Thompson v. Albany Port Dist. Comm'n

Full title: Lorraine Thompson, VALERIAN MASAO, KERRY MCCAREY, JOHN WALLACE, AND KAREN…

Court: Supreme Court, Albany County

Date published: Jul 18, 2023

2023 N.Y. Slip Op. 51494 (N.Y. Sup. Ct. 2023)

Opinion

No. 904705-22

07-18-2023

Lorraine Thompson, VALERIAN MASAO, KERRY MCCAREY, JOHN WALLACE, AND KAREN JAMACK, DANIEL FIATO AND NATASHA FIATO, NATHANIEL GRAY, DANIEL MAIER AND JOANNE MAIER, KIRK RHATIGAN AND RACHEL APUNTE, NICK ESPOSITO, TIMOTHY GROSS AND SUSAN GROSS, GERTRUDE PRATER, CHRISTINE DELSIGNORE, JOHN BOHL AND KATHLEEN BOHL, BARBARA RISCAVAGE, ANGELA VANFONDA, PHILLIP ROWLANDS AND [SYLVIA] ROWLANDS, EBEN COREY AND JANINE GOETZ, AMY MUSIKER, LORI DEMPH, STEVEN KONAS AND SUSAN KONAS, LYNNE MCLEER, AND SHERI CANFIELD, Petitioners, v. Albany Port District Commission, TOWN OF BETHLEHAM PLANNING BOARD, TOWN OF BETHLEHAM ZONING BOARD OF APPEALS, AND TOWN OF BETHLEHAM, Respondents.

R. Christopher Dempf, Esq. Tobin and Dempf, LLP Attorneys for Petitioners Lorraine Thompson, Valerian Masao, Kerry Mccarey, John Wallace, and Karen Jamack, Daniel Fiato and Natasha Fiato, Nathaniel Gray, Kirk Rhatigan and Rachel Apunte, Nick Esposito, Timothy Gross and Susan Gross, Gertrude Prater, Christine Delsignore, John Bohl and Kathleen Bohl, Barbara Riscavage, Angela Vanfonda, Eben Corey and Janine Goetz, Amy Musiker, Lori Demph, Steven Konas And Susan Konas, Lynne Mcleer, and Sheri Canfield Sylvia Rowlands and Phillip Rowlands Petitioners, Pro Se Daniel Maier and Joanne Maier Petitioners, Pro Se Patrick Jordan, Esq. Attorney for Respondent the Albany Port District Commission Thomas A Shepardson, Esq. Whiteman Osterman & Hanna, LLP Outside Counsel for Respondent the Albany Port District Commission Mark T. Sweeney, Esq. Attorney for Respondents Town of Bethlehem Planning Board, Town of Bethlehem Zoning Board of Appeals and Town of Bethlehem

James H. Ferreira, J.

Unpublished Opinion

R. Christopher Dempf, Esq. Tobin and Dempf, LLP Attorneys for Petitioners Lorraine Thompson, Valerian Masao, Kerry Mccarey, John Wallace, and Karen Jamack, Daniel Fiato and Natasha Fiato, Nathaniel Gray, Kirk Rhatigan and Rachel Apunte, Nick Esposito, Timothy Gross and Susan Gross, Gertrude Prater, Christine Delsignore, John Bohl and Kathleen Bohl, Barbara Riscavage, Angela Vanfonda, Eben Corey and Janine Goetz, Amy Musiker, Lori Demph, Steven Konas And Susan Konas, Lynne Mcleer, and Sheri Canfield

Sylvia Rowlands and Phillip Rowlands Petitioners, Pro Se

Daniel Maier and Joanne Maier Petitioners, Pro Se

Patrick Jordan, Esq. Attorney for Respondent the Albany Port District Commission

Thomas A Shepardson, Esq. Whiteman Osterman & Hanna, LLP Outside Counsel for Respondent the Albany Port District Commission

Mark T. Sweeney, Esq. Attorney for Respondents Town of Bethlehem Planning Board, Town of Bethlehem Zoning Board of Appeals and Town of Bethlehem

James H. Ferreira, J.

This CPLR article 78 proceeding concerns the project known as the Albany Port District Commission's (District) project for the Marmen/Welcon Off Shore Wind Tower Manufacturing Plant (Wind Plant project) to be built on the District's expansion property located along River Road in the Town of Bethlehem, New York. ¹ Petitioners, all of whom reside or own real property in the vicinity of the proposed Wind Plant project, commenced this action pursuant to Town Law § 282 seeking an order annulling as arbitrary, capricious, and contrary to law, certain resolutions and findings made by respondents Town of Bethlehem Planning Board (Planning Board) and Town of Bethlehem Zoning Board of Appeals (Zoning Board) pursuant to the New York State Environmental Quality Review Act (SEQRA) (see Environmental Conservation Law § 08-0101 et. seq.) and its implementing regulations (see 6 NYCRR Part 617). ² Petitioners allege that the Town's SEQRA review failed to adequately consider the long existing residential homes and neighborhoods in this area, and the Wind Plant project's impact on, among other things, traffic, noise, and pollution (see NYSCEF No. 1).

1 The Town submitted its administrative record (AR) with its answer. The AR, which consists of over 14,500 pages, was uploaded to the New York State Courts Electronic Filing System (NYSCEF) system in more than 48 separate volumes, some with additional parts, and some that were deleted and refiled in nonconsecutive filing order. The papers submitted in opposition to the petition, however, refer to the AR's bate-stamped page number. Although the Town provides a Table of Contents for its administrative record, because the Table of Contents refers to the bate-stamped pages, it is not possible to ascertain from that Table of Contents which NYSCEF filing number contains the cited page number. This Court refers to the NYSCEF documents and pages number when citing the record. In large part, the Court's citations to NYSCEF reference the District's applications for site plan review, environmental assessment form, the scoping documents, draft, final and supplemental environmental impact statements, Board minutes and resolutions, and, ultimately, SEQRA findings. Attached to each phase of the SEQRA process are a myriad of documents providing an analysis on environmental issues.

2 The Planning Board, Zoning Board and Town Board will be collectively referred to as "the Town."

As background, in 2018, the District purchased 81.57 acres of land within the Town of Bethlehem's Heavy Industrial Zoning District (the site), and applied to the Planning Board for site plan approval to develop the parcel, formerly known as Beacon Island (see NYSCEF No. 25, pages 17, 19, 56; NYSCEF No. 81; NYSCEF No. 82, page 114). The site is located on the eastern side of River Road/NYS Route 144 in Glenmont, along the Hudson River, south of the Normans Kill, and just north of the existing PSE&G power plant (see NYSCEF No. 80, ¶ 9). ³ An 18.4-acre parcel owned by Niagara Mohawk Power Corporation (NIMO) abuts the site to its west. Running parallel and to the west of the land owned by NIMO, is a strip of land owned by CSX Transportation (CSX), over which run rail lines. Certain petitioners own real property abutting CSX's westerly property line on the eastern side of Old River Road. Further west of Old River Road is River Road, also known as NYS Route 144. ⁴ The remaining petitioners own real property to the west of River Road. Anticipated access to the site includes crossing rights in two locations: 1) from River Road, under the CSX rail lines, and 2) through an easement running over approximately 4 acres of the parcel owned by NIMO (see NYSCEF No. 25, page 68). ⁵

3 The Normans Kill is a tributary to the Hudson River that runs through the northern part of the site (see NYSCEF No. 61, page 465).

4 Petitioners Lorraine Thompson, Valerian Masao, Garrett McCarey, John Wallace, and Jaren Jamack own property or reside on Old River Road (see NYSCEF No. 1).

5 The Court refers the reader to maps, located in the record at NYSCEF Nos. 84 and 130, for a visual layout of the proposed projects in relation to NIMO, CSX and petitioners' properties.

The closest properties to the site are located within the Town's Rural Light Industrial District, which permits residential and certain commercial uses (see NYSCEF No. 82, page 114). The closest residential property to the site, located along Old River Road, is approximately 360 feet from the District's property line (see NYSCEF No. 84; NYSCEF No. 49, page 247). "The project site was formerly used to dump fly ash, a byproduct of the adjacent Power Station, which previously used coal as fuel. Since the early 1970s, the project site has remained unused and today contains a variety of habitats and physical conditions including some hardwood forested areas, areas of exposed fly ash, an unused railroad siding, [a] riprap/artificial lake shore, and unpaved roads and pathways" (NYSCEF No. 61, pages 465-466).

"The [District's initial] project [was] generic in nature with no specific tenants identified... [but was analyzed as if it would have] the environmental impacts of a 1,100,000 square foot industrial park consisting of warehouse, distribution center, access road north connecting to the Normanskill [sic] Street/Port Street, access road south connecting to River Road/Route 144, railroad extension and modification, bridge over Normans Kill for access road and rail, and wharf for maritime use" (the project) (NYSCEF No. 25, pages 35, 1-35, 51, 78). The site application for the proposed industrial park - a permitted use within the zoning district with site plan approval - was expanded to include "5 conceptual layouts that range from 160,000 square feet to 1.3 million square feet of industrial use facilities (warehouse space and laydown area). Each concept would include associated access roads, employee parking, trailer parking, rail access from the north over Normans Kill and south through the PSEG site, and a bulkhead along Hudson River for on and offloading of equipment and materials" (NYSCEF No. 26, page 48; see NYSCEF No. 25, page 51). One of the District's concepts contemplated the development of the site to support the fabrication and staging of offshore wind components such as steel foundation structures and tower sections (see NYSCEF No. 25, pages 51-52).

"The Site's natural features are forested coverage throughout. The neighboring land uses to the north and south are industrial. The site at one time was used for fly ash disposal. Further away from the site, west of River Road, the area is rural in character with sparse minor roads and low-density housing throughout" (NYSCEF No. 25, page 56). To the south of the site is a natural gas fired power plant operated by PSE&G, and to its north is a scrap metal facility operated by Sims Metal Recycling. Other industrial uses are located near the site, including Air Products, which produces liquified gases, and Innovative Surface Technologies, which stores and distributes magnesium phosphate offloaded from vessels in the Hudson River via a pipeline (see NYSCEF No. 80, ¶ 11).

In December 2018, the Planning Board declared itself lead agency for SEQRA review, ⁶ and preliminarily classified the project as a SEQRA Type I action requiring a full Environmental Assessment Form (EAF) (see NYSCEF No. 26, pages 48, 93). The EAF, submitted with the District's application, indicated that the project would create a demand for water, generate liquid waste, require stormwater detention, affect on-site wetlands and bottom sediments due to dredging activities, increase noise levels and air emissions levels from the use of heavy equipment, and increase traffic (see NYSCEF No. 25, pages 20-47). The EAF further acknowledged that the site "was used for fly ash disposal from previous generating activities. Based on the fly ash disposal on-site, the site classifies as a solid waste landfill, as per NYSDEC DER-10 definition" (NYSCEF No. 25, page 44). ⁷

6 The following involved or interested agencies did not object to the Planning Board's intent to be Lead Agency for SEQR review: The New York State (NYS) Department of Environmental Conservation (DEC); NYS Parks, Recreation, and Historic Preservation (NYS Parks); NYS Department of Transportation (DOT); Town of Bethlehem Commissioner of Public Works; Albany County Department of Health; NYS Department of State - Office of Planning, Development & Community Infrastructure; and NYS Division of Science, Technology & Innovation (see NYSCEF No. 26, pages 361-377; NYSCEF No. 27, page 90).

