Opinion
No. 30487/11.
2012-11-19
In the Matter of the Application of GREATER HUNTINGTON CIVIC GROUP, INC. and Nancy Graffeo, Petitioners, For a Judgment Pursuant to Article 78 of the Civil Practice Law & Rules, v. TOWN OF HUNTINGTON, Frank Petrone, Mark Cuthbertson, Susan A. Berland, Glenda Jackson and Mark Mayoka in their official capacities as members of the Huntington Town Board, Huntington Town Planning Board, Avalon Bay Communities Inc., and Evergreen Homes Construction Corp., Respondents.
James S. Henry, Esq., Sag Harbor, for Petitioners. John J. Leo, Esq., Town Attorney, Huntington, for Respondents Town of Huntington.
James S. Henry, Esq., Sag Harbor, for Petitioners. John J. Leo, Esq., Town Attorney, Huntington, for Respondents Town of Huntington.
Farrell Fritz, PC, Uniondale, for Respondent Avalonbay.
JOSEPH C. PASTORESSA, J.
The respondent Avalonbay Communities Inc. (Avalonbay) submitted an application to the respondent Huntington Town Board (Town Board) for a change of zone from R–7 Residential to R–3M Garden Apartments District with respect to a 26.5 acre parcel of real property located on East Fifth Street in Huntington Station. The application indicates that the property is owned by Starlight Building Corp. (Starlight). Avalonbay was seeking the change of zone in order to construct a 379 unit multi-family residential development consisting of a mix of market rate and affordable condominium and rental units. As part of the application, Avalonbay submitted a Draft Environmental Impact Statement (DEIS) in lieu of an Environmental Assessment Form (EAF). The Town Board classified the application as a “Type I” action under the State Environmental Quality Review Act (SEQRA) and directed the Town Planning Department to coordinate the environmental review.
On April 20, 2011, the respondent Huntington Town Planning Board (the Planning Board) found that the requirements for SEQRA review were met and that a negative declaration was appropriate as the DEIS appeared to address all potential environmental impacts. The Planning Board recommended that the requested change of zone be approved subject to certain conditions. Pursuant to General Municipal Law § 239–m, the Suffolk County Planning Commission also approved the change of zone subject to the condition that the Town Board direct Avalonbay to consult Planning Commission Guidelines with respect to energy efficiency and public safety principles in the development of the site. The Town Board held a public hearing and a final EAF was prepared by the Planning Department. The EAF recommended a negative declaration because the re-zoning would allow a higher density residential development on a mostly flat property with no significant environmental features that has already been approved for residential development. The property is adjacent to railroad tracks, industrial uses and other high density residential developments. The EAF also concluded that the re-zoning was consistent with the Town's comprehensive plan and would not constitute spot zoning because other multi-family developments were located in the surrounding area. On June 6, 2011, the Town Board adopted a resolution which approved the change of zone and issued a negative declaration under SEQRA.
On September 30, 2011, the petitioners commenced this hybrid proceeding seeking a judgment declaring that the resolution approving the change of zone was invalid because it constituted illegal spot zoning. The second cause of action seeks a judgment pursuant to CPLR Article 78 annulling the negative declaration on the grounds that the Town Board failed to take a hard look at all of the potentially significant environmental impacts of the proposed development. The petitioners consist of a not for profit corporation formed in March 2011 that is dedicated, among other things, to protecting and safeguarding the Town of Huntington community and its residents. The petition alleges that most of its members are Huntington Station residents and taxpayers who reside near the proposed development and would be directly affected by the environmental impacts of the project. The petitioner Nancy Graffeo owns a home directly across the street from the proposed development, within 80 feet of the property, and alleges that the activities associated with the construction of the project will occur in close proximity to her home. The respondents served answers to the petition alleging that the petitioners do not have standing to commence this proceeding and that the petitioners failed to join Starlight as a necessary party. The petition alleges that the respondent Evergreen Homes Construction Corp was the owner of the property but the respondents assert that the property is owned by Starlight.
