Opinion
No. 2465–2012.
10-15-2014
GREEN EARTH FARMS ROCKLAND LLC, Paint'n Place, Inc., Parkway Realty Copr., Good Counsel Realty Ltd., 202 United Development Corp. and John McDowell, Petitioners, For a Judgment pursuant to CPLR Article 78, v. TOWN OF HAVERSTRAW PLANNING BOARD, Town of Haverstraw Building Department, Mt. Ivy Partners, Inc., Respondents. Town of Ramapo Planning Board, Town of Ramapo Zoning Board, Town of Haverstraw Zoning Board, Interested Parties.
Opinion
Petitioners commenced the within Article 78 proceeding seeking to annul the November 28, 2012 Decision by Respondent, Town of Haverstraw Planning Board (hereinafter “Haverstraw Planning Board”) which granted Respondent Mt. Ivy Partners, Inc.'s preliminary and final site plan approval of the Minesceongo Park project and which affirmed and incorporated the December 2009 SEQRA Findings Statement. Respondents have filed Answers with Objections and Opposition to the Petition. The Court has considered the following papers:
1.Notice of Petition, Petition, Supporting Affirmation, Exhibits A through N;
2.Haverstraw Planning Board's Verified Answer with Objections in Point of Law and Affirmative Defenses and Exhibit A attached thereto, Affirmation in Opposition and Exhibits A through E attached thereto, Memorandum of Law, Index of Documents and Documents No. 1 to No. 265, Index of Site Plans and Site Plans No. 1 through 32;
The documents numbered 1 through 265 were submitted to the Court in a total of eight 4–inch binders. The documents shall be referred to as “Document No ...” Numerous site plans were also submitted.
3.Mt. Ivy Partner Inc.'s Verified Answer with Exhibits 1 through 11 attached thereto and Memorandum of Law;
4.Town of Ramapo's Verified Answer and Affirmation in Opposition;
5.Reply Affirmation, Rosenberg Reply Affidavit and Avila Reply Affidavit; and
6.Miscellaneous correspondence.
The Facts:
The Minisceongo Park development project, or Minisceongo Park as it has come to be called, pertains to a 53.3–acre site which is accessible off of Route 202 and the Palisades Interstate Parkway in Rockland County, New York. Nearly half of the site lies within the Town of Haverstraw, which is zoned for commercial use only, while the other half lies within the Town of Ramapo, which is a mixed-use zone. The property is essentially unimproved and a portion of it is considered wetlands.
When the development project first came to fruition back in 2004, the original developer, Davies Farm, LLC (hereainfter “Davies Farm”), proposed a mixed-use residential and commercial project. The initial plans, primarily residential in nature, called for the construction of 279 dwelling units. Specifically, it proposed the construction of 164 townhomes on the Town of Haverstraw portion of the site, and 115 residential units and two commercial buildings (7,000 square feet and 4,200 square feet, respectively) on the Town of Ramapo portion of the site.
With the consent of the Town of Ramapo Planning Board, the Haverstraw Planning Board appointed itself as the lead agency of the project and the necessary notifications were made. See, 6 NYCRR § § 617.2(u), 617.6(b)(2).
During the early stages of the development, the plans were revised several times. Finally, in December 2004, Davies Farm completed Part One of the Full Environmental Assessment Form (“EAF”) pursuant to the State Environmental Quality Review Act (“SEQRA”). The proposed site plan set forth in the EAF called for a total of 269 residential units and two commercial pads. Specifically, the plan proposed 173 townhomes with a pool and clubhouse on the Town of Haverstraw portion of the site and 72 multi-family units, 24 townhomes and two commercial pads on the Town of Ramapo portion of site. See, Document No. 38. It was with respect to this site plan that the Haverstraw Planning Board issued a positive declaration and the scoping process and the preparation of a draft environmental impact statement (“DEIS”) commenced. See, Document Nos. 40, 41, 59, 63, and 64.
With respect to this 269–unit plan, a Draft Scoping Document was prepared. See, Document No. 81. The Draft Scoping Document identified numerous significant adverse impacts such as traffic, stormwater, wetlands, geology and soils, sewage disposal and water supply. See, Document No. 81; see also, 6 NYCRR § 617.8(b). On June 8, 2005 at a Special Board Meeting, the Haverstraw Planning Board passed a resolution adopting the Final Scoping Document. See, Document 84; see also, 6 NYCRR § 617 .8(f).
The purpose of the scoping document is “to focus the EIS [environmental impact statement] on potentially significant adverse impact and to eliminate consideration of those impacts that are irrelevant or nonsignificant.” See, 6 NYCRR § 617.8(a).
Relying on the Final Scoping Document, the Haverstraw Planning Board thereafter passed a Resolution declaring that the draft environmental impact statement (“DEIS”) was complete for the purpose of commencing formal review under SEQRA. See, Document Nos. 95, 106 and 107; 6 NYCRR § 617.9(a)(2). The DEIS, dated November 8, 2006, specifically identified the site plan as the 269–unit plan as set forth in the Draft and Final Scoping Documents. See, Document No. 106.
The project referred to in the completed DEIS called for 279 dwelling units whereas the project referred to in the Positive Declaration called for 269 dwelling units.
