Opinion
8723/05.
Motion Date: March 6 2006. June 19, 2006.
James Bacon, Esq., Attorney for Petitioners, New Paltz, New York.
Dominic R. Cordisco, Esq. Drake, Loeb, Heller, Kennedy, Gogety, Gaba Rodd, PLLC, Attorneys for Town Board, Town of Woodbury, New Windsor, New York.
Jennifer VanTuyl, Esq., Cuddy Feder, Esqs., Attorneys for Respondent Applicant, Fishkill, New York.
SHORT FORM ORDER/DECISION/JUDGMENT
The following Article 78 Petition for a judgment annulling respondent Board's Local Laws 7-11 of 2005 and related SEQRA Findings for respondent Suburban's project WP3 was considered by the Court.
Notice of Petition/Petition/Exhs. (A-E, F-1-F-4, G-1-G-2, H, I, J-1-J-5) 1-3 Answer Town/Affidavit Gianzero/Exhs. (A B)/ Affidavit Turner/Exhs (A-F)/Memo/Return Index Tabs 1-130 4-10 Answer Suburban/Affidavit Kane/Exhs. (A-N) /Memo 11-14 Reply Memo 15 Sur-Reply Letter/Location Map (Tab 50) [Offer of submission of full 5 volume DEIS 4 volume FEIS declined by Court] 16-17
Upon reading the foregoing papers, the petition is disposed of as follows:
This is a CPLR Article 78 proceeding in which the petitioners seek a judgment annulling the respondent Town Board's (The Board) enactment of five (5) zoning amendments and its corresponding SEQRA findings approving the Woodbury Suburban Project known as WP3.
Petitioners are neighboring property owners with interests which may be adversely affected by the creation of WP3, a gated residential clustered community of approximately 400 acres proposed to be developed on contiguous properties owned by the non-municipal respondents in the vicinity of Nininger and Dunderberg Roads in the Town of Woodbury.
On November 3, 2005 The Board adopted a combined SEQRA Findings Statement for Local Laws (LLs 4-8) and the respondent Woodbury Suburban Estates' application for the WP3 project. The five (5) local laws in question are amendments to the Town's zoning code, three (3) of which are site specific to WP3.
LL6, adopted as LL9 rezoned only the WP3 site from R-2A (minimum residential lot size of 2 acres) to R-1A (minimum residential lot size 1 acre). This enactment permits smaller lots of 30,000 square feet if served by central water and sewer.
All new Local Laws are referred to in the Findings Statement by the number under which they were initially introduced, viz LLs 4-8.
Introduced as LL7 but adopted as LL10, this law designated the WP3 site as a Conservation Cluster Overlay District (CCOD). Introduced as LL4 but adopted as LL7, this law created the CCOD concept and offered town-wide incentives in the form of reduced minimum lot sizes for clustering in a CCOD. The combination of LL9, which reduced the WP3 area to an R-1A district and its further classification under LL7 as a CCOD, translated into reducing the permitted lot size in the WP3 site from a minimum of 2 acres (87,120 square feet) to as small as 15,000 square feet.
LLS, adopted as LL8, amended the local code with respect to Senior Housing to permit units to be owner occupied rather than "rental only" units.
Finally, LL8, adopted as LL11 rezoned 45 acres of the WP3 400 acre site from R-2A to Senior Housing (SH). Thus, the original potential for construction of 22 senior housing units on this 45 acre portion of WP3 was expanded by this new classification to a potential build out of 180 units.
Based on these amendments to the respondent Town's zoning ordinance, WP3 presented a plan for a total of 451 housing units including 130 units of senior housing. By contrast, petitioners point to an estimate provided by the Orange County Department of Planning (OCDP) which found that before the enactment of these 2005 local laws, a total of only 147 units could have been approved on this parcel of about 400 acres.
The petitioners' challenge to the Board's actions of November 3, 2005 is founded on:
(1) the alleged violation by the Board of the provisions of General Municipal Law (GML) § 239-m;
(2) the alleged inconsistency with the Town's 1988 Master Plan as well as its nascent 2005 Comprehensive Plan update, in violation of the provisions of Town Law § 263; and
(3) the alleged violation of SEQRA regulations ( 6 NYCRR 617).
