Opinion
66314
12-13-2019
In the Matter of the Application of ADIRONDACK WILD: FRIENDS OF THE FOREST PRESERVE, AND PROTECT THE ADIRONDACKS! INC., Petitioners, for Judgment Pursuant to Article 78 of the New York Civil Practice Law and Rules and Injunctive Relief, v. NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION; and Basil Seggos, in his capacity as Commissioner of the New York State Department of Environmental Conservation, Respondents.
Christopher A. Amato, Esq., 11 Bristol Circle, No. 2, Delmar, New York 12054, For Petitioner. Letitia James, Attorney General, Albany (Nicholas J. Buttino and Susan L. Taylor of counsel), Office of the Attorney General, The Capitol, Albany, NY 12224-0341, For Respondents.
Christopher A. Amato, Esq., 11 Bristol Circle, No. 2, Delmar, New York 12054, For Petitioner.
Letitia James, Attorney General, Albany (Nicholas J. Buttino and Susan L. Taylor of counsel), Office of the Attorney General, The Capitol, Albany, NY 12224-0341, For Respondents.
Robert J. Muller, J.
The underlying facts of this matter are fully set forth in the Court's prior decision ( 65 Misc 3d 1211[A], 2019 N.Y. Slip Op. 51587[U], 2019 WL 5059132 [Sup. Ct., Warren County 2019] ) and will not be repeated at length. As relevant here, in 2012 and 2013, the State acquired from The Nature Conservancy two tracts of land in the Adirondack Park: the 18,000-acre Essex Chain Lakes parcel and the 960-acre Indian River Parcel (hereinafter referred to as the Essex Chain Complex). Following acquisition of the Essex Chain Complex, respondent Department of Environmental Conservation (hereinafter DEC), in consultation with the Adirondack Park Agency (hereinafter the APA), developed a unit management plan for these lands (hereinafter the Complex Plan). The Complex Plan called for the construction and establishment of a new snowmobile trail connecting the hamlet of Indian Lake, Hamilton County with the hamlet of Minerva, Essex County and required, inter alia , the construction of a bridge over a segment of the Cedar River designated as scenic under the Wild, Scenic and Recreational Rivers System Act (see ECL 15-2701 et seq. [hereinafter the Rivers System Act]; 6 NYCRR 666.13 [E] [5] [b] ). After undertaking a review pursuant to the State Environmental Quality Review Act (see ECL art 8 [hereinafter SEQRA] ), DEC approved the Complex Plan in March 2016 and then proceeded with its implementation.
The prime objective of the Complex Plan was to connect rural communities in the Adirondack Park—so as to provide them with economic benefits—while at the same time preserving the integrity of the land.
In August 2018, DEC Division of Lands and Forests filed an application with DEC Division of Environmental Permits for (1) a permit to construct the bridge over the segment of the Cedar River designated as scenic (see 6 NYCRR 666.13 [E] [5] [b] ); (2) a permit to allow motorized open space recreational uses on the bridge and within the scenic river area (see 6 NYCRR 666.9 [d] ); (3) a permit to construct a trail in the scenic river area (see 6 NYCRR 666.13 [E] [3] ); and (4) a variance to allow the trail to be constructed to a width of 9 to 12 feet (see 6 NYCRR 666.9 [a] ). In December 2018, DEC Division of Environmental Permits granted the application and issued the requested permits and variance. Petitioners then commenced this CPLR article 78 proceeding in January 2019 to challenge that determination.