With the adoption of the DEIS, the period for public review commenced. Over the next two months, numerous letters and memoranda from various agencies were sent to the Haverstraw Planning Board with comments and concerns regarding the plan. See, e.g., Document Nos. 108–110, 113–131. Notwithstanding the adoption of the DEIS as complete, at a Town of Haverstraw Planning Board Meeting on January 10, 2007, Davies Farm submitted another revised plan to the Haverstraw Planning Board based on the comments and memos that were received regarding the 279 unit plan. See, Document No. 97, p. 47. Davies Farm then discussed some of the more technical changes, including moving buffers and detention ponds. This redesigned plan, apparently called the North Buffer Concept Plan, now proposed 282 residential units. See, Document Nos. 134, 142. That night, the Haverstraw Planning Board passed a Resolution finding that a final environmental impact statement (“FEIS”) was required and Davies Farm was to prepare an FEIS regarding the redesigned 282–unit plan. See, Document No. 97, pp. 42–51; 6 NYCRR § 617.5.
Document No. 97 consists of the minutes of the March 28, 2006 Haverstraw Planning Board Meeting followed by the minutes of the January 10, 2007 Haverstraw Planning Board Meeting. Much to this Court's chagrin, the discussion held at the March 28, 2006 Haverstraw Planning Board Meeting pertained to an application by Barr Laboratories and is wholly irrelevant to the within proceeding. The Court also notes that in the Index of Documents submitted by Respondent Haverstraw Planning Board, Exhibit 97 is listed as only consisting of the wholly irrelevant transcript of the March 28, 2006 Haverstraw Planning Board meeting.
Subsequent to the January 10, 2007 meeting, letters and memoranda containing comments to the North Buffer Concept Plan were submitted. For example, the County of Rockland Department of Planning, in a letter dated January 29, 2007, noted that there were significant differences between the plans that were submitted and required that a new set of plans be provided. See, Document No. 136. A week later, the County of Rockland Department of Planning disapproved the site plan as the town board had not yet approved the required zoning change. See, Document No. 140.
In or about April 2005, Davies Farm applied to the Haverstraw Planning Board “to modify the RG zone to permit medium density multi-family residences and to rezone the property from commercial “C” to general residence “RG” in order to develop the property for such use.” See, Document No. 64.
By December 2007, a draft FEIS was prepared. See, Document No. 147. The proposed development plan set forth in the draft FEIS was yet another redesigned plan, called the “Village Concept Plan.” The Village Concept Plan called for 225 townhouse units and 28,800 square feet of commercial space, as well as a pool and a clubhouse. See, Document No. 147.
A copy of the actual draft FEIS was not provided to the Court and has only been referred to in other documents that were submitted.
In a memorandum dated February 25, 2008, the Planning Consultant indicated that the plan consists of “three separate commercial uses comprising of 28,800 square feet of commercial space,” in the Town of Ramapo while the Project Manager, in a memorandum dated February 20, 2008, indicated that the plan calls for two one-acre commercial lots in the Town of Ramapo. See, Documnt Nos. 146 and 147.
After a few months of there being little action concerning Minesceongo Park and the Haverstraw Planning Board, Davies Farm submitted a new Application Review Form, dated May 21, 2008, for “site plan” for the same 53.3 acre site. See, Document No. 148. The project, originally of a mostly residential nature, had been completely revamped. The new Minisceongo Park development plan had gone from being primarily residential in nature to now mostly commercial. Specifically, the new plan was for a proposed shopping center with a major retail store and several smaller retail stores with three or four stand-alone users and ten- to twelve2,000 square foot units total of 250,000+ square feet of commercial use and 160 to 250 residential units. See, Document No. 148. This concept plan was entitled “Code Compliant.” Davies Farm indicated in the application that the project had been reviewed before and that the within application was a “revised plan from a requested zone change to zone compliant.” See, Document No. 148, p. 2.
Davies Farm also submitted an Application for Preliminary and Final Site Plan Approval, which was dated June 2, 2008, along with a Scoping Document. See, Document No. 149. This plan was entitled “Code Complaint with Parking Adjustment.” See, Document No. 145: July 18, 2008 Haverstraw Planning Board Minutes, pp. 30–31. The Code Compliant with Parking Adjustment plan proposed the development of “up to 220 multifamily units and four (4) commercial pads totaling up to 15,000 square feet of commercial space” on the Town of Ramapo portion of the site and “a 260,000 square foot shopping center” on the Town of Haverstraw portion of the site. In what was referred to as an “informal presentation” during a Town of Haverstraw Planning Board Meeting on June 18, 2008, Davies Farm described the new plan as follows:
... the complex for the residential on the south side of the Rampao piece, it's much larger and it's about 210 units....
Now we are showing four [commercial] pads on the north side of our boulevard and our pads are designed, or you can say the setting for it would be a bank on what we call is Building H. Then the middle one would be a specialty, like a Wendy's-type or Burger King-type of pad. The last pad would be a restaurant that would qualify like a Friday's, a little smaller than Outback but no bigger than a Wendy's ... and the one in the middle would could [sic] qualify as Dunkin Donuts-type of situation, so you have four pads now in Ramapo and you have this larger residential complex.
* * * *
Now, the change in Haverstraw, you can clearly see there's less buildings. They are less in number but larger in size, and basically we have just four buildings. This equals about 200, 150 thousand square foot of commercial space, and Building D would be equal to a large user like a Walmart-type of store, 160,000 square foot....
