Opinion
INDEX NO.: 5163/2017
09-03-2019
In the Matter of the Application of CEDAR STREET COMMITTEE, RICHARD FISCHBEIN, JOHN BRULLO & LISA MARTINOS, Trustees of the Vito Brullo Irrevocable Living Trust, CHARLES L. COLLINS, ELLEN D. COLLINS, JOHN T. COSSENTINO, CAROL GRANET, Trustee of the Lisa C. D'Andrea 2015 Irrevocable Trust & ENCIE V. PETERS, Petitioners, v. BOARD OF EDUCATION OF THE EAST HAMPTON UNION FREE SCHOOL DISTRICT, Respondent.
PETITIONERS' COUNSEL: Margolin Besunder, LLP By: Linda U. Margolin, Esq. 1050 Old Nicholls Rd., Ste 200 Islandia, New York 11749 RESPONDENT'S COUNSEL: Frazer & Feldman, LLP By: Jonathan Heidelberger, Esq. 1415 Kellum Pl., Ste 201 Garden City, New York 11530
COPY
SHORT FORM ORDER
PRESENT: HON. WILLIAM G. FORD JUSTICE OF THE SUPREME COURT Motion Submit Date: 12/13/18
Mot SCH: 03/27/19
Mot Seq 001 MD; CASE DISP PETITIONERS' COUNSEL:
Margolin Besunder, LLP
By: Linda U. Margolin, Esq.
1050 Old Nicholls Rd., Ste 200
Islandia, New York 11749 RESPONDENT'S COUNSEL:
Frazer & Feldman, LLP
By: Jonathan Heidelberger, Esq.
1415 Kellum Pl., Ste 201
Garden City, New York 11530
Read on the petitioner's special proceeding commenced under CPLR Article 78, the Court considered the following: Petitioner's Notice of Petition, Verified Petition, Memorandum of Law in Support, Affidavits and other supporting papers; Respondent's Verified Answer with Objections in Point of Law; Certified Administrative Return with Exhibits, Affirmation & Memorandum of Law in Opposition and other opposing papers; Petitioner's Reply Affidavit & Affirmation & other supporting papers; and upon due deliberation and full consideration of the same; it is
ORDERED that the Verified Petition pursuant to CPLR Article 78 seeking an order vacating, annulling or otherwise setting aside respondent East Hampton Unified School District Board's negative declaration under SEQRA dated June 6, 2017 is denied as follows; and it is further
ORDERED that petitioner's counsel is hereby directed to serve a copy of this decision and order with notice of entry via certified first-class mail, return receipt requested electronically on respondent's counsel; and it is further
ORDERED that, if applicable, within 30 days of the entry of this decision and order, that defendant's counsel is also hereby directed to give notice to the Suffolk County Clerk as required by CPLR 8019(c) with a copy of this decision and order and pay any fees should any be required.
FACTUAL BACKGROUND
Petitioners are property owners individually, who collectively count themselves as members of and comprise a citizens group called the Cedar Street Committee. Their property is located at, near, or within the vicinity of Cedar Street, East Hampton, Suffolk County, New York, bordering or near East Hampton High School's campus on its northern border.
They come before the Court via Verified Petition seeking relief under CPLR Article 78 to vacate, annul or otherwise set aside a negative declaration, under the State Environmental Quality Review Act (SEQRA) rendered by respondent Board of Education for the East Hampton School District on June 6, 2017. On that date, respondent determined that a proposal to relocate the school bus transportation maintenance depot and facility from a previously rented location onto the northernmost portion of the high school campus bordering the Cedar Street residential neighborhood would not have a significant adverse environmental impact, after an expert environmental analysis and preparation of an environmental assessment form (EAF). This proceeding then ensued.
