Preview
STATE OF NEW YORK
SUPREME COURT : COUNTY OF ERIE
CHAUTAUQUA INSTITUTION,
Petitioner,
JUDGMENT
v. AND ORDER
NEW YORK STATE DEPARTMENT OF Hon. Donna M. Siwek
ENVIRONMENTAL CONSERVATION AND TOWN OF
ELLERY, Index No. 812002/2018
Respondents.
WHEREAS, by Notice of Petition and Verified Petition dated July 30, 2018 and filed in
the office of the Erie County Clerk on that date, petitioner Chautauqua Institution commenced this
proceeding pursuant to CPLR article 78 seeking, among other things, to annul, nullify, and/or
vacate a final supplemental environmental impact statement adopted by respondent Town of Ellery
and a State Environmental Quality Review Act findings statement adopted by respondent New
York State Department of Environmental Conservation (DEC); and
WHEREAS, upon Notice of Motion dated October 12, 2018 and filed on that date, DEC
moved for an order and judgment pursuant to CPLR 7804 (f) and 3211 (a) dismissing the
proceeding insofar as it sought relief against DEC; and
WHEREAS, upon Notice of Motion dated October 12, 2018 and filed on that date,
intervenor-respondent Chautauqua Lake Partnership (CLP) moved, among other things, for an
order and judgment pursuant to CPLR 7804 and 3211 dismissing the proceeding in its entirety;
and
WHEREAS, upon notice of motion dated October 25, 2018 and filed on that date,
respondent Town of Ellery moved for an order and judgment pursuant to CPLR 7804 (f) and 3211
(a) (2) and (7) dismissing the proceeding in its entirety;
NOW, upon reading the following documents:
1. Verified Petition dated July 30, 2018 (NYSCEF Doc No. 1);
2. DEC’s Notice of Motion dated October 12, 2018 (NYSCEF Doc No. 37);
3. Affirmation of Joshua M. Tallent in Support of DEC’s Motion to Dismiss dated
October 12, 2018 (NYSCEF Doc No. 38) with exhibit attached thereto (NYSCEF
Doc No. 39);
4. CLP’s Notice of Motion dated October 12, 2018 (NYSCEF Doc No. 42);
5. Affirmation of Anne K. Bowling in Support of CLP’s Motion to Dismiss dated
October 12, 2018 (NYSCEF Doc No. 43) with exhibits attached thereto (NYSCEF
Doc Nos. 44–58); Notice of Motion (38)
6. Affirmation of Joshua M. Tallent (NYSCEF Doc No. 38) with exhibit attached
thereto (NYSCEF Doc No. 39);
7. Notice of Motion (NYSCEF Doc No 42)
8. Affirmation of Anne K. Bowling (NYSCEF Doc No. 43) with exhibits attached
thereto (NYSCEF Doc Nos. 44–58);
9. Verified Answer with Objections in Point of Law (NYSCEF Doc No 60)
10. Certified Record (NYSCEF Doc No 61)
11. Town of Ellery’s Notice of Motion dated October 25, 2018 (NYSCEF Doc No. 84);
12. Affirmation of Julia H. Purdy in Support of Town of Ellery’s Motion to Dismiss
dated October 25, 2018 (NYSCEF Doc No. 85);
13. Affirmation of Laurie Styka Bloom in Opposition to the Motions to Dismiss dated
November 2, 2018 (NYSCEF Doc No. 87) with exhibits attached thereto (NYSCEF
Doc Nos. 88–96);
14. Reply Affirmation of Anne K. Bowling in Support of CLP’s Motion to Dismiss
dated November 12, 2018 (NYSCEF Doc No. 105) with exhibits attached thereto
(NYSCEF Doc Nos. 106–107); and
15. Reply Affirmation of Robert E. Knoer in Support of Town of Ellery’s Motion to
Dismiss dated November 12, 2018 (NYSCEF Doc No. 110);
and proof of service of the foregoing papers having been made; and, on November 14, 2018,
having heard Nixon Peabody LLP (Laurie Styka Bloom of counsel), attorneys for petitioner in
opposition to the motions to dismiss; Rupp Baase Pfalzgraf Cunningham LLC (Anne K. Bowling
of counsel), attorneys for intervenor-respondent CLP; the Knoer Group, PLLC (Robert E. Knoer
and Julia H. Purdy of counsel), attorneys for respondent Town of Ellery; and the Attorney General
of the State of New York (Joshua M. Tallent of counsel), attorney for DEC; and due deliberation
having been had and for the reasons stated in the Court’s letter decision issued on December 21,
2
2018 (Decision), a true and accurate copy of which is attached hereto and incorporated herein; it
is hereby
ORDERED that intervenor-respondent CLP’s motion to dismiss the proceeding is granted
for the reasons stated in the Decision; and
ORDERED that respondent DEC’s motion to dismiss the proceeding is granted for the
reasons stated in the Decision; and
ORDERED that respondent Town of Ellery’s motion to dismiss the proceeding is granted
for the reasons stated in the Decision; and
ORDERED AND ADJUDGED that the proceeding is dismissed.