In mid-2004 the Board began to consider proposals which would amend its local laws to encourage clustered development in an attempt to preserve open space. In May of that year it sent a proposed Conservation Cluster Overlay District (CCOD) law to the Orange County Department of Planning (OCDP) for its review and comments pursuant to GML § 239-m.
In November 2004 the respondent Suburban applied to the Board to develop the 400 acre site in question as a cluster development. As presented, its concept for WP3 would preserve about one-quarter of its acreage as open space.
On November 18, 2004 the respondent Town Board declared its intent to be "lead agency" for purposes of reviewing Suburban's project under this State's Environmental Quality Review Act (SEQRA). (Lead agency procedures are set forth in subdivision 6 of the Environmental Conservation Law (BCL) § 8-0111.) The obvious need for a positive declaration, to reflect WP3's potential significant environmental impact, was made and the Board directed Suburban to prepare an Environmental Impact Statement (EIS) pursuant to ECL § 8-0109.
A 5 volume Draft EIS (DEIS) was prepared after "scoping" to define specific environmental issues, public hearings and written comments had been received by the respondent Board. Ultimately, a 4 volume Final EIS (FEIS) to address the public comments to the DEIS was prepared and accepted as complete by the Board on September 29, 2005. A copy of the FEIS was sent to and received by OCDP on October 5th. On October 20, 2005 the Board accepted and adopted an Addendum to the FEIS in order to respond to public comments which "were inadvertently omitted from the" FEIS accepted on September 20, 2005. OCDP received the Addendum on October 21st. Thereafter, on November 3, 2005 by a 4-1 vote the Board approved a 44 page Findings Statement for the WP3 project and adopted each of the aforementioned Local Laws.
However on November 17, 2005 David Church, Commissioner of OCDP issued a report to the respondent Boards under authority of GML § 239-m in which he disapproved the proposed new local laws as well as Suburban's Special Use Permit and Site Plan for WP3.
Since the Town Board had already voted on these matters before receipt of the November 17th report, a threshold issue arises with respect to the authority of the Town Board to act before receipt of same.
The provisions of subdivision 4(b) of GML § 239-m provide that:
(b) Such county planning agency . . . shall have thirty days after receipt of a full statement of such proposed action, or such longer period as may have been agreed upon by the county planning agency . . . and the referring body, to report its recommendations to the referring body, accompanied by a statement of the reasons for such recommendations. If such county planning agency . . . fails to report within such period, the referring body may take final action on the proposed action without such report. However, any county planning agency . . . report received after thirty days or such longer period as may have been agreed upon, but two or more days prior to final action by the referring body, shall be subject to the provisions of subdivision five of this section. (emphasis supplied)
Subdivision 5 of the enactment requires a super majority vote by the referring body if it acts contrary to any recommendation of County Department of Planning to either modify or disapprove a proposed action.
The respondent Board's vote of November 3, 2005 was less than 30 days from OCDP's receipt of the FEIS and its Addendum. However, the respondents contend that OCDP's 30 day window to make its comments began at the end of June 2005 when it received a copy of the DEIS and the text of the proposed local laws.
The Court finds that the respondents' contention is based on a narrow reading of subdivision 1(c) of GML § 239-m and the selective extraction of but one sentence from only one of three of OCDP's initial comments, namely its first comment of December 16, 2004.
The last sentence in the latter document indicates that OCDP would render a final determination once the DEIS "for the intended zone change is completed and we are sent a copy" (emphasis supplied).
Respondents contend that this final sentence irrevocably bound OCDP to produce a GML § 239-m recommendation within 30 days of its receipt of the DEIS for just the down-zoning of this large tract. This statement must be read in conjunction with the previous sentence in which the OCDP specifically indicated that "the full application for such review should include our receipt of any materials the Town requires in the consideration of such rezoning, including SEQR [sic] scoping documentsas well as the draft and final environmental impact statements once completed." (emphasis supplied) The latter statement not only reflects the extent of OCDP's concerns for the environmental issues expressed in the body of that initial document, but that same degree of concern is reiterated in OCDP's subsequent comments of July 14th and August 18th which are clearly identified as "preliminary". There could be no misunderstanding from the content of these two subsequent documents that OCDP considered that it had not received sufficient information from the DEIS to issue a GML § 239-m report "specific to Local Laws 4, 5, 6, 7 or 8." There can be no doubt that in the opinion of OCDP, an opinion consistently expressed between December 2004 and August 2005, it had determined that a "full statement" required receipt of the FEIS in order for it to intelligently prepare a final recommendation pursuant to the statute.