On or about October 20, 2015, respondent determined that it would be more cost-effective for its district and taxpayers to relocate its school bus transportation facility. At a public hearing it identified alternative sites, including proposals to relocate the facility onto school owned property. At least one proposal entailed acquisition of a town owned property formerly utilized as a waste scavenger site located on Springs Fireplace Road in East Hampton. Eventually, respondent settled on a proposal calling for erection of the facility on its high school campus. The campus sits on a 3.05-acre parcel. Respondent's proposal entails construction of a 10,772 square foot building anticipated to house classrooms for BOCES student instruction, restrooms, teachers' lounge and offices. Moreover, the site would house a bus fueling area with a 2,000 gallon above ground diesel fuel storage tank, storage shed for de-icing salt and gravel, paved driveways and parking lot for 25 buses, 13-16 minibuses or vans, and 10 cars with perimeter fencing. The maintenance facility aspect of the project site entailed a 120 gallon above ground propane storage lank, a 250-gallon double walled waste oil above ground storage tank, and a 55-gallon drum for storage of motor oil, coolant, degreasers and solvents.
Respondent's property is sited within the South Fork Groundwater Protection Area, one of 9 different Critical Environmental Areas for Long Island's sole source aquifer, as determined by the Long Island Comprehensive Groundwater Protection Plan and as recognized the New York State Department of Environmental Conservation. As a result, the site is subject to regulation by the Suffolk County Sanitary Code Articles 7 & 12.
From 2015 to 2017, by this Court's count the project proposal was subject to 15 meetings: appearing on respondent's agenda for public hearings and meetings or other public presentations, available on respondent's website and at televised proceedings. Initially, respondent retained an environmental consultant to prepare a SEQRA analysis on September 23, 2016. Following from that consultation, respondent had prepared an EAF on or about January 19, 2017 in furtherance of a SEQRA application to proceed as lead agency. As a result, respondent's consultant advised the State DEC, the New York State Department of Education, the Suffolk County Department of Health Services, and the Suffolk Water Authority of their proposal requesting input. On February 24, 2017, respondent received response from the Water Authority. They did not object but did advise respondent that its proposed project site was situated near a groundwater drinking well. Thus, the Water Authority recommending installation of a groundwater monitoring well by respondent as part of its project moving forward. Otherwise, respondent advised no other agency objected to their proceeding as the lead agency.
Those dates include proceedings held on February 1, 2016; March 1, 2016; March 15, 2016; September 6, 2016; October 4, 2016; October 18, 2016; November 1, 2016; November 15, 106; December 6, 2016; March 7, 2017; April 4, 2017, April 18, 2017; May 2, 2017, and June 6, 2017.
During the SEQRA analysis and review process resulting in the EAF, respondent through its consultant conducted also a noise study and traffic study. The noise study concluded that at individual testing sites noise levels during peak operation hours, approximately between 7:00 a.m. to 7:00 p.m. noise was at or below 6 decibels, resulting in a total overall noise level of 67 decibels; a level which respondent's consultant determined did not warrant noise mitigation measures under the town's municipal noise ordinance. Despite this, respondent incorporated in the project's planning best practices such as use of engine block heaters to minimize bus idling; reduction of backing up buses to avoid deployment of bus back up alarms; and closing of bay doors in the bus maintenance garage to minimize operational and repair noise levels.
Respondent's traffic study concluding with a recommendation of improving signage at the project sites' entrance and egress on Cedar Street, but on the whole determined that surrounding area streets and roadways were adequate to handle a "minimal increase" in vehicle traffic due to school buses and other accessory vehicles utilized by faculty and students.
Concerning the potential for groundwater pollution, respondent's consultant made certain conclusions. Respondent conceded that of the 3.05-acre plot, 1.09 acres of it was wooded leaving 1.96 acres paved. As a result of the proposed construction, the consultant noted that the percentage of paved and impervious property would increase, thus leading to increase stormwater runoff. As a mitigative measure, respondent would use a drywell/stormwater runoff capture system to prevent/reduce stormwater runoff pollution. Further, in response to the Water Authority's concerns, the consultant recommended that respondent not install the suggested monitoring well disputing the notion that the, project site was within the groundwater capture zone of the program. Further, respondent by its consultant emphasized that deicing materials and other hazardous chemicals would be stored in accord with best practices, reducing the risk of groundwater pollution. Focusing on hazardous materials such as solvents, degreasers and petrochemicals, respondent noted that most of the chemicals would be kept in the vehicle maintenance garage in small working quantities, and the petrochemicals would be contained in storage containers kept and maintained in accord with Suffolk Sanitary Code.