7 NYSDEC, DER-10, Technical Guidance for Site Investigation and Remediation, 38 (May 3, 2010) (see https://www.dec.ny.gov/docs/remediation_hudson_pdf/der10.pdf, accessed July 5, 2023).

After its review of the District's site plan application and its supporting materials, on January 15, 2019, the Planning Board adopted a positive declaration, finding areas of environmental concern associated with the generic project, such as geological features, surface water/drainage, groundwater, stormwater/erosion, flooding, air, plants and animals, aesthetic resources, transportation/traffic, energy, noise, odor and light, human health, and community character (see NYSCEF No. 26, pages 72-74). The project was deemed to have the potential to significantly affect the environment, and was classified as Type 1 for SEQRA purposes, thus requiring a Draft Generic Environmental Impact Statement (DGEIS) ⁸ (see NYSCEF No. 26, pages 48-49, 72-74; 6 NYCRR 617.4 [b][6]). ⁹

8 For the ease of the reader, and to avoid confusion with the acronyms used in this Decision and Order/Judgment, with respect to the generic site plan application, the Court refers to the Draft Generic Environmental Impact Statement (DGEIS), the supplemental DGEIS, the draft final GEIS, and the Final Generic Environmental Impact Statement (FGEIS). When the Planning Board revisited the SEQRA analysis with the respect to the site plan application for the Wind Plant project, the Court refers to the draft and final supplemental Environmental Impact Statements as a draft supplemental EIS and final supplemental EIS.

9 "SEQRA requires an [environmental impact statement (hereinafter EIS)] when an agency action may have a significant effect on the environment and such an impact is presumed to be likely where, as here, a type I action is involved" (Matter of Village of Ballston Spa v City of Saratoga Springs, 163 A.D.3d 1220, 1222 [3d Dept 2018] [internal quotation marks and citations omitted]).

The Planning Board prepared a Draft Scoping Document to assist the District in its preparation of a DGEIS. "The purpose of this Scoping Document is to determine environmental issues that will be addressed by the [District] during the preparation of the DGEIS. The document is intended to act as a means of identification of all potentially significant adverse impacts as they relate to the proposed action, and the necessary and appropriate mitigation measures. The document is also intended to eliminate consideration of any impacts that are irrelevant or determined to be not significant" (NYSCEF No. 26, page 128).

The Draft Scoping Document mandated, among other things, that the DGEIS

a) list major soil types on the site with a discussion of soil characteristics, including the presence of fly ash, the potential limits of dredging, and the anticipated types of soils encountered for the potential wharf installation;

b) discuss any potential impacts and mitigation measures associated with the relocation and disturbance of the fly ash and use of the on-site soils for construction;

c) discuss impacts during and after construction on vegetation and wildlife from dredging activities;

d) discuss any proposed impacts and mitigation measures to wetland areas and/or buffers;

e) discuss the effects of building on a floodplain, and climate change relating to the projected rise in sea level over time;

f) summarize the air quality at the site for the most recent 5-year period and any potential impacts, including the release of odors from increased traffic operations due to development;

g) discuss the public transportation system operated by CDTA and the existing pedestrian and bicycle infrastructure surrounding the project site; and

h) address any potential visual impacts resulting from the development, which includes a viewshed analysis and proposed mitigation

(NYSCEF No. 26, pages 123-315, 156-187, 249-280; NYSCEF No. 27, pages 49-80).

In early March 2019, the Draft Scoping Document was circulated (see NYSCEF No. 26, page 248). A public comment period commenced March 6, 2019 and ended March 26, 2019. A Planning Board meeting, at which public comments were made, was held on March 19, 2019 (see NYSCEF No. 26, pages 215-217). Notice of the Planning Board's March 19, 2019 public scoping session was published in The Spotlight Newspaper and posted on the Town's website (see NYSCEF No. 74, pages 18-19, 23). ¹⁰

10 The District's engineers provided responses to the public comments received (see NYSCEF No. 26, pages 307-308).

On April 2, 2019, the Planning Board resolved to adopt a revised Final Scoping Document for the DGEIS (see NYSCEF No. 26, page 305). The District, thereafter, submitted sections of the DGEIS, providing the analysis and requirements set forth in the Final Scoping Document. The DGEIS was reviewed by the Town's designated engineers - MJ Engineering - for completeness and to confirm that the issues in the Final Scoping Document were addressed (see NYSCEF No. 29, page 96, 99-100). The District submitted a completed DGEIS on August 1, 2019 (see NYSCEF No. 29, page 127). On August 6, 2019, the Planning Board resolved to accept the DGEIS as complete, scheduled a public hearing for August 20, 2019, and established a public comment period until September 6, 2019 (see NYSCEF No. 29, page 101, 121-122; NYSCEF No. 35, pages 54-55). A notice of completion of the DGEIS and Notice of Public Hearing was filed with involved agencies (see NYSCEF No. 40, page 307-309). The public hearing on the DGEIS was rescheduled to September 3, 2019 and the public comment period was extended to September 14, 2019 (see NYSCEF No. 35, page 54-57). ¹¹ Notice of the Planning Board's September 3, 2019 public hearing was published in the Times Union Newspaper and the DEC's Environmental News Bulletin (ENB) (see NYSCEF No. 74, page 35-40). ¹² On September 3, 2019, the Planning Board held the public hearing, at which District representatives provided an overview of the Project, and discussed its impacts and mitigation plans (see NYSCEF No. 40, page 315; NYSCEF No. 41, pages 16-17, NYSCEF No. 57, pages 121-264). ¹³

11 Written comments were received from various interested agencies.

12 The notice of public hearing advised that "[t]he Port is proposing to construct an industrial park with five (5) conceptual layouts that range from 1.13 million square feet to 160,000 square feet of industrial use facilities (warehouse space and laydown area). Each concept would include associated access roads, employee parking, trailer parking, utility extensions, rail access from the north over Normans Kill and a bulkhead along Hudson River for on and offloading of equipment and materials (wharf)"(NYSCEF No. 74, page 39).

13 Public comments included concerns about environmental impacts, including the disruption of coal ash and water contamination, job creation, traffic issues, and tax revenue, among other things. A Planning Board meeting was held October 15, 2019, at which time the project was further discussed (see NYSCEF No. 47, pages 33-36).

On November 19, 2019, because an adverse impact had been identified that was not addressed, the Planning Board agreed to an amended positive declaration, requiring a supplemental DGEIS to address, among other things, comments made related to environmental justice issues and any potential impacts on the nearby Ezra Prentice residential community in the City of Albany (see NYSCEF No. 47, pages 64-68). The District submitted a supplemental DGEIS and, on December 17, 2019, the Planning Board determined that the supplemental DGEIS was complete (see NYSCEF No. 47, pages 123-124). A public meeting was scheduled for January 6, 2020 at the Albany Housing Authority to solicit comments on the supplemental DGEIS (see NYSCEF No. 47, page 120; NYSCEF No. 57, pages 265-314). Written comments were accepted by the Planning Board until January 17, 2020. A draft final GEIS was submitted by the District and, by resolution dated May 5, 2020, the Planning Board found that the Final GEIS (FGEIS) ¹⁴ was complete and in full compliance with the requirements of the SEQRA regulations, 6 NYCRR Part 617 (see NYSCEF No. 49, pages 269-270, 282-285, 286). ¹⁵ On June 2, 2020, the Planning Board resolved to adopt a SEQRA Findings Statement addressing, among other things, the project's environmental impacts and proposed mitigation strategies (see NYSCEF No. 58, pages 107-109, 128-164, 165-166). ¹⁶ It was anticipated that once a tenant and specific development project was identified, the established thresholds/mitigation measures outlined in the Findings Statement would be applied to the project site plan application for compliance (see NYSCEF No. 86, page 55).

14 "Pursuant to the State Environmental Quality Review Act (SEQRA), the purpose of the [Final ]GEIS is to respond to substantive comments on the Draft Generic Environmental Impact Statement (DGEIS) and Supplemental Draft Generic Environmental Impact Statement (SDGEIS) received by the general public and all interested and involved agencies" (NYSCEF No. 49, page 297).

15 The May 5, 2020 Planning Board Meeting and subsequent meetings were held virtually due to the COVID-19 pandemic (see NYS Executive Order 202.18, April 16, 2020).

16 The SEQRA Findings Statement addressed, among other things, the project's impact on 1) soils, geology, and topography; 2) vegetation and wildlife; 3) regulated wetlands and surface waters; 4) floodplains and floodways; 5) groundwater; 6) climate and air quality; 7) traffic and transportation; 8) drainage; 9) water service; 10) sanitary sewer; 11) historic, cultural, and archeological resources; 12) aesthetic and visual resources; 13) land use and zoning; 14) community character and compatibility with comprehensive plan; 15) emergency services; 16) school district; 17) fiscal and economic impacts; 18) recreation and open space; 19) solid waste disposal; and 20) environmental justice (see NYSCEF No. 58, pages 128-157).

In May 2021, a proposed tenant for the site was identified. The District advised the Planning Board that it had been provided with the opportunity to develop the first off-shore wind tower manufacturing plant in the United States, to be built and operated by Marmen, from Canada, who specializes in on-shore wind towers, and Welcon, from Denmark, who specializes in off-shore wind towers (Wind Plant project). This proposed Wind Plant project consisted of a 604,000 +/- square foot offshore wind tower manufacturing facility spread out over five separate buildings, with a 500 linear foot wharf along the Hudson River to ship completed tower sections. It was anticipated that tower production would occur within four buildings located on the Port Expansion property, and a fifth building would be located within the existing Port District in the City of Albany (see NYSCEF No. 86, page 32). ¹⁷

17 The five proposed buildings totaled 626,014 square feet, as set forth in the GEIS, but for purposes of the Wind Plant project, the four buildings located within the Town totaled 603,328 square feet. The Planning Board's July 6, 2021 resolution noted that the project would require approximately 589,500 square feet of building space (see NYSCEF No. 86, pages 53-54, 86).

The Wind Plant project required the completion of a draft supplemental EIS to address additional issues that were not addressed in the FGEIS, such as building height, traffic, parking, and potential impacts to subaquatic vegetation, among other things (see NYSCEF No. 86, pages 18, 25-30, 55, 117). At a July 6, 2021 Planning Board meeting, the Board issued a SEQRA positive determination finding that the Wind Plant project had the potential to significantly affect the environment, and classified the Wind Plant project as a Type 1 project, thus requiring the preparation of a draft supplemental EIS. The Planning Board also declared itself the lead agency for SEQRA review purposes (see NYSCEF No. 86, page 86-87, 88-100). ¹⁸

18 It was noted that, because part of the development would lie within the City of Albany, the Albany Planning Board would conduct a site-specific SEQRA analysis after the Bethlehem Planning Board issued its Findings Statement (see NYSCEF No. 86, page 87).