After the matter was fully submitted, the Court issued a stay pursuant to CPLR 2201 pending a decision from the Court of Appeals in Matter of Adirondack Wild: Friends of the Forest Preserve v. New York State Adirondack Park Agency , 161 A.D.3d 169, 75 N.Y.S.3d 681 (2018), affd 34 N.Y.3d 184, 115 N.Y.S.3d 171, 138 N.E.3d 1055, 2019 N.Y. Slip Op. 07520 (hereinafter Matter of Adirondack Wild ), a related case commenced by petitioners in May 2016 to challenge, inter alia , public snowmobile use on the portion of the trail immediately south of the proposed Cedar River Bridge. The Court was concerned that if public snowmobile use was deemed impermissible on this portion of the trail, it would eliminate the only possible snowmobile access to the Cedar River from the south and create a dead end for snowmobilers traveling from the north, thereby rendering the proposed Cedar River Bridge superfluous. The stay was thus granted in "the interest of justice [to] ensur[e] that all relevant facts [were] before [the] Court when a determination [was] made" ( 2019 N.Y. Slip Op. 51587 at *8 ). The Court also granted a preliminary injunction restraining respondents from undertaking any construction or site preparation activities with respect to the proposed Cedar River Bridge until the issuance of a final determination ( 2019 N.Y. Slip Op. 51587 at *11 ).
The Court of Appeals issued its decision in Matter of Adirondack Wild on October 22, 2019, finding that public snowmobile use is permissible on the portion of the trail located immediately south of the proposed Cedar River Bridge (see Matter of Adirondack Wild: Friends of the Forest Preserve v. New York State Adirondack Park Agency , 34 N.Y.3d 184, 195–98, 115 N.Y.S.3d 171, 138 N.E.3d 1055, 2019 N.Y. Slip Op. 07520, *5-6 [2019] ). The stay has therefore been lifted and the Court will now proceed with a consideration of the merits.
This portion of the trail is located in an area where the Hudson River is designated as wild under the Rivers System Act and, as such, public snowmobiling is impermissible unless it constitutes an existing land use (see ECL 15-2709 [2] ). In Matter of Adirondack Wild , the Court of Appeals found a rational basis for DEC's determination that such prior use existed (see Matter of Adirondack Wild: Friends of the Forest Preserve v. New York State Adirondack Park Agency , 34 N.Y.3d at 195–97, 115 N.Y.S.3d 171, 138 N.E.3d 1055, 2019 N.Y. Slip Op. 07520 at *5 ).
Petitioners allege eight causes of action:
(1) the permits and variance authorize the construction of a new snowmobile bridge over a scenic river, in violation of the Rivers System Act (see ECL § 15-2709 ; 6 NYCRR 666.13 );
(2) DEC failed to make the requisite findings prior to issuance of the permits, in violation of the Rivers System Act (see 6 NYCRR 666.8 [f] );
(3) the variance authorizes a prohibited use—namely, motorized recreation—in a protected scenic river corridor, in violation of the Rivers System Act (see 6 NYCRR 666.3 (lll), 666.9 [a] );
(4) DEC failed to weigh the benefit of granting the variance against the adverse impacts to protected river resources, in violation of the Rivers System Act (see 6 NYCRR 666.9 [a] [2] );
(5) the opening of the protected river corridor to public snowmobiling constitutes an alteration and/or expansion of a prohibited use—namely, motorized recreation—in a protected river corridor, in violation of the Rivers System Act (see ECL § 15-2709 [2] );
(6) DEC failed to classify its proposed action, prepare an environmental assessment form (hereinafter EAF), identify and thoroughly analyze potential adverse environmental impacts, make a significance determination, and either prepare an environmental impact statement (hereinafter EIS) or issue a negative declaration prior to issuing the permits and variance, in violation of SEQRA (see ECL art 8);
(7) DEC failed to prepare an EIS prior to issuing the permits and variance, in violation of SEQRA (see 6 NYCRR 617.7 [c] [1] [I], [ii], [v], [viii] ); and
(8) the EIS prepared for the Complex Plan was generic and DEC failed to prepare a supplemental EIS for the proposed Cedar River Bridge, in violation of SEQRA (see 6 NYCRR 617.10 [d] [4] ).
Petitioners request that this Court vacate the permits and variance, as well as permanently enjoin and restrain respondents from constructing the proposed Cedar River Bridge. Petitioners also seek costs and counsel fees in connection with the proceeding.