See, Document No. 145, pp. 10–11 (June 18, 2008 Minutes).
At the conclusion of the June 18, 2008 Haverstraw Planning Board meeting, the Haverstraw Planning Board voted to “have the applicant prepare a supplemental draft environmental impact statement and that the meeting of the Board on July 9, 2008 be scheduled as a public scoping session....” See, Document No. 145: June 18, 2008 Haverstraw Planning Board Meeting Minutes, p. 30. No minutes of a July 9, 2008 meeting were provided to the Court.
At a July 16, 2008 Haverstraw Planning Board meeting, when the Minisceongo Park project was called on the agenda, the attorney for Davies Farm began the discussion as follows:
Mr. Chairman, Members of the Board, you are somewhat familiar with this project. It has been before this Board for quite some time, but in a very different form. This is the property known as Minisceongo Park that is in the Pomona section of town on Route 202 at the intersection of the Palisades Interstate Parkway.
When you last saw this, this was proposed to be a multiple family housing project within the Town of Haverstraw and a mixed use project within the Town of Ramapo. For a number of reasons, not the least of which are the recent turns in the market, the applicant has decided to abandon its application for a change of zone to allow multiple family use in the Town of Haverstraw and instead, seeks to develop the Haverstraw portion in accordance with its current commercial zoning....
My purpose here is to explain to you why we're here and what it is that we're supposed to be doing here. As you may recall, we had gotten so far on the prior phase of the project as to have a Draft Environmental Impact Statement accepted for public comment and, in fact, received public comment and we're [sic] about to begin a final Environmental Impact Statement. As a matter of fact, we already started drafting the [F]EIS.
When this change in vision occurred, it became apparent to us and we conferred with your consultants, that we would have to revisit a portion of the Environmental Review and so we are under taking a Supplemental Environmental Impact Statement. The purpose of that is to take into account the changes that we are proposing. A Supplemental Environmental Impact Statement follows basically the same procedure as a regular Environmental Impact Statement and that begins with scoping. Okay? Here we are. We're here to have a public hearing with respect to the proposed scope of the Supplemental EIS.
See, Document No. 145, Transcript of July 16, 2008 Haverstraw Planning Board Meeting, pp. 19–21.
The Court notes that Document No. 145 consists of transcripts of various Town of Haverstraw Planning Board meetings, some of which are completely irrelevant to the within proceeding. The Respondent Haverstraw Planning Board's Index of Documents states that Document No. 145 contains only the “Minutes of a Special Hearing of the Town of Haverstraw held on January 30, 2008 re: Encore Palisades Plat Approval Extension. Furthermore, Respondent submitted numerous other wholly irrelevant transcripts of Haverstraw Planning Board meetings (i.e., January 30, 2008, March 12, 2008, April 9, 2008, May 14, 2008), all lumped together in Document No. 145.
At the July 16, 2008 meeting, the two concept plans were then discussed and the Haverstraw Planning Board moved to pass a resolution “adopting as a final scope for the Supplemental Environmental Impact Statement, the scoping documents as modified ... and [requiring] the applicant prior to preparing the Supplemental Environmental Impact Statement modify the scope to reflect the final scope....” See, Document No. 145: Transcript of July 16, 2008 Haverstraw Planning Board Meeting, p. 43.
Despite the massive and significant changes to the development project, going from primarily residential to primarily commercial, there oddly were no comments from the public. See, Document No. 145.
After another scoping period resulting in additional comments from various agencies, a Supplemental Environmental Impact Statement (“SEIS”), dated February 6, 2009, was prepared and submitted to the Haverstraw Planning Board. See, Document No. 168. The development project that the February 6, 2009 SEIS encompasses proposes up to 254,000 square feet of commercial space within the Town of Haverstraw and up to 219 mutlifamily dwelling units and four (4) commercial pads totaling approximately 16,850 square feet of commercial space in the Town of Ramapo. See, Document No. 168, p. 1–1. The SEIS summarizes the development project in a table as follows:
| Table 2 | ||
|---|---|---|
| 1Minisceongo Park Development Program | ||
| Project Component | Ramapo | Haverstraw |
| Acres | 27 | 26.3 |
| Number of Multifamily Dwellings (du) | 219 | |
| Retail Building A(sf) | 30000 | |
| Retail Building B | 224000 | |
| Restaurant Building C(sf) | 1500 |
| Bank Building D(sf) | 4000 | |
|---|---|---|
| Restaurant Building E(sf) | 3350 | |
| Restaurant Building F(sf) | 8000 | |
| Source:: Atzl, Scatassa & Zigler, 2008 |
See, Document No. 168, p. 2–4.
At a Haverstraw Planning Board Meeting held on February 11, 2009, the Haverstraw Planning Board passed a resolution declaring that the SEIS is complete and scheduled a public hearing and comment period. See, Document No. 161; 6 NYCRR § 617.9(4).
At the March 4, 2009 special Haverstraw Planning Board meeting, Davies Farm addressed the attendees recognizing that while the Planning Board was familiar with the redesigned project, “the public certainly [was] not.” See, Document No. 172. Davies Farm proceeded to explain the redesigned project. Some of the concerns raised during that meeting, from both the public and the Chairman, dealt with the shortfall of parking, water and traffic, as well as other issues. Additional comments were received from various agencies.