On February 14, 2012, the petitioners commenced a separate hybrid proceeding under Index No 4655–12, against Starlight alleging the same causes of action. The petitioners move for an order consolidating the two actions. The respondents oppose the motion to consolidate on the grounds that, among other things, the second action against Starlight is untimely. The petitioners also move for a preliminary injunction seeking to enjoin the respondents from engaging in any site preparation or construction activities on the premises.
To establish standing, the petitioners must demonstrate that they have suffered an injury in fact and must demonstrate that the injury falls withing the zone of interests protected by the legal authority being invoked (see Society of Plastics Indus v. County of Suffolk, 77 N.Y.2d 761 [1991] ). In land use cases, the petitioners “must show that [they] would suffer direct harm, injury that is in some way different from that of the public at large” (Matter of Save the Pine Bush Inc v. Common Council of City of Albany, 13 NY3d 297, 304 [2009] quoting Society of Plastics Indus v. County of Suffolk, supra at 774). An association or organization “must show that at least one of its members would have standing to sue, that it is representative of the organizational purposes it asserts and that the case would not require the participation of individual members” (New York State Assn of Nurse Anesthetists v. Novello, 2 NY3d 207, 211 [2004] ).
Here, the petitioner corporation has not identified any of its members or demonstrated that they would have standing. The petition alleges that most of the members reside near the development and would be affected by crime, school overcrowding, traffic congestion, soil pollution, sewage overflows and other environmental impacts. The petition also alleges that many members use Manor Field Park, which is located adjacent to the site, and use Huntington Harbor for recreational purposes. Such generalized allegations are insufficient to confer standing upon the corporation as they do not demonstrate an injury distinct from the public at large (see Matter of Citizens Emergency Committee v. Tierney, 70 AD3d 576 [1st Dept 2010] ). However, the petitioner Graffeo alleges that she lives directly across the street from the proposed development. Such close proximity along with allegations of negative environmental impacts are generally sufficient to demonstrate standing (see Matter of Shapiro v. Town of Ramapo, 98 AD3d 675 [2d Dept 2012]; Matter of Youngewirth v. Town of Ramapo, 98 AD3d 678 [2d Dept 2012]; Matter of Bloodgood v. Town of Huntington, 58 AD3d 619 [2d Dept 2009]; Matter of Reed v. Village of Phimont Planning Board, 34 AD3d 1034 [3d Dept 2006] ).
It is well settled that zoning determinations enjoy a strong presumption of validity and will only be overcome by a showing, beyond a reasonable doubt, that the determination was arbitrary and unreasonable or otherwise unlawful (see Asian Ams. for Equality v. Koch, 72 N.Y.2d 121, 131 [1988];Matter of Rotterdam Ventures v. Town Board of the Town of Rotterdam, 90 AD3d 1360 [3d Dept 2011] ). Spot zoning is the process of singling out a small parcel of land, for a use classification totally different from that of the surrounding area, for the benefit of the owner of such property and to the detriment of other owners (see Rodgers v. Village of Tarrytown, 302 N.Y. 115, 123 [1951];Little Joseph Realty v. Town Board of the Town of Babylon, 52 AD3d 478 [2d Dept 2008]; Matter of Rotterdam Ventures v. Town Board of the Town of Rotterdam, supra). To determine whether a zoning proposal falls within this definition, courts “may consider several factors, including whether the rezoning is consistent with a comprehensive land use plan, whether it is compatible with surrounding uses, the likelihood of harm to surrounding properties, the availability and suitability of other parcels, and the recommendations of professional planning staff” (Matter of Citizens for Responsible Zoning v. Common Council, 56 AD3d 1060, 1062 [3d Dept 2008] quoting Matter of Save Our Forest Action Coalition v. City of Kingston, 246 A.D.2d 217, 221 [3d Dept 1998]; see Matter of Rotterdam Ventures v. Town Board of the Town of Rotterdam, supra).
