Opinion
908/04.
Decided August 13, 2004.
TEAHAN CONSTANTINO, Attorneys for Petitioners, Poughkeepsie, New York, By: Marilyn D. Berson, Esq. McCABE MACK, LLP, Attorneys for Respondent Town of Amenia, Poughkeepsie, New York, By: Arabella W. Teal, Esq. CUDDY FEDER, LLP, Attorneys for Respondents Gregory, White Plains, New York, By: Neil J. Alexander, Esq.
Petitioners Stanley Avy, Harold Gordon, Arlene Iuliano, Gerry L. Thompson and Marcia Due (hereinafter collectively referred to as "petitioners") move for relief pursuant to Article 78 of the Civil Practice Law and Rules for a judgment annulling two determinations of the Town Board of the Town of Amenia ("Town Board") made on or about September 18, 2003, adopting a Negative Declaration under the New York State Environmental Quality Review Act ("SEQRA"), and adopting Local Law No. 1 of 2003 ("Local Law No. 1") amending the zoning district designation of a portion of a parcel of land located in the Town of Amenia owned by respondents Jack Gregory and Linda Gregory (the "Gregorys").
FACTUAL BACKGROUND
The Gregorys are the owners of Town of Amenia Tax Map Parcel No. 7167-00-29472 (the "Property"), which consists of approximately 7.79 acres of undeveloped land located on the westerly side of Route 22 in the Town of Amenia, New York. The zoning classification of the Property is divided east to west, with 3.18 acres abutting Route 22 classified as RM (Residential — Medium Density) and 4.61 acres to the west classified as Agricultural ("RA"). The entire parcel is located within New York State Agricultural District No. 21.
On February 19, 2002, the Gregorys filed a rezoning application with the Town Board seeking to rezone approximately three acres of the Property from RM (Residential-Medium Density) to GB (General Business). The rezoning was necessary to permit the expansion and relocation of the Gregorys' automobile repair business from a site on Route 22 in the southern portion of the Town of Amenia (known as the hamlet of Wassaic) to the Property. The application proposed the construction of a 6,000 square foot building for use as an automotive repair facility and associated parking.
A proposed Part 1 of an Environmental Assessment Form (the "Proposed EAF") dated March 27, 2002 and a conceptual site plan map were submitted by the Gregorys to the Town Board in March of 2002. The Proposed EAF indicated that the project would include the construction of a building that was 35 feet high, 60 feet wide and 100 feet in length, and would entail the development of approximately 0.80 of an acre.
On April 4, 2002, the Town Board referred the Gregorys' application to the Town of Amenia Planning Board ("Planning Board") for review and comment.
Thereafter, on or about April 25, 2002 the Town Board initiated the SEQRA review process by circulating its Notice of Intent to Assume Lead Agency to coordinate the review of the rezoning, which process culminated in the Town Board becoming lead agency in June of 2002 (see 6 NYCRR § 617.6[b][1]).
By letter dated May 5, 2002, the Planning Board submitted its report on the rezoning application to the Town Board. In its report, the Planning Board stated that the Gregorys' proposed project "appears" to be a goal of the 1992 Amenia Master Plan and "appears" to comply with the recommendation of the Future Land Use Map. While silent on the specific approval of the rezoning itself, the report stated that the Planning Board recommended that "the Town Board consider the proposed Zoning Map amendment" (emphasis added).
In accordance with General Municipal Law §§ 239-l and 239-m, the Town Board referred the rezoning application to the Dutchess County Department of Planning and Development ("Dutchess County Planning"). By memorandum dated May 30, 2002, Dutchess County Planning submitted its comments regarding the application and recommended that the requested rezoning be denied.
Specifically, Dutchess County Planning stated in its comments, in pertinent part, as follows: "The Town of Amenia Master Plan does not include any of the parcels along the western side in this portion of Route 22 north of the hamlet center as potential locations for future commercial development. * * * * The Town of Amenia Master Plan does focus on the importance of maintaining the town center's tradition character, highlighting its gateways, and protecting the agricultural and open spaces that surround it. There are several hallmarks of a thriving center, including mixed uses, walkability, and traditional, neighborhood-style residential development. Amenia's town center is unique in that many of its remaining open parcels consist of undevelopable wetlands. The parcels along the west side of Route 22 north of the hamlet center constitute one of the few available opportunities for the Town to encourage residential development at a scale appropriate for a village-style neighborhood compatible with and within walking distance of the existing hamlet center. This is consistent with the Town's Master Plan. Regardless of the quality of the proposed design, the establishment of a commercial automotive repair facility at this location will reduce the likelihood of residential development in the immediately surrounding area. As a consequence, future proposals for Route 22 between the center and the automobile repair shop are more likely to be commercial in nature. Extending the commercial strip is antithetical to all of the Town's efforts to maintain rural character and strengthen the businesses in the traditional, historic center. Rezoning this single parcel from residential to general business use within a district that would continue to be designated as residential has all the appearances of spot zoning. * * * * The rezoning of a single parcel may appear to be a minor decision. However, the action will simultaneously set a precedent for further strip commercial rezoning requests outside the hamlet center, leading inevitably to an even more dramatic change in the character of this gateway to the hamlet center. * * * * We strongly urge you to consider the [sic] both the immediate and long-range effects of this rezoning as well as the precedent that would be set for the future."