Lastly, in consideration of its siting adjacent to a residential neighborhood, respondent also factored in visual aesthetics and screening measures such as the use of earthen berms and landscaping, setbacks, and code compliant architecture.
For instance, the bus maintenance garage has been mocked up to appear as a barn to avoid an industrial appearance in keeping with the East End residential character of the neighborhood.
Respondent also did authorize a SEQRA review on the alternative site located at Springs Fireplace Road by its consultant but disclosed publicly that that acquisition would cost its taxpayers approximately $2.3 million.
SUMMARY OF THE PARTIES' CONTENTIONS & ARGUMENTS
In support of their Petition, petitioners make several arguments, the most credible of which can be summarized in the following fashion. At threshold, petitioners argue that state law obligates strict and literal compliance with SEQRA during the environmental analytical process. Here, petitioners find fault with respondent arguing that the SEQRA review process lacked public transparency to a degree that the public was essentially shut out of the process.
Concerning the substantive merits of the Petition, petitioners further argue that respondent's SEQRA negative declaration was arbitrary, capricious, or error of law concerning essentially its findings that the proposed project would not have a significant adverse environmental impact. Here, petitioners commissioned their own noise study and disputes the conclusions of the respondent's traffic study arguing its scope was too narrow and as a result underinclusive. Lastly, petitioner contends that respondent's EAF lacks enough information on material points of data such as architectural dimensions for stormwater drainage and runoff, plans for buildings, lighting, visual screening, hazardous chemical storage, etc. In sum, petitioners argue that respondent failed to take a "hard look" under SEQRA at the proposed project because they relied upon aspirational and preliminary plans in determining that no significant adverse environmental impact would be implicated.
In response, respondent disputes all of petitioners' contentions in their entirety. Respondent for its part argues that it conducted a thorough and transparent SEQRA review and that it was entitled to rely on the conclusions, expertise and advice of its environmental consultant in rendering its SEQRA negative declaration. Thus, respondent urges denial of the Petition and dismissal of the proceeding as its determination was rational, supported by substantial evidence and in accordance with existing state law.
DISCUSSION
Standard of Review
"[I]n a proceeding seeking judicial review of administrative action, the court may not substitute its judgment for that of the agency responsible for making the determination, but must ascertain only whether there is a rational basis for the decision or whether it is arbitrary and capricious." "[W]here ... the judgment of the agency involves factual evaluations in the area of the agency's expertise and is supported by the record, such judgment must be accorded great weight and judicial deference" ( Fogelman v New York State Dept. of Envtl. Conservation , 74 AD3d 809, 810, 903 NYS2d 455, 456-57 [2d Dept 2010]).
Judicial review of an agency determination under SEQRA is limited to determining whether the challenged determination was affected by an error of law, or was arbitrary and capricious, an abuse of discretion, or the product of a violation of lawful procedure ( Peterson v Planning Bd. of City of Poughkeepsie , 163 AD3d 577, 578-79, 80 NYS3d 395, 397 [2d Dept 2018]; Forman v Trustees of State Univ. of New York , 303 AD2d 1019, 1020, 757 NYS2d 180, 182 [4th Dept 2003][standard applies with equal force in a proceeding seeking to disturb an administrative agency's SEQRA negative declaration]).
Literal compliance with the letter and spirit of SEQRA is required, and substantial compliance with SEQRA is not sufficient to discharge an agency's responsibility under the act ( Stony Brook Vil. v Reilly , 299 AD2d 481, 483, 750 NYS2d 126, 128 [2d Dept 2002], as amended [Jan. 9, 2003]). Thus, a petitioner prevailing in a proceeding pursuant to CPLR article 78 challenging a SEQRA determination is entitled to have that determination annulled ( Zutt v State , 99 AD3d 85, 102, 949 NYS2d 402, 415 [2d Dept 2012]).