The additional comments were addressed and incorporated into a Final Supplemental Environmental Impact Statement (“FSEIS”) dated November 20, 2009. See, Document No. 184. The proposed development plan referenced in the FSEIS is essentially consistent with the plan set forth in the SEIS with a few changes:
| Table 1–1 Minisceongo Park Development Program | ||
|---|---|---|
| Project Component | Town of Ramapo | Town of Haverstraw |
| Acres | 27 | 26.3 |
| Multifamily Dwellings | 200 | 0 |
| Commercial Pad A(sf)-Retail | n/a | 30000 |
| Commercial Pad B(sf)-Retail | n/a | 224000 |
| Commercial Pad C(sf)-Deli/Coffee Shop | 1500 | n/a |
| Commercial Pad D(sf)-Bank w/Drive Through | 4000 | n/a |
| Commercial Pad E(sf)-Restaurant | 3350 | n/a |
| Commercial Pad F(sf)-Restaurant | 8000 | n/a |
| Source:: Davies Farm, LLC, 2009 |
See, Document No. 184. The most notable changes were the reduction of 19 dwelling units on the Town of Ramapo site and more detailed descriptions of the Pad C restaurant as a deli/coffee shop and Pad D as a bank with a drive-through window. See, Document NO. 184, p. 1–3. The FSEIS also refers to a 9,000 square foot recreational area on the Town of Haverstraw portion of the site which would include a recycling center and a mail center. See, Document No. 184.
At a meeting held on December 2, 2009, the Haverstraw Planning Board passed a resolution declaring the FSEIS complete for the purposes of SEQRA and passed a resolution on December 16, 2009 accepting the findings of the FSEIS. See, Documents Nos. 161 and 187; see also, Document No. 190 and Petitioner's Exhibit A–1.
Little to no action was taken after the Findings Statement was issued on December 16, 2009.
Over a year later, an application for Site Plan Development Approval was submitted by Respondent Mt. Ivy Partners, LLC (hereinafter “Mt. Ivy”), the new project developer of the Minisceongo Park property. See, Document 195: Application dated January 3, 2011; see also, Petitioner's Exhibit K. At a Haverstraw Planning Board meeting held on April 13, 2011, a general discussion of the status of the project was had. Mt. Ivy indicated that site plans were to be submitted soon which would include a 7,000 square foot Quick Check (a gasoline pump station) and a 4,000 square foot Provident Bank. See, Document No. 196, pp. 14–21.
At another Haverstraw Planning Board meeting on September 14, 2011, Mt. Ivy again indicated that the proposed project had changed since the adoption of the FSEIS in 2009. Mt. Ivy advised the Haverstraw Planning Board that the project was now going to be completed in two phases: the commercial aspect to be completed first and the residential portion to be developed in Phase II. In addition, in accordance with Mt. Ivy's previous statement to the Haverstraw Planning Board, the newly revised plan proposed a Quick Check and a Provident Bank, as as well as a big box store such as Wal–Mart. Due to the changes to the plan, the Haverstraw Planning Board advised Mt. Ivy as follows:
that “[w]hen you do come in with a formal application, ... to save time and to avoid having to reopen the SEQRA, because you are making changes it would be very good to get a written narrative of why this is the same as far as square footage and things like that [as the project that was the subject of the FSEIS] to show there's not going to be any additional impact.”
See, Document No. 196, p. 15.
In conjunction with the newly proposed project, on or about January 1, 2012, Mt. Ivy submitted an application for preliminary site plan approval (hereinafter “the 2012 plan”). See, Document No. 199. The application refers to the “attached Narrative” for a description of the 2012 plan. See, Document No. 199. The Narrative Summary describes the project in general terms as follows:
As described in the adopted Findings Statement, the proposed action is, up to 254,000 square feet of commercial space within the Town of Haverstraw. In the Town of Ramapo, up to multifamily dwelling units and four (4) commercial pads totaling approximately 16,850 square feet of commercial space were proposed....
See, Document Nos. 199, 205. The Narrative Summary, on page 3, then sets forth additional details as follows:
The Site Plan depicts four commercial building pads are also proposed in the Town of Ramapo totaling a maximum of 16,178 square feet of gross floor area. One restaurant, a deli/coffee/gas pump shop, bank with drive through and an undefined commercial pad are proposed. Each commercial pad exceeds the Ramapo code for parking. The project proposes 200 multifamily dwelling units in five (5) buildings detailed at west side of entrance boulevard.
See, Document Nos. 199, 205. Despite the change in the plan from a 1,500 square foot deli/coffee shop to a 7,000 square foot convenience store/gasoline station, Mt. Ivy indicated on the application that no changes had been made to “this Site Plan” since it was last before the Board for review. See, Document No. 199.
With respect to SEQRA compliance, the Narrative Summary stated:
Since the environmental review process under SEQRA was completed upon the adoption of the Findings Statement, no further environmental review is needed for actions consistent with the proposed action upon which the Findings Statement was issued.
See, Document Nos. 199, 205. At a Haverstraw Planning Board meeting held on February 8, 2012, Mt. Ivy reiterated its contention that it did not “believe that any of the changes that were made were significant enough to warrant a new look.” See, Document No. 265, p. 15.
The Court notes that Document No. 265 consists of transcripts of numerous Town of Haverstraw Planning Board meetings, some of which are completely irrelevant to the within proceeding. Yet, the Respondent Haverstraw Planning Board's Index of Documents states that Document No. 265 contains only the “Transcript of Town of Haverstraw Planning Board meeting dated November 28, 2012.”