In connection with its review of the Gregorys' rezoning application, the Town Board retained GreenPlan, Inc. ("GreenPlan") to act as its consulting planner. In a memorandum dated October 10, 2002, GreenPlan, requested that additional information be supplied by the Gregorys. Specifically, the Town Board was advised that, due to the lack of proposed site plans detailing the "service station project," Part 1 of the Proposed EAF should be deemed incomplete "since it only addresses in a generalized (generic) sense, the full scale of the proposed project."
In addition to identifying specific comments that required "particular attention" by the Town Board in its consideration of any revision to the Proposed EAF, GreenPlan advised the Town Board that the question regarding whether the proposed action was consistent with the recommended uses in the Master Plan should be answered "currently unavailable, pending completion of the planning process." This recommendation was based upon two factors: 1) the Amenia Planning Board's questioning of the consistency of the proposed rezoning with the Comprehensive Plan, and 2) the Town Board's creation of a Comprehensive Plan Committee to update the Master Plan. In closing, GreenPlan advised the Town Board that completion of Part 2 of the EAF could not be "properly prepared" until the revisions to Part 1 were made and the proposed site plans submitted.
On March 7, 2003, the Gregorys' consultant, Land Resource Consultants ("Land Resource"), submitted a response to GreenPlan's memorandum. Land Resource acknowledged that the site plan which had been submitted by the Gregorys was not a fully engineered site plan. It requested that the Town Board accept the conceptual site plan, as a fully engineered site plan prepared in accordance with the Town Zoning Law would require an "outlay of several thousand dollars"; a cost that the Gregorys were not in a financial position to incur.
In a letter dated April 21, 2003, to the Town Board, the Department of Environmental Conservation ("DEC") identified the potential for the presence of threatened and endangered species of flora and fauna on the Property.
Specifically, the DEC alerted the Town Board to the possible presence of lactuca floridan (False Lettuce), identified as an endangered plant pursuant to 6 NYCRR § 193.3[b], Polygonum careyi (Carey's Smartweed), identified as a threatened plant pursuant to 6 NYCRR § 193.3[c], and of Clemmys muhlenbergii (Bog Turtle), identified as an endangered reptile pursuant to 6 NYCRR § 182.6[a][5][ii].
On May 8, 2003, Land Resource, on behalf of the Gregorys, submitted a further, revised full EAF ("Revised EAF") for the Town Board's consideration. In Part 1 of the Revised EAF, the amount of land which would ultimately be developed was increased from .080 acres to 1.65 acres. The Revised EAF also indicated that the development of the Property and the construction of the automotive repair facility would necessitate the removal of approximately 3,000 tons/cubic yards of natural material and approximately 1.65 acres of vegetation from the rezoned portion of the Property.
Relying upon information provided by two biologists who had been consulted in connection with an unrelated rezoning application for property located on the easterly side of Route 22, the applicants indicated that no endangered or threatened species were present on the Property. However, in "Part 1D — Information Details," the Revised EAF stated: "that only an on-site investigation can determine with any certainty whether the identified rare and endangered animal and plant specie [sic] are in fact absent from the project site." Therefore, "assuming that the change in zone request is granted, the applicants would commission a study of the site."
Part 2 of the Revised EAF identified 14 potentially significant environmental impacts. These impacts included, inter alia: 1) adverse affect on groundwater; 2) substantial erosion and alteration of existing on-site drainage patterns; 3) impact on aesthetic resources caused by the proposed land use being obviously different from or in sharp contrast to surrounding land use patterns; 4) routine odors; 5) operating noise exceeding the local ambient noise levels for noise outside of structures; and 6) change in the density of land use.
With respect to the potential adverse environmental impact to surface and groundwater, the Revised EAF indicated that the proposed project, which required the use and storage of oil and petroleum products, is located over an aquifer, which, as the only source of potable water for the area surrounding the Property, constitutes an "economically vital natural resource" that must be "preserved to assure public health and safety."
At a Town Board meeting held on June 19, 2003, the Town Board set a date for a public hearing on July 24, 2003.
The rezoning application was resubmitted to Dutchess County Planning, and in a memorandum dated July 15, 2003, it once again recommended that the application be denied. It was also recommended that any decision regarding the rezoning be deferred until such time as the Town of Amenia's Master Plan update objectives had been identified, recommendations determined and the process completed.
The Master Plan Committee was scheduled to hold a public meeting on September 29, 2003.