SEQRA Substantive & Procedural Requirements
Generally, SEQRA's procedural requirements are described as follows:
SEQRA "mandates the preparation of an EIS when a proposed project 'may have a significant effect on the environment.' " Because the operative word triggering the requirement of an EIS is 'may', there is a relatively low threshold for the preparation of an EIS" ( Vil. of Tarrytown v Planning Bd. of Vil. of Sleepy Hollow , 292 AD2d 617, 619, 741 NYS2d 44, 48 [2d Dept 2002]). In furtherance of and to further "promote the Legislature's goals, and to provide an informational tool to aid in the decision-making process, SEQRA requires agencies to prepare an EIS 'on any action they propose or approve which may have a significant effect on the environment." "[SEQRA] broadly defines the term 'action' to include projects or activities that the agency either directly undertakes or funds, policy and procedure-making and the issuance of permits, licenses or leases." When undertaking an action, a governmental agency must initially determine whether a proposed action "may have a significant effect on the environment." "If no significant effect is found, the lead agency may issue a 'negative declaration,' identifying areas of environmental concern, and providing a reasoned elaboration explaining why the proposed action will not significantly affect the environment". However, "[i]f the lead agency determines that there may be significant environmental impact, it must see to it that a EIS is prepared, which fully evaluates the potential environmental effects, assesses mitigation measures, and considers alternatives to the proposed action." To assist agencies in determining whether a proposed action may have a significant effect on the environment, SEQRA directs the DEC to promulgate regulations identifying, "[a]ctions or classes of actions that are likely to require preparation of environmental impact statements," and "[a]ctions or classes of actions which have been determined not to have a significant effect on the environment and which do not require environmental impact statements" (ECL 8-0113[2][c] ). In furtherance of this mandate, the DEC classifies actions as Type I, Type II, or Unlisted. "[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] ). Type II "actions have been determined not to have
a significant impact on the environment or are otherwise precluded from environmental review under [SEQRA]" (6 NYCRR 617.5[a] ). "[A]ll remaining actions are classified as 'unlisted' actions"(see generally Sierra Club v Martens , 158 AD3d 169, 174-76, 69 NYS3d 84, 89-90 [2d Dept 2018][internal citations omitted])
Thus, it is settled that under SEQRA an environmental impact statement is only required if the "proposed action included the potential for at least one significant adverse environmental impact" ( Vil. of Chestnut Ridge v Town of Ramapo , 99 AD3d 918, 925, 953 NYS2d 75, 82 [2d Dept 2012]).
Administered and implemented by regulations appearing at 6 NYCRR Part 617 et seq. --------
Courts 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. It has also been said that for motion courts, "[I]t is not the role of the courts to weigh the desirability of any action or choose among alternatives, but to assure that the agency itself has satisfied SEQRA, procedurally and substantively" ( St. James Antiochian Orthodox Church v Town of Hyde Park Planning Bd., 132 AD3d 687, 687-88, 17 NYS3d 481, 483 [2d Dept 2015]; accord Comm . to Stop Airport Expansion v Wilkinson, 126 AD3d 788, 789, 5 NYS3d 274, 276 [2d Dept 2015]).
Thus, to successfully complete SEQRA review beyond judicial reproach, the lead agency acting as a rational decision maker, must have conducted an investigation and reasonably exercised its discretion so as to make a reasoned elaboration as to the effect of a proposed action on a particular environmental concern." However, " '[i]n a statutory scheme whose purpose is that the agency decision-makers focus attention or environmental concerns, it is not the role of the courts to weigh the desirability of any action or choose among alternatives, but to assure that the agency itself has satisfied SEQRA, procedurally and substantively" ( Youngewirth v Town of Ramapo Town Bd., 155 AD3d 755, 757, 65 NYS3d 540, 545 [2d Dept 2017]).
