Opinion
No. 10–406.
07-02-2010
In the Matter of the Application of MOMBACCUS EXCAVATING, INC., Petitioner/Plaintiff, For a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules and a Declaratory Judgment, v. TOWN OF ROCHESTER, NEW YORK and the Town Board of the Town of Rochester, Respondents/Defendants.
Tuczinski, Cavalier, Gilchrist & Collura, P.C., (Alison M. Coan, Esq., of Counsel), Albany, Attorneys for Petitioner/Plaintiff. Mary Lou P. Christiana, Esq., Kingston, Attorney for Respondents/Defendants.
Tuczinski, Cavalier, Gilchrist & Collura, P.C., (Alison M. Coan, Esq., of Counsel), Albany, Attorneys for Petitioner/Plaintiff.
Mary Lou P. Christiana, Esq., Kingston, Attorney for Respondents/Defendants.
Opinion
MICHAEL H. MELKONIAN, J.
Petitioner-plaintiff (hereinafter “petitioner”) Mombaccus Excavating, Inc., which operates sand and gravel mines in the Town of Rochester, commenced this hybrid Article 78/declaratory judgment proceeding/action seeking to vacate and annul respondents-defendants (hereinafter “respondents”) Town of Rochester, New York's and the Town Board of the Town of Rochester's (“Town Board”) Local Law No. No. 4 of the Year 2009 (“Local Law No. # 4”), and to the extent that Local Law No. # 4 is found to be validly adopted, declaring that any purported limitation in Local Law No. # 4 on volume or weight of material to be extracted is illegal because it is superseded by the New York Mined Land Reclamation Law and that mining is a permissible use under Local Law No. # 4 within all districts except R–1, R–2 and H without regard to the volume of mineral extraction.
Local Law No. # 4 rezones the Town of Rochester. In preparation for drafting and enacting Local Law No. # 4, respondents engaged in a process of creating a Comprehensive Plan, which was adopted in November 2006. The Town of Rochester Code Task Force (“RCTF1”) was then formed for the purpose of proposing amendments to the existing zoning law. In July 2007, RCTF1 submitted its proposed zoning code amendments for the proposed Local Law No. # 4 of the Year 2007 (“Proposed Local Law 2007”). Among other things, Proposed Local Law 2007 would have divided petitioner's 269 acre parcel between two zoning districts. Public hearings were held between August and December 2007. The Ulster County Planning Board (“UCPB”) reviewed the proposed zoning law and map, commented and made its recommendations in September 2007. The Proposed Local Law 2007 was not enacted.
Following the election of the present Town Board, a second Code Task Force (“RCTF2”) was formed, held meetings and presented its recommendations for amending the zoning law in May 2009 (“Proposed Local Law 2009”). An Environmental Assessment Form (“EAF”) was filed in early July 2009 indicating that Proposed Local Law 2009 would not have any significant impacts on the environment. Public hearings were conducted. The UCPB reviewed the proposed zoning law and map, commented, and made its recommendations in August 2009. In September 2009 respondents determined that Proposed Local Law 2009 would not have any significant impacts on the environment and that it would be unnecessary for an Environmental Impact Statement (“EIS”) to be prepared. Respondents then adopted Local Law No. # 4. Among other changes to the status quo, Local Law No. # 4 eliminated provisions that permitted unlimited gravel mining throughout Rochester and restricted full-scale mining to NR zones and divided petitioner's 269 acre parcel between two different zoning districts, only one of which permits unlimited gravel mining.
