreation and Historic Preservation, thereby adversely impacting SEQRA’s power to protect the visual, audible cor atmospheric elements that are out of character with historic properties and/or alter its setting ‘or assess the significance of the environment impact of the Project including its impact to cultural resources.Plaintiff-Petitioner also moves for declaratory judement, pursuant to CPLR §3001(1), declaring (1) that the DISTRICT violated SEQRA regulations by failing to prepare an Environmental Impact Statement (“EIS”) for the Project; (2) declaring that the DISTRICT violated SEQRA by failing to consider the impact of the Project and its effect on the historical Jandmarks and design of the neighborhood and the character of the community; (3) declaring that the DISTRICT violated SEQRA by making material omissions and inaccuracies in the Project's ‘SEQRA permit application to SED; (4) declaring that the DISTRICT violated SEQRA and its implementing regulations by failing to identity and analyze all environmental concern area in the Project permit application to SED; (5) declaring that the DISTRICT is subject to Petitioner- Plaintiff's zoning and land use regulations; (6) compelling the DISTRICT to comply with SEQRA and its regulations; (7) enjoining the DISTRICT from using and operating the video display board at the East Aurora Middle School until it complies with SEQRA and its regulations; (8) declaring that SED violated SEQRA by abdicating its role as lead agency; (9) declaring that SED issued regulations in contravention of SEQRA; (10) declaring that the DISTRICT violated New York State Public Buildings Law; (11) declaring that the DISTRICT violated New York State Education Law §416 and New York State Local Finance Law §§ 31, 32, 33, 37 and 165 for expending monies in excess of a bond for the Project; and (12) enjoining the DISTRICT, its agencies and employees from placing, keeping, maintaining, operating, using, and occupying its premises in a manner that is a harm and public nuisance and directing that said public nuisance be removed. Respondent SED, by and through its attomey, ATTORNEY GENERAL OF THE STATE OF NEW YORK, Timothy Hoffinan, Esq., of Counsel, opposed and contends that the motion is time barred by the applicable statute of limitations. However, SED contends that it didnot abdicate its role as lead agency for SEQRA review of the Project but took into consideration the DISTRICT’s project review exemption determination based on the SED-OPRHP’s May 20, 2010 Letter of Resolution and Agreement along with the DISTRICT SEQRA determination that ‘was not inconsistent with the Project review exemption found in the Letter of Resolution and Agreement. Respondent SED, also cross moved by Notice of Motion for an Order of dismissal asserting that the Court lacks subject matter jurisdiction over SED, and alternatively secks a change of venue pursuant to CPLR §§ 510(1) and 506(b)(2). Respondent SED’s motion was submitted in licu of an answer and therein requested preservation of its right to submit an Answer to the Petition should the Court deny its motion to dismiss. Respondent, DISTRICT, by and through its attomeys, HARRIS BEACH, PLLC, Richard T. Sullivan, Esq. and Mamie E. Smith, Esq., of Counsel, oppose the relief sought in the Petition and cross moved by Notice of Motion, pursuant to CPLR §§ 217(1), 3211 (@)(2), (5) and (7) for an Order dismissing Petitioner-Plaintiff’s action on the grounds that Petitioner-Plaimtff ‘s SEQRA challenge is untimely as it was not commenced within four months of the determination that is the subject of this Proceeding; that it improperly seeks declaratory relief, pursuant to CPLR §7804(0); and fails to state a cause of action, ‘NOW, having reviewed the aforementioned pleadings and the law applicable thereto, and ‘upon considering the oral arguments of counsel heard on May 24, 2016, wherein Paul D, Weiss, Esq. and Yvonne S. Trippi, Esq. appeared on behalf of the Petitioner-Plaintiff, and Timothy Hoffman, Esq. appeared on behalf of Respondent SED and Richard T. Sullivan, Esq., and Mamie . Smith, Esq., appeared on behalf of Respondent DISTRICT, and due deliberation having been had thereon, it is