At the outset, because this matter does not involve a determination made after a quasi-judicial hearing,
"[the Court's] review is limited to whether the determination lacks a rational basis and is, thus, arbitrary and capricious. An action is arbitrary and capricious when it is taken without sound basis in reason or regard to the facts. If the agency's determination has a rational basis, it will be sustained, even if a different result would not be unreasonable. [The Court] may not substitute [its] judgment for that of the agency responsible for making the determination, and deference to the judgment of the agency, when supported by the record, is particularly appropriate when the matter under review involves a factual evaluation in the area of the agency's expertise" ( Matter of Adirondack Wild: Friends of the Forest Preserve v. New York State Adirondack Park Agency , 161 A.D.3d at 176, 75 N.Y.S.3d 681, quoting Matter of Fuller v. New York State Dept. of Health , 127 A.D.3d 1447, 1448, 7 N.Y.S.3d 668 [2015] [internal quotation marks, brackets and citation omitted] ).
Mindful of this standard, the Court begins its analysis with consideration of the first through fifth causes of action. Each of these causes of action alleges violations of the Rivers System Act, which was enacted in 1973 to protect the state's rivers and their immediate environs from improvident development (see ECL 15-2701 ). Under the Rivers System Act, the Legislature may designate a river as wild, scenic, or recreational and, once such designation has been made, "no dam or other structure or improvement impeding the natural flow thereof shall be constructed ... except as expressly authorized" ( ECL 15-2709 [2] ). To that end, the Rivers System Act provides as follows:
"[E]xisting land uses within the respective classified river areas may continue, but may not be altered or expanded except as permitted by the respective classifications, unless the commissioner or agency orders the discontinuance of such existing land use.... The following land uses shall be allowed or prohibited within the exterior boundaries of designated river areas depending on the classification of such areas:
"a. In wild river areas, no new structures or improvements, no development of any kind and no access by motor vehicles shall be permitted other than forest management pursuant to forest management standards duly promulgated by regulations.
"b. In scenic river areas, the continuation of present agricultural practices, the propagation of crops, forest management pursuant to forest management standards duly promulgated by regulations, limited dispersed or cluster residential developments and stream improvement structures for fishery management purposes shall be permitted. There shall be no mining, excavation, or construction of roads, except private roads necessary for residential, agricultural or forest management purposes, and with the further exception that public access through new road
construction may be allowed, provided that there is no other such access within two land miles in either direction.
"c. In recreational river areas, the lands may be developed for the full range of agricultural uses, forest management pursuant to forest management standards duly promulgated by regulations, stream improvement structures for fishery management purposes, and may include small communities as well as dispersed or cluster residential developments and public recreational areas. In addition, these river areas may be readily accessible by roads or railroads on one or both banks of the river, and may also have several bridge crossing and numerous river access points" ( ECL 15-2709 [2] ).
The Legislature directed DEC's Commissioner "to make and enforce regulations necessary for the management, protection, and enhancement of and control of land use and development in the wild, scenic and recreational river areas" (ELC 15-2709 [1] ), which regulations are embodied in 6 NYCRR part 666. Specifically, 6 NYCRR 666.8 establishes "[t]he procedures and schedules for applications of rivers system permits" [ 6 NYCRR 666.8 [a] ). It provides, in pertinent part:
"Before a river system permit is issued, it must first be determined that:
"(1) the proposed land use or development is consistent with the purposes and policies of the act and with the provisions of this [p]art;
"(2) the resources specified in section 666.2 (e) of this [p]art will be protected and the proposed activity will not have an undue adverse environmental impact;
"(3) no reasonable alternative exists for modifying or locating the proposed activity outside of the designated river area; and
"(4) actions proposed to be undertaken by State agencies are designed to preserve, protect or enhance the resources and values of designated rivers" ( 6 NYCRR 666.8 [f] ).
The resources specified in 6 NYCRR 666.2 (e) include the "natural, scenic, ecological, recreational, aesthetic, botanical, geological, hydrological, fish and wildlife, historical, cultural, archaeological and scientific features of designated rivers and river areas."
