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Decision No. 15,390

Appeal of DIANE MULLEN from action of the Board of Education of the Westhampton Beach Union Free School District regarding the construction of stadium lights.

Decision No. 15,390

(March 22, 2006)

William J. Keahon, Esq., attorney for petitioner

Kevin A. Seaman, Esq., attorney for respondent

MILLS, Commissioner.--Petitioner, a resident of the Westhampton Beach Union Free School District ( "respondent"), objects to the planned construction of stadium lights for the district's high school athletic fields. The appeal must be dismissed.

At an April 4, 2005 meeting, respondent authorized a proposition to be placed on the ballot at the May 17, 2005 district meeting for funds for the construction of four 70-foot-tall stadium lights to be built around the high school athletic fields. Respondent had determined that the construction of the lights was a Type II action for purposes of review under the State Environmental Quality Review Act ("SEQRA"), meaning that the project was not subject to further environmental review by the district. This appeal ensued. Petitioner's request for interim relief was denied on May 13, 2005. On May 17, 2005, the voters approved the referendum authorizing money for construction of the stadium lights.

In April 2005, three other petitioners commenced an Article 78 proceeding in State Supreme Court in Suffolk County, also challenging the construction of the stadium lights. On April 20, 2005 a Suffolk County Supreme Court Justice granted a restraining order prohibiting construction of the lights. In a non-final disposition dated June 20, 2005, the Suffolk County Supreme Court dismissed the Article 78 petition, deferring to the Commissioner's decision in this matter.

Petitioner claims that the construction of lights would disturb surrounding houses due to the noise and traffic generated by night games, that the construction of the lights requires a waiver from the Federal Aviation Administration because they present air navigation hazards to a nearby airstrip, and that the lights would violate a Village of Westhampton Beach zoning ordinance. For these reasons, petitioner contends respondent erred in its determination that the construction of the lights is a Type II determination. She maintains that her objections to the construction are all valid environmental issues, which should have led respondent to a determination that this was a Type I or Unlisted Action pursuant to SEQRA. Such a determination would have required further environmental studies to be done prior to the referendum on the project. Since the additional environmental reviews were not done, petitioner asserts that the referendum is null and void.

Petitioner requests that I declare the Type II determination to be void and order respondent to determine the construction of stadium lights is an Unlisted Action, that I prohibit the expenditure of any funds for construction of the stadium lights, that I find any proposed construction of lights to be in violation of the Village of Westhampton Beach zoning code, and that I nullify the results of the referendum, should it approve the funds for the lights.

Respondent contends that its determination that the project was Type II for SEQRA purposes is correct and was based upon consultation with outside counsel and an environmental consulting firm. Respondent also asserts that the Commissioner does not grant "writs" or issue declaratory judgments, as sought by petitioner. It further claims that the Commissioner should not review respondent's determination of the Type II action because in 1999 the State Education Department ("SED"), acting as lead agency, did a SEQRA review of the same project and made the same determination of Type II. Finally respondent argues that a school district is not subject to a village ordinance relating to a lighting project.

I must first address a procedural matter. Petitioner submitted a "Motion to Supplement the Verified Petition." This Supplement addresses issues which should have been raised in the original petition, and new issues which should be addressed in a separate appeal. Therefore, I decline to accept this submission and I have not considered the additional material in this appeal.

Petitioner's claim that the Village of Westhampton Beach ordinance prohibits construction of stadium lights is not accurate. In an Opinion of the Attorney General concerning the authority of Westchester County to apply its regulations to the construction of boilers in eight school buildings, the Attorney General stated:

In prior opinions, we have concluded that the provisions of the Education Law leave localities without authority to regulate school construction. Op Atty Gen (Inf) No. 98-1; 83-34. In our 1983 opinion, we reasoned that the Education Law reserves to the State power over the construction of school buildings and that the State's power has been delegated to local school boards subject to regulation by the Commissioner of Education. Op Atty Gen (Inf) No. 83-34. We noted that school construction is rigidly controlled by safety standards mandated by the State. Id. (1999 Op. Atty. Gen. 99-5)

(see also, Matter of the Bd. of Educ. of the City of Buffalo v. City of Buffalo, et al., 32 AD2d 98, 100; Op. Atty. Gen. No. 99-20; [finding that a school district is not subject to a Town's noise ordinance covering construction sites times]; and 8 NYCRR �155.4[b][1][ii][a]). I also note that by letter dated March 3, 2005, the Mayor of Westhampton Beach acknowledged that the Village does not have jurisdiction over this matter.

Petitioner also asks the Commissioner to review the SEQRA determination made by respondent. Article 8 of the Environmental Conservation Law does not provide for the Department of Environmental Conservation or any other agency with administrative authority to review SEQRA decisions. The sole mechanism for challenging a SEQRA decision is a CPLR Article 78 proceeding brought in State Supreme Court. Thus, I conclude that I do not have authority pursuant to Education Law �310 to adjudicate a dispute concerning a SEQRA determination.

THE APPEAL IS DISMISSED.

END OF FILE