Dated: Buffalo, New York
February __, 2019
ENTER
Hon. Donna M. Siwek, J.S.C.
3
[FILED : ERIE COUNTY CLERK 12/21/2018 41 INDEX NO. 812002/2018
11: AN|
NYSCEF DOC. NO. 115 RECEIVED NYSCEF: 12/21/2018
SUPREME COURT CHAMBERS
STATE OF NEW YORK
Donna M. Siwek
SupremeCourt Justice
BODelawareAvenu• Katherine B. Roach, Confidendal Law Clerk
8*Floor, Part 29 Ann M. Metz, Secretary
Buffalo, NY 14202 (716) 846-9364-fax : (716)846-7602
December 21, 2018
Laurie Styka Bloom, Esq. Robert E. Knoer, Esq.
Nixon Peabody Julia H. Purdy, Esq.
Key Towers at Fountain Plaza, 40 Fountain The Knoer Group, PLLC
Plaza, Suite 500 424 Main Street, Suite 1820
Buffalo, New York 14202 Buffalo, New York 14202
Attorney for Petitioner, Chautauqua Institution Attorneys for Respondent Town of Ellery
Barbara D. Underwood, Attorney General of Anne K. Bowling, Esq.
the State of New York Rupp Baase Pfalzgraf Cunningham, LLC
Joshua M. Tallent, Assistant Attorney General 1600 Liberty Building, 424 Main Street
The Capitol Buffalo, New York 14202
Albany, New York 12224 Attorneys for Intervenor-Respondent,
Attorneys for Respondent, New York State Chautauqua Lake Partnership, inc
Department of Environmental Conservation
Re: CHAUTAUQUA INSTITUTION, Petitioner, v. NEW YORK STATE
DEPARTMENT OF ENVIRONMENTAL CONSERVATION, TOWN OF
ELLERY, Respondents, CHAUTAUQUA LAKE PARTNERSHIP, INC.,
Intervenor-Respondent.
Index No: 812002/2018
Memorandum Decision
Dear Counselors:
Respondents' Intervenor-
May this letter reflect the Court's Decision relative to and
Respondent's motions to dismiss and the Petitioner's opposition thereto.
These matters were deemed fully submitted upon receipt of the last written submission on
December 4, 2018. During the appearance of counsel for oral argument on November 14, 2018, the
attorneys for petitioner Chautauqua respondent Town of and intervenor-
Institution, Ellery
respondent Chautauqua Lake Partnership, Inc. expressed concern that any delay in this Court's
decision on the motions to dismiss could, at least from their standpoint, impact the progress of
anticipated permit application process for 2019. In particular, these parties, through their counsel,
expressed the concern that the New York State Department of Enviroñmeñtal Conservation would
INDEX NO. 812 0 0 2 / 2 0 18
FILED : ERIE COUNTY CLERK 12/21/2018 11: 41 AM)
RECEIVED NYSCEF: 12/21/2018
NYSCEF DOC. NO. 115
Memorandum Decision
December 21, 2018
withhold action on permits for 2019 until the pending litigation before this court is resolved. In
light of these concerns and the court's holiday recess, we have necessarily chosen to issue a letter
counsels'
decision in abbreviated form to expedite the decision and alleviate concerns.