6 NYCRR 666.13 then provides a table of use guidelines, enumerating several possible uses for designated river areas and labeling such uses as "[n]o permit necessary," "[n]otification required," "[p]ermit required," "[p]resumed incompatible," and "[p]rohibited use."
6 NYCRR 666.9 establishes procedures for the issuance of a variance under the Rivers System Act. Pursuant to 6 NYCRR 666.9 (a), "upon receipt of a written request made in conjunction with a permit application ..., [DEC] may vary or modify any provision of relating to allowable land uses or development so long as it is the minimum variance necessary." 6 NYCRR 666.9 (a) further provides that "[n]o variance may authorize any development or improvement prohibited by the [Rivers System Act]." Insofar as area variances are concerned, 6 NYCRR 666.9 (a) (2) states, in pertinent part:
"In making its determination, [DEC] will consider the benefit to the applicant if the variance is granted, as weighed against the adverse impacts upon river resources. [DEC] will also consider:
"(i) whether and to what extent a change will be produced in the character of the river corridor or a detriment to nearby properties will be created by the granting of the area variance;
"(ii) whether the benefit sought by the applicant can be achieved by some method, feasible for the applicant to pursue, other than an area variance;
"(iii) whether the requested area variance is substantial; [and]
"(iv) whether the proposed variance will have an adverse effect or impact on the physical or environmental conditions in the river corridor ...."
Finally, "in the case of applicants which are State agencies or municipal corporations, the granting of a variance must be equally as environmentally protective of the river values identified in [ 6 NYCRR 666.2 (e) ] as compliance with the provision(s) to be varied and must fulfill a public health, safety or welfare function" ( 6 NYCRR 666.9 [a] [3] ).
The first and third causes of action revolve around the issue of whether the Rivers System Act permits motorized use in a scenic river corridor. Petitioners contend that motorized use is not permissible. 6 NYCRR 666.13 provides that a permit may be obtained in a scenic river corridor to construct "public roads ... greater than 100 [feet] long" ( 6 NYCRR 666.13 [E] [1] ), "trails" ( 6 NYCRR 666.13 [E] [3] ) and "[b]ridges over a designated river for public roads or for non-motorized open space recreational uses" ( 6 NYCRR 666.13 [E] [5] [b] ). It further provides that no permit is necessary for "[t]he use and operation of motor vehicles or motorized equipment for forest management purposes" or "for any other allowable use" ( 6 NYCRR 666.13 [E] [5] ). 6 NYCRR 666.2 (h) then provides "[a]ny new land use or development not listed ... as ‘no permit necessary,’ ‘permit required[,]’ or ‘notification required’ is presumed incompatible with the purposes of the [Rivers System A]ct" ( 6 NYCRR 666.2 [h] ). According to petitioners, because snowmobiling is not listed anywhere in the Rivers System Act as an allowable use in a scenic river corridor, it should be presumed incompatible with the purposes of the Act.
Petitioners also note that the final EIS prepared in 1986 in relation to DEC's promulgation of 6 NYCRR part 666 expressly states that "[t]he [r]egulations have been amended to prohibit motorized open space recreational uses in scenic river areas. Therefore, bridges for this use have been prohibited" [Excerpts from January 1986 final EIS, attached as Exhibit "8" to Amended Petition, at p 57].
Respondents, on the other hand, contend that motorized use is permissible. According to respondents, "[t]he Rivers [System] Act implicitly authorizes motor vehicles in scenic river areas by allowing roads, otherwise the Act would [have] prohibit[ed] motor vehicles as it does in wild river areas. In scenic river areas, roads ‘may be allowed’ " [Memorandum of Law dated March 29, 2019, at p 15 (emphasis in original), quoting ECL 15-2709 (2) (b) ]. Respondents also note that there is no other access to the proposed Cedar River Bridge within two land miles in either direction (see ECL 15-2709 [2] [b] ).