A Final Scoping Document for the Wind Plant project was prepared (see NYSCEF No. 86, pages 119-143) and, at an August 17, 2021 Planning Board meeting, it was determined that the draft supplemental EIS must also cover 1) the building located within the City of Albany; 2) a proposed parking lot on lands owned by NIMO; 3) visual and aesthetic impacts due to the increase in building height from 85 feet to 103 feet; 4) the submerged aquatic vegetation bed in a dredging area; and 5) the increase in wetland disturbance (see NYSCEF No. 86, page 156). In October 2021, the District prepared a draft supplemental EIS and, on December 7, 2021, a public hearing on the Wind Plant project was conducted before the Planning Board. As with the September 3, 2019 public hearing, Notice of the Planning Board's December 7, 2021 public hearing was published in the Spotlight Newspaper and in the DEC's ENB (see NYSCEF No. 74, page 35, 37-40, 58-63). Written public comments were received through December 17, 2021 (see NYSCEF No. 91, page 175). ¹⁹ A public informational meeting was held on December 21, 2021 at the Salvation Army, located in Albany, to solicit comments on the Wind Plant project (see NYSCEF No. 62, page 200; NYSCEF No. 64, pages 96-194). ²⁰

19 A summary of written comments was provided in the final supplemental EIS (see NYSCEF No. 62, pages 357-381; NYSCEF No. 90, pages 588-620).

20 In January 2022, a flyer from the Town Supervisor was mailed to all Town residents announcing the project (see NYSCEF No. 68, pages 239-240).

A draft supplemental final EIS was prepared and submitted to the Planning Board and reviewed by Town staff and its engineer. By resolution dated March 1, 2022, the Planning Board found that the supplemental final EIS was complete and in full compliance with the requirements of the SEQR regulations, 6 NYCRR Part 617 (see NYSCEF No. 62, pages 288-291; NYSCEF No. 91, page 176). On March 15, 2022, the Planning Board issued and resolved to adopt a supplemental Findings Statement addressing, among other things, the Wind Plant project's environmental impacts and proposed mitigation strategies (see NYSCEF No. 91, pages 176, 204-234). ²¹

21 The 2022 Findings Statement addressed the same general environmental issues addressed in the 2020 Findings Statement.

Meanwhile, on February 3, 2022, the Town's Building Inspector reviewed the District's site plan application and issued a decision with respect to whether the project met the requirements of the Zoning Law (see NYSCEF No. 69, pages 30-31; https://ecode360.com/8993772, accessed July 9, 2023, Chapter 128 of the Bethlehem Town Code [Zoning Code]). The Building Inspector identified four separate areas of non-compliance, including (1) building height; (2) front yard setback; (3) construction in flood plain; and (4) parking lot landscaping (see NYSCEF No. 69, pages 30-31). ²² The District then applied to the Zoning Board for area variances with respect to the issues of non-compliance and submitted, among other things

22 As per the Notice of Public Hearing, "[t]he proposed project does not meet the Town Zoning Code requirements under Article XIII, Section 128-100, height of building, Article XIII, Section 128-100, minimum required front yard setback, Article VI, Section 128-53, lots bordering streams (A), Article VI, Section 128-56, off street parking" (NYSCEF No. 73, page 20; see https://ecode360.com/8993772, accessed July 9, 2023).

[the] full Environmental Assessment Form, Local Waterfront Revitalization Plan consistency form, plans illustrating the areas of encroachment in the front yard setback, renderings illustrating building elevations from various viewpoints around the Project, a full set of civil site plans, a floodplain figure addressing the actual flood plain and finished floor elevations, landscaped areas within the parking lots depicting the actual amount of proposed landscaping to be placed therein, a site plan photo log of the Project Site and surrounding area, and visual assessment report [from July 2021, as updated in October 2021] prepared by [the District's] consultants addressing various factors related to the potential visual impact of the Project

(NYSCEF No. 77, page 3, ¶6; see NYSCEF No. 69, pages 32-34, 35-40, 42-80; NYSCEF No. 70, pages 1-80).

After the Planning Board completed its SEQRA review, a public hearing with respect to the zoning variance applications was scheduled for March 16, 2022 before the Zoning Board (see NYSCEF No. 71, page 19; NYSCEF No. 73, pages 16-26). The Zoning Board provided notice of the public hearing to property owners within 200 feet of the District's property line (see NYSCEF No. 67, pages 301-304), and published notice of the public hearing in the Spotlight Newspaper (see NYSCEF No. 67 page 30-31; NYSCEF No. 184). At the March 16, 2022 public hearing, the Zoning Board heard testimony from Steve Boisvert and Adam Frosino from McFarland Johnson, the District's environmental and engineering consultants (see NYSCEF No. 67, page 33). On April 6, 2022, the Zoning Board found that the issuance of the requested variances would not cause any significant adverse environmental impacts, and resolved to grant the District's application, subject to conditions (see NYSCEF No. 67, pages 30-39, 302-303, 324-338; NYSCEF No. 73, pages 16-26). The matter went back before the Planning Board and, on May 17, 2022, the Planning Board granted the District conditional site plan approval (see NYSCEF No. 65, pages 208-233). ²³

23 On March 30, 2022, the DEC authorized the District's request to commence limited construction activities, including tree clearing without all Unified Procedures Act permits having been obtained (see 6 NYCRR 621; NYSCEF No. 66, pages 499-501). On May 6, 2022, the District advised that the project was split into five phases spanning 20 months and requested approval to disturb more than 5 acres at a time for the project (see NYSCEF No. 66, pages 503-506).

Petitioners then commenced this CPLR Article 78 proceeding on June 17, 2022, seeking an order annulling the approvals for the Wind Plant project. Specifically, petitioners allege that respondents' SEQRA review did not adequately consider and did not give the requite "hard look" with respect to the project's visual, traffic, noise, and pollution impacts on pre-existing homes and residential neighborhoods within its vicinity. Petitioners challenge the Planning Board's SEQRA review contending the following:

1. While respondents provided written notice to commercial property owners within 200 feet of the site, such notice was not provided to residential property owners within the impacted area (1-2 miles) for the project. ²⁴

2. The FGEIS and final supplemental EIS fail to identify the nearby residences - purported to be the most adversely impacted by the development - located along Old River Road, Anders Lane, Glenmont Road, River Road, Halter Road, and Retreat House Road.

3. Respondents failed to consider the views from properties located along Halter Road, River Road, Anders Lane, Glenmont Road, Old River Road, and Retreat House Road. The Visual Impact Assessment report date July 2021, updated October 2021, and relied on by respondents, is deficient as it fails to show the smokestacks, the size of the buildings in comparison to petitioner's homes and property, seasonal changes, and visual simulations, with the proposed structures, and from the impacted residential properties.

4. With respect to air quality, respondents inappropriately used a heavy industry standard rather than considering the residential nature of petitioner's homes. Respondents further failed to consider the size of and chemical composition of particulates and pollution, including noise pollution, which would be carried by air currents from the site directly west to the nearby residential neighborhoods.

5. While the March 15, 2022 supplemental EIS notes that the four buildings included in the Wind Plant project - buildings A, B, C, and D - would each be 589,500 square feet, the SEQRA approval references those same buildings to be 604,264 square feet, and the Planning Board's conditional site plant approval references those buildings to be 603,238 square feet.

(see NYSCEF No. 1).

24 Petitioner provides copies of 77 petitions, signed by individuals after the SEQRA process was completed, who reside along Old River Road, Anders Lane, Glenmont Road, River Road, Halter Road, Retreat House Road, Hartman Road, Quail Hollow, and Wiggand Drive. These petitions claim that the signor did not receive notice of the public hearings held with respect to the project and that his/her home is "within site distance of the proposed Factory adversely affected both during and after construction by noise, light, air pollution, odor, traffic congestion, reduced property values, and general loss of quality of life" (NYSCEF No. 9).

Petitioners also allege that the Planning and/or Zoning Boards misapplied the facts and law in

a) permitting 100-foot-tall smokestacks without considering their fumes andemissions;

b) permitting an increase in the number of full-time jobs from 350 to 550 without considering the truck, traffic, and parking impacts for the increased number of employees (see NYSCEF No. 86, pages 153-260); ²⁵

c) utilizing maps and reports that fail to adequately visualize the homes, their proximity to the project, and the number of pilings needed;

d) failing to consider the "hair-pin" curve in River Road near the project's primary entrance via the NIMO easement;

e) failing to consider fly ash's effect on the water table, and the project's effect on residential food gardens;

f) failing to consider that additional fill to cover fly ash will result in the project's increased height, thus affecting the viewshed;

g) failing to consider the effect of idling diesel trucks and deliveries for on-site employee conveniences, such as a cafeteria;

h) failing to require 1000 feet setbacks for buildings and parking lots near River Road;

i) failing to consider seasonal views;

j) failing to consider closing off Anders Road at its intersection with River Road, and 'park and ride' options to alleviate traffic congestion;

k) failing to consider roof-top gardens on the project's buildings;

l) failing to address an on-site proposed private waste treatment plant;

m) failing to address how odors, pollution, and traffic usage will be monitored; and

n) failing to consider the impact of pounding, drilling, and blasting on nearby homes.

25 The initial project anticipated 350 employees. The District proposed to increase the number of employees to 550 employees due to the addition of manufacturing transition pieces. However, the District noted that this additional manufacturing was not anticipated to increase raw material delivery by rail or truck traffic (see NYSCEF No. 62, page 399).

In response to the petition, respondents rely on the record and the affidavits of Town and District representatives who were involved in the approval process, through which respondents argue that petitioners lack standing, that they failed to exhaust their administrative remedies, that their action is untimely and that, in any event, the Town identified the relevant areas of environmental concern, took the requisite 'hard look' at them, and made a reasoned determination in compliance with SEQRA.

Through his affidavit, Robert Leslie, a certified planner and Director of the Town's Department of Economic Development and Planning (DEDP), attests that he assists the Planning and Zoning Boards with use and area variance applications and interpretations, which requires an understanding of the Town's Zoning Code and SEQRA. Mr. Leslie was responsible for assisting in the review of the District's applications, which included coordinating the review of the District's applications and supporting documentation with the Town's designated engineer - MJ Engineering. Mr. Leslie also interacted on behalf of the Town with all involved and interested agencies in the environmental review. Mr. Leslie attests that the Town's coordinated SEQRA and land use review of the project spanned over three years, with 32 public meetings, a review of two EIS submissions, a public scoping meeting, and two noticed public hearings, with public comment periods, before any final action was ever taken. ²⁶

26 Additionally, Mr. Leslie attests that the Zoning Board participated in the coordinated review conducted by the Planning Board and did not entertain the applications for area variances until after the Planning Board, as SEQRA Lead Agency, completed its SEQRA review of the project.

Respondents also present the affidavit of Zoning Board member Jeremy P. Martelle, who attests that the District's application for area variances, its presentation, as well as the testimony from District representatives covered all aspects of the project and the necessary factors the Zoning Board considered when reviewing applications for area variances. In addition to the character of the neighborhood, the Zoning Board considered the potential visual impacts from the project's building heights, reviewed visual simulations depicting views from various viewpoints, considered that the need for the front yard setback resulted from the District's retention of an area of mature vegetation along the Hudson River waterfront that was being preserved to provide visual screening, and accepted the District's explanation that all structures would be built in accordance with applicable codes at least three (3) feet above the base floodplain elevation and that the site design would prevent these structures from having an off- site impact during flood events (see NYSCEF No. 77). ²⁷

27 The District presented the Affidavit of its Chief Executive Officer Richard Hendrick, who attests that the Planning Board engaged in an extensive land use and SEQRA review of the project over the course of several years, and properly determined that there were no significant adverse environmental impacts or that any potential significant adverse impacts would be addressed with mitigation measures to the maximum extent practicable (see NYSCEF No. 76).