Here, the petitioners contend that the change of zone is improper because it is inconsistent with the Town's comprehensive plan and would burden the local community. However, the petitioners have failed to submit any evidence to support their claim of spot zoning. The record demonstrates that there are several multi-family developments in the surrounding area as well as industrial uses to the north of the property. Thus, the change of zone does not allow for a use that it is totally different from that allowed in the surrounding area (see Matter of Marcus v. Board of Trustees, 96 AD3d 1063 [2d Dept 2012]; Little Joseph Realty v. Town Board of the Town of Babylon, supra). In addition, the comprehensive plan recommends high density residential development between existing commercial or industrial uses and residential neighborhoods. Therefore, the petitioners have failed to meet their burden of demonstrating that the zoning change was inconsistent with the comprehensive plan (see Matter of Marcus v. Board of Trustees, supra; Little Joseph Realty v. Town Board of the Town of Babylon, supra).
It is well settled that “judicial review of a SEQRA determination is limited to determining whether the challenged determination was affected by an error of law, or was arbitrary and capricious, an abuse of discretion, or was the product of a violation of lawful procedure” (Matter of East End Property Co. v. Kessel, 46 AD3d 817, 820 [2d Dept 2007] quoting Matter of Village of Tarrytown v. Planning Board of Village of Sleepy Hollow, 292 A.D.2d 617, 619 [2d Dept 2002]; see Akpan v. Koch, 75 N.Y.2d 561, 570 [1990] ). Courts “may review the record to determine whether the agency identified the relevant areas of environmental concern, took a hard look at them, and made a reasoned elaboration of the basis for its determination” ( Matter of East End Property Co. v. Kessel, supra quoting Matter of Jackson v. New York State Urban Dev. Corp., 67 N.Y.2d 400, 417 [1986]; see Matter of Riverkeeper Inc v. Planning Board of Town of Southeast, 9 NY3d 219 [2007] ). In this regard, “while judicial review must be meaningful, the courts may not substitute their judgment for that of the agency for it is not their role to weigh the desirability of any action or choose among alternatives” ( Apkan v. Koch, supra at 570 quoting Matter of Jackson v. New York State Urban Dev. Corp., supra at 416; see Matter of Riverkeeper v. Planning Board of Town of Southeast, supra).
Here, the petitioners contend that the Town Board failed to identify or take a hard look at certain environmental impacts such as soil contamination, sewage, air quality, traffic, the loss of open space and the burden on the school district. However, the record demonstrates that the DEIS, which was prepared by an environmental consulting firm, identified all relevant issues, including water, soil, transportation, noise and community facilities and evaluated the potential significant environmental impacts. In addition, a traffic impact report, a school aged children analysis and a noise study were submitted along with the DEIS. For example, the traffic report concluded that traffic conditions would not be significantly impacted by the development and recommended mitigation measures, including a new traffic signal at the intersection of Park Avenue and East Fifth Street. While the petitioners dispute many of the findings, an agency may rely on consultants to conduct the analyses that support their environmental review of a proposed project (see Matter of Brooklyn Bridge Park Legal Defense Fund v. New York State Urban Dev. Corp., 50 AD3d 1029 [2d Dept 2008]; Matter of Halperin v. City of New Rochelle, 24 AD3d 768 [2d Dept 2005] ). The choice between conflicting evidence rests in the discretion of the administrative agency (see Matter of Brooklyn Bridge Park Legal Defense Fund v. New York State Urban Dev. Corp., supra). In this case, the reports were reviewed by the Planning Department which found that they adequately addressed the potential environmental impacts and recommended the issuance of a negative declaration. Further, an EAF was prepared which concluded that the change of zone would not have a significant environmental impact because the property was already approved for residential development. Therefore, contrary to the petitioners' contention, the record demonstrates that the decision of the Town Board to issue a negative declaration had a rational basis (see Matter of Marcus v. Board of Trustees, supra; Matter of Perrin v. Bayville Village Board, 70 AD3d 835 [2d Dept 2010]; Barrett v. Dutchess County Legislature, 38 AD3d 651 [2d Dept 2007] ).
Accordingly, the petition is denied and the proceeding is dismissed. With respect to the first cause of action, it is declared that the June 6, 2011 resolution amending the zoning code is valid. In view of this determination, the motions by the petitioners to consolidate and for a preliminary injunction are denied.
Settle Judgment.