After careful review of the moving papers, the relevant case law, and after considering oral
argument of counsel, this Court fimds as follows:
The motions to dismiss brought by aspondents New York State Department of
Environmental Conservation (hereinafter "NYSDEC"), the Town of Ellery (hereinafter "Town")
and the intervenor-respondent Chautauqua Lake Partnership, Inc. (hereinafter "CLP") are granted
over the opposition of petitioner Chautauqua Institution (hereinafter "Institution").
It isacknowledged that the Institution took no steps to challenge the issuance of the June
2018 permits which were issued for the application of herbicides to certain parts of Chautauqua
Lake, and the petitioner is not challenging the 2018 permits in this proceeding. Petitioner limits its
challenges to the SEIS and Findings Statements which were part of the administrative process that
lead to the issuance of the permits and requests a declaration from the court that no one may rely
upon the SEIS for any future permits for Chautauqua Lake. It isthe Court's determination that
under the facts of this case, the SEIS and Findings Statements were not final administrative actions
and thus not subject to judicial review. It iswell established that only final agency actions may be
challenged in an Article 78 proceeding. See CPLR §7801(a); Young v. Bd. of Trustees of Vil. of
(4th
Blasdell, 221 A.D.2d 975 Dept. 1995). The analysis of whether an agency action is final and
subject to judicial review is fact specific. The court must be assured that the challenged action
imposes a concrete harm and that there will be no further administrative action or steps available to
the complaining party which could prevent the injury. The Court of Appeals has undertaken this
analysis in a number of cases. In Matter of Eadie v. Town Bd. of N. Greenbush, 7 N.Y.3d 306 (NY
2006) the Court of Appeals held that the issuing of a Findings Statement did no_t constitute a final
action until the re-zoning that relied on itwas enacted, as the re-zoning (and not the Findings
Statement) imposed a concrete injury. In Stop-The-Barge v. Cahil, 1 N.Y.3d 218 (2003), a
conditioned negative declaration constituted a fimal agency action because injury to the petitioner
resulted from the developer being able to proceed without preparing an Environmental Impact
Statement. In Matter of Essex County v. Zagata, 91 N.Y.2d 447 (1998), the Court concluded that
an agency action is final for Article 7801 purposes when the decision maker arrives at a "definitive
injury..."
position on the issue that inflicts an actual concrete and the injury purportedly inflicted by
the agency may not be prevented or significantly ameliorated by further administrative action or by
steps available to the complaining party. If further agency proceedings can render the disputed
issue moot or academic, then the agency position cannot be considered defmitive nor the injury
actual or concrete. The SEIS/Findings Statements did not result in a definitive position on the
action that inflicted an actual or concrete injury. The injury claimed here is the application of
herbicides to the lake, that action was not definitive, actual or concrete when the SEIS was adopted
or the Findings Statements were issued, as the towns stillhad to resolve to apply for the permits and
apply the herbicides. Some towns in fact did not apply for the permits. Further, the DEC stillhad
to issue the permits. After the SEIS was adopted and the Findings Statements were issued,
2
[FILED : ERIE COUNTY CLERK 12/21/2018 11: 41 INDEX NO. 812002/2018
AM|
NYSCEF DOC. NO. 115 RECEIVED NYSCEF: 12/21/2018
MemorandumDecision
December21,2018
petitioner continued to lobby the DEC not to issue the permits. The affected municipalities,
including the respondent Town of Ellery, reserved their decision as to whether to submit a permit
application for herbicide treatment until they had an opportunity to review the permits from the
DEC. The Towns of Ellicott and Celeron decided not to apply herbicides, despite the fact that each
had issued a Findings Statement in support of herbicide application. It isclear that there remained
further agency decision-making that needed to take place prigg to the application of herbicides and
that itwas the issuance of the permits and not the SEIS/Findings Statements that constituted the
fmal agency action. See, Matter of Patel v. Board of Trustees of Inc. Vil. of Muttontown, 115
(2nd
A.D.3d 862 Dept. 2014) and Town of Marilla v. Travis, 49 Misc.3d 1203[A] (Sup. Ct. Erie Co.
2015). Neither the SEIS nor the Findings Statements committed the DEC to issue the permits, and
the harm was not concrete until the permits were ultimately issued in June and the herbicides were
applied.