Through his affidavit, Brian Gyory, the current Chair of the Planning Board and member of the Planning Board since 2017, provides a history of the SEQRA process from the District's 2018 application seeking site plan approval, and outlines the studies that made up the full SEQRA review process in this matter. Mr. Gyory attests that the Planning Board examined a number of potential environmental impacts, giving each the "hard look" the law requires and "engaged in an in-depth analysis of 1) the visual impacts of the Project, 2) potential impacts to air quality, 3) potential traffic impacts, 4) potential noise impacts, 5) potential impacts resulting from fly ash contained at the site, and 6) neighborhood and community character" (NYSCEF No., 78, ¶ 21).

In reply, petitioners argue that the Wind Plant project will obstruct their views of the Hudson River, negatively affect the character and quality of the neighborhood, and cause increased traffic, noise, and light pollution, as well as cause concern regarding the exposure to fly ash on their health, water, and air quality (see NYSCEF No. 98- 100, 111-116, 140-142). ²⁸ Petitioners claim that, upon information and belief, they were or will be exposed to clouds of fugitive coal ash dust, which will also affect the many nearby residences that rely on well water. Petitioners submit documents, letters, freedom of information requests and responses, all dated between June 2022 and September 2022, together with documents presented to Planning, Zoning, and Town Board meetings that took place between June 2022 and August 2022. ²⁹

28 Petitioners John Wallace and Karen Jamack, Daniel Fiato and Natasha Fiato, Nathaniel Gray, Daniel Maier and Joanne Maier, Kirk Rhatigan and Rachel Apunte, Phillip and Sylvia Rowlands, Janine Goetz and Eben Corey, Amy M. Musiker, Lori A. Dempf, Steven and Susan Konas, Lynne Mcleer, Sheri Canfield attest that they reside within sight distance of or close proximity to the project, and voice similar concerns (see NYSCEF Nos. 101-110, 117, 119-121, 124-126). The Maier petitioners further set forth the differences between how the Planning Board dealt with prior projects and the Wind Plant project, attest that the Planning Board failed to consider their June 2022 correspondence regarding traffic issues, and take issue with the June 8, 2022 Planning Board meeting, at which the audio/microphones were not working (see NYSCEF No. 105). The Rowlands petitioners allege that the first public meeting before the Planning Board on the project took place on June 22, 2022 and that recent clear cutting on Beacon Island has potentially released toxic materials (see NYSCEF No. 117, page 7). Petitioner Dempf attests that she is concerned with traffic safety and complains that the Planning Board accepted a letter of no historic impact from NYS Parks & Recreation, with no further thought (see NYSCEF No. 121).

29 These documents include, among other things 1) correspondence, dated July 11, 2022, to the U.S. Army Corps of Engineers requesting a public hearing and attaching copies of the petition in this action, photographs of the site and nearby wildlife, depictions of the area surrounding the site, riparian and water studies, natural history/historical charts with respect to CO2 and global warming, street congestion, and topographical maps, among other things (see NYSCEF Nos. 187, 188-197); 2) correspondence, dated July 19, 2022, to the Planning Board and correspondence, dated July 20, 2022, to the Zoning Board, with exhibits, requesting that the approval of the Wind Plant project be vacated (see NYSCEF Nos. 198-214); 3) correspondence, dated July 20, 2022, to the Zoning Board enclosing, among other things, a statement by petitioner Dempf regarding the historical character of the area near the Wind Plant project (see NYCEF No. 215); 4) correspondence, dated July 22, 2022, to the DEC requesting a public hearing, and attaching the documents sent to the Planning and Zoning Boards and the U.S. Army Corps of Engineers (see NYSCEF Nos. 216-233); 5) correspondence, dated July 26, 2022 and July 27, 2022, to the Town Board, addressing fly ash and other concerns and requesting, among other things, the production of hard copies of the supplemental draft EIS and site plan approval; 6) correspondence, dated August 3, 2022, to the Zoning Board providing copies of the July 2022 letters sent to the Planning, Zoning, and Town Boards (see NYSCEF Nos. 234-243); 7) correspondence, dated August 3, 2022, attaching a written statement by petitioner Sylvia Rowlands (see NYSCEF No. 244); 8) correspondence, dated August 16, 2022, regarding the purported denial of the Zoning Board to permit public comments on the Wind Plant project at its July 20, 2022 and August 17, 2022 meetings (see NYSCEF Nos. 245-247); 9) correspondence, dated August 17, 2022, to the United States Environmental Protection Agency, with attachments (see NYSCEF Nos. 248-259); 10) FOIL request with attachments (see NYSCEF Nos. 260-269); and 11) two pieces of correspondence, both dated September 14, 2022, enclosing a proposed resolution regarding the Wind Plant project and providing copies of, among other things, the District's May 2022 and June 2022 Board minutes (see NYSCEF Nos. 270-284).

Petitioners present the affidavit of licensed New York State Land Surveyor Michael Groff, who was retained to review the distance of parcels along River Road, Old River Road, Anders Lane, Glenmont Road, River Road, Halter Road, and Retreat House Road, among others, to the Wind Plant project. While Mr. Groff does not explain the September 30, 2022 map attached to his affidavit (see NYSCEF No. 130), it appears to depict the project site along the shores of the Hudson River together with an 18.40-acre parcel owned by NIMO abutting the site to its west. Running parallel to NIMO's land to its west, is a strip of land owned by CSX. Petitioners Thompson and McCarey own property abutting CSX's western boundary line. Using the scale set forth on the map, Mr. Groff appears to have drawn a 200 foot boundary line from CSX's most westerly property line. Based on this interpretation, certain petitioners claim to reside or own property within 200 feet of the project site.

Petitioners also submit their own affidavits including, among others, the affidavits of Lorraine Thompson, Valerian Masao, Kerry McCarey, Nicholas Esposito, Timothy and Susan Gross, Gertrude Prater, Christine Delsignore, John and Kathleen Bohl, Angela VanFonda, Barbara Riscavage, who each attest that, based on the survey map attached to Mr. Groff's affidavit, they reside either on Old River Road, River Road, or within 200 feet of the site, and have never received notice of the proposed Wind Plant project or of the public hearings that took place before the Planning Board on September 3, 2019 and December 7, 2021, or before the Zoning Board on March 6, 2022. Petitioners argue that any published legal notice was defective as the notices failed to reference the street address of the project and the NIMO easement. ³⁰ Petitioners claim that notices published in the 'Spotlight' are insufficient since that was publication was not the Town's official newspapers for publication purposes. Petitioners also take issue with the timing of the publication of notices, specifically the November 24, 2021 notice, appearing in the Spotlight the day before Thanksgiving during the COVID-19 pandemic.

30 The published notice of the December 7, 2021 Planning Board hearing refers to the project as the "Albany Port District Commission Industrial Park Project (Port of Albany Expansion) Marmen/Welcon Offshore Wind Tower Manufacturing Plant" (NYSCEF No. 107, age 2). The published notice of the March 16, 2022 Zoning Board hearing refers to an "application submitted by Richard Hendrick on behalf of the Albany Port District Commission variance(s) required for proposed industrial development located on River Road (98.00-2-10.23/98.01-2-1.0)" (NYSCEF No. 184).

Petitioners also submit the affidavit of licensed landscape architect, Edward F. Klein, III who responds to the assertions made by Mr. Hendricks, Mr. Martelle, and Mr. Leslie, and opines that based on his review of the record in this matter, while the "Final [EIS] for the proposed Port of Albany expansion includes an analysis of 'environmental justice' health and quality of life issues for South End residents as requested by the Albany County Executive and the Attorney General of the State of New York[,it] DOES NOT assess the impact of the project on the River Road and greater Glenmont Road residential neighborhoods" (NYSCEF No. 131, ¶ 12). Mr. Klein also opines that the proposed project requires a use variance since it is located in a floodplain. Mr. Klein further speaks to public hearing requirements, the intent of the drafters of the Town Code, and claims that the Planning Board failed to comply with SEQRA (see NYSCEF No. 131). ³¹

31 Petitioners also submit the affidavit of non-party Diane Easton, who attests, among other things, that she has not received on-line "alerts" from the Town's Planning and Zoning Boards, notwithstanding that in September 2022, she registered with the Town's website to receive such alerts (see NYSCEF No. 132). Petitioners submit the affidavit of non-party Michael J. Kanuk, a retired Environmental Chemist with the DEC, who voices his concerns with the displacement of fly ash and the potential for contamination of residential well water sources (see NYSCEF No. 135). Petitioners submit the affidavit of non-party Dylan T. Davis, a project manager for the installation of wind turbines, who attests that the District's applications for site plan and zooming approval were incomplete (see NYSCEF No. 136-139).

THE SUBSTANCE OF THE PLANNING BOARD'S SEQRA REVIEW

The Court will summarize, as follows, this vast record with respect to the environmental issues analyzed by the Planning Board.:

Visual Impacts

With respect to visual impacts, a June 2019 Visual Impact Assessment Report (2019 VIAR) was prepared by McFarland Johnson - the District's engineers - and which was submitted in conjunction with the FGEIS and the final supplemental EIS (see NYSCEF No. 34, page 249-250). The 2019 VIAR identified the viewshed for the general project to be

the visual impacts of an industrial park concept including a 1.13 million square foot warehouse, distribution center, and typical industrial uses.... The project will also include an access road through the site connecting to South Port Street in the north and to River Road/Route 144 in the south; the existing railroad adjacent [to] South Port Street will be extended south into the site; two bridges over the Normans Kill will be added, one for the access road and one for the railway; and finally a wharf will be added along the Hudson River for maritime use

(NYSCEF No. 34, page 251). ³²

32 The VIAR utilized the DEC Program Policy - Assessing and Mitigating Visual Impacts (Issued 7/31/200, latest date revised: draft 10/30/2018) and the Federal Highway Administration's, Guidelines for the Visual Impact Assessment of the Highway Projects (January 2015), specifically, Chapters 4 through 7.

The 2019 VIAR outlined the site's existing visual characteristics, any changes that may occur due to the project, assessed the impacts of those changes on those receptors, and recommended mitigation, if necessary, to minimize or eliminate the impact of the changes on the receptors. The 2019 VIAR noted that there are six residences along Old River Road, which are separated from the project by the CSX rail lines, electrical transmission lines, berms, and trees. The site was not visible from these six residences. However, the site was more visible from the five residences located to west of River Road, near the location of the project's proposed access easement, as well as one residence on the south side of Glenmont Road. The area of visual affect was determined to be 1) the southern end of Port Street looking south at the project; 2) the northwestern properly line where the grade between River Road and the site is flattest; 3) the southwest entrance point to the project; 4) the residence on Glenmont Road where the existing vegetation allows a view of the Hudson Valley; and 5) the view from the Hudson River. Photographs were taken at eye level from each of these five locations, and the camera locations, heights, and angles were placed into a three-dimensional rendered model of the proposed project, which included an 85 foot high, 1.13 million square foot warehouse, associated truck and employee parking, and a wharf (see NYSCEF No. 34, pages 258-271, 272-277). Mitigation measures were proposed including 1) maintaining a 25-foot buffer of existing vegetation along the western edge of the project to minimize visual impact, 2) utilizing building colors which would blend into the surrounding area, and 3) ensuring all lighting would be dark sky compliant (see NYSCEF No 34, pages 256-257; NYSCEF No. 41, pages 137-138).