Pursuant to General Municipal Law Section 239–m, Mt. Ivy's application for final site plan approval was disseminated to the necessary agencies for review and comment and public hearings were held. In the Narrative Summary submitted in June 2012 and again in September 2012, the site plan, summarized below, was as follows:
The public hearings were conducted on several dates in the summer and fall of 2012 at which time opposition to the site plan was voiced by numerous residents and local public officials. See, e.g., Document Nos. 250.
See, Document No. 205, 240 (Attachment A) and 244, p. 4. The Narrative Summary was essentially identical to the ones submitted in January and February 2012. Various memos and correspondence were also submitted to the Haverstraw Planning Board as part of the Municipal Law Section 239–m agency review. See, e.g., Document No. 240.
On November 28, 2012, the Haverstraw Planning Board granted final site plan approval to Mt. Ivy for the site plan set forth above. See, Petitioner's Exhibit A. It is the Haverstraw Planning Board's November 28, 2012 Resolution granting final site plan approval that is the subject of the within Article 78 proceeding.
Interestingly, the within Article 78 proceeding is only one of six Article 78 proceedings that were commenced in the Rockland County Supreme Court, three of which were assigned to this Court.
The within Article 78 Proceeding
Petitioners, who are nearby property owners to the Minesceongo site, challenge the November 28, 2012 Resolution on various grounds. Specifically, Petitioners argue, inter alia, that granting final site plan approval was arbitrary and capricious; that it was a violation of lawful procedure; that it was an error of law; that the Haverstraw Planning Board acted in excess of its jurisdiction; that the Resolution conflicts with the December 2009 Findings Statement; that the final site plan approval constitutes unlawful segmentation; and that prior to granting final site plan approval, the Haverstraw Planning Board failed to require a supplemental environmental impact statement (“SFEIS”) in violation of SEQRA.
Respondents filed their answers, objections of law and affirmative defenses. Respondents object to the Petition raising, inter alia, the statute of limitations and standing as grounds for denial of the relief sought. Respondents also assert as affirmative defenses that the November 28, 2012 determination is fully supported by the record and the Haverstraw Planning Board's decision to not require an SFEIS was discretionary and nevertheless justified.
Discussion
Standing:
Turning first to the issue of whether the Petition is barred by the Statute of Limitations, the Haverstraw Planning Board granted final site plan approval at a Haverstraw Planning Board meeting on November 28, 2012 and the Resolution was filed in the Town of Haverstraw Clerk's Office on November 29, 2012. See, Petitioners' Exhibit A. Pursuant to Town Law § 274–a(11), “[a]ny person aggrieved by a decision of the authorized board or any officer, department or bureau of the town may apply to the supreme court for review by a proceeding under article seventy-eight of the civil practice law and rules. Such proceedings shall be instituted within thirty days after the filing of a decision by any such board in the office of the town clerk.” See also, Town Law § 267–c(1).
Applied here, since the Resolution was filed in the Town of Haverstraw Clerk's Office on November 29, 2012, Petitioners had thirty days from that date, or until December 29, 2012, within which to file their Article 78 proceeding. Petitioners filed the within Article 78 proceeding on December 28, 2012 and therefore commenced this proceeding within the thirty-day statute of limitations.
Respondent Haverstraw Planning Board argues, however, that the statute of limitations commenced on October 11, 2012, the date the Haverstraw Planning Board filed its decision granting Mt. Ivy's parking variance applications since the granting of the variances was a prerequisite to granting final site plan approval and therefore the date that Petitioners were aggrieved. This Court finds Respondents' argument to be without merit as Town Law § 282 permits review by a special term of the supreme court of any decision of the planning board. As such, Petitioners were entitled to review of the determination dated October 10, 2012 granting the variances, as well as of the determination dated November 28, 2012 granting final site plan approval.
Respondents also assert that Petitioners lack standing to challenge the Haverstraw Planning Board's November 28, 2012 determination granting final site plan approval. “In general, in order to qualify for standing to raise a SEQRA challenge, a party must demonstrate (1) an injury in fact, i.e., an injury that is different from the public at large, and (2) that the alleged injury falls within the zone of interest sought to be promoted or protected by the statute. However, when the premises that are the subject of an administrative agency's action are a party's property or are in close proximity to a party's property, that party may be presumed to be adversely affected by a SEQRA violation and need not allege a specific harm.” Stephens v. Gordon, 202 A.D.2d 437, 438 (2d Dept.1994) (Internal citations omitted).
Applied here, all of the named petitioners, with the exception of Green Earth Farms of Rockland LLC, are nearby property owners to the subject property and therefore it is presumed that they would be adversely affected by a SEQRA violation. On the other hand, Green Earth Farms of Rockland, LLC (hereinafter “Green Earth”) is a limited liability company allegedly “acting as authorized agent for several property and business owners having businesses and properties located throughout the Towns of Haverstraw and Stony Point, New York.” See, Petition at ¶ 40. As Green Earth has not identified the property and business owners for which it is acting as an authorized agent, it has not established that it has standing. Moreover, Green Earth alleges that it “represents” several property and business owners having businesses and properties located throughout the Towns of Haverstraw and Stony Point, not just those property and business owners in close proximity to the subject property. Since the presumption only applies to nearby property owners, Green Earth's “representation” of property and business owners located in other areas of the Town of Haverstraw and in the Town of Stony Point is of no moment.
