Plaintiffs owned real property in Kings Park that had been used as a bus yard and trucking station by a third party lessor for several years. In 2002, Plaintiff filed an application with the Town of Smithtown to rezone the property from residential to heavy industrial. Several years then passed before the Town Board issued a positive declaration pursuant to SEQRA (State Environmental Quality Review Act) requiring a DEIS (draft environmental impact statement). Plaintiff commenced an Article 78 proceeding against the Town, arguing that the determination was arbitrary and capricious because it had already allowed a long-time use of the property consistent with a zoning of heavy industrial and thus the DEIS would be of no benefit. In addition, the process of preparing and circulating a DEIS would be enormously expensive and time consuming for the Plaintiff.

Despite all of this, the Court found that the issuance of the positive declaration was procedurally a first step in the process for the parties, despite the number of years which had already lapsed since the application was initially submitted for review. For that reason, the court found the matter to be unripe.

The case was Ranco Sand and Stone Corp. v. Vecchio, 2014 WL 6676772. The decision can be found here: http://www.courts.state.ny.us/courts/ad2/calendar/webcal/decisions/2014/D42822.pdf