Notwithstanding this recommendation, a public hearing on the rezoning application was held on July 24, 2003, and a motion to close the public hearing was granted after two hours of public comment. Thereafter, on September 18, 2003, Town Supervisor Thomas LeJeune presented a draft Negative Declaration and proposed Local Law No. 1 to the Town Board for its vote. In light of Dutchess County Planning's disapproval, in order for the Town Board to approve the rezoning, a majority plus one of all members of the Town Board were required to vote in favor of the proposed Local Law No. 1 (see General Municipal Law § 239-m). A vote was taken and the resolutions adopting the Negative Declaration and Local Law No. 1 were adopted by a vote of four to one.
The Negative Declaration was issued after a determination by the Town Board, as the lead agency, that the environmental effects of the proposed project would not exceed any of the Criteria for Determining Significance found in 6 NYCRR 617.7(c).
Local Law No. 1 was filed with the Secretary of State on October 17, 2003.
Petitioners then commenced the instant Article 78 proceeding by filing a notice of petition and petition seeking an order annulling the resolutions and Local Law No. 1 on the grounds that: 1) the rezoning of the Property constituted a Type I action under 6 NYCRR § 617.4 because a nonagricultural use within a state agricultural district was proposed and the physical alteration exceeded 2.5 acres, 2) the Town Board improperly designated the rezoning of the Property as an unlisted action in violation of the requirement for literal procedural compliance with SEQRA, 3) the Town Board failed to take the requisite "hard look" at the potential environmental impacts of the rezoning as required under SEQRA, 4) a conflict of interest existed which required the Town Supervisor to recuse himself from the vote on the adoption of Local Law No. 1; and 5) the granting of the rezoning constituted spot zoning.
Respondents contend that the petitioners lack standing to main the instant proceeding and that the matter is not ripe for judicial review. Respondents further contend that the Town Board adequately considered the potential environmental impacts of the rezoning.
THE TOWN OF AMENIA MASTER PLAN
Prior to the development of the Wassaic Development Center in the 1930's, the Town of Amenia's economy depended almost exclusively on dairy farming and milk production. By January of 1990, however, there were only nine operating dairy farms, as opposed to 55 operating dairy farms in 1959 (Master Plan, pp. 101-103). As dairy farming has decreased, other forms of agriculture, such as horse (945 acres), beef (410 acres), and sheep (101 acres) farms, as well as vineyards (149 acres), Christmas tree farms (140 acres) and nurseries (62 acres) have been developed. Approximately 27% of the total land area of the Town of Amenia was devoted to these forms of agriculture when the Master Plan was drafted (Master Plan, pp. 103-104).
At the time of the adoption of the Master Plan by the Town in the early 1990's, Amenia was starting to experience "the influence of more rapidly developing areas such as Poughkeepsie, Westchester County and Connecticut" (Master Plan, p. 97). The drafters of the Master Plan expressed concern over the Town's failure to enact "regulations that would control the levels of growth, or balance the residential growth with commercial, industrial and recreational development" (Master Plan, p. 97). The major concept of the future land use plan was "that Amenia should not begin to look like the suburbanizing towns around Poughkeepsie. The aim is to encourage growth around the existing settled areas and seek to preserve the agricultural areas and the wooded, steep hillsides and ravines in their natural state" (Master Plan, p. 159). Despite the drafters' realization that the Town of Amenia needed to diversify its economic base, it also identified the need to regulate development of agricultural land and to preserve the agricultural history of the Town of Amenia. The goal of the Master Plan was that the Town of Amenia accommodate orderly growth in its tax base while at the same time preserving, "to the greatest extent possible, its agricultural uses and land" (Master Plan, pp. 117-118). The objective was to establish development policies which would preserve the most important agricultural lands in the Town (Master Plan, pp. 117-118).
In balancing the need for economic diversification with the preservation of its agricultural history, the Future Land Use Concept Plan established 12 land use specifications, including "Agriculture Preservation," "General Business I" and "General Business II." The Agriculture Preservation zone is comprised of two types of land: 1) land that was currently being farmed and/or contained prime agricultural soils; and 2) "lands without severe environmental constraints, which because of their location may not be appropriate for the medium and high density residential development categories"
(Master Plan, p. 161). The section north of the Town Center, on the west side of Route 22 was included in this zone (Master Plan, p. 161).
In addition to establishing two General Business zones, the Master Plan also identified an area for future potential commercial development. It is clear from a review of the future land use map that this area is located on the easterly side of Route 22 north of the Amenia Town Center (Master Plan, p. 77). THRESHOLD ISSUES
The drafters commented that "[t]he future land use plan is not meant to show exact boundaries between different land use classifications. At the times when zoning changes are made, property lines will have to be taken into consideration" (Master Plan, p. 161).
Before the merits of the petition can be reached by the Court, the threshold issues of standing and ripeness raised by respondent Gregorys must be addressed.