It is well-settled that the threat of increased business competition is not an interest protected by the zoning laws. See, Sun–Brite Car Wash, Inc. v. Board of Zoning & Appeals, 69 N.Y.2d 406, 415 (1987).
With respect to Respondents' fourth objection of law that the Town of Haverstraw Building Department is not a proper party to this proceeding, the Court agrees and the Respondent, Town of Haverstraw Building Department, shall be stricken from the caption.
SEQRA:
Delving next into the heart of the within proceeding, i.e., the issue of whether the Haverstraw Planning Board's determination granting final site plan approval was arbitrary and capricious for failing to comply with the State Environmental Quality Review Act (“SEQRA”)—more specifically for failing to require a supplemental environmental impact statement, the Court is compelled to provide a brief discussion of the purpose of SEQRA and the procedural and substantive requirements of SEQRA as are relevant here.
The very purpose for which SEQRA was enacted is written in the statute itself. Section 8–0101 provides:
It is the purpose of this act to declare a state policy which will encourage productive and enjoyable harmony between a man and his 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.
E.C.L. § 8–0101. In other words, “the primary purpose of SEQRA is to inject environmental considerations directly into government decision making.' “ Matter of Oyster Bay Associates Limited Partnership v. Town Board of Town of Oyster Bay, 58 AD3d 855, 859 (2d Dept.2009), quoting, Akpan v. Koch, 75 N.Y.2d 561, 569 (1990) (Additional citations omitted). As such, planning boards, as lead agencies under SEQRA, must “conduct their affairs with an awareness that they are stewards of the air, water, land and living resources [and have] an obligation to protect the environment for the use and enjoyment of this and all future generations.” E.C.L. § 8–0103(8) ; see also, Matter of Bryn Mawr Properties v. Fries, 160 A.D.2d 1004 (2d Dept.1990).
In order to carry out the purpose and intent of SEQRA, “SEQRA and its implementing regulations establish a procedural framework designed to incorporate the consideration of environmental factors into the existing planning, review and decision-making process of State, regional and local government agencies at the earliest possible time so as to minimize, to the greatest degree possible, the adverse environmental consequences of any project that is approved.” Aldrich v. Pattison, 107 A.D.2d 258, 263 (2d Dept.1985), citing, 6 NYCRR § 617.1(c) and Matter of Sun Beach Real Estate Dev. Corp. v. Anderson, 98 A.D.2d 367 (2d Dept.1983), aff'd, 62 N.Y.2d 965 (1984).
The procedural framework is summarized as follows:
As early as possible in the SEQRA process, the agency “having principal responsibility for carrying out or approving” a given project or activity—the “lead agency (ECL § 8–0111[6] )—must determine whether an environmental impact statement (EIS) should be prepared with reference to the proposal submitted (ECL 8–0109[4] ; 8–0111[6] ). If the lead agency determines that the project “may have a significant effect on the environment,” either the agency or the applicant—at the latter's option—must prepare a draft environmental impact statement (DEIS)(ECL 8–0109[2], [4] ). If the draft statement is accepted by the agency “as satisfactory with respect to scope, content and adequacy,” it is then circulated to DEC, other agencies having an interest in the proposal, and “interested members of the public” (ECL 8–0109 [4 ], [5]; 6 NYCRR 617.8 [b], 617.10). After allowing a period for comment, the lead agency must prepare a final environmental impact statement (FEIS) and circulate it in the same manner as the draft statement (ECL 8–0109[4], [5], [6] ; 6 NYCRR 617.10 [h] ). Finally, upon adoption of the environmental-affecting proposal by the lead agency, it is required to make explicit findings that (1) the requirements of SEQRA have been met, and (2) adverse environmental effects revealed in the EIS process will be minimized or avoided to the maximum extent possible (ECL 8–0109[8] ; 6 NYCRR 617.9 [c] ).
Aldrich v. Pattison, 107 A.D.2d at 263–264. Literal compliance with the environmental review procedure is required. Id.
Moreover, SEQRA “regulations provide for the filing of a supplemental EIS to address “specific adverse environmental impacts not addressed or inadequately addressed in the EIS due to: (a) changes in the project, (b) newly discovered information, or (c) a change in circumstances.” See, 6 NYCRR § 617.9(a)(7)(I) ; see also, Matter of Bronx Committee for Toxic Free Schools v. New York City School Constr. Auth., 20 NY3d 148, 156 (2012). The criteria to be used to determine whether an SEIS is required is the importance and relevance of the information and the present state of the information. See, 6 NYCRR § 617.9(a)(7)(ii).
Having reviewed the documents submitted to the Court, it is clear that the Haverstraw Planning Board complied with the mandates of SEQRA with respect to the site plan that was actually the subject of the FSEIS dated November 20, 2009 and subsumed into the Findings Statement and Resolution passed on December 16, 2009. However, this site plan was not the same site plan for which the Haverstraw Planning Board granted final site plan approval and for which no additional environmental impact was prepared.