The Planning Board revisited the visual impacts of the site when the District returned in 2021 seeking approval of its draft supplemental EIS, which included a new VIAR (2021 VIAR), with updated visual simulations based on the new footprint of the project - a 562,000 +/- square foot offshore wind tower manufacturing facility spread out over five separate buildings, one of which would be at a height of 100 feet, and another of which would be at a height of 83 feet with a smoke stack that would increase the height to 110 feet (see NYSCEF No. 61, page 469; NYSCEF No. 88, page 68-75; NYSCEF No. 86, page 259, 261-263; NYSCEF No., 88, page 66-97). The same viewshed and affected areas that were identified in the 2019 VIAR were identified in the 2021 VIAR, and the 2021 VIAR noted that the project would be visible from certain areas. However, no further mitigation measures were recommended since it was found that the vast majority of the project is screened by the existing vegetation and a berm (see NYSCEF No. 88, pages 68-75). Additional simulations were incorporated into updated VIAR (October 2021 VIAR) to account for seasonal changes and the lack of vegetation during the winter months (see NYSCEF No. 61, page 462-496; NYSCEF No. 90, pages 409-410).

Air, Water, and Soil Quality

A Site Management Plan (Management Plan) was prepared by CHA Consulting, Inc. (CHA) in February 2019, and updated in March 2020, on the District's behalf, specifically to address the management of soil impacted with polychlorinated biphenyls (PCBs) in excess of applicable Toxic Substance Control Act (TSCA) regulations that will remain in place on a portion of the project site (see NYSCEF No. 60, page 493). The Management Plan provided a "detailed description of all procedures required to manage remaining contamination at the Site after completion of the Remedial Action, including: (1) maintenance and management of all [Institutional Controls (ICs) and Engineering Controls (ECs)] and (2) performance of periodic inspections, certification of results, and submittal of Annual Monitoring Reports" (id., at 494). Five plans were developed to address 1) remedial activities, 2) management of ICs and ECs, 3) maintenance and monitoring, 4) performance and reporting of inspections, and 5) excavation. Groundwater was estimated to exist between six to 16 feet below the ground surface (bgs), and the apparent direction of shallow groundwater flow was generally to the southeast towards the Hudson River. PCB contamination was found at the site at concentrations of 1.0 parts per million (ppm) or greater, with the majority of concentrations being situated at three feet bgs or less. Eleven localized hot spot areas, having total PCBs > 25 ppm, were identified near soil borings. Secondary contaminants, including arsenic, lead, mercury, and polyaromatic hydrocarbons (PAHs), which were primarily located in soil at a depth of 0-1 feet bgs, are to be removed and/or covered as part of the proposed PCB remediation. Volatile organic compounds (VOCs) detected in groundwater included "methyl tert butyl ether (MTBE), cis-1,2-dichloroethene (cis-1,2-DCE), 1,1-dichloroethene (1,1-DCE) and vinyl chloride. [However, ] [t]he concentrations are relatively low-level, are isolated, and may be attributable to off-site sources.... Although total metals were detected in exceedance in groundwater, the results of the dissolved metals analysis have indicated that only iron, magnesium, manganese, nickel and sodium were detected above NYSDEC [ ] Standards" (id., at 498-499). There were no detected concentrations of dissolved PCBs in the 11 on-site monitoring wells when sampled in 2015. CHA concluded that that there are no PCB impacts to groundwater and that no further action is required regarding groundwater at the site.

Atlantic Testing Laboratories, Limited (ATL) performed initial sediment sampling at the subject site in the areas of proposed dredging along the Hudson River in June 2019 (see NYSCEF No. 31, page 295-299). The core samples were taken and submitted for subsequent laboratory analysis (see id.; NYSCEF No. 68, page 115), confirming that pesticides and PCBs were found. Based on the detected concentrations, dredging would require compliance with the DEC's Division of Water Technical and Operational Guidance Series 5.1.9 [In-Water and Riparian Management of Sediment and Dredged Material], and require the use of a closed bucket or other method to meet environmental objectives during dredging activities (see NYSCEF No. 31, page 298; https://www.dec.ny.gov/docs/water_pdf/togs519.pdf, accessed July 11, 2023]). ³³ ATL's 2019 sediment analysis was performed as a preliminary evaluation of sediment in the area of the proposed wharf construction. It was anticipated that further evaluation may be necessary upon receipt of actual development designs.

33 These objectives include, among others, minimizing the resuspension of silt, oil, grease, and other particles, minimizing the amount of material disturbed, and avoiding damage to nearby wetlands, historical, or archeological sites (see https://www.dec.ny.gov/docs/water_pdf/togs519.pdf, page 27, accessed July 11, 2023).

A Soil Management Plan (SMP) was compiled in August 2021 by ATL to

address areas at the Beacon Island parcel that are impacted with ash material and related debris. The purpose of this Soil Management Plan is to summarize procedures to implement for planned excavation activities, installation of a soil cover system in areas of ash material or other potential impacted fill, and management of waste soil and/or groundwater. This Soil Management Plan also addresses protocol for monitoring and sampling and analysis during excavation and site work, and recommendations for installation of vapor barrier systems beneath proposed buildings

(NYSCEF No. 68, pages 113, 113-126).

Samples of sediment on the site were collected and analyzed. Ash material was found predominately on the western side of the site (see NYSCEF No. 68, page 140). It was recommended that excavated soil impacted with fly ash either remain at the site (in an area where fly ash is present) with an applied soil cover system or removed and disposed at a permitted facility (see NYSCEF No. 68, page 119-122). ATL outlined the location and method of stockpiling impacted soil away from flooding, stormwater, or site drainage components, which included the use of polyethylene sheeting or other impervious material for covering the soil, berms, and periodic monitoring and sampling. ATL recommended the removal of any petroleum and chemical related contamination encountered during site work exhibiting, via the use of a photoionization detector (PID), with contamination at or greater than 10 ppm via ambient PID screening. It was recommended that contaminated soil that does not exhibit these characteristics should be stockpiled on-site for subsequent sampling and evaluation for potential reuse options (see NYSCEF No. 68, pages 122-125). ³⁴ The SMP detailed the procedures for excavation, disposal, and remediation of the coal fly ash impacted soils (see NYSCEF No., 62, page 110; NYSCEF No. 89, pages 226-256). Based on the composition of the site soils, the pre-loading of native soil was recommended since compaction techniques will not be sufficient (see NYSCEF No 61, page 295).

34 ATL provided a flow chart providing steps to take when excavating or disturbing suspected areas of soil impacted by ash or petroleum (see NYSCEF No 68, pages 130-131).

A Stormwater Management Report (SMR) was developed in May 2019 in accordance with the DEC's State Pollution Discharge Elimination System (SPDES) General Permit for Stormwater Discharges from Construction Activity, GP-0-15-002 (Permit) and the DEC's Stormwater Management Design Manual (The Manual). ³⁵ The May 2019 SMR assessed the site, the watershed areas, the areas of wetlands, stormwater quality and quantity, erosion and sediment control, and drainage for the development of the site. The soil on the site was classified and mapped, runoff and drainage was analyzed, and it was noted that a Stormwater Pollution Prevention Plan (SWPPP) would be required. ³⁶ It was proposed that runoff from the newly constructed impervious areas will be through drainage systems to bioretention/water quality ponds for treatment. The May 2019 SMR concluded that

35 A SPDES permit was issued in 2020 (see NYSCEF No. 60, page 280).

36 The SWPPP's objective is to reduce or eliminate erosion and sediment loading to bodies of water during construction activities, mitigate the impact of stormwater runoff on the water quality of the receiving waters, mitigate the increased peak runoff rate of runoff during and after construction, and to maintain stormwater controls during and after completion of construction (see NYSCEF No. 28, page 138).

the proposed development can meet all of the requirements of the Manual and the Permit. During construction activities Erosion and Sediment Control will be designed and enforced in accordance with the NYSDEC New York State Standards and Specifications for Erosion and Sediment Control. Standard stormwater management practices can provide the required [runoff reduction volume] RRv and [water quality volume] WQv for the proposed conditions. The elements of the Manual and the Permit that relate to stormwater quantity controls, specifically [channel protection volume requirements] CPv, [overbank flood control criteria] Qp, and [extreme flood control criteria] Qf, are not required at this site as the site discharges directly to a tidal water. All elements of the closed drainage system will be designed to be non-erosive during a 2-year storm event and capable of conveying a 10-year storm event. After construction, a maintenance and operation report program and agreement will be made between the site operator and town to ensure all stormwater management practices are maintained over the life of the site's operations

(NYSCEF No. 28, page, 143; see also NYSCEF No. 28, pages 134-143).

A SWPPP, prepared in August 2021 and updated in October 2021, revealed, among other things, a number of freshwater wetlands located within the project, and one wetland located on NIMO property. The subsurface conditions of the site were "generally characterized by historic fills of various depths overlying, in sequence with depth; river sediments, alluvial sands, glaciolacustrine silt/clay, glacial till, and shale bedrock. The fill was noted at specific boring locations ranging from 6 to 23 feet below existing grade. The fill material is characterized as a random landfill deposit containing natural and solid waste deposits such as, but not limited to, foundry sand waste, sand, silt, coal ash, gravel, and organic matter. A predominant component of the fill was reported as coal ash" (NYSCEF No. 89, page 265; see NYSCEF No. 89, pages 259-267). The SWPPP notes, among other things, that an erosion control plan has been developed in accordance with the "New York Standards and Specifications for Erosion and Sediment Control," which "employs permanent and temporary erosion and sediment control methods including silt fence, erosion control matting, construction entrances, and other appropriate measures" (NYSCEF No. 89, page 268). The SWPPP, which incorporates the SMR, addresses surface stabilization, drainage, dust control, inspections, material and stormwater management, and pollution responses and prevention measures (see id., at 268-281; NYSCEF No. 60, pages 16-34). A Drainage Design Report (DDR), dated August 2021 and updated October 2021, was developed specifically for the Wind Plant project and, based on the amount of the site that is required for manufacturing and the need for manufactured stormwater management units, noted some deviations from the Manual (see NYSCEF No. 60, pages 51, 228-236). A Supplemental Wetland Delineation Report was prepared to document the wetland boundaries located adjacent to the original project review area that were not included in the previous delineation efforts (see NYSCEF No 61, page 245).

With respect to air quality, data from 2013-2017 from the DEC's air monitoring station located approximately 10 miles from the site was reviewed, which monitors carbon monoxide, inhalable particulates, ozone, and sulfur dioxide. Data obtained revealed compliance with the National Ambient Air Quality Standards (NAAQS). In addition, in 2017, DEC commenced monitoring of the air quality in Albany's south end neighborhood and, as of 2017, the health effects related to the toxins known to effect human health in Albany's south end was low to moderate (see NYSCEF No. 30, pages 46-47). It was acknowledged that short-term impacts to air quality, which would include temporary odors, would occur during construction, but would cease upon completion (see id. No. 30, page 48).

An air emissions analysis with respect to the Wind Plant project was conducted by Proactive Environmental Solutions (Air Report), which identifies the applicable Federal and State air regulations and based on project operations, addresses potential air-quality impacts and mitigation measures (see NYSCEF No. 68, page 64). The Air Report outlined the anticipated emission sources and air quality impacts due to the manufacturing process and air pollution control systems. Mitigation measures for emissions released inside buildings included the use of dust collectors, HEPA filtration and ventilation systems, and recuperative thermal oxidizers (see NYSCEF No. 68, pages 65-66). The Air Report concluded that project related emissions will not significantly impact air quality within the surrounding community, and that measures taken at the operation site, including performing certain activities completely indoors, utilizing state-of-the-art dust-suppression, filtration and ventilation systems, will mitigate the potential for airborne particulates (see NYSCEF No. 88, pages 256-260; NYSCEF No. 68, pages 64-91).