STANDING
The Court must begin its analysis with the principal that "in zoning litigation in particular, it is desirable that land use disputes be resolved on their own merits, rather than by preclusive, restrictive standing rules" ( Matter of Sun-Brite Car Wash, Inc. v. Board of Zoning Appeals of Town of N. Hempstead, 69 N.Y.2d 406, 413, 515 N.Y.S.2d 418, 508 N.E.2d 130). When viewed through the prism of this policy, the petitioners have met their burden of establishing standing to maintain this special proceeding (see Society of Plastics Indus. v. County of Suffolk, 77 N.Y.2d 761, 570 N.Y.S.2d 778, 573 N.E.2d 1034).
In order to establish standing to maintain an action or proceeding under SEQRA, the party seeking judicial review must show "(1) that they will suffer an environmental 'injury that is in some way different from that of the public at large,' and (2) that the alleged injury falls within the zone of interest sought to be protected or promoted by the statute under which the governmental action was taken" ( Matter of Blue Lawn, Inc. v. County of Westchester, 293 A.D.2d 532, 533, 740 N.Y.S.2d 404, lv. denied 98 N.Y.2d 607, 746 N.Y.S.2d 691, 774 N.E.2d 756 citing Society of Plastics Indus. v. County of Suffolk, 77 N.Y.2d 761, 772-773, 570 N.Y.S.2d 778, 573 N.E.2d 1034). The injury must be environmental and not solely economic in nature ( Id. at 533; Matter of Nature's Trees, Inc. v. County of Nassau, 293 A.D.2d 544, 740 N.Y.S.2d 417, lv. denied 98 N.Y.2d 608, 746 N.Y.S.2d 691, 774 N.E.2d 756).
"[P]roof of special damage or in-fact injury is not required in every instance to establish that the value or enjoyment of one's property is adversely affected" ( Matter of Sun-Brite Car Wash, Inc. v. Board of Zoning Appeals of Town of N. Hempstead, 69 N.Y.2d at 413). An allegation of actual or potential noneconomic harm from environmental impacts ( i.e., increased noise and traffic), by the owner or resident of property adjacent to or in close proximity to a proposed project leads to an inference of potential injury ( Id.; Matter of Lo Lordo v. Board of Trustees of Inc. Vil. of Munsey Park, 202 A.D.2d 506, 506, 609 N.Y.S.2d 22; Matter of Duke Benedict, Inc. v. Town of Southeast, 253 A.D.2d 877, 678 N.Y.S.2d 343).
In the present case, petitioners assert standing by reason of the proximity of their properties to the rezoned Property. Petitioner Avy's property is located immediately adjacent to and on a hill overlooking the rezoned Property. Mr. Avy's concerns include the impact of the proposed use of the rezoned portion of the Property on his scenic view and property value, the increased traffic impact on the safety of the ingress to and the egress from his property, subsurface water, water supply and sewage disposal impacts from commercial use, and air and noise pollution.
Similarly, petitioner Gordon is the landowner of 17 acres of open land directly adjacent to the southwest of the rezoned Property. Petitioners Thompson and Due are landowners of property located directly across the road from the rezoned Property. Petitioners Gordon, Thompson and Due each share the same concerns expressed by Mr. Avy. These alleged potential injuries will affect the petitioners, as adjacent landowners and landowners in close proximity, to a far greater degree than they would other members of the public at large who own businesses or residences situated farther from the Property. It is reasonable to assume that, when the use of the Property is changed, as "[persons] with property located in the immediate vicinity of the subject property [petitioners] will be adversely affected in a way different from the community at large; loss of value of individual property may be presumed from depreciation of the character of the immediate neighborhood" ( Matter of Sun-Brite Car Wash, Inc. v. Board of Zoning Appeals of Town of N. Hemptstead, 69 N.Y.2d at 414).
The petition alleges that Mr. Gordon plans on constructing a residence on this property.
Petitioners have each alleged environmental harm which is different from that suffered by the public at large and which comes within the zone of interest protected by SEQRA and, therefore, have met their burden of establishing standing to maintain the instant proceeding (see Matter of Lo Lordo v. Board of Trustees of Inc. Vil. of Munsey Park, 202 A.D.2d at 507).
RIPENESS
Respondent Gregorys further contend that the rezoning of the Property, in and of itself, does not cause any injury to the petitioners. It is their contention that, since the extent of any potential injury can only be determined after the final parameters for the use of the Property are established through the subdivision and site plan approval process, the issues raised in the petition are not ripe for judicial review.
It is well-settled that "[a] SEQRA determination is usually considered to be a preliminary step in the decision-making process and, therefore, is not ripe for judicial review until the decision-making process has been completed" ( Matter of Young v. Board of Trustees of Vil. of Blasdell, 221 A.D.2d 975, 977, 634 N.Y.S.2d 605, aff'd 89 N.Y.2d 846, 652 N.Y.S.2d 729, 675 N.E.2d 464; Matter of J.B. Realty Enterprise Corp. v. City of Saratoga Springs, 270 A.D.2d 771, 704 N.Y.S.2d 742, lv. denied 95 N.Y.2d 758, 713 N.Y.S.2d 522, 735 N.E.2d 1287). "A final determination for the purpose of compliance with SEQRA is made when an agency commits itself to a definite course of future action" ( Matter of Price v. County of Westchester, 225 A.D.2d 217, 220, 650 N.Y.S.2d 839; Matter of J.B. Realty Enterprise Corp. v. City of Saratoga Springs, 270 A.D.2d 771; see also Matter of Throggs Neck Resident Council, Inc. v. Cahill, 290 A.D.2d 324, 736 N.Y.S.2d 358).
