Appellate Division Determines Village May Not Discontinue Streets Unless Useless and There Has Been SEQRA Compliance

The New York Appellate Division, Second Department, in Matter of Baker v Village of Elmsford has unanimously held that the Village of Elmsford may not demap and discontinue portions of Vreeland Avenue and River Street unless the Village Board determines the streets are useless and it takes a hard look at the proposed action under the State Environmental Quality Review Act (SEQRA). The Court reversed the 2007 decision of Supreme Court, Westchester County which had dismissed the Article 78 proceeding brought by two contiguous commercial property owners contesting demapping and discontinuance of the streets.

The streets in question have been in use for nearly 80 years and the contiguous property owners were required to make improvements to the streets within the past 20 years. The surrounding area is frequently subject to severe flooding and during such times of flooding, such streets provide the only means of access and egress to the contiguous properties.

The Court relied upon Bass Building Corp. v Village of Pomona, 142 AD2d 657 (Second Dept. 1988) which held as follows:

Municipalities hold the fee of streets for the general public. The trust is publicum juris, that is, for the whole People of the State (citing People v Grant, 306 NY 258; City of New York v Rice, 198 NY 124). A municipality may not reserve its public streets for the benefit of its citizens as against the rights of outsiders (City of New York v Rice, supra). Under the “zone of interest” doctrine of standing, a plaintiff need demonstrate only that a municipal action has damaged it, and that the interest asserted is arguably within the zone of interest to be protected (citing Matter of Dairylea Coop. v Walkley, 38 NY2d 6; Glen Head--Glenwood Landing Civic Council v Town of Oyster Bay, 88 AD2d 484). At pages 658 – 659.

The Court determined that the proper standard of review was the Article 78 “arbitrary and capricious” standard because the required public hearing which preceded the demapping and discontinuance resolution had been informal in nature.

The Court found the Village Board’s determination to be arbitrary and irrational, since the Board had apparently ignored the testimony of the contiguous property owners regarding their tenants’ use of the streets during frequent episodes of flooding and the property owners’ improvements to the streets as required by the Village. The Court further found the Short Form Environmental Assessment undertaken by the Village Board, in purported accordance with the State Environmental Quality Review Act (SEQRA) and prior to their adoption of the demapping and discontinuance resolution, to be wholefully inadequate and not meeting the “hard look” and “reasoned elaboration” standards set forth in Matter of Jackson v New York State Urban Dev. Corp, 67 NY2d 400, 417 (1986).

- Bernis E. Shapiro