At the outset, petitioners' arguments concerning lack of public participation in respondent's SEQRA review lack merit. It is beyond cavil that the law does enshrine the concept of public participation, the Second Department having held as much stating "[the] public's right to participate in environmental decision-making is embodied in the SEQRA legislation, and cannot be waived or forfeited by any party, including the DEC" ( Zagata v Freshwater Wetlands Appeals Bd., 244 AD2d 343, 345, 663 NYS2d 881, 883 [2d Dept 1997]). This however does not support petitioners' twisted interpretation advanced here. The administrative record submitted by respondent adequately establishes their position: that the public was thoroughly and adequately informed at every step of the SEQRA review process concerning relocation of the school district' bus transportation facility to the district owned property at Cedar Street. The public meetings and hearings were all publicly noticed and televised. Thus, the notion that the public lacked detail or information concerning the scope or details of respondent's review cannot be supported on the record before this Court. Thus, that aspect of the Petition is denied.
Turning next to the Petition's merits, petitioner fares no better. Viewed objectively, petitioners' arguments taken in the aggregate aver that their disagreement with the conclusions and findings of respondent's environmental consultant call into question the resulting negative declaration's rationality. Petitioners are mistaken on this point as existing state law does not hold that community opposition's subjective view or marshalling of rival evidence alone warrants vacatur of a rational and reasoned negative declaration. To the contrary, the law holds otherwise. For example, the Second Department has remarked that "[n]othing in the law requires an agency to reach a particular result on any issue, or permits the courts to second-guess the agency's choice, which can be annulled only if arbitrary, capricious or unsupported by substantial evidence" ( Beekman Delamater Properties , LLC v Vil. of Rhinebeck Zoning Bd. of Appeals , 150 AD3d 1099, 1101, 57 NYS3d 57, 60 [2d Dept 2017]). Going further, the court has stated that "[a] lead agency ... may rely upon the advice it receives from others, including consultants, if reliance is reasonable" [likely recognizing that] "[l]ead agencies are "likely to be non-expert in environmental matters, and will often need to draw on others." SEQRA and its implementing regulations not only provide for this, but strongly encourage it ( Halperin v City of New Rochelle , 24 AD3d 768, 774-75, 809 NYS2d 98, 107 [2d Dept 2005]; accord Vil . of Chestnut Ridge v Town of Ramapo , 99 AD3d 918, 925-26, 953 NYS2d 75, 82-83 [2d Dept 2012][holding that town planning board not beholden to accept to accept the opinions of the petitioners' experts over those of its own consultants noting that speculative environmental consequences or community opposition is insufficient to successfully challenge town's environmental review]).
Stated in the positive, the body of SEQRA law requires that the EIS or EAF prepared by the lead agency to be reflective of an analytical review encompassing the choice of alternatives which are "consistent with social, economic and other essential considerations, to the maximum extent practicable" which also minimizes or seeks to avoid adverse environmental effects" To then give meaning to SEQRA's laudable environmental protection goals, the lead agencies "choice amongst alternatives must be based on an awareness of all reasonable options, but the degree of detail required in assessing those alternatives will vary with the circumstances and nature of each proposal. The courts thus recognize and employ a "rule of reason" which when applied permits the lead agency "a reasonable range of alternatives to the specific project ( Town of Dryden v Tompkins County Bd. of Representatives , 78 NY2d 331, 333-34 [1991]).
Accordingly, our courts views SEQRA's legislative policy priorities as flexible: "[leaving]s room for a reasonable exercise of discretion and ... not requir[ing] particular substantive results in particular problematic instances." Additionally, the courts recognize that "not every conceivable environmental impact, mitigating measure or alternative must be addressed." Rather, at bottom, "[w]hat must be required is that information be considered which would permit a reasoned conclusion." "So long as the officials and agencies have taken [a] 'hard look' at environment al consequences ... the court does not seek to impose unreasonable extremes or to interject itself within the area of discretion of the executive as to the choice of the action to be taken" ( Friends of P.S. , Inc. v Jewish Home Lifecare , 146 AD3d 576, 577-78, 46 NYS3d 540, 543-44 [1st Dept 2017], aff'd sub nom. Friends of P .S. 163 , Inc. v Jewish Home Lifecare, 30 NY3d 416[2017], rearg denied sub nom. Friends of P .S. 163 , Inc. v Jewish Home Lifecare , Manhattan, 31 NY3d 929 [2018]).