The Air Report further 1) assessed project-related greenhouse gas emissions, their sources, and noted that the most energy efficient manufacturing equipment has been selected for the Wind Plant project; 2) discussed potential transient air quality impacts associated with project construction activities, with mitigation measures such as dust suppression techniques, including spray of water on dry materials and soils, and monitoring the air quality; and 3) prohibited certain traffic activity around South Pearl Street, adjacent to the nearby Ezra Prentice community, to ensure that traffic related impacts on air quality will be acceptable (see NYSCEF No. 68, pages 78-80). Based on, among other things, the results from site-wide air quality impact modeling, project-related impacts to air quality were not found to disproportionately burden the nearby Ezra Prentice community.

A Community Air Monitoring Plan was required to be implemented during the project's excavation activities (see NYSCEF No. 68, page 98). This involved, among other things, real time monitoring for all ground intrusive activities and the handling of soils with fly ash. Areas of potential fly ash contamination are depicted on a 2021 Soil Management Plan (see NYSCEF No. 68, pages 99-100). Dust control measures for intrusive activities, recommended by the DEC, were also required (see NYSCEF No. 68, page 104).

Traffic

A Traffic Impact Study (TIS) was prepared by the District's engineers in May 2019 with respect to the DGEIS, which analyzed the potential traffic impact associated with a 1,130,000 square foot distribution center/warehouse building with associated internal driveways, parking and landscaped areas, and storm water infrastructure (see NYSCEF No. 27, pages 98-149). It was anticipated that the project would be developed in three phases, and would generate a maximum of 465 vehicle trips during the AM peak hour and 529 trips during the PM peak hour (see NYSCEF No 27, page 147; NYSCEF No. 52, page 106-107). ³⁷ The May 2019 TIS outlined the existing traffic patterns and volumes around the area of the project, together with sight distance, existing pedestrian signage, and safety devices. The May 2019 TIS also considered the traffic impact associated with future developments in the area. Certain mitigation measures were recommended around the project area - including the monitoring of signal timing at certain intersections, updating existing traffic signaling, installing new traffic signals, and the addition of a dedicated left turn lane at the project's southern entrance, among other things (see NYSCEF No. 27, pages 130-143). It was recommended that car access to the site be through the access drive located on River Road, and that truck access be restricted to the northern entrance via a bridge crossing the Normans Kill (see NYSCEF No. 27, page 135, 147).

37 The Planning Board's Final Scoping Document provided that a "[t]raffic analyses will be conducted at the study area intersections according to the procedures set forth in the Highway Capacity Manual. The analysis will result in a level of service for the study area intersections for the Existing, No-Build, and the full Build condition (1,130,000 s.f.). Since the project may be developed in phases, the analysis will include the results for 2 interim development phases, one at 300,000 s.f. and another at 600,000 s.f. of development. The relative impact of the proposed project will be determined by comparing the No-Build and against the Build levels of services for all 3 phases of the build scenarios" (NYSCEF No. 27, Page 28).

An updated TIS was prepared July 2021, which specifically addressed the Wind Plant project (see NYSCEF No. 87, page 311), and compared the traffic impacts associated with the Wind Plant project to the traffic volume thresholds identified with respect to the FGEIS prepared as part of the SEQRA review for the generic development of the property (see NYSCEF No 87, page 314). Two access points to the Wind Plant project were contemplated - one at the site's north end to be used for Marmen Welcon delivery trucks and one at the south end for employees and passenger vehicles only. The north access point was via a bridge crossing the Normans Kill. It was contemplated that the southern access point, via a driveway from River Road, would be restricted to passenger vehicles. It was anticipated that Marmen/Welcon would employ approximately 350 full time workers spread over three shifts, which would generate 224 vehicle trips during shift changes. This revealed a lower traffic volume than originally thought. The July 2021 TIS analyzed, among other things, traffic intersection capacity around the site, the need for traffic control signals and a dedicated left-turn-lane at the site's entrance, impacts on recreational and open areas, sight distances, and the impact on the nearby Ezra Prentice Community (see NYSCEF No. 87, pages 311, 317, 325; NYSCEF No. 88, page 1-14). It was concluded that, while more traffic would be using the southern portion of River Road to access the site, the additional traffic generated by the Wind Plant project will have a negligible impact on the operations of the NYS Route 144 (River Road) corridor, as well as South Port Road.

The July 2021 TIS was revised in October 2021, and notes that the facility will employ 550 full time workers spread over three shifts, with the largest shift change consisting of 180 employees and secondary shifts with up to 140 employees, which will generate a maximum of 324 vehicle trips during the morning shift change and 324 trips during the evening shift change for all five buildings combined (see NYSCEF No. 61, page 389). The District's engineers explained that the increase in the number of employees was due to the addition of manufacturing transition pieces, which was not anticipated to increase raw material delivery by rail or truck traffic (see NYSCEF No. 62, page 398). Even with the additional employees, the traffic impact was determined to be lower traffic than what was proposed with respect to phase three of the FGEIS (see NYSCEF No. 61, page 400).

In its 2022 SEQRA Findings, the Planning Board required additional traffic impact mitigation measures, including

a. directing all truck traffic associated with the project to utilize required truck routes;

b. the requirement of contractual provisions in the operating agreement between the District and Marmen-Welcon requiring strict adherence to the truck routes;

c. the installation of video surveillance cameras to ensure traffic follows the prescribed route;

d. providing for site ingress and egress during construction via the southern access driveway connecting the project site to South Port Road;

e. depositing $72,120 in escrow with the Town of Bethlehem for the District's proportional share of future installation costs for new traffic signal improvements;

f. Requiring the District to institute a quarterly audit of Marmen-Welcon trucking service contract to ensure truck routes are being followed;

g. Requiring the District to complete the design phase of roadway upgrades to Smith Boulevard; and

h. Requiring the improvement of the north access roadway including a new bridge over the Normans Kill

(see NYSCEF No. 91, pages 216-219).

Noise And Vibration

In conjunction with the District's 2018 site plan application, the Planning Board found, among other areas of environmental concern, that the generic project posed potential noise-related impacts, including noise from increased traffic volumes and construction activity. The Planning Board noted that dynamic compression methods may be required to stabilize the site for foundations, which invoke concerns of the impact that vibrations may have on surrounding properties (see NYSCEF No. 30, pages 136-137), thus requiring the District to address noise and vibration impacts as set forth in its 2019 Final Scoping Document (see NYSCEF No. 27, pages 20, 28).

The DGEIS noted that, based on the geotechnical investigation, the existing subsurface conditions on the site are not considered suitable 'as is' for support of conventional shallow building foundations. Thus, slab-on-grade construction, and subsurface improvements will be required, including "deep dynamic compaction, rigid inclusions, surcharges, and/or partial undercuts with surface stabilization" (NYSCEF No. 29, pages 162-164). ³⁸ However, it was also noted that "[a]s the use of this technique across this development will be 675 feet from the closest existing building (226 River Road) its use should be without consequence. Regardless, during construction particle velocities will be monitored" (NYSCEF No. 29, page 164).

38 Dynamic compaction techniques are completed using a crane and dropping a weight in an engineered pattern across the ground surface in order to densify the subsoils.

The supplemental DGEIS noted that

[c]onstruction activities will abide by the Town of Bethlehem's Town Code § 81-5 and City of Albany regarding construction noise and time. Construction hours will be limited to 6:00 am to 10:00 pm. Construction activities that may cause noise impacts include earthwork, paving, structure construction, and land clearing. Exact noise levels due to construction cannot be determined at specific sites since the number and types of construction equipment that would be used cannot be predicted, but the equipment will not be allowed to operate during the restricted times set forth by the Town and City, respectively.

Mitigation measures will be incorporated into the specific building and site plan contract documents to reduce construction noise and perceived disturbances in the Project Area

(NYSCEF No. 86, page 196).

The District advised that dynamic compaction operations will comply with the Town's Code and, as a condition of site plan approval, the District will conduct noise monitoring during dynamic compaction operations (see NYSCEF No. 49, pages 248-249). And, as set forth in the supplemental DGEIS, dynamic compaction was not proposed for the acre parking lot and, while impacts on noise or vibration were anticipated to be negligible or non-existent in those areas where dynamic compaction was recommended, noise monitoring during dynamic compaction at the property boundary was required. Equipment used for construction activities that may cause noise impacts, including earthwork, paving, structure construction, and land clearing, would not be allowed to operate during the restricted times set forth by the Town (see NYSCEF No., 86, page 196).

Traffic noise was expected from heavy trucks traveling through the project, with a maximum noise level of up to 75 dBA at the reference distance of 50 feet. The supplemental DGEIS noted that, based on the USDOT Federal Highway Administration Construction Noise Handbook, sound pressures from stationary or slow-moving objects will decrease at a rate of 6 dBA each time the distance away is doubled. At a distance of 150 feet, the noise will attenuate to approximately 65 dBA, thus complying with the Town's noise ordinance (see NYSCEF No. 86, pages 206-207). ³⁹ In addition, mitigation strategies were included in the final SEQRA Finding Statement, which included noise monitoring, as needed, to ensure compliance (see NYSCEF No. 91, page 209). The Planning Board ultimately found that any potential noise impacts will be minimized and mitigated to the maximum extent practicable.

39 Based on Planning Board comments with respect to the proposed FGEIS, the District advised that the noise from dynamic compaction was calculated to be 48 dBA - well below the Town's noise ordinance regulation of 65 dBA (see NYSCEF No. 49, page 247-248).

In response to comments by the Stockbridge-Munsee Tribal Historic Preservation Office regarding the potential noise impacts over nearby Papscanee Island, a Noise Assessment was conducted with respect to the Wind Plant project (see NYSCEF No. 90, pages 207-343). The assessment consisted of a monitoring survey for ambient noise at three locations on the eastern side of the Hudson River, and projecting the noise impact as a result of the construction phase of the project, which would consist of earthmoving and material handling equipment (e.g., backhoes, front loaders, cranes, etc.). Ambient noise, including vehicular traffic, rail lines, among other noises, adjusting for humidity and temperature, was found to be between 54.30 and 79.86 dBA. The anticipated peak noise generated from the Wind Plant project was not expected to exceed the peak existing background noise at Papscanee Island Nature Preserve or along the portion of Papscanee Island that is across the Hudson from the project site (see NYSCEF No. 90, page 341). ⁴⁰

40 Archeological surveys of portions of the project area were presented to the Planning Board in 2018, which concluded that archaeological sensitivity was lacking (see NYSCEF No. 29, pages 20-30). However, because the project was across the river from agricultural fields associated with the National Register eligible Papscanee Island Historic District, in 2019, NYS Parks suggested, among other things, "using façade materials that are non-reflective and blend into the surrounding environment, such as earth tones" (NYSCEF No. 29, pages 53-54). The District's engineers, subsequently, took photographs of the project from Papscanee Island, which revealed that the project was not visible from the public right of way on the Island (see id., pages 63, 71-74). Ultimately, Parks concluded that no properties will be adversely affected by the development, provided the project follow certain design specifications (see id., page 75-77). A Freshwater Mussel Survey was conducted in July 2020, which revealed a low density of two native mussel species and the shells of two others (see NYSCEF No. 61, pages 232-237). The District proposed the relocation of certain mussel species to a location outside the area of proposed dredging (see NYSCEF No. 61, page 368). Likewise, the District proposes contribute to the restoration of the short nose sturgeon in the event that its habitat is affected (see id., at 371).

