Petitioner was the owner and developer of a proposed mixed-use development in the Village of Pittsford (“Village”). After conducting a SEQRA environmental review, the Village’s Board of Trustees (“Board”) issued a negative declaration and adopted a resolution issuing the requisite permits for the project to the Petitioner. However, after the Village Planning Board Board approved a preliminary site plan, the Board adopted two resolutions stating that there had been “substantive changes,” creating a “potential significant adverse impact” on the environment not addressed in the SEQRA review.  The Board then rescinded the negative declaration and issued a positive declaration. Petitioner commenced an Article 78 proceeding to reverse the decision and reinstate the negative declaration, arguing that three Board members had demonstrated bias against of project and should have recused themselves due to a conflict of interest.  The Supreme Court annulled the resolution, finding two Board members had conflict and may not participate in additional SEQRA deliberations or determinations, while also finding a third member had no conflict. Both sides appealed.

On appeal, the Appellate Division, Fourth Department modified to the judgment to declare that none of the Board members had a conflict of interest.  While the Court acknowledged that two of the Board members had expressed their opposition to the project both before and after they were elected to the Board, the Court held that their personal opinions were not a basis for finding a conflict of interest. The Court even went so far as to suggest that the “expression of opinion by… [officials] on matters of public concern ‘is to be encouraged, not penalized.’”  Notwithstanding these modifications, the Court affirmed the decision to annul the challenge resolution, finding “the Board lacked authority to rescind its negative declaration under the circumstances of this case.”  Thus, the decision was affirmed as modified.

The case was Pittsford Canalside Properties, LLC v. Vill. of Pittsford, 137 A.D.3d 1566 (4th Dep’t 2016).