Respondents' argument that no justiciable claim exists at the present time lacks merit. Contrary to respondents' contention, the Town Board's resolutions clearly indicated that the rezoning complained of herein was reviewed and enacted for a specific purpose, not a generic purpose; the expansion and relocation of the Gregorys' automotive repair facility. As such, the commitment to a "definite course of future action" was made when the Town Board adopted Local Law No. 1 and issued the Negative Declaration ( Matter of Kirk-Astor Drive Neighborhood Assn. v. Town Bd. of Town of Pittsford, 106 A.D.2d 868, 869, 483 N.Y.S.2d 526, appeal dismissed 66 N.Y.2d 896, 498 N.Y.S.2d 791, 489 N.E.2d 760; see also Matter of Stop-The-Barge v. Cahill, 1 N.Y.3d 218, 771 N.Y.S.2d 40). At that point, the Town Board's decision-making process with respect to the rezoning of the Property was complete and the petitioners became aggrieved by the alleged SEQRA violation (see Matter of Young v. Board of Trustees of the Vil. of Blasdell, 89 N.Y.2d 846, 848-849, 652 N.Y.S.2d 729, 675 N.E.2d 464).
A determination regarding the threshold issues of standing and ripeness having been made, the Court now turns to the merits of the petitioners' case.
SEQRA COMPLIANCE Standard of Review
Judicial review of a lead agency's SEQRA determination is limited to "whether a determination was made in violation of a lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion" ( Matter of Jackson v. New York State Urban Dev. Corp., 67 N.Y.2d 400, 416, 503 N.Y.S.2d 298, 494 N.E.2d 429 quoting CPLR 7803; Chinese Staff Workers Assn. v. City of New York, 68 N.Y.2d 359, 509 N.Y.S.2d 499, 502 N.E.2d 176; Akpan v. Koch, 75 N.Y.2d 561, 555 N.Y.S.2d 16, 554 N.E.2d 54). "[I]t is not the role of the courts to weigh the desirability of an action or choose among alternatives, but to assure that the agency itself has satisfied SEQRA, procedurally and substantively" ( Matter of Jackson v. New York State Urban Dev. Corp., 67 N.Y.2d at 416). In this vein, a court may "review the record to determine whether the agency identified the relevant areas of environmental concern, took a 'hard look' at them, and made a 'reasoned elaboration' of the basis for its determination" ( Id. at 417; Matter of Vil. of Tarrytown v. Planning Bd. of Vil. of Sleepy Hollow, 292 A.D.2d 617, 741 N.Y.S.2d 44, lv. denied 98 N.Y.2d 609, 746 N.Y.S.2d 693, 774 N.E.2d 758 ; H.O.M.E.S. v. New York State Urban Dev. Corp., 69 A.D.2d 222, 418 N.Y.S.2d 827).
Applying these standards to the actions of the respondent Town Board, this Court finds that the Town Board did not take the requisite "hard look" required by SEQRA.
Designation of Action as "Unlisted"
It is well-settled that rezoning is an "action" subject to the provisions of SEQRA ( Matter of Neville v. Koch, 79 N.Y.2d 416, 426, 583 N.Y.S.2d 802, 593 N.E.2d 256). When considering an "action," a lead agency's initial responsibility is to determine whether it falls within the definition of a "Type I action," a "Type II action" or an "unlisted action" ( 6 NYCRR 617.6[a][1]). An action or project which has been listed as a Type I action "carries with it the presumption that it is likely to have a significant adverse impact on the environment and may require an EIS" ( 6 NYCRR § 617.4[a][1]), and requires the preparation of a full EAF in connection with the determination of significance ( 6 NYCRR § 617.6). Included in the list of Type I actions are activities, other than the construction of residential facilities, involving nonagricultural uses occurring wholly or partially within an agricultural district, which involve the physical alternation of 2.5 acres ( 6 NYCRR §§ 617.4[i], 617.4[8]).
It is undisputed that the entire 7.79 acres of the Property are located within a New York State Agricultural District, and that the proposed use (the construction of an automotive repair facility) for the rezoned portion of the Property is a nonagricultural use. The difference of opinion between the parties on the proper designation for the action centers on the issue of "physical alteration." Petitioners contend that, because the rezoning application requested a redesignation of 3.18 acres of the Property from RM (Residential — Medium Density) to GB (General Business), the proposed action involved a physical alteration in excess of the regulation's threshold of 2.5 acres. In contrast, respondents argue that the rezoning application did not involve any physical alteration of the Property since any future development is contingent upon further subdivision and site plan approvals.