CONCLUSION
Viewed in its best light, petitioners argue that respondent's EAF lacks enough detail on key and material details and/or the methodology underlying its studies on traffic, noise, and other related pollution is fundamentally flawed thus rendering the resulting negative declaration to be irrational. This might be true if respondents relied on pure aspirational hope, dreams, conjecture and speculation divorced from reality or not grounded in any objective quantifiable reason. State law makes clear that "[t]o permit SEQRA determinations to be based on no more than generalized, speculative comments and opinions of local residents and other agencies, would authorize agencies conducting SEQRA reviews to exercise unbridled discretion in making their determinations and would not fulfill SEQRA's mandate that a balance be struck between social and economic goals and concerns about the environment ( WEOK Broadcasting Corp. v Planning Bd. of Town of Lloyd , 79 NY2d 373, 384-85 [1992]). Measured against this substantive backdrop, the Court cannot conclude as petitioners request that respondent's determination was infected wholly by unrealistic expectations or unreasonable reliance on conjecture or speculation. True, the SEQRA review was conducted early in the planning stage and mockup proposals were publicly disseminated absent some details pointed out by petitioners, However, this Court does not interpret the existing body of SEQRA precedent to require the level of detail petitioners expected to constitute a violation warranting vacatur under Article 78.
For similar reasons, the Court believes the respondents proposed use anticipated requires some context. Respondent is a school district seeking to further improve its own property which is used primarily for or in support of an educational purpose. Petitioners being adjoining property owners in proximity rely on the fact that their property resides in a residential zoned area. But our law is settled that "educational institutions 'enjoy special treatment with respect to residential zoning ordinances because these institutions presumptively serve the public's welfare and morals' " ( Apostolic Holiness Church v Zoning Bd. of Appeals of Town of Babylon , 220 AD2d 740, 743, 633 NYS2d 321, 323 [2d Dept 1995]). However, "[t]here is simply no conclusive presumption that any religious or educational use automatically outweighs its ill effects. The presumed beneficial effect may be rebutted with evidence of a significant impact on traffic congestion, property values, municipal services and the like ( Cornell Univ. v Bagnardi , 68 NY2d 583, 595 [1986]).
Here, the record is unclear which use predated, although the respondent's papers make passing reference to the fact that the school has been there and that petitioners took title in view of that fact. However, there is a dearth in the record to make a conclusive finding either way. Nevertheless, at most, petitioners make a compelling case that they, backed by their marshaled evidence, disagree with respondent's environmental assessment. They certainly are entitled to their opinion. However, to win the day and warrant vacatur and remand, they must do more than produce contradictory findings. Rather, they must adduce overwhelming evidence calling into question the thoroughness, completeness or rationality of the lead agency's environmental review. The record assembled falls short of that mark. Instead, respondent has adequately demonstrated a thorough review covering concerns of noise and groundwater pollution, adverse impacts to traffic and visual aesthetics. Having done so, the respondent has persuaded this Court that the SEQRA negative declaration under review was rational and supported by substantial evidence. Accordingly, the Verified Petition is denied, and the proceeding must be dismissed.
Thus, it is
ORDERED that after service of a copy of this decision and order with notice of entry, Respondent is also hereby further directed to settle judgment on notice to petitioner by counsel denying the Verified Petition and dismissing this special proceeding in accord with all the foregoing.
The foregoing constitutes the decision and order of this Court. Dated: September 3, 2019
Riverhead, New York
/s/ _________
WILLIAM G. FORD, J.S.C.