The respondents have taken the position that all that OCDP was entitled to receive and review was the DEIS which it had been provided, and to which it had responded in its July and August preliminary comments.
Respondents rely on a restrictive reading of subdivision 1(c) of GML § 239-m which states that:
The term "full statement of such proposed action" shall mean all materials required by and submitted to the referring body as an application on a proposed action, including a completed environmental assessment form and all other materials required by such referring body in order to make its determination of significance pursuant to the state environmental quality review act under article eight of the environmental conservation law and its implementing regulations. When the proposed action referred is the adoption or amendment of a zoning ordinance or local law, "full statement of such proposed action" shall also include the complete text of the proposed ordinance or local law as well as all existing provisions to be affected thereby, if any, if not already in the possession of the county planning agency or regional planning council. Notwithstanding the foregoing provisions of this paragraph, any referring body may agree with the county planning agency or regional planning council as to what shall constitute a "full statement" for any or all of those proposed actions which said referring body is authorized to act upon. (emphasis supplied)
Where the petitioners and OCDP would stress the phrase "all materials required by and submitted to the referring body as an application on a proposed action," the respondents would stress the phrase following the comma, "including a completed environmental assessment form [EAF] and all other materials required by such referring body in order to make its determination of significance" pursuant to SERA.
Although OCDP's arguments have been adopted and pursued by the petitioners, it has not directly involved this proceeding since it is not a proper party (see Matter of Headriver, LLC v Town Board of Riverhead 2 NY3d 766, 768).
The Legislature took pains to clarify what it intended by "full statement" by defining that term in subdivision 1(c) of the enactment as meaning "all materials" required by and submitted to the referring body." (emphasis supplied).
This Court finds that the reference to the EAF is merely illustrative of the term "all materials required by and submitted to the referring body." In support of their respective positions, both sides cite appellate decisions in which the need for planning commission review of final generic environmental impact statements (FGEIS, see 6 NYCRR 617.10) pursuant to GML § 239-m were at issue. This Court finds that the respondents reliance upon the Fourth Department's decision in Matter ofFleckenstein v Town of Porter 309 AD2d 1188 is neither persuasive nor controlling. That case involved a Country Department of Planning's review of but a preliminary step in a project which, because it would be "carried out, if at all, in the future," defied detailed analysis. The factual premise for accepting just the draft of the GEIS to satisfy GML § 239-m under those circumstances bears little resemblance to the instant multifaceted project called "WP3." Additionally, the controlling precedent is this Department's decision in Matter of LCS Realty Co., Inc. v Incorporated Village of Roslyn 273 AD2d 474 which interpreted the term "full statement of such proposed action" (subdivision 1(c) of GML § 239-m) to mean what the statute says, namely, all material required and submitted including "the final generic environmental impact statement."
Such an interpretation follows the plain language of the statute and is consistent with the broad intent expressed in subdivision 2 of GML § 239-1 to the extent that it, as well as the provisions of § 239-m were enacted "to bring pertinent inter-community and county-wide planning, zoning, site plan and subdivision considerations to the attention of neighboring municipalities and agencies having jurisdiction." In order to carry out that intent, it is reasonable to conclude that the final EIS and not just its draft, would be the documents within the term "all materials required by and submitted to" the respondent Board which OCDP would deem "pertinent". Therefore, the Court finds that the FEIS, which by statute and rule includes the DEIS (ECL § 8-0105(7) and Rule 617.9(b) (8)), of necessity must be referred to the County Department of Planning for it to have "all materials" and a "full statement". It is this referral which triggers the statutory 30 day time period under subdivision 4(b) of GML § 239-m within which county planners must make their recommendations.
