Opinion
2005-0878.
Decided September 8, 2005.
Law Office of Marc S. Gerstman, Albany, New York, William Reynolds, Esq, Town Attorney for the Respondent Town of Saratoga Planning Board Schuylerville, New York, Lemery Greisler, LLC, Attorneys for the Petitioners.
E.M. Mease, Saratoga Springs, New York, Michele L. Anderson, LLC, Attorney for the Respondents Thomas Roohan, Roohan Realty, and Jeffrey Barlok, Saratoga Springs, New York, Attorneys for Respondent.
The petitioners have requested an order and judgment of this Court vacating and annulling the Town of Saratoga Planning Board (hereinafter Board) approval of the Southard Road Subdivision and the associated Conditioned Negative Declaration (hereinafter CND). Additionally the petitioners request the Court enjoin and restrain the Town from granting any approval or taking any action in reliance on the CND until they have complied with SEQRA. Finally the petitioners request an order directing the Town to test the proposed subdivision wells and monitor petitioners' wells prior to making a SEQRA determination and granting subdivision approval. The respondents have answered and made objections in point of law. The Court has determined it will consider all of the papers submitted by the parties.
The respondent Mease is the owner of a parcel of land measuring approximately 69.11 acres. The respondents Roohan and Barlow are seeking approval to create a subdivision on the land owned by respondent Mease. They initially submitted a "sketch plan conference" application to the Board in February 11, 2004. The original proposal sought approval for a 21 lot residential subdivision. Ultimately on July 14, 2oo4 the respondents submitted a formal application to the Board requesting preliminary approval for an 11 lot subdivision.
The application for the 11 lot subdivision was considered at a Board meeting on July 28, 2004.Both the Board and petitioners raised concerns regarding the available water resources. In response the applicants commissioned an additional engineering study of the water resources. The study was provided to the Board and the Town Engineer. The study was included with the respondents' application filed on October 12, 2004 that sought final approval for the subdivision. The petitioners took issue with the engineering report. They submitted a letter from an engineering firm they retained challenging the report. The Town Engineer retained a third engineer to review the water reports and issues. That engineer prepared a report and met with the Board, the Town Engineer, and respondent Barlock and Roohan's engineer. A memorandum regarding that meeting was prepared by the Town Engineer and submitted to the Board.
After the January 25, 2005 Board meeting the Board minutes record the Board's position that the SEQRA process was complete. A draft conditioned negative declaration (CND) was proposed and approved by the Board. The CND notice was published in the Department of Environmental Conservation's Environmental Notice Bulletin on February 16, 2005. The CND contained conditions that mandated further in-site well testing before individual home building permits applications could be approved. The petitioners and their counsel submitted extensive comments during the notice and comment period.
Subsequent Board meetings were held on March 9, 2005, March 30, 2005 and April 21, 2005. At the April 21, 2005 meeting the Board held a special "workshop" to consider the comments received on the CND. At that meeting the EAF forms were again reviewed to reconsider whether that document supported the Board's prior decision to issue a CND. The Board also reviewed a report prepared by the Town Engineer in response to the public comments received on the CND. The Board determined it would not rescind the CND as the members of the Board were satisfied with the CND document. On April 27, 2005 the Board passed two written resolutions, one approving the CND the other granting approval of the subdivision application. Petitioners seek to vacate those Board decisions.
The crux of petitioners argument is that the CND and the conditions of the CND were insufficient to mitigate the environmental concerns. As a result petitioners contend the Board should have rescinded the CND after the public comment period. The petitioners seek to have the Court substitute its judgment for that of the Board and essentially accept its expert's opinion to the exclusion of all other opinions examined by the Board.
As the lead agency the Board is charged under SEQRA to follow its detailed procedures and consider the potentially harmful effects of the proposed subdivision. See, Matter of Coca-Cola Bottling Co. v. Board of Estimate, 72 NY2d 674, 679 (1988). In this case the Board determined the proposed subdivision would not have a significant effect on the environment (ECL 8-0109, [4]; 6 NYCRR 617.2 [v]) and it issued a `negative declaration,' identifying areas of environmental concern, and providing a reasoned elaboration explaining why the proposed action will not significantly affect the environment. 6 NYCRR 617.6 [g]; Id., at 680)
In reviewing a lead agency's compliance with SEQRA, a court does not "weigh the desirability of [the] action" or determine what, if any, adverse environmental effects may result from it. Id. quoting, Matter of Jackson v. New York State Urban Dev. Corp., 67 NY2d 400, 416. The Court's review is limited to whether the decision makers, here the Board, identified the relevant areas of environmental concern, took a "hard look" at them, and made a "reasoned elaboration" of the basis for their determination. Matter of Jackson, supra at 417. The main issue in this case is the impact of the proposed development on water resources. The issue of preservation of the rural, farmland nature of the area is also raised.
When reviewing the issuance of a negative declaration the Court must determine whether the agency "made a thorough investigation of the problems involved and reasonably exercised [its] discretion. Har Enterprises v. Town of Brookhaven, 74 NY2d 524, 549 (1989). In reviewing the Board's actions its obligations under SEQRA "must be viewed in light of a rule of reason." Jackson, supra at 417. The Board's determination should be annulled "only if arbitrary, capricious or unsupported by substantial evidence." Id., at 417.
The record supports a finding that the negative declaration was adequate and met the requirements of SEQRA. The multiple meetings, consultation with various experts on the water question, careful consideration and response to the comments raised during the comment period, and review of all the written documentation filed with the Board and its consideration of the input by the County Planning Board leads to the conclusion that the Board identified the relevant areas of environmental concern, took the necessary hard look at them and made a `reasoned elaboration' ( 6 NYCRR 617.6 [g] [2] [iv]) for the basis of its determination." Har Enterprises v. Town of Brookhaven, supra, Jackson, supra. While petitioners take issue with the analysis of the Town Engineer, the respondent's Barlock and Roohan's expert and the independent expert retained by the Town there is nothing in the record to undermine the reliability of those sources. Stewart Park and Reserve Coalition v. New York State, 157 AD2d 1 (3rd Dept. 1990). It is not the role of the Court to substitute its judgment for the Board who undertook the task with appropriate assistance to review and consider the merits of each experts arguments and positions. The decision of the Board should not be disturbed. The Court has considered the petitioner's remaining arguments. None of the arguments provide a basis for vacatur. The petition is dismissed.
Any relief not specifically granted is denied. No costs are awarded to any party. This decision shall constitute the judgment of the Court. The original papers shall be forwarded to the attorney for the respondents Thomas Roohan, Roohan Realty, and Jeffrey Barlok for filing and entry.