The site plan for which the Findings Statement and FSEIS dated November 20, 2009 were based is summarized in table format as follows:
| Table 1–1 Minisceongo Park Development Program | ||
| Project Component | Town of Ramapo | Town of Haverstraw |
|---|---|---|
| Acres | 27 | 26.3 |
| Multifamily Dwellings | 200 | 0 |
| Commercial Pad A(sf)-Retail | n/a | 30000 |
| Commercial Pad B(sf)-Retail | n/a | 224000 |
| Commercial Pad C(sf)-Deli/Coffee Shop | 1500 | n/a |
| Commercial Pad D(sf)-Bank w/Drive Through | 4000 | n/a |
| Commercial Pad E(sf)-Restaurant | 3350 | n/a |
| Commercial Pad F(sf)-Restaurant | 8000 | n/a |
| Source:: Davies Farm, LLC, 2009 |
See, Document No. 184.
On the other hand, the site plan for which the Haverstraw Planning Board granted final site plan approval is summarized in table format as follows:
| Narrative Summary | ||
|---|---|---|
| Project Component | Town of Ramapo | Town of Haverstraw |
| Acres | 27 | 26.3 |
| Units of housing (Phase II) | 200 | |
| Anchor A(sf) | 150000 | |
| Anchor B (three smaller stores) (Total sf) | 85000 | |
| Pad C–Convenience store with gasoline and diesel fuel sales for motor vehicles (sf) | 7000 | |
| Pad D–Bank branch office with drive through (sf) | 4000 | |
| Pad E–225–seat family style restaurant (sf) | 5200 | |
| Pad F–Retail | 9000 |
See, Document Nos. 205, 240.
The most notable difference between the two site plans pertains to Pad C. In the site plan for which the FSEIS was prepared, Pad C called for a 1,500 square foot deli/coffee shop. Yet, Pad C in the site plan for which final site plan approval was given changed a 7,000 square foot convenience store with gasoline and diesel fuel sales for motor vehicles (specifically identified as a Quick Check). Despite the change to a gas station, the Haverstraw Planning Board determined that no additional environmental impact statements were necessary. This Court disagrees.
In a meeting before the Haverstraw Planning Board, the deli/coffee shop was likened to a Dunkin Donuts. See, Document No. 145.
It is well-settled that “[j]udicial review of an agency determination under SEQRA is limited to whether the agency procedures were lawful and 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.' “ Matter of Oakleight Thorne v. Village of Millbrook Planning Board, 83 AD3d 723, 724–725 (2d Dept.2011), quoting, Matter of Jackson v. New York State Urban Dev. Corp., 67 N.Y.2d 400, 417 (1986). “[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.” Id. at 725.
While the record establishes that the Haverstraw Planning Board was acutely aware of its obligations under SEQRA, and took a “hard look” at the pre–2009 site plan, it cannot be said that the Haverstraw Planning Board took a “hard look” at the site plan for which they granted final approval (hereinafter “the final site plan”) despite their self-serving statements that it did. In fact, in the documents submitted to the Court in the months leading up to final site plan approval, reference to a gasoline service station is hardly mentioned. In fact, in Mt. Ivy's application and revised application to the Haverstraw Planning Board for preliminary and final site plan approval dated January 1, 2012 and May 18, 2012, respectively, Mt. Ivy affirmatively states that no changes have been made since the site plan was last before the Board.” See, Document Nos. 199 and 217. This is wholly inaccurate.
From the way in which the documents were provided to the Court, i.e., providing numerous irrelevant documents, providing more than one copy of the same document, it appears that Respondents were attempting to bury the Court in paperwork so that the Court's attention would be drawn elsewhere.
While the statutes and regulations do not define “substantial change,” this Court finds that a change from a 1,500 deli/coffee shop to a 7,000 square foot convenience store with gasoline and diesel sales is a substantial change in the plan. While the square footage of the entire plan may not have significantly changed, the addition of a gasoline service station is a significant one. In an attempt to downplay the significance, the change to a gasoline station is merely mentioned on page 3 of the Narrative Summary. The Narrative Summary, however, provides no details regarding what what is entailed for a gasoline station, e.g., the necessity of obtaining a special use permit, if required, or any other similar requirements with respect to the construction of a gas station. It is no secret that gas stations are highly regulated. The storage of petroleum, quite often in underground storage tanks, can have an enormous negative impact on the environment. As such, there are numerous statutes and regulations to prevent the contamination of natural resources due to the storage of petroleum. See, e.g., E.C.L. § 17–1001, et seq. ; NY Nav. Law Article 12 (Oil Spill Prevention, Control and Compensation). The fact that this Court was unable to find one reference to the storage of petroleum in the hundreds of pages of documents submitted to it causes concern.
Moreover, in a letter dated September 5, 2012 from Tim Miller Associates, the planning consultant, to the Chairman of the Haverstraw Planning Board, reference is made to Attachment C, which is a “point-by-point” review of relevant environmental areas of concern regarding “this application,” i.e., final site plan approval. It states that “Attachment C provides a summary of the various environmental issues relating to this application as it has been set forth in the prior SEQRA reviews.” See, Document No. 240. However, a gasoline service station was not part of the prior SEQRA reviews. In addition, the review of the environmental areas of concern in Attachment C, such as soils and topography, surface water resources, ecology and wetlands, land use and zoning, transportation, historic and archeological resources, community facilities and utilities, noise and air resources, all cite to the DEIS and SEIS that pertained to the pre–2009 site plan, i.e., the one without the gasoline station. This Court finds it hard to believe that a gasoline station would not have its own environmental impacts, separate and apart from a shopping center, considering the necessity of underground storage tanks and the effects a gasoline station would impact traffic, soil, wetlands, etc. Although the Haverstraw Planning Board indicated that the traffic data was updated in August 2012, the record does not establish that the traffic data was updated with the knowledge that the plan now has a gasoline service station component to it.