LEGAL ANALYSIS

"SEQRA, enacted in 1975 following long efforts ([ see,] Stevenson, Early Legislative Attempts at Requiring Environmental Assessment and SEQRA's Legislative History, 46 Alb L Rev 1114) and codified in the Environmental Conservation Law (ECL 8-0101-8-0117), represents an attempt to strike a balance between social and economic goals and concerns about the environment - defined broadly to include 'land, air, water, minerals, flora, fauna, noise, objects of historic or aesthetic significance, existing patterns of population concentration, distribution, or growth, and existing community or neighborhood character'" (Matter of Jackson v New York State Urban Dev. Corp., 67 N.Y.2d 400, 414 [1986], quoting ECL 8-0105 [6]; see also 6 NYCRR 617.2 [k]). "SEQRA makes environmental protection a concern of every agency [and] insures that agency decision-makers - enlightened by public comment where appropriate - will identify and focus attention on any environmental impact of proposed action, that they will balance those consequences against other relevant social and economic considerations, minimize adverse environmental effects to the maximum extent practicable, and then articulate the bases for their choices" (id., at 414-415). ⁴¹

41 Procedurally, any action which may have a significant effect on the environment must go through a full SEQRA assessment, requiring the preparation of an Environmental Impact Statement (EIS) (see ECL 8-0109 [1], [2]). The lead state agency - here, the Planning Board - may conduct an optional scoping session, exploring the methods to be used in assessing any environmental impact (see 6 NYCRR 617.8). A Draft Environmental Impact Statement (DEIS,) which surveys the relevant environmental risks posed, is then prepared (see ECL 8-0109; 6 NYCRR 617.12[b][6]). After the DEIS has been finished and publicly reviewed, the agency prepares a Final Environmental Impact Statement (FEIS) (see ECL 8-0109[6]). The DEIS and FEIS must analyze "the [project's] environmental impact[s] and any unavoidable adverse environmental effects[,]" as well as "alternatives to the proposed action... including a 'no-action alternative,'... and mitigation measures" (Matter of Jackson v New York State Urban Dev. Corp., 67 N.Y.2d at 416 [internal quotation marks and citations omitted]). "[B]efore approving the project, the agency must make an explicit finding that the requirements of SEQRA have been met and that, consistent with social, economic, and other essential considerations, to the maximum extent practicable, adverse environmental effects revealed in the environmental impact statement process will be minimized or avoided ([ECL] 8-0109 [8]). By administrative regulation, such finding must be contained in a written Findings Statement, which considers the conclusions reached in the FEIS, weighs and balances the relevant environmental impacts, and provides a rationale for the agency's decision (6 NYCRR §§ 617.11[c], [d])" (Matter of Friends of P.S. 163, Inc. v Jewish Home Lifecare, Manhattan, 30 N.Y.3d 416, 424-425 [2017][internal quotation marks and citations omitted]).

"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, 1183 [3d Dept 2019], quoting Matter of Schaller v Town of New Paltz Zoning Bd. of Appeals, 108 A.D.3d 821, 822-823 [3d Dept 2013]; see Matter of Save the Pine Bush, Inc. v Town of Guilderland, 205 A.D.3d 1120, 1123 [3d Dept 2022]; 6 NYCRR 617.7[b]). "Upon judicial review, [a court] may not substitute [its] judgment for that of the [lead agency], and may annul its decision 'only if it is arbitrary, capricious or unsupported by the evidence'" (Matter of the Village of Ballston Spa v City of Saratoga Springs, 163 A.D.3d 1220, 1223 [3d Dept 2018], quoting Matter of Gabrielli v Town of New Paltz, 116 A.D.3d 1315, 1316 [3d Dept 2014]). "The court's function is to assure that the agency has satisfied SEQRA, procedurally and substantively, not to evaluate data de novo, weigh the desirability of any particular action, choose among alternatives or otherwise substitute its judgment for that of the agency" (id. [internal quotation marks and citations omitted]). Moreover, "[a]n agency's substantive obligations under SEQRA must be viewed in light of a rule of reason as not every conceivable environmental impact, mitigating measure or alternative must be identified and addressed before an FEIS will satisfy the substantive requirements of SEQRA.... The degree of detail with which each environmental impact or mitigation measure must be discussed obviously will vary with the circumstances and nature of the proposal... It is not the province of the courts to second-guess thoughtful agency decision making and, accordingly, an agency decision should be annulled only if it is arbitrary, capricious or unsupported by the evidence" (Hart v Town of Guilderland, 196 A.D.3d 900, 904 [3d Dept 2021][internal quotation marks and citations omitted]; see Matter of Jackson v New York State Urban Dev. Corp., 67 N.Y.2d at 416; Matter of Brunner v. Town of Schodack Planning Bd., 178 A.D.3d at 1183).

Standing

Preliminarily, the Court is unpersuaded by respondents' argument that petitioners lack standing to maintain this action. "To establish standing in the SEQRA context, petitioners were obliged to establish both an injury-in-fact and that the asserted injury was within the zone of interests sought to be protected by SEQRA" (Matter of Creda, LLC v City of Kingston Planning Bd., 212 A.D.3d 1043, 1045 [3d Dept 2023][internal quotation marks and citations omitted]). "SEQRA's intended purposes are 'to declare a state policy which will encourage productive and enjoyable harmony between [humans] and [their] environment; to promote efforts which will prevent or eliminate damage to the environment and enhance human and community resources; and to enrich the understanding of the ecological systems, natural, human and community resources important to the people of the state' (ECL 8-0101; [ see ] 6 NYCRR 617.1)" (id. at 1046). Although proximity to a project, alone, is insufficient to grant petitioners standing, the proximity of petitioners' properties, some along Old River Road bordering the property owned by CSX, together with petitioners' allegations regarding the project's scope, appearance, and its effects on traffic congestion, water and air quality, fall within SEQRA's stated purpose of protecting the environment, thus providing petitioners with standing (see Matter of Save the Pine Bush, Inc. v Common Council of City of Albany, 13 N.Y.3d 297, 304-305 [2009]; Matter of Defreestville Area Neighborhood Assn., Inc. v Planning Bd. of Town of N. Greenbush, 16 A.D.3d 715, 718 [3d Dept 2005]).

Statute of Limitations

The Court reaches a different conclusion with respect to the timeliness of petitioners' challenge to the Zoning Board's resolution, issued on April 6, 2022 and filed with the Town Clerk on April 7, 2022, granting the District's application for certain area variances. Town Law § 267-c provides that judicial review of a Zoning Board determination "shall be instituted within thirty days after the filing of a decision of the board in the office of the town clerk." Here, it is clear that petitioners did not commence judicial review of that determination until more than 60 days after the Zoning Board's determination was filed with the Town Clerk. Accordingly, petitioners' challenges to the Zoning Board's determination are time-barred (see Matter of Crowell v Zoning Bd. of Appeals of the Town of Queensbury, 151 A.D.3d 1247, 1249 [3d Dept 2017] [petitioner's challenge to the issuance of the building permits, claiming that a use variance rather than an area variance was required, was deemed untimely]; Matter of Leitner v Town of Oyster Bay Planning & Dev. Dept., 143 A.D.3d 986, 987 [2d Dept 2016]). ⁴²

42 In any event, the record reveals that the Zoning Board complied with Town Law § 267-b in granting the District's application seeking area variances, with conditions. Specifically, based on the materials submitted in support of its site plan application, the FGEIS the final supplemental EIS, and the underlying supporting documents, photographs, simulations, reports, and surveys, the Zoning Board rationally found that requested variances "will have no detrimental impact on the health, safety or welfare of the community and the neighborhood. The Board noted that the use proposed is consistent with the other uses near the Property within the Heavy Industrial Zone, is a logical extension of the adjacent Port operations, and necessarily is dependent upon use of the Hudson River to transport the finished materials to the various project locations" (NYSCEF No. 67, page 331, see NYSCEF No. 67, pages 324-333). The Zoning Board determined that the variances as granted would not significantly affect the character of the neighborhood.

Exhaustion

While the Court agrees with respondents that a review of the Planning Board's SEQRA determination cannot be based on evidence or arguments not presented during the proceeding before the final supplemental EIS was issued (see Matter of Jackson v New York State Urban Dev. Corp., 67 N.Y.2d 400, 427 [1986]), it is the lead agency's affirmative obligation to consider environmental effects under SEQRA. Such an obligation cannot be obviated by a party's failure to participate in the SEQRA review process. That being said, petitioners' failure to participate and make specific challenges at the administrative level, "cannot be overlooked in determining whether the agency's failure to discuss an issue in the FEIS was reasonable. The EIS process is designed as a cooperative venture, the intent being that an agency have the benefit of public comment before issuing a FEIS and approving a project; permitting a party to raise a new issue after issuance of the FEIS or approval of the action has the potential for turning cooperation into ambush" (Matter of Jackson v New York State Urban Dev. Corp., 67 N.Y.2d at 428). Accordingly, while the Court declines to dismiss the petition based on respondents' argument that petitioners failed to exhaust their administrative remedies, petitioners cannot be heard to complain that the Planning Board unreasonably failed to undertake an analysis of issues that were not presented during the SEQRA review process.

Notice

The Court is unpersuaded by petitioners' argument that they were not provided with adequate notice of the public hearings and SEQRA proceedings with respect to either the generic or Wind Plant projects. Pursuant to Town Law § 274-a (8), a public hearing on a site plan application may be required when a local law or ordinance requires it. The Town of Bethlehem Zoning Law does not mandate a public hearing with respect to site plan review and approval (see https://ecode360.com/8995450, accessed July 6, 2023). Likewise, SEQRA regulations do not mandate that a hearing be held (see 6 NYCRR 617.9[a][4]["When the lead agency has completed a draft EIS or when it has determined that a draft EIS prepared by a project sponsor is adequate for public review, the lead agency will determine whether or not to conduct a public hearing concerning the action."]; https://www.dec.ny.gov/permits/6418.html, ["After the lead agency accepts the draft EIS, it must decide whether to hold a public hearing"]). In the event a hearing is to be held, the lead agency must prepare and file a notice of public hearing in a newspaper of general circulation (see 6 NYCRR 617.9, 617.12).

Here, it is undisputed that notice of the Planning Board's public hearings and Zoning Board's public hearing were published in a newspaper of general circulation. Furthermore, it is undisputed that the Planning Board is not mandated to provide written notice of any scheduled hearing to residents, including those residents that may purportedly be more impacted by a project, and there is no cited requirement that the Planning Board provide any specific notice to property owners within 200 feet of the area of requested action, regardless of whether that 200 feet is measured from the District's property line or NIMO's property line. ⁴³ And, while section 128-89 (I) of Town's Zoning Law requires that the Zoning Board "shall fix a reasonable time for the hearing of the appeal or other matter referred to it and shall cause public notice of said hearing to be published in a paper of general circulation in the Town at least five days prior to the date thereof" (https://ecode360.com/8995711, accessed July 7, 2023], there is, likewise, no requirement that the Zoning Board provide specific notice to property owners located within the area of requested action, either 200 feet from the closest property line where the action is anticipated, or otherwise. Accordingly, the Court rejects petitioners' challenges as to improper and/or inadequate notice of the Planning and Zoning Board meetings.