In making this argument, the Gregorys have disregarded the fact that the rezoning of the Property constituted "but the first step in the process of developing the property" (see Matter of Defreestville Area Neighborhood Assn. v. Town Bd. of Town of N. Greenbush, 299 A.D.2d 631, 633, 750 N.Y.S.2d 164 citing Matter of New York Canal Improvement Asson. v. Town of Kingsbury, 240 A.D.2d 930, 932, 658 N.Y.S.2d 765). "Indeed, 'a fundamental and necessary prerequisite to the act of construction is the acquisition of the right to construct on a particular parcel of property'" ( Id. at 633-634 quoting Matter of Town of Coeymans v. City of Albany, 284 A.D.2d 830, 835, 728 N.Y.S.2d 797, lv. denied 97 N.Y.2d 602, 735 N.Y.S.2d 491, 760 N.E.2d 1287). Since the granting of the rezoning application was an integral part of the ultimate development of the Property, the Town Board was obligated to consider the future development plans for the entire rezoned portion of the Property when considering the proper designation of the action (see Matter of Defreestville Area Neighborhood Assn. v. Town Bd. of Town of N. Greenbush, 299 A.D.2d 631).
It is the total area to be affected by the proposed project which is the key threshold for SEQRA (see Matter of Iorio v. Town of Mount Pleasant, 131 Misc. 2d 395, 401, 500 N.Y.S.2d 935). By constructing an automotive repair facility on the rezoned portion of the Property, which consists of undeveloped agricultural land, the distinctive nature of the entire 3.18 acres will be physically altered. Since this acreage of land exceeds the threshold set forth in the SEQRA regulations ( 6 NYCRR §§ 617.4[i], 617.4[8]), the Town Board should have designated the rezoning application as a Type I action.
"When a proposed action is classified as Type I, the threshold for requiring an EIS is relatively low, for this classification carries with it a presumption that the action is apt to have a significant effect on the environment, and consequently that the detailed evaluation provided by an EIS is required prior to decisionmaking" ( Matter of Watch Hill Homeowners Assn. v. Town Bd. of Town of Greenburgh, 226 A.D.2d 1031,1033, 641 N.Y.S.2d 443, lv. denied 88 N.Y.2d 811, 649 N.Y.S.2d 378, 672 N.E.2d 604; see also Matter of Scenic Hudson v. Town of Fishkill Town Board, 258 A.D.2d 654, 655, 685 N.Y.S.2d 777; Riverhead Bus. Improvement Dis. Mgt. Assn. v. Stark, 253 A.D.2d 752, 753, 677 N.Y.S.2d 383, lv. denied 93 N.Y.2d 808, 691 N.Y.S.2d 382, 713 N.E.2d 417).
In making its determination of significance, the Town Board, as lead agency, was required to look at "impacts which may be reasonably expected to result from the proposed action and compare them against [the] illustrative list of criteria provided in 6 NYCRR 617.11 [now 6 NYCRR § 617.7(c)(1)]" ( Matter of Farrington Close Condominium Bd. of Mgrs v. Incorporated Vil. of Southampton, 205 A.D.2d 623, 625, 61N.Y.S.2d 257). This list contains "indicators of significant effects on the environment" ( Matter of Farrington Close Condominium Bd. of Mgrs. v. Incorporated Vil. of Southampton, 205 A.D.2d at 625). It includes actions that: 1) result in substantial adverse change in existing air quality, ground or surface water quality, traffic or noise levels ( 6 NYCRR 617.7[c][1][I]); 2) result in a substantial increase in the potential for erosion, flooding, leaching or drainage problems; ( 6 NYCRR 617.7[c][1][I]); 3) involve the removal or destruction of large quantities of vegetation or fauna or have substantial adverse impacts on a threatened or endangered species of animal or plant ( 6 NYCRR 617.7[c][1][ii]); 4) create a material conflict with a community's current plans or goals as officially approved or adopted ( 6 NYCRR 617.7[c][1][iv]); 5) impair the character or quality of important aesthetic resources of existing community or neighborhood character ( 6 NYCRR 617.7[c][1][v]); or 6) constitute a substantial change in the use of agricultural land ( 6 NYCRR 617.7[c][1][vii]).
The Revised EAF indicated that the construction of the automotive repair facility on the rezoned portion of the Property would involve all of the above-mentioned "indicators of significant effects." However, despite the presence of these indicators, the Town Board declined to review several of the potential significant environmental impacts when considering the rezoning application. Instead, the Town Board delegated and deferred review of these impacts to the Town Planning and Zoning Boards in connection with their review of sudivision, site plan and special permit applications.