Insofar as the 1986 final EIS is concerned, respondents demonstrate that the 1986 regulations were replaced in 1996 and, as such, no longer apply to the instant case.
The question of whether the Rivers System Act permits the use of motorized vehicles in scenic river corridors is one of first impression, with the Court having found little legislative history on the subject. That being said, "[i]t is a well-settled and basic tenet of ... statutory interpretation that the clearest and ‘most compelling’ indicator of the drafters' intent is the language itself" ( Hernandez v. State of New York , 173 A.D.3d 105, 111, 99 N.Y.S.3d 795 [2019], quoting People v. Carroll , 3 N.Y.2d 686, 689, 171 N.Y.S.2d 812, 148 N.E.2d 875 [1958] ; see Matter of Lisa T. v. King E.T. , 30 N.Y.3d 548, 552, 69 N.Y.S.3d 236, 91 N.E.3d 1215 [2017] ; People v. Page , 88 N.Y.2d 1, 9, 643 N.Y.S.2d 1, 665 N.E.2d 1041 [1996] ). Here, the Rivers System Act classifies wild, scenic and recreational rivers incrementally, with wild rivers being the most protected and recreational rivers the least (see ECL 15-2709 [2] ). As noted by respondents, the Rivers System Act expressly prohibits the use of motor vehicles in wild river corridors unless such use was preexisting (see ECL 15-2709 [2] [a] ). There is, however, no such express prohibition in the language of the Act with respect to scenic river corridors (see ECL 15-2709 [2] [b] ). Rather, the Rivers System Act expressly permits "public access through new road construction [in scenic river areas], provided that there is no other such access within two land miles in either direction" ( ECL 15-2709 [2] [c] ) — as is the case here. It must also be noted that 6 NYCRR 666.3 [uu] defines "public road [as] any road over which the public has a right of way" — presumably by any means, motorized or otherwise. Under the circumstances, the Court finds that the record contains a rational basis for DEC's determination that motorized use is permitted in scenic river corridors. The first and third causes of action are therefore without merit.
The fifth cause of action is related to the first and third, although it alleges that public snowmobiling constitutes an impermissible alteration or expansion of a prohibited use in the area of the proposed Cedar River Bridge. To the extent that a rational basis exists for DEC's determination that motorized use is permitted in scenic river corridors, the fifth cause of action is also without merit. It must be noted, in any event, that there is very little information in the record relative to the snowmobiling which has historically taken place in the location of the proposed Cedar River Bridge. Indeed, while there is some evidence to suggest that snowmobiling took place in the Essex Chain Complex before it was purchased by The Nature Conservancy in 2007, the majority of this evidence is presented in the context of Matter of Adirondack Wild . There are no affidavits from individuals with personal knowledge in the instant proceeding.
The second and fourth causes of action are more procedural in nature. Specifically, in the second cause of action petitioners allege that respondents failed to consider all of the factors set forth in 6 NYCRR 666.8 (f) when granting the permits and, further, violated the regulation by failing to issue written findings. Similarly, in the fourth cause of action petitioners allege that respondents failed to consider all of the factors set forth in 6 NYCRR 666.9 (a) when granting the variance and, again, violated the regulation by failing to issue written findings.