While this Court takes no position with respect to the desirability of the proposed shopping center, as it is required to do, this Court must nevertheless ensure that the Haverstraw Planning Board acts as “steward of the air, water, land and living resources” so as to protect the environment for the use and enjoyment of this and all future generations.” With the facts as they are before this Court, this Court is not convinced that the Haverstraw Planning Board satisfied this obligation.
“[T]he extent to which particular environmental factors are to be considered varies in accordance with the circumstances and nature of particular proposals.” Kahn v. Pasnik, 90 N.Y.2d 569, 574, quoting, Akpan v. Koch, 75 N.Y.2d 561, 570. So, when the site plan changed to include a gasoline station, “the proposed action upon which the Findings Statement was issued” was no longer “consistent with the project described in the Findings Statement.” See, Document Nos. 199, 205, 240, 244. Rather, this Court agrees with Petitioner that “the gas station in this environmentally sensitive site with substantial and significant wetlands must be separately studied in [an] SEIS.” See, Document No. 249: Letter dated September 12, 2012 from Burton Dorfman, Esq., p. 3. Contrary to Respondents' contention, the change in Pad C from a 1,500 square foot deli/coffee shop to a 7,000 square foot convenience store/deli/coffee shop with a gasoline service station was substantial.
The September 12, 2012 letter is third of three letters contained in Document No. 249.
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Due to the substantial change in the site plan after the completion of the SEQRA review process, the Haverstraw Planning Board should have requested Mt. Ivy to prepare a supplemental EIS. See, Bryn Mawr Properties v. Fries, 160 A.D.2d 1004 (2d Dept.1990) ; cf., Matter of Friends of Smith Farm v. Town Bd. for Town of Clarkstown, 45 AD3d 765 (2d Dept.2007). Not only did the Petitioners request that it be done, but this Court finds that under these circumstance, the decision to grant final site plan approval without first obtaining a supplemental environmental impact statement was arbitrary and capricious.
Unlawful Segmentation:
Petitioners also argue that the granting of final site plan approval was an error of law and was arbitrary and capricious based on the fact that the manner in which the proposed development plan received final site plan approval constituted unlawful segmentation.
“Segmentation, which is dividing the environmental review of an action in such a manner that the various stages are addressed as though they were independent, unrelated activities, needing individual determinations of significance (6 NYCRR 617.2 [gg] ), is contrary to the intent of SEQRA (6 NYCRR 617.3 [k] [1] ).” Matter of Schultz v. Jorling, 164 A.D.2d 252, 255 (3d 1990). While procedures are set forth in SEQRA to permit segmented review under limited circumstances, impermissible segmentation distorts the approval process and is therefore disfavored. Id.
Impermissible segmentation occurs in two situations:
the first occurs when a project which would have a significant effect on the environment is split into two or more smaller projects, with the result that each falls below the threshold requiring [SEQRA] review; the second ... occurs when a project developer wrongly excludes from certain activities from the definition of his project for the purpose of keeping to a minimum its environmentally harmful consequence, thereby making it more palatable to the reviewing agency and community.
Id. (Internal citations omitted).
Applied here, the events that occurred leading up to final site plan approval of Minisceongo Park do not fit squarely into either category of impermissible segmentation. However, that is not to say that another form of impermissible segmentation did not occur. Due to the fact that the gasoline station component of the final site plan was excluded from the definition of the project at the time the project underwent SEQRA review, it is this Court's opinion that a form of segmentation did occur. Although the segmentation may not have been wrongful or intentional, it is apparent to this Court that the addition of the gasoline station and its effects on the environment was not given the attention it deserved by the Respondents.
Based on the foregoing, it is hereby
ORDERED AND ADJUDGED that the Petition is granted; and it is further
ORDERED AND ADJUDGED that the Resolution dated December 16, 2012 granting final site plan approval is vacated and set aside; and it is further
ORDERED AND ADJUDGED that the matter is remitted to the Town of Haverstraw Planning Board and the Town of Haverstraw Planning Board shall require a supplemental environmental impact statement and issue a revised Findings Statement in accordance with the statutory and regulatory provisions of SEQRA; and it is further
ORDERED that the caption shall be amended in accordance with this Decision and Order; and it is further
ORDERED that Petitioners shall serve a copy of the within Decision and Order on all parties of record and all interested parties within seven days of receipt of said Order.
| Narrative Summary | ||
|---|---|---|
|
Project Component | Town of Ramapo | Town of Haverstraw |
| Acres | 27 | 26.3 |
| Units of housing (Phase II) | 200 | |
| Anchor A(sf) | 150000 | |
| Anchor B (three smaller stores) (Total sf) | 85000 | |
| Pad C–Convenience store with gasoline and diesel fuel sales for motor vehicles (sf) | 7000 | |
| Pad D–Bank branch office with drive through (sf) | 4000 | |
| Pad E–225–seat family style restaurant (sf) | 5200 | |
| Pad F–Retail | 9000 |