43 Notably, petitioners' counsel attaches correspondence dated June 7, 2022 addressed to the Town Supervisor stating that "[t]here is no codified provision in the Bethlehem Town law that provides for impacted residential or other property owners to receive mailed written notice of scheduled public meetings for Planning Board, Zoning Board of Appeals and other Town Board Public hearings.... I urge the board to adopt provisions for guidance within the comprehensive plan for implementing such specific codified notice in Town law" (NYSCEF No. 144).

Evidence outside the Administrative Record

Furthermore, because "[a]n Article 78 proceeding is limited to consideration of the evidence and arguments raised before the agency when the administrative determination was rendered" (Matter of HLV Assocs. v Aponte, 223 A.D.2d 362, 363 [1st Dept 1996]), the Court agrees with respondents that petitioners' reply submissions, which include, among other things, over 24 affidavits, three purported expert affidavits, and affidavits from non-party witnesses (see NYSCEF Nos. 86-105, 110,17, 119-121, 124-128, 131-132, 135-136, and 140-141), constitute an improper attempt to introduce new information that is outside the administrative record that is the subject of this proceeding. ⁴⁴ Accordingly, the Court is precluded from considering anything more than the proof adduced before the administrative agencies (see Matter of Rizzo v New York State Div. of Hous. & Community Renewal, 6 N.Y.3d 104, 110 [2005]; Matter of World Buddhist Ch'An Jing Ctr., Inc. v Schoeberl, 45 A.D.3d 947, 951 [3d Dept 2007]; Matter of Fanelli v New York City Conciliation & Appeals Bd., 90 A.D.2d 756, 757 [1st Dept 1982], affd 58 N.Y.2d 952 [1983]). ⁴⁵

44 "[E]xpert opinions expressed in affidavits that postdate the agency determination at issue may not be relied upon, as such affidavits were not part of the administrative record" (Matter of Hammonds v New York State Educ. Dept., 206 A.D.3d 1334, 1335 [3d Dept 2022]).

45 The documents submitted by petitioners in reply are documents that were presented to, among other entities, the Town Board, Planning and Zoning Boards after the Planning Board granted the District's application for site plan approval. The Court is not permitted to engage in a de novo review based on events that took place after the agency made its administrative determination (see Matter of Rizzo v New York State Div. of Hous. & Community Renewal, 6 N.Y.3d at 110). The Court also declines to consider correspondence and exhibits submitted by petitioners in 2023 as those documents are, also, outside the record. Likewise, the Court declines to base its determination on a proposed consent decree (see NYSCEF Nos. 292-294, 297; Proposed Consent Decree in the matter of Statewide Organizing for Community Empowerment v U.S. Environmental Protection Agency, No. 1:22-cv-2562-JDB (D.D.C.); https://www.regulations.gov/docket/EPA-HQ-OGC-2023-0055/document, accessed July 11, 2023).

SEQRA Analysis

With respect to an analysis by the Court of the Planning Board's SEQRA review, which is the crux of the petition, the Court cannot discount the fact that the Planning Board essentially undertook two separate and thorough SEQRA reviews, spanning over the course of three years - one with respect to the generic project, and the other with respect to a specifically identified tenant - the Wind Plant project. Each SEQRA review identified areas of environmental concern and addressed proposed mitigation measures, with the final supplemental EIS focusing in on the particular and specific environmental concerns and mitigation measures with respect to the Wind Plant project. Based on the extensive record in this matter, the Court finds that in conducting its SEQRA review, the Planning Board identified the relevant areas of environmental concern, took a 'hard look' at them, and made a reasoned elaboration of the basis for its determination (see Matter of Jackson v New York State Urban Dev. Corp., 67 N.Y.2d at 417). It bears repeating that "not every conceivable environmental impact, mitigating measure or alternative must be identified and addressed before an FEIS will satisfy the substantive requirements of SEQRA" (Matter of Hart v Town of Guilderland, 196 A.D.3d at 904 [internal quotation marks and citations omitted]). ⁴⁶

46 The Court finds that petitioners' belated allegations regarding 1) the size of the building's smokestacks; 2) parking, traffic, and delivery implications as a result of the increase in the number of full-time jobs; 3) the absence of traffic closures at the intersection of River and Anders Road; 4) the impact of the project on residential food gardens; 4) the Planning Board's failure to consider roof-top gardens; 5) the adequacy of the maps and photographs used to visualize nearby homes and their proximity to the project; 6) the number of pilings intended to be used at the project's site; 7) the effect on the viewshed based on the use of additional fill on the site; 8) roadway design at the project's southern entranceway; and 9) the failure to consider 'park and ride' options, do not establish that the Planning Board failed to comply with SEQRA requirements.

Initially, and for purposes of allegations set forth in the petition, the record demonstrates that the Planning Board recognized, addressed, and took a 'hard look' at the environmental concerns regarding the proximity of the Wind Plant Project to the homes on Old River Road and to its west. Mitigation measures were identified and addressed for implementation. The Planning Board had the benefits of numerous reports outlining the projected environmental impacts and mitigation measures with respect to soils and topography, groundwater, watershed areas, wetlands, floodplains, drainage, stormwater, erosion control, climate and air quality, traffic, visual impacts, land use and zoning, community character, solid waste disposal, and environmental justice (see NYSCEF No. 66, pages 507-535).

Specifically due to the presence of fly ash, a Management Plan was developed to analyze the type, locations, and concentrations of contaminants at the site. Boring samples of the site were collected. Subsurface soil and groundwater sampling was performed. The Management Plan discussed soil, geologic, and groundwater and drainage conditions in light of that contamination, and proposed remediation, reporting, and monitoring. A SMP was also developed, which outlined the composition of the site, identified areas of fly ash, assessed the watershed, drainage, erosion, and runoff, and recommended either stockpiling fly ash, using specific measures, or removing the material. The SMP set forth a protocol for monitoring, sampling, and analysis during excavation work, and recommended barrier systems beneath the proposed building. In addition, a SWPPP was prepared in accordance with DEC requirements to assess surface stabilization, the stormwater quality and quantity, and erosion and sediment control for the development of the site. Geotechnical studies were undertaken to evaluate subsurface conditions, and the DDR was prepared and updated, which classified the type and depth of the material comprising the soils on the site and analyzed existing drainage, water infiltration, and runoff rates, and proposed water drainage networks, which included water treatment through a stormwater filtering system and detention ponds.

Potential emissions from construction and manufacturing were considered. It was noted that the Wind Plant project will institute state-of-the-art equipment and dust suppression measures, which includes the use of recuperative thermal oxidizers to mitigate any emissions from the manufacturing process. A DEC approved remedial program and a Community Air Monitoring Plan was required to mitigate and monitor the movement of fly ash.

The Planning Board had the benefit of the VIARs, which outlined visual impacts utilizing photographic evidence of the viewshed from various locations, with and without foliage and vegetation, and with simulations of the buildings and construction that would comprise the Wind Plant. The vast majority of the site was expected to be screened by vegetation, with only the tops of the building that may be visible. Buffers consisting of on-site vegetation were to be maintained, and building colors were to blend in with existing surroundings.

Comprehensive traffic impact studies, with mitigation measures, revealed negligible impacts to the surrounding community. Sight distances were reviewed for safety purposes. A dedicated left-hand turn was recommenced for the site's southern access point. Vehicles exiting the site would be limited to making right-hand turns. The studies at the intersections near and on River Road outlined the impact of the additional traffic from the project, and recommended additional signage and traffic signals, the reduction of speed limits in the area, and monitoring to ensure truck and passenger vehicle routes are followed. Post-development speed studies were required. Any potential vibration and noise-related impacts were anticipated to be negligible. However, mitigation measures such as monitoring and restricting construction activities so that they comply with Zoning Law requirements were addressed and adopted (see NYSCEF No. 91, page 209).

While not widely criticized by petitioners, the record further reflects the Planning Board's thorough consideration of other potential environmental impacts, together with corresponding mitigation measures, including the evaluation of potential impacts to vegetation and wildlife, recreational, historical and fiscal impacts, and impacts to solid and sanitary waste disposal, and impacts to the school district, and to the delivery and costs of emergency services (see NYSCEF No. 91, pages 203-233). ⁴⁷ Potential traffic, climate, air, and pedestrian impacts to the nearby Ezra Prentice community were reviewed and mitigation measures were adopted, which included, among other things, restricting truck traffic and requiring trucks to use the Church Street entrance to the District's property. The use of additional rail cars was expected, but would not result in any noticeable impacts. ⁴⁸

47 A subaquatic vegetation survey and freshwater mussel survey was completed. Impacts to existing vegetation on the NIMO property were reviewed (see NYSCEF No. 91, page 91). Impacts to the Atlantic sturgeon, northern long-eared bat, and bald eagle were analyzed. Area variances were noted to be required due to proposed building heights, setbacks, landscaping, and development in the floodplain. With respect to fiscal impacts, the District agreed to make yearly payments to the Town for emergency services.

48 The administrative record contains, in chart form, areas of environmental concern, the corresponding GEIS proposed mitigation, supplemental EIS mitigation, and a final combined compliance mitigation (see NYSCEF No. 66, pages 507-536).

Finally, as the project site is zoned Heavy Industrial and the Wind Plant project is a permitted use within that zone, the Planning Board appropriately found that the project is in line with the character of the community. Likewise, as the project is surrounded by existing heavy industrial businesses within the industrial corridor, it is compatible with the Town's Comprehensive Plan, which notes its goal of generating economic development opportunities with maritime components (see NYSCEF No. 82, page 88; NYSCEF No. 91, page 207).

Based on the forgoing, this Court finds that the Planning Board's SEQRA determinations, which were based on studies, methodology, and tables and illustrations summarizing data, were sufficient to allow informed consideration and comment on the issues that petitioners raise, and it is clear from the voluminous record before this Court that the Planning Board did not act arbitrarily or capriciously in rendering its determinations. Rather, the record reflects that the Planning Board complied both procedurally and substantively with the requirements of SEQRA in that it identified the relevant environmental concerns, took a 'hard look' at them, and considered a reasonable range of corresponding mitigation measures and alternatives.

Accordingly, for the aforementioned reasons, it is hereby

ORDERED that the petition, insofar as it challenges the Zoning Board's determination, issued on April 6, 2022 and filed with the Town Clerk of the Town of Bethlehem on April 7, 2022, is dismissed as untimely, and it is further

ORDERED that the petition, insofar as it challenges the Planning Board's SEQRA determinations with respect to its June 2, 2020 resolution adopting the Findings Statement with respect to the FGEIS and its March 1, 2022 resolution adopting the Findings Statement with respect to the final supplemental EIS, is denied, and the petition is dismissed in its entirety, and it is further

ORDERED that the Court has considered the remaining arguments of all parties and denies any additional relief requested not specifically set forth herein.

This constitutes the Decision and Order/Judgment of the Court, which will be uploaded to the New York State Court's Electronic Filing System (NYSCEF). Counsel is advised of 22 NYCRR 202.5-b (h) (2) relating to notice of entry.

SO ORDERED AND ADJUDGED

Papers Considered:

NYSCEF Documents Numbered 1-306