In response, respondents submitted the affidavit of Marc S. Migliore—Regional Permit Administrator for Region 5 of DEC Division of Environmental Permits—who granted the permits and variance. Migliore states that "DEC construes the wording of 6 NYCRR 606.8 (f) to mean that it must determine that the criteria have been met, or not met, ... but not that DEC is required to document the determination in the form of written findings" [Migliore Affidavit, at ¶ 37]. Migliore likewise states that "DEC construes 6 NYCRR 666.9 (a) to mean that DEC must make certain determinations before issuing a variance, not that it must issue a written findings statement before issuance" [Migliore Affidavit, at ¶ 65]. Migliore then proceeds to outline all of the criteria considered in granting the permits and variance under 6 NYCRR 606.8 (f) and 666.9 (a), respectively. The question of whether 6 NYCRR 666.8 (f) and 666.9 (a) require the issuance of written findings also appears to be one of first impression. With that said, "[s]o long as [an agency's] determination is not irrational or unreasonable, judicial deference is particularly appropriate where the question is one of specific application of a broad statutory term or where the matter involves the agency's interpretation of a regulation that it promulgated and is responsible for administering" ( Matter of Carmel Academy v. New York State Educ. Dept. , 169 A.D.3d 1287, 1288, 94 N.Y.S.3d 715 [2019] [citations and internal quotation marks omitted] ). "Ultimately, however, legal interpretation is the court's responsibility and, where the question is one of pure statutory reading and analysis, dependent only on accurate apprehension of legislative intent, there is little basis to rely on any special competence or expertise of the administrative agency, and its interpretive regulations are therefore to be accorded much less weight" ( id. [citations and internal quotation marks omitted] ). "Likewise, courts are not required to embrace a regulatory construction that conflicts with the plain meaning of the promulgated language" ( id. [citations and internal quotation marks omitted] ).
Here, 6 NYCRR 666.8 (a) provides that "[t]he procedures and schedules for applications for rivers system permits are governed by article 70 (Uniform Procedures Act) of the Environmental Conservation Law (ECL) and its implementing regulations contained in Parts 621 and 624 of this Title." While 6 NYCRR 666.9 (a) does not include any language relative to what review procedures govern, it pertains to variances requested "in conjunction with a permit application" and, as such, it could be said that it too is governed by ECL article 70 and its implementing regulations. With that said, the Court was unable to find any requirement of written findings in either ECL article 70 or its implementing regulations. This—combined with the fact that the Rivers System Act regulations were promulgated by DEC and DEC is responsible for administering them—leads the Court to conclude that written findings are not necessary.
Further, given the extensive outline in Migliore's affidavit of the criteria considered in granting the permits and variance under 6 NYCRR 606.8 (f) and 666.9 (a), respectively, the Court finds that the record contains a rational basis for DEC's determinations in this regard. The second and fourth causes of action are therefore without merit.
The sixth through eighth causes of action allege violations of SEQRA, with the sixth and seventh causes of action alleging that DEC failed to classify its proposed action, prepare an EAF, identify and thoroughly analyze potential adverse environmental impacts, make a significance determination, and prepare an EIS.
In response, respondents contend that the final EIS approved in connection with the Complex Plan thoroughly addressed the proposed Cedar River Bridge—including its potential aesthetic impact—and, as such, an EIS was not necessary for the project. Respondents further contend that, because they prepared a draft EIS in connection with the Complex Plan, they were not required to prepare an EAF.
" ‘Judicial review of an agency determination under SEQRA is limited to whether the lead 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 Brunner v. Town of Schodack Planning Bd. , 178 A.D.3d 1181, 1182–83, 113 N.Y.S.3d 410, 2019 WL 6558226, *1 [2019], quoting Matter of Schaller v. Town of New Paltz Zoning Bd. of Appeals , 108 A.D.3d 821, 822-823, 968 N.Y.S.2d 702 [2013] [internal quotation marks, brackets and citations omitted]; see Matter of Mombaccus Excavating, Inc. v. Town of Rochester, NY , 89 A.D.3d 1209, 1210, 932 N.Y.S.2d 551 [2011], lv denied 18 N.Y.3d 808, 2012 WL 539188 [2012] ). "The court's role is not to second-guess the agency's determination" ( Matter of Brunner v. Town of Schodack Planning Bd. , 178 A.D.3d at 1182–83, 113 N.Y.S.3d 410, 2019 WL 6558226 at *1 ; see Matter of Jackson v. New York State Urban Dev. Corp. , 67 N.Y.2d 400, 417, 503 N.Y.S.2d 298, 494 N.E.2d 429 [1986] ; Matter of Anderson v. Lenz , 27 A.D.3d 942, 944, 811 N.Y.S.2d 210 [2006], lv denied 7 N.Y.3d 702, 818 N.Y.S.2d 192, 850 N.E.2d 1167 [2006] ).