There is no merit to respondents' argument that, notwithstanding this statutorily mandated 30 day time for OCDP's comments, the respondent Board was nevertheless obligated under Rule 617.11(b) to file its written findings statement and its decision within 30 calendar days after the filing of the FEIS.
The time limits for SEQRA review are directory, not mandatory (Omabuild USA No. 1, Inc. v State of New York 207 AD2d 335). Unlike the provision of statutes like subdivision 8 of Town Law § 276 or subdivision 3(b) of ECL 70-0109, there was no looming default provision provided under Article 8 of the ECL which forced the respondent Board to act. Therefore, there was no compelling legal reason, indeed no reasonable basis for the respondent Board not to respect the stated position of OCDP that its GML § 239-m recommendation would be forthcoming after receipt of the FEIS, and, as it would turn out, receipt of the Addendum to the FEIS.
Respondents also suggest that OCDP's 30 day time limit logically should commence upon the earlier delivery of the DEIS since any OCDP recommendations received after the FEIS had been accepted would be too late for the lead agency to address those comments as part of its SEQRA review. The lead agency's acceptance of the FEIS may be indicative of, but does not lock a lead agency into any particular SEQRA findings or decision. Indeed, the Legislature provided for a lead agency's receipt of GML, § 239-m recommendations up until two (2) days before the lead agency's "final action".
Thus, the Legislature recognized that GML § 329-m's comments could be submitted well after preparation and acceptance of the FEIS. Nor do such last minute comments necessarily require revision of the FEIS, especially if the referring agency has the super majority votes to override what might be viewed as the County Commissioner's attempted veto under subdivision 5 of GML § 239-m.
The lead agency's only obligation, if it has a super majority, as herein, and it has declined to adopt the County's recommendation, is to set forth its reasons for such contrary action in its "Report of Final Action" pursuant to subdivision 6 of the enactment.
The statutory mandate of GML § 239-m(4) (b) providing OCDP with 30 days to comment from its receipt of the full statement created an inherent jurisdictional prerequisite for the authority of respondent Board to take its final action. Whether receipt of the FEIS by OCPD on October 5, 2005, or the Addendum on October 21, 2005, triggered the commencement of the 30 days, in either case the respondent Board's vote on November 3, 2005 was made without jurisdiction and was therefore void(Matter of Ernalex Constr. Realty Corp. v Bellssimo 256 AD2d 336;Matter of LCS Realty supra).
Even if there was not a jurisdictional basis to vacate the respondent Board's actions of November 3, 2005, this Court would have concluded that there was no rational basis for the respondent Board to have taken final action on these complex matters before providing OCDP with a reasonable opportunity, after its receipt of the FEIS and its supplement, to submit a consolidated final response.
Given the potential local, as well as inter-community impacts from these zoning amendments and the WP3 project, and OCDP's pointed "preliminary" negative comments, it was arbitrary and an abuse of discretion for this local Board to presume to decide for the County Commissioner when his department had received the "full statement". While OCDP may not have had any authority to forestall the respondent Board's actions until a new or revised Comprehensive/Master Plan had been adopted, nevertheless in a complex matter such as this it was well within that Department's authority, indeed within the intent of GML § 239-m and Article 8 of the ECL to assume that OCPD would respond to the FEIS within a reasonable time, i.e., 30 days. The Board's precipitous action taken before that time had elapsed was not remedied by its adoption of the subject findings just because the latter addressed some, but not all, of the comments made by OCDP.
Accordingly, the Court is constrained to grant the petition and the Court hereby declares that the November 3, 2005 votes of the respondent Board on the combined SERA Findings for WP3 and proposed Local Laws 4-8 (adopted as Local Laws 7-11) and the adoption of those laws are void and the same are hereby nullified.
These matters are hereby remanded to the respondent Board for a new vote. There shall be no requirement for further hearings unless significant events have since occurred, such as the adoption of the proposed updated Comprehensive Plan or the intervening submission of other proposed projects in the subject area (including adjoining municipalities) which might have a meaningful impact on the environment vis-a-vis WP3.
The above shall constitute the decision, order and judgment of the Court.