Additionally, we are counseled by the Court of Appeals holding in Essex County, supra, and
itsrecent decision in Rainco Sand & Stone Corp. v. Vecchio, 27 N.Y.3d 92 (2016) which advises
courts to avoid piecemeal review of each determination made in the context of a SEQRA process
and should determine rights only when those rights are actually in controversy, and not pass on
questions which are moot or abstract questions.
We agree that because all of the activities authorized by the June 1, 2018 permits have
already occurred, and no person or entity sought temporary or injunctive relief seeking to bar the
application of the herbicides, there is no reason to apply the exception to the mootness doctrine as
requested by the Petitioner. Courts are reticent to invoke the exception to the mootness doctrine
where, as here, the party seeking relief fails to safeguard the challenge by promptly requesting a
temporary restraining order or preliminary injunctive relief. Petitioner cites Dreikausen v. Zoning
Board of Appeals, 98 N.Y.2d 165 (2002) in support of their claim that the Institution's failure to
seek injunctive relief is not, in this case, fatal to their claim. The Institution points out that whether
a party challenging a project has moved for injunctive relief or otherwise sought to preserve the
status quo is but one factor in a Court's mootness determination. The Institution argues that it
preserved itslegal rights by timely filing this Petition within four months of the Final
SEIS/Findings Statements and in advance of their use for future applications. They contend that the
Petition raises questions of general interest and substantial public importance if not resolved.
While itis true that Dreikausen held that the question of mootness is fact based and dependent on a
variety of factors, the court held that "[c]hief among them is a challenger's failure to seek
preliminary injunctive relief or otherwise preserve the status quo, as well as whether the agency
acted in bad faith, whether the action could be readily undone and where novel issues warrant
continuing review". Dreikausen, supra. The exception to the mootness doctrine only applies if
there is a likelihood of repetition of the issues that would evade review and the issues involve
substantial and novel issues. See, Hearst Corp. v. Clyne, 50 N.Y.2d 707 (1980). In looking at the
factors here, we fail to see the legal authority to invoke an exception to the mootness doctrine. The
fact remains that the Institution, despite heavy involvement in the environmental review process,
did not avail itself of, or make any attempt to, seek injunctive relief with respect to the claimed
injury, i.e.the application of herbicides. There is no evidence that any agency or municipal action
3
FILED : ERIE COUNTY CLERK 12 /21L2018 11: 41 Ali
INDEX NO. 8 12 0 0 2 / 2 0 18
NYSCEF DOC. NO. 115 RECEIVED NYSCEF: 12/21/2018
Memorandum Decision
December 21, 2018
was taken without authority or in bad faith. Any future requests for permits to apply acquatic
herbicides in Chautauqua Lake will be subject to agency review, and thus, this is not a case where
there will be an evasion of review with respect to future permit applications. The Institution may
certainly challenge any agency decision regarding future permits for the application of acquatic
herbicides. See, Matter of Citineighbors Coalition of Historic Carnegie Hill v. New York City
Landmarks Preservation Comm., 2 N.Y.3d 727 (2004).
Furthermore, this Petition should be dismissed because the court is not empowered to issue
an advisory opinion about whether or not the 2018 SEIS can be the basis for decisions made by
municipalities and NYSDEC in 2019. NYSDEC has yet to receive permit applications for any
herbicide treatment of the lake for 2019, and if made, itis unknown what those permit applications
will look like and whether or not any action will be taken to ameliorate the Institution's claim of
alleged harm. See, Matter of Guido v. Town of Ulster Town Board, 74 A.D.3d 1536 (3d Dept.
2010).
The Court acknowledges that if the process follows the 2018 timeline, there may be a very
short window for the Petitioner to challenge permits that might be issued in 2019. However,
because itcannot be said for certain that the 2019 permit requests will be filed under the same exact
circumstances or whether there will any changes in the environmental circumstances of the lake, it
would be improper for the court to consider any such application in the abstract. It will be up to the
NYSDEC at that time, based on what information is then presented, to determine what, if any,
additional environmental review is required and whether any or all of the SEIS at issue will be
refereñced or used in support of those future permit applications. The court is not empowered to
provide Petitioner with what, in essence, is a request for an advisory opinion.