Here, the Court finds that the final EIS prepared in connection with the Complex Plan identified the relevant areas of environmental concern with respect to the proposed Cedar River Bridge, took a hard look at them and made a reasoned elaboration of the basis for DEC's determination. The record demonstrates that DEC prepared a draft scope of the EIS for the Complex Plan, which draft scope expressly included the "[c]onstruction of a bridge over the Cedar River" [Administrative Return, Volume 3, at 627] as part of the project and, further, listed as potential impacts of the project both "[n]egative impacts to Scenic River areas from construction of bridges and trails" and "[n]egative impacts to Scenic River areas from use of trails by motor vehicles" [Administrative Return, Volume 3, at 630] (see 6 NYCRR 617.8 [b] ). The draft scope also listed "potential mitigation measures" and indicated that the EIS would "examine a number of alternatives for ... the location and design of a bridge over the Cedar River" [ [Administrative Return, Volume 3, at 631]. Acceptance of the draft scope was published on March 25, 2015 and approximately 180 comments were received during the public comment period (see 6 NYCRR 617.8 [d] ). Following consideration of these comments, DEC prepared a final scope of the EIS for the Complex Plan, which was published on June 10, 2015. There was then a second public comment period and three public hearings were held, following which the draft EIS was submitted to the APA for consideration of whether it conformed with the Adirondack Park State Land Master Plan (hereinafter the Master Plan). The APA then approved a third public comment period, following which it concluded that the draft EIS conformed with the Master Plan. The final EIS was then approved by DEC's Commissioner on March 31, 2016, simultaneous with approval of the Complex Plan.
As indicated in the draft scope, the final EIS includes an extensive discussion of four alternatives for the Cedar River Bridge—with one alternative being the absence of any bridge whatsoever—and the location presently proposed is ultimately deemed the "preferred alternative because, among other reasons, it avoids or minimizes adverse environmental impacts to the greatest extent practicable" [Administrative Return, Volume 2, at 415]. The final EIS also includes a discussion of the "potential environmental impacts and proposed mitigation measures" [Administrative Return, Volume 2, at 424], as does the SEQRA Statement of Findings—issued on the same date that the final EIS was approved—which states as follows:
"The potential cumulative impacts from the placement of a bridge over the Cedar River include visual and noise impacts.... The placement of a bridge over the Cedar River may diminish the experience of a paddler on the river, or a hiker on a nearby trail. The placement of an additional bridge, in the context of
having 8 other bridges spanning the river, may not appear to be significant, but when considering the proposed location of the preferred alternative the aesthetic impact could be significant. First, the location is in a remote site in the Complex Area. Second, the river is designated a Scenic River under the Rivers Act which carries with it a heightened level of protection. And finally, the existing improvements within the river corridor, mainly old woods roads, are screened from view by those traveling on the river by an abundance of vegetation along both banks of the river" [Administrative Return, Volume 1, at 256].
The Statement of Findings further states:
"[DEC] will mitigate the potential for significant adverse visual and noise impacts when permitting the construction of a bridge over the Cedar River by minimizing the number of trees cut in the area, maintaining the existing vegetation screen, and utilizing a structure-finishing scheme to allow the bridge assembly to blend in with the immediate environ. [DEC], in cooperation with the APA, will also seek approval to utilize non-natural materials for the construction of the Cedar River bridge.... A bridge constructed with non-natural materials will significantly reduce the physical profile of the structure" [Administrative Return, Volume 1, at 257].
It must also be noted that respondents submitted affidavits from several DEC employees involved in the SEQRA review process, all of whom outline in exhaustive detail the several site visits conducted and documentation—including "topographic maps" [Kneeshaw Affidavit, at ¶ 23] and "Geographic Information Systems data" [Clague Affidavit, at ¶ 18]—reviewed.