As previously stated, this was not a conceptual or generic rezoning application. It was clearly requested and reviewed as a rezoning for a specific purpose: to permit the expansion and relocation of the Gregorys' automotive repair facility. Therefore, in determining whether the rezoning of the Property would have a significant adverse impact on the environment, the Town Board was "duty bound to 'consider reasonably related effects including other simultaneous or subsequent actions which are: (1) included in any long-range plan of which the action under consideration is a part; (2) likely to be undertaken as a result thereof; or (3) dependent thereon'" ( Matter of Sabad v. Houle, 283 A.D.2d 851, 852, 725 N.Y.S.2d 135 quoting Matter of Village of Westbury v. Department of Transp. of State, 75 N.Y.2d 62, 68, 550 N.Y.S.2d 604, 549 N.E.2d 1175; see also Matter of Kirk-Astor Drive Neighborhood Assn. v. Town Bd. of Town of Pittsford, 106 A.D.2d at 869).
Moreover, the Town Board failed to give consideration to several large potential environmental impacts. First, as stated in the Revised EAF, the proposed project is located over an aquifer which constitutes the single source of potable water for the surrounding area. The value of the aquifer is characterized in the Revised EAF as being an "economically vital natural resource" the preservation of which is required "to assure public health and safety." Notwithstanding the obvious environmental implications of constructing an automotive repair facility on top of this valuable source of ground water, the Town Board declined to consider the management of storm water runoff, the issue of water quality, the possibility of contamination of the subsurface water, and oil and grease impact remediation, instead deferring review of these issues to the site plan approval process, and the subdivision approval process.
The Negative Declaration states: "There are no wetlands, streams, or other water bodies located on the subject site. Nevertheless, the applicant has committed to site development in accordance with New York State's Stormwater SPDES General Permit requirements. This includes development of a Stormwater Pollution Prevention Plan including on-site detention to provide for settline of solids, oil and grease. The applicant has proposed other methods to minimize potential contamination of off-site water bodies including the placement of all petroleum tanks above ground using structures designed to contain the full contents of the tanks and use of alternative lifts that avoid use of hydraulic fluids. The applicant is also obligated by New York State Law to report any petroleum spells (0ther than de minimus ones) immediately to the New York State Department of Environmental Conservation (DEC) for appropriate action and, if necessary, remediation."
The Negative Declaration states that: "The site will be served by an individual groundwater well to supply the potable needs of the facility. To provide for sanitary sewage disposal, an on-site septic disposal system will be designed and constructed. A licensed New York State engineer, in accordance with Dutchess County [sic] of Health regulations, will design the water and sewer facilities and all required approvals from such Department would be provided before final subdivision approval from the Town of Amenia."
Second, the Revised EAF indicates that a substantial amount of natural material and vegetation will be removed from the Property in connection with the construction of the building that will house the automotive repair facility (specifically, 3,000 tons/cubic years of natural material and approximately 1.65 acres of vegetation). The removal and/or destruction of large quantities of vegetation creates the potential for an increase in erosion, flooding, leaching and/or drainage problems. Once again, review of these potential significant environmental impacts was deferred to either site plan, subdivision or special permit approval.
Third, in the April 21, 2003 letter from the DEC, the Town Board was alerted to the potential presence of threatened and endangered species of flora and fauna on the Property. While acknowledging in the Revised EAF that the presence of such species could only be confirmed by an on-site inspection, the Town Board improperly deferred review of this potential environmental impact to the Town Planning and Zoning Boards as part of their respective reviews of the site plan and subdivision approval process.
Specifically, the Negative Declaration stated: "The New York State Department of Environmental Conservation (DEC) records indicate that there is a potential for endangered or threatened species of plant and animal life to be present in the area. Based upon correspondence reviewed, it would appear as if all of the potential species are dependent upon wetlands, more specifically, the State protected Freshwater Wetland located to the east of Route 22. Nevertheless, any development on the site, whether under the existing RM Zoning District or the proposed GB District designation, would necessitate an on-site field investigation prior to future development approvals. Assuming the Zoning map amendment is approved, the applicant has committed to conducting a field investigation for endangered and threatened species during the subdivision, site plan, and subdivision approval processes and to undertaking any appropriate mitigation necessary to minimize or avoid impacts on such species."
Fourth, contrary to the conclusion reached by the Town Board, the rezoning application created a material conflict with the Master Plan's goals and objectives. The memoranda of the Dutchess County Planning, as well as the language of the Master Plan itself, support the conclusion that the proposed rezoning is not consistent with the Master Plan, which provides for commercial development on the east side of Route 22 in the area of the Town Center, whereas the Property is located on the west side of Route 22. Thus, the effect of the rezoning would be to extend commercial zoning into an area that is currently zoned solely for residential and agricultural uses. As noted by Dutchess County Planning, the rezoning decision will set a precedent for creeping commercialization on the west side of Route 22 a development neither contemplated nor countenanced by the current Master Plan.