Simply put, the petition is too late and moot with respect to the 2018 administrative process
for herbicide permits and too early for any yet to be filed permit application(s) for 2019.
This letter constitutes the Decision of the Court. Sub Order and Judgment on notice.
DO A M. SIWEK
New York State Supreme Court Justice
December 21, 2018
Preview
STATE OF NEW YORK SUPREME COURT : COUNTY OF ERIE CHAUTAUQUA INSTITUTION, Petitioner, JUDGMENT v. AND ORDER NEW YORK STATE DEPARTMENT OF Hon. Donna M. Siwek ENVIRONMENTAL CONSERVATION AND TOWN OF ELLERY, Index No. 812002/2018 Respondents. WHEREAS, by Notice of Petition and Verified Petition dated July 30, 2018 and filed in the office of the Erie County Clerk on that date, petitioner Chautauqua Institution commenced this proceeding pursuant to CPLR article 78 seeking, among other things, to annul, nullify, and/or vacate a final supplemental environmental impact statement adopted by respondent Town of Ellery and a State Environmental Quality Review Act findings statement adopted by respondent New York State Department of Environmental Conservation (DEC); and WHEREAS, upon Notice of Motion dated October 12, 2018 and filed on that date, DEC moved for an order and judgment pursuant to CPLR 7804 (f) and 3211 (a) dismissing the proceeding insofar as it sought relief against DEC; and WHEREAS, upon Notice of Motion dated October 12, 2018 and filed on that date, intervenor-respondent Chautauqua Lake Partnership (CLP) moved, among other things, for an order and judgment pursuant to CPLR 7804 and 3211 dismissing the proceeding in its entirety; and WHEREAS, upon notice of motion dated October 25, 2018 and filed on that date, respondent Town of Ellery moved for an order and judgment pursuant to CPLR 7804 (f) and 3211 (a) (2) and (7) dismissing the proceeding in its entirety; NOW, upon reading the following documents: 1. Verified Petition dated July 30, 2018 (NYSCEF Doc No. 1); 2. DEC’s Notice of Motion dated October 12, 2018 (NYSCEF Doc No. 37); 3. Affirmation of Joshua M. Tallent in Support of DEC’s Motion to Dismiss dated October 12, 2018 (NYSCEF Doc No. 38) with exhibit attached thereto (NYSCEF Doc No. 39); 4. CLP’s Notice of Motion dated October 12, 2018 (NYSCEF Doc No. 42); 5. Affirmation of Anne K. Bowling in Support of CLP’s Motion to Dismiss dated October 12, 2018 (NYSCEF Doc No. 43) with exhibits attached thereto (NYSCEF Doc Nos. 44–58); Notice of Motion (38) 6. Affirmation of Joshua M. Tallent (NYSCEF Doc No. 38) with exhibit attached thereto (NYSCEF Doc No. 39); 7. Notice of Motion (NYSCEF Doc No 42) 8. Affirmation of Anne K. Bowling (NYSCEF Doc No. 43) with exhibits attached thereto (NYSCEF Doc Nos. 44–58); 9. Verified Answer with Objections in Point of Law (NYSCEF Doc No 60) 10. Certified Record (NYSCEF Doc No 61) 11. Town of Ellery’s Notice of Motion dated October 25, 2018 (NYSCEF Doc No. 84); 12. Affirmation of Julia H. Purdy in Support of Town of Ellery’s Motion to Dismiss dated October 25, 2018 (NYSCEF Doc No. 85); 13. Affirmation of Laurie Styka Bloom in Opposition to the Motions to Dismiss dated November 2, 2018 (NYSCEF Doc No. 87) with exhibits attached thereto (NYSCEF Doc Nos. 88–96); 14. Reply Affirmation of Anne K. Bowling in Support of CLP’s Motion to Dismiss dated November 12, 2018 (NYSCEF Doc No. 105) with exhibits attached thereto (NYSCEF Doc Nos. 106–107); and 15. Reply Affirmation of Robert E. Knoer in Support of Town of Ellery’s Motion to Dismiss dated November 12, 2018 (NYSCEF Doc No. 110); and proof of service of the foregoing papers having been made; and, on November 14, 2018, having heard Nixon Peabody LLP (Laurie Styka Bloom of counsel), attorneys for petitioner in opposition to the motions to dismiss; Rupp Baase Pfalzgraf Cunningham LLC (Anne K. Bowling of counsel), attorneys for intervenor-respondent CLP; the Knoer Group, PLLC (Robert E. Knoer and Julia H. Purdy of counsel), attorneys for respondent Town of Ellery; and the Attorney General of the State of New York (Joshua M. Tallent of counsel), attorney for DEC; and due deliberation having been had and for the reasons stated in the Court’s letter decision issued on December 21, 2 2018 (Decision), a true and accurate copy of which is attached hereto and incorporated herein; it is hereby ORDERED that intervenor-respondent CLP’s motion to dismiss the proceeding