herebyDETERMINED that, for reasons hereinafter set forth, Plaintiff Petitioner has failed to establish its entitlement to relief pursuant to CPLR Article 78 as to both Respondents, SED and the DISTRICT in that Plaintiff-Petitioners claims are both untimely and time barred and Plaintif-Petitioner’s motion for declaratory judgment is also denied as time barred. Plaintiff-Petitioner challenges the determination of Respondent SED, to sue a building permit to Respondent DISTRICT, and asserts that said action was arbitrary and capricious. Respondent SED, claims that its decision to approve the BOARD's application for a permit was rendered on November 6, 2014, A proceeding alleging a SEQRA violation must be commenced ‘within four months of the date that the determination to be reviewed becomes final and binding (CPLR §217 (1).) In the case at bar, Plaintiff-Petitioner was required to commence the action within four months after the permit was issued and failed to do so. Plaintff-Petitioner’s action is not timely and is time barred. Therefore, this Court does not reach the issue of whether Respondent SED at icated its role as lead agency for SEQRA purposes. CPLR §7804 (f) provides that the respondent in an Article 78 proceeding may, within the time allowed for answer, move to dismiss the petition based on an "objection in point of law,” which is the same as an affirmative defense (Alexander, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C7804:7). ‘The Court rejects the Petitioner-Plaintif's contention that this action is timely and properly brought as an action for declaratory judgment pursuant to CPLR §3001. In an action for declaratory relief, the statute of limitations is determined by “ .. the gravamen of the claim or the status of the defendant party.” (Gress v. Brown, 20 N.Y.3d 957, 959 (2012), citing Solnick ». Whalen, 49'N.Y.2d 224 (1980)). Itis necessary for the Court to“. . examine the substance of [the] action to identify the relationship out of which the claim arises and the relief [is] sought.”Jd. In this case, the relief sought by Petitioncr-Plaintff primarily involves Respondent DISTRICT’s alleged failure to follow SEQRA and the annulment of the final SEQRA determination made in August of 2013 concerning the Project. While a six-year statute of limitations period governs declaratory judgment actions, itis well settled that if a claim could have been commenced by an alternative proceeding with a specific limitation period provided by statute, the shorter limitation period will apply. Gress, 20'N.Y.3d at 959. Petitioner-Plaintiff could have commenced by an alternative proceeding, to wit: a proceeding pursuant to CPLR Article 78, within the shorter limitation period applicable to SEQRA actions. It is well established that the time to bring a CPLR Article 78 proceeding to challenge compliance with SEQRA is within four months after the decision making process is, complete and the administrative determination is final and binding. See Matter of Save the Pine Bush v. City of Albany, 70N.¥.2¢ 193 (1987); accord, Becker-Manning, Inc. v. Common ‘Council of City of Utica, 114 A.D.3d 1143. 1144 (4% Dep't 2014) (*. . .[t]he Court of Appeals. has consistently stated that in a proceeding alleging a SEQRA violation in the enactment of legislation, the challenge must be commenced within four months of the date of its enactment.”) In this case, the “DISTRICT” approved the SEQRA final determination on August 14, 2013. (See, Exhibit J to Petitioner-Plaintiff's Complaint). Petitioner-Plaintiff's time to file a challenge to the SEQRA determination tolled on December 14, 2013. Because Plaintiff's claim is both time barred and untimely, it is not necessary for this Court to address the other issues raised in Petitioner-Plainti’s Verified Petition or Respondent DISTRICT’s cross motion on the issue of standing. Therefore, itisORDERED that Petitioner-Plaintift’s Notice of Motion for Relief Pursuant to CPLR Article 78 and CPLR §3001 is DENIED and Respondents DISTRICT and SED’s motion to dismiss is GRANTED. vy Mh, Kidinetti le HOY E, JEANNETTE OGDEN(¥ ENTER: & Dated: Buffalo, New York February 23, 2017 GRANTED FEB 28 2017 Weber Pn” Nitra = ‘COURT CLERK