Finally, respondents correctly note that former 6 NYCRR 617.6 (a) (4) provided that "[a]n agency may waive the requirement for an EAF if a draft EIS is prepared or submitted." As such, DEC was not required to prepare an EAF with respect to the Complex Plan.
This section was amended effective January 1, 2019.
Under the circumstances, the Court finds that petitioners' sixth and seventh causes of action are without merit.
The eighth cause of action alleges that the final EIS approved in connection with the Complex Plan was generic and did not adequately address the proposed Cedar River Bridge, specifically with respect to the potential aesthetic impact of the bridge. This cause of action further alleges that DEC failed to prepare a supplemental EIS for the project. For the reasons set forth above, the Court finds that the final EIS approved in connection with the Complex Plan was not generic but rather, specifically addressed the proposed Cedar River Bridge—including its potential aesthetic impact. To that end, the eighth cause of action is also found to be without merit.
Based upon the foregoing, the petition is dismissed in its entirety and the relief requested denied. The preliminary injunction is hereby vacated and the undertaking posted by petitioners on October 18, 2019 discharged and released. The parties' remaining contentions, to the extent not specifically addressed herein, are either without merit or have been rendered academic by the Court's determination.
Notwithstanding the final determination in this matter, the Court declines to find that petitioners were not entitled to a preliminary injunction or that the injunction was erroneously granted (see CPLR 6312 [b] ; 401 Hotel v. MTI/Image Group , 271 A.D.2d 228, 229, 705 N.Y.S.2d 364 [2000] ). Indeed, given the potential impact of Matter of Adirondack Wild on the instant proceeding, a preliminary injunction was necessary pending the outcome of that case.
Therefore, having considered the Amended Verified Petition with exhibits attached thereto, dated January 23, 2019; Memorandum of Law in Support of Amended Petition of Christopher A. Amato, Esq., dated January 23, 2019; Objections in Point of Law and Verified Answer, dated March 28, 2019, Affirmation of Nicholas C. Buttino, Esq. with exhibits attached thereto, dated March 27, 2019; Affidavit of Karyn B. Richards, sworn to March 28, 2019; Affidavit of Holly E. Kneeshaw with exhibit attached thereto, sworn to March 27, 2019; Affidavit of Kristofer A. Alberga, sworn to March 27, 2019; Affidavit of Joshua D. Clague, sworn to March 28, 2019; Affidavit of Marc S. Migliore, sworn to March 27, 2019; Memorandum of Law in Opposition to Amended Petition of Nicholas C. Buttino, Esq., dated March 29, 2019; Administrative Return (8 Volumes), certified March 28, 2019; Reply Affirmation of Christopher A. Amato, Esq. with exhibits attached thereto, dated April 22, 2019; Affidavit of Richard C. Smardon, Ph.D. with exhibits attached thereto, sworn to April 22, 2019; Affidavit of David H. Gibson with exhibit attached thereto, sworn to April 22, 2019; Reply Memorandum of Law of Christopher A. Amato, Esq., dated April 26, 2019; and Affidavit of Marc S. Migliore with exhibits attached thereto, sworn to May 17, 2019; and oral argument having been heard on May 8, 2019 with Christopher A. Amato, Esq. appearing on behalf of petitioners and Nicholas C. Buttino, Esq. and Susan L. Taylor, Esq. appearing on behalf of respondents, it is hereby
ORDERED AND ADJUDGED that the petition is dismissed in its entirety and the relief requested denied; and it is further
ORDERED AND ADJUDGED that the preliminary injunction granted by Decision and Order entered October 8, 2019 is vacated; and it is further
ORDERED AND ADJUDGED that the Warren County Clerk is directed to discharge and release the undertaking posted by petitioners on October 18, 2019.
The original of this Decision and Order has been filed by the Court together with the Notice of Amended Petition dated January 23, 2019 and the submissions enumerated above. Counsel for respondents is hereby directed to obtain a filed copy of the Decision and Judgment for service with notice of entry in accordance with CPLR 5513.