is granted for the reasons stated in the Decision; and ORDERED that respondent DEC’s motion to dismiss the proceeding is granted for the reasons stated in the Decision; and ORDERED that respondent Town of Ellery’s motion to dismiss the proceeding is granted for the reasons stated in the Decision; and ORDERED AND ADJUDGED that the proceeding is dismissed. Dated: Buffalo, New York February __, 2019 ENTER Hon. Donna M. Siwek, J.S.C. 3 [FILED : ERIE COUNTY CLERK 12/21/2018 41 INDEX NO. 812002/2018 11: AN| NYSCEF DOC. NO. 115 RECEIVED NYSCEF: 12/21/2018 SUPREME COURT CHAMBERS STATE OF NEW YORK Donna M. Siwek SupremeCourt Justice BODelawareAvenu• Katherine B. Roach, Confidendal Law Clerk 8*Floor, Part 29 Ann M. Metz, Secretary Buffalo, NY 14202 (716) 846-9364-fax : (716)846-7602 December 21, 2018 Laurie Styka Bloom, Esq. Robert E. Knoer, Esq. Nixon Peabody Julia H. Purdy, Esq. Key Towers at Fountain Plaza, 40 Fountain The Knoer Group, PLLC Plaza, Suite 500 424 Main Street, Suite 1820 Buffalo, New York 14202 Buffalo, New York 14202 Attorney for Petitioner, Chautauqua Institution Attorneys for Respondent Town of Ellery Barbara D. Underwood, Attorney General of Anne K. Bowling, Esq. the State of New York Rupp Baase Pfalzgraf Cunningham, LLC Joshua M. Tallent, Assistant Attorney General 1600 Liberty Building, 424 Main Street The Capitol Buffalo, New York 14202 Albany, New York 12224 Attorneys for Intervenor-Respondent, Attorneys for Respondent, New York State Chautauqua Lake Partnership, inc Department of Environmental Conservation Re: CHAUTAUQUA INSTITUTION, Petitioner, v. NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION, TOWN OF ELLERY, Respondents, CHAUTAUQUA LAKE PARTNERSHIP, INC., Intervenor-Respondent. Index No: 812002/2018 Memorandum Decision Dear Counselors: Respondents' Intervenor- May this letter reflect the Court's Decision relative to and Respondent's motions to dismiss and the Petitioner's opposition thereto. These matters were deemed fully submitted upon receipt of the last written submission on December 4, 2018. During the appearance of counsel for oral argument on November 14, 2018, the attorneys for petitioner Chautauqua respondent Town of and intervenor- Institution, Ellery respondent Chautauqua Lake Partnership, Inc. expressed concern that any delay in this Court's decision on the motions to dismiss could, at least from their standpoint, impact the progress of anticipated permit application process for 2019. In particular, these parties, through their counsel, expressed the concern that the New York State Department of Enviroñmeñtal Conservation would INDEX NO. 812 0 0 2 / 2 0 18 FILED : ERIE COUNTY CLERK 12/21/2018 11: 41 AM) RECEIVED NYSCEF: 12/21/2018 NYSCEF DOC. NO. 115 Memorandum Decision December 21, 2018 withhold action on permits for 2019 until the pending litigation before this court is resolved. In light of these concerns and the court's holiday recess, we have necessarily chosen to issue a letter counsels' decision in abbreviated form to expedite the decision and alleviate concerns. After careful review of the moving papers, the relevant case law, and after considering oral argument of counsel, this Court fimds as follows: The motions to dismiss brought by aspondents New York State Department of Environmental Conservation (hereinafter "NYSDEC"), the Town of Ellery (hereinafter "Town") and the intervenor-respondent Chautauqua Lake Partnership, Inc. (hereinafter "CLP") are granted over the opposition of petitioner Chautauqua Institution (hereinafter "Institution"). It isacknowledged that the Institution took no steps to challenge the issuance of the June 2018 permits which were issued for the application of herbicides to certain parts of Chautauqua Lake, and the petitioner is not challenging the 2018 permits in this proceeding. Petitioner limits its challenges to the SEIS and Findings Statements which were part of the administrative process that lead to the issuance of the permits and requests a declaration from the court that no one may rely upon the SEIS for any future permits for Chautauqua Lake. It isthe Court's determination that under the facts of this case, the SEIS and Findings Statements were not final administrative actions and thus not subject to judicial review. It iswell established that only final agency actions may be challenged