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A “Proposed Plan” Is not Ripe for Judicial Review

The Appellate Division determined that the challenge to a proposal for a telecommunications facility (cell tower) on State land was not yet ripe for review. In Village of Pelham Manor v. Crown Communications N.Y., Inc. the Appellate Division found that, where Crown Communications had a contract with the State to construct cell towers on state land, the failure of the State to take final action on the proposal had, under the specific circumstances of this case, neither triggered a default provision in the contract that would have constituted an approval, nor otherwise resulted in a “final” action that was ripe for judicial review.

The agreement between the State and Crown provided in part, under Section 2(E): “prior to any proposed installation of a telecommunications tower, Crown is required to provide to the State a schedule that contains the information set forth in that section, which includes, among other things, an environmental assessment, drafts of any documents required by the State Environmental Quality Review Act (hereinafter SEQRA), draft site plans and design specifications, a description of State action required, and local approvals, if any, required. Section 2(E) further provides that the State shall review the schedule, and within 30 days of receipt, the State shall notify Crown in writing of its approval or disapproval of the project. Failure to do so ‘shall constitute approval of such installation for purposes of [the] Agreement.'”

Effectively, Plaintiff argued in its August, 2020 pleadings that since more than 30 days had passed from the time of the submission of an Environmental Assessment Form by Crown (in July 2020), without action by the State, the project had been approved by default. The court disagreed noting:

“‘A justiciable controversy must involve a present, rather than hypothetical, contingent or remote, prejudice to the plaintiff'” (Ashley Bldrs. Corp. v Town of Brookhaven, 39 AD3d 442, 443, quoting Waterways Dev. Corp. v Lavalle, 28 AD3d 539, 540). ‘The dispute must be real, definite, substantial, and sufficiently matured so as to be ripe for judicial determination’ (Ashley Bldrs. Corp. v Town of Brookhaven, 39 AD3d at 443, quoting Waterways Dev. Corp. v Lavalle, 28 AD3d at 540). The announcement of a proposed plan is not ripe for judicial review (see Matter of Pheasant Pond Owners Assn. v Board of Trustees of Inc. Vil. of Southampton, 285 AD2d 597, 598). Further, ‘[t]o challenge an administrative determination, the agency action must be final and binding upon the petitioner’ (Matter of Ranco Sand & Stone Corp. v Vecchio, 27 NY3d 92, 98 [internal quotation marks omitted]). ‘The position taken by an agency is not definitive and the injury is not actual or concrete if the injury purportedly inflicted by the agency could be prevented, significantly ameliorated, or rendered moot by further administrative action or by steps available to the complaining party’ (Matter of Ranco Sand & Stone Corp. v Vecchio, 124 AD3d 73, 81, affd 27 NY3d 92, quoting Matter of Patel v Board of Trustees of Inc. Vil. of Muttontown, 115 AD3d 862, 864).

The Court states its conclusion below that there was no automatic default, as the proposal is still under review. Presumably, all of the material submissions required by the cited section 2(E) of the contract have not been submitted. However,  the Court does not  provide the specifics as to why the 30 day default provision was not triggered.

“Here, the plaintiffs’ claims are not ripe for judicial review, as the State has not yet made any final determination nor taken any final action with regard to the installation of the telecommunications tower, which remains only a ‘proposed plan’ (Matter of Pheasant Pond Owners Assn. v Board of Trustees of Inc. Vil. of Southampton, 285 AD2d at 598; see Matter of Agoglia v Benepe, 84 AD3d 1072, 1076). The State has not made a determination to approve or disapprove the installation. Moreover, contrary to the plaintiffs’ contention, the provision of section 2(E) of the agreement that provides for a ‘default’ approval by the State for its failure to express approval or disapproval within 30 days of receipt from Crown of the materials required by that section was not triggered. The parties’ submissions demonstrate that the required review pursuant to SEQRA has not yet been concluded. Thus, no final determination has been made, as the State is still in the process of reviewing Crown’s proposal (see Matter of Agoglia v Benepe, 84 AD3d at 1076).”


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