The reliance by the Planning Board in its May 5, 2002 report, and by the Town Board in the Negative Declaration, on the language in the Master Plan to the effect that "[t]he future land use map is not meant to show exact boundaries between different land use classifications" and that "[a]t the times when zoning changes are made, property lines will have to be taken into consideration" was misplaced. The plain meaning of the language used by the drafters was that the boundaries shown on the easterly side of Route 22 were not precise and that prior to any rezoning, surveys would be required in order to establish property boundaries. When the language is considered in the context of the entire Master Plan, and especially its goals and objectives, it is clear that the drafters did not intend that the proposed zone, which according to the future land map is clearly located on the easterly side of Route 22, should be extended to the westerly side of Route 22.
Indeed, it appears, based upon the Town Board's creation of a Master Plan Committee, that it too questioned the consistency of the rezoning application with the current Master Plan's goals and objectives.
Fifth, the proposed project would impair the character of an important aesthetic resource and would impair neighborhood character. Clearly the construction of an automotive repair facility on presently undeveloped agricultural land located in a residential neighborhood would have a significant visual impact. Although the Town
Board acknowledged this impact, it once again deferred review to the Town Planning and Zoning Boards.
The Negative Declaration stated, in pertinent part, as follows "The Town Planning and Zoning Boards should carefully review the applicant's proposed subdivision, site plan, and special use permit applications and ensure that the proposed designs are consistent with Greenway Connections and that more importantly, the proposed use blends into the surrounding rural countryside."
Finally, by rezoning the property to allow the construction of an automotive repair facility on undeveloped rural agricultural land, the proposed project clearly constituted a substantial change in the use of agricultural land.
Contrary to the Town Board's argument, the mere fact that the Property is not currently being used for agrarian purposes and has not been used for such purposes since 1984 does not alter the fact that the placement of an automotive repair facility, and all its attendant noises, odors, etc., on undeveloped land in an agricultural district constitutes a substantial change in use.
The need for the Town Board, as lead agency, to consider these impacts was further emphasized by the negative recommendation of Dutchess County Planning, which on two separate occasions recommended that the Town Board deny the rezoning application.
As previously stated, since the proposed action was the type of action involving the rezoning of a specific parcel "which can be characterized as the first step in a process which will culminate in the final development of a particular project" as opposed to a truly generic request, the Town Board should have considered the potential environmental impacts associated with the actual change in use resulting from the development of undeveloped agricultural land into an automotive repair facility ( Matter of Defreestville Area Neighborhood Assn. v. Town Bd. of Town of N. Greenbush, 299 A.D.2d at 635), Therefore, it is the finding of this Court that the Town Board did not take the requisite "hard look" at the potential environmental impacts of the proposed rezoning.
Furthermore, it was improper for the Town Board to defer this review to the Town Planning and Zoning Boards. While a lead agency is permitted by SEQRA and its regulations to consult with, and seek advice from, outside sources, the final determination regarding significance remains with the lead agency ( Matter of Coca-Cola Bottling Co. v. Board of Estimate, 72 N.Y.2d 674, 682, 536 N.Y.S.2d 33, 532 N.E.2d 1261; see also Matter of Penfield Panorama Area Community, Inc. v. Town of Penfield Planning Bd., 253 A.D.2d 342, 688 N.Y.S.2d 848). The Town Board's delegation of its decision-making responsibilities is inconsistent with the procedural requirements of SEQRA (see Glen Head-Glenwood Landing Civic Council v. Town of Oyster Bay, 88 A.D.2d 484, 453 N.Y.S.2d 732) and the statute's goal of "incorporat[ing] environmental considerations into the decision-making process at the earliest possible opportunity" (Matter of Citizens Concerned for the Harlem Val. Envt. v. Town Bd. of Town of Amenia, 264 A.D.2d 394, 394, 694 N.Y.S.2d 108, lv. denied 94 N.Y.2d 759, 705 N.Y.S.2d 5, 726 N.E.2d 482 quoting Matter of Neville v. Koch, 79 N.Y.2d 416, 426, 583 N.Y.S.2d 802, 593 N.E.2d 256; emphasis added).
In conclusion, although environmental review may have been required at the time the Gregorys applied for subdivision and site plan approvals, the Town Board was nevertheless required to identify at the rezoning stage the relevant areas of environmental concern associated with the proposed project ( Matter of Kirk-Astor Drive Neighborhood Assn. v. Town Bd. of Town of Pittsford, 106 A.D.2d at 869). By failing to take the requisite "hard look," the Town Board did not comply with the substantive requirements of SEQRA. Since the Town Board's resolutions were not, therefore, enacted in accordance with lawful procedure as set forth in SEQRA, the petition is granted and the determinations complained of are hereby annulled.
Based upon the finding that the Town Board failed to take the requisite hard look at the relevant areas of environmental concern before issuing a negative declaration, the Court declines to determine whether or not the granting of the rezoning application constituted spot zoning and whether or not any conflict of interest existed (see Matter of Kahn v. Pasnik, 90 N.Y.2d 569, 574, 664 N.Y.S.2d 584, 687 N.E.2d 402).
This constitutes the decision, order and judgment of the Court.