in an Article 78 proceeding. See CPLR §7801(a); Young v. Bd. of Trustees of Vil. of (4th Blasdell, 221 A.D.2d 975 Dept. 1995). The analysis of whether an agency action is final and subject to judicial review is fact specific. The court must be assured that the challenged action imposes a concrete harm and that there will be no further administrative action or steps available to the complaining party which could prevent the injury. The Court of Appeals has undertaken this analysis in a number of cases. In Matter of Eadie v. Town Bd. of N. Greenbush, 7 N.Y.3d 306 (NY 2006) the Court of Appeals held that the issuing of a Findings Statement did no_t constitute a final action until the re-zoning that relied on itwas enacted, as the re-zoning (and not the Findings Statement) imposed a concrete injury. In Stop-The-Barge v. Cahil, 1 N.Y.3d 218 (2003), a conditioned negative declaration constituted a fimal agency action because injury to the petitioner resulted from the developer being able to proceed without preparing an Environmental Impact Statement. In Matter of Essex County v. Zagata, 91 N.Y.2d 447 (1998), the Court concluded that an agency action is final for Article 7801 purposes when the decision maker arrives at a "definitive injury..." position on the issue that inflicts an actual concrete and the injury purportedly inflicted by the agency may not be prevented or significantly ameliorated by further administrative action or by steps available to the complaining party. If further agency proceedings can render the disputed issue moot or academic, then the agency position cannot be considered defmitive nor the injury actual or concrete. The SEIS/Findings Statements did not result in a definitive position on the action that inflicted an actual or concrete injury. The injury claimed here is the application of herbicides to the lake, that action was not definitive, actual or concrete when the SEIS was adopted or the Findings Statements were issued, as the towns stillhad to resolve to apply for the permits and apply the herbicides. Some towns in fact did not apply for the permits. Further, the DEC stillhad to issue the permits. After the SEIS was adopted and the Findings Statements were issued, 2 [FILED : ERIE COUNTY CLERK 12/21/2018 11: 41 INDEX NO. 812002/2018 AM| NYSCEF DOC. NO. 115 RECEIVED NYSCEF: 12/21/2018 MemorandumDecision December21,2018 petitioner continued to lobby the DEC not to issue the permits. The affected municipalities, including the respondent Town of Ellery, reserved their decision as to whether to submit a permit application for herbicide treatment until they had an opportunity to review the permits from the DEC. The Towns of Ellicott and Celeron decided not to apply herbicides, despite the fact that each had issued a Findings Statement in support of herbicide application. It isclear that there remained further agency decision-making that needed to take place prigg to the application of herbicides and that itwas the issuance of the permits and not the SEIS/Findings Statements that constituted the fmal agency action. See, Matter of Patel v. Board of Trustees of Inc. Vil. of Muttontown, 115 (2nd A.D.3d 862 Dept. 2014) and Town of Marilla v. Travis, 49 Misc.3d 1203[A] (Sup. Ct. Erie Co. 2015). Neither the SEIS nor the Findings Statements committed the DEC to issue the permits, and the harm was not concrete until the permits were ultimately issued in June and the herbicides were applied. Additionally, we are counseled by the Court of Appeals holding in Essex County, supra, and itsrecent decision in Rainco Sand & Stone Corp. v. Vecchio, 27 N.Y.3d 92 (2016) which advises courts to avoid piecemeal review of each determination made in the context of a SEQRA process and should determine rights only when those rights are actually in controversy, and not pass on questions which are moot or abstract questions. We agree that because all of the activities authorized by the June 1, 2018 permits have already occurred, and no person or entity sought temporary or injunctive relief seeking to bar the application of the herbicides, there is no reason to apply the exception to the mootness doctrine as requested by the Petitioner. Courts are reticent to invoke the exception to the mootness doctrine where, as here, the party seeking relief fails to safeguard the challenge by promptly requesting a temporary restraining order or preliminary injunctive relief. Petitioner cites Dreikausen v. Zoning Board of Appeals, 98 N.Y.2d 165 (2002) in support of their claim that the Institution's failure to seek injunctive relief is not, in this case, fatal to their claim. The Institution points out that whether a party challenging a project has moved for injunctive relief or otherwise sought to preserve the status quo is but one factor in a Court's mootness determination. The Institution argues that it preserved itslegal rights by timely filing this Petition within four months of the Final SEIS/Findings Statements and in advance of their use for future applications. They contend that the Petition raises questions of general interest and substantial public importance if not resolved. While itis true that Dreikausen held that the question of mootness is fact based and dependent on a variety of factors, the court held that "[c]hief among them is a challenger's failure to seek preliminary injunctive relief or otherwise preserve the status quo, as well as whether the agency acted in bad faith, whether the action could be readily undone and where novel issues warrant continuing review". Dreikausen, supra. The exception to the mootness doctrine only applies if there is a likelihood of repetition of the issues that would evade review and the issues involve substantial and novel issues. See, Hearst Corp. v. Clyne, 50 N.Y.2d 707 (1980). In looking at the factors here, we fail to see the legal authority to invoke an exception to the mootness doctrine. The fact remains that the Institution, despite heavy involvement in the environmental review process, did not avail itself of, or make any attempt to, seek injunctive relief with respect to the claimed injury, i.e.the application of herbicides. There is no evidence that any agency or municipal action 3 FILED : ERIE COUNTY CLERK 12 /21L2018 11: 41 Ali INDEX NO. 8 12 0 0 2 / 2 0 18 NYSCEF DOC. NO. 115 RECEIVED NYSCEF: 12/21/2018 Memorandum Decision December 21, 2018 was taken without authority or in bad faith. Any future requests for permits to apply acquatic herbicides in Chautauqua Lake will be subject to agency review, and thus, this is not a case where there will be an evasion of review with respect to future permit applications. The Institution may certainly challenge any agency decision regarding future permits for the application of acquatic herbicides. See, Matter of Citineighbors Coalition of Historic Carnegie Hill v. New York City Landmarks Preservation Comm., 2 N.Y.3d 727 (2004). Furthermore, this Petition should be dismissed because the court is not empowered to issue an advisory opinion about whether or not the 2018 SEIS can be the basis for decisions made by municipalities and NYSDEC in 2019. NYSDEC has yet to receive permit applications for any herbicide treatment of the lake for 2019, and if made, itis unknown what those permit applications will look like and whether or not any action will be taken to ameliorate the Institution's claim of alleged harm. See, Matter of Guido v. Town of Ulster Town Board, 74 A.D.3d 1536 (3d Dept. 2010). The Court acknowledges that if the process follows the 2018 timeline, there may be a very short window for the Petitioner to challenge permits that might be issued in 2019. However, because itcannot be said for certain that the 2019 permit requests will be filed under the same exact circumstances or whether there will any changes in the environmental circumstances of the lake, it would be improper for the court to consider any such application in the abstract. It will be up to the NYSDEC at that time, based on what information is then presented, to determine what, if any, additional environmental review is required and whether any or all of the SEIS at issue will be refereñced or used in support of those future permit applications. The court is not empowered to provide Petitioner with what, in essence, is a request for an advisory opinion. Simply put, the petition is too late and moot with respect to the 2018 administrative process for herbicide permits and too early for any yet to be filed permit application(s) for 2019. This letter constitutes the Decision of the Court. Sub Order and Judgment on notice. DO A M. SIWEK New York State Supreme Court Justice December 21, 2018