Petitioner's first three causes of action seek to annul Local Law No. # 4 based on respondents' alleged failure to comply with the requirements of State Environmental Quality Review Act (“SEQR”) during the course of developing and enacting Local Law No. # 4. SEQR introduces environmental considerations directly into the earliest stages of governmental decision-making before any decision is made or action taken so that agencies conduct their affairs in a manner which protects the environment (Matter of Defreestville Area Neighborhoods Assn. v. Town Bd. of N. Greenbush, 299 A.D.2d 631, 635 ). The process thereby ensures that agency decision-makers, enlightened by public comment where appropriate, will identify and focus attention on any environmental impact of proposed action and will balance those consequences against other relevant social and economic considerations, minimize adverse environmental effects to the maximum extent practicable and articulate bases for their choices (Matter of Philipstown Dirt Rds. Assn. v. Town Bd. of Town of Philipstown, 246 A.D.2d 656, 657 ).
Judicial review of an agency determination under SEQR is limited to 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 Riverkeeper, Inc. v. Planning Bd. of Town of Southeast, 9 NY3d 219, 231–232 ). The Court is not authorized to second-guess agency decisions. An agency decision should be aned only if it is arbitrary, capricious or unsupported by the evidence. While judicial review must be meaningful, the Court may not substitute its judgment for that of the agency for it is not the Court's role to weigh the desirability of underlying projects, administrative actions or choose between discretionary alternatives (Matter of Riverkeeper, Inc. v. Planning Bd. of Town of Southeast, 9 NY3d 219, 232 ).
While it is essential that public agencies comply with their duties under SEQR, some common sense in determining the extent of those duties is essential too. A “rule of reason” is applicable not only to an agency's judgments about the environmental concerns it investigates, but to its decisions about which matters require investigation (Matter of Save the Pine Bush, Inc. v. Common Council of City of Albany, 13 N.Y.2d 297, 308). Thus, an agency can comply with SEQR even when it has not investigated every conceivable environmental problem. An agency may, within reasonable limits, use its discretion in selecting which problems are relevant (Matter of Save the Pine Bush, Inc. v. Common Council of City of Albany, 13 N.Y.2d 297, 307; Matter of Jackson v. New York State Urban Dev. Corp ., 67 N.Y.2d 400, 417 ).
Applying this deferential standard of review, the Court must deny petitioner's SEQR challenges to respondents' determination to rezone the Town of Rochester. To the extent that petitioner suggests that it was inherently improper for respondents to fail to prepare an EIS in connection with rezoning, the Court rejects the argument. As a matter of environmental law, rezoning is an “action” subject to SEQR (Matter of Neville v. Koch, 79 N.Y.2d 416, 426 ; Matter of Defreestville Area Neighborhoods Assn. v. Town Bd. of N. Greenbush, 299 A.D.2d 631, 632 ), and in this case requires the submission of an EAF (see 6 NYCRR § 617.2 [m]; 617.6[a][2] ). Only if the EAF demonstrates that the action proposed “may have a significant effect on the environment,” must an EIS be prepared (Environmental Conservation Law § 8–0109[2] ). SEQR expansively defines “environment” as “the physical conditions which will be affected by a proposed action, including land, air, water, minerals, flora, fauna, noise, objects of historic or aesthetic significance, existing patterns of population concentration, distribution, or growth, and existing community or neighborhood character” (Environmental Conservation Law § 8–0105[6] ). It is undisputed here that the rezoning at issue would constitute a type I action within the meaning of state environmental regulations (see 6 NYCRR § 617.4 [b][2] ). As such, an EIS is presumptively necessary, but not the absolute requirement suggested by petitioner (Matter of Forman v. Trustees of State Univ. of NY, 303 A.D.2d 1019, 1021 ; Matter of Defreestville Area Neighborhoods Assn. v. Town Bd. of N. Greenbush, 299 A.D.2d 631, 632–633 ; Matter of Wilkinson v. Planning Bd. of Town of Thompson, 255 A.D.2d 738, 739 ).
In the first cause of action, petitioner urges that respondents failed to identify three relevant areas of environmental concerns associated with adoption of Local Law No. # 4 and failed to take the requisite “hard look” before issuing a Negative Declaration. The specific areas of environmental concern that petitioner claims were ignored by respondents are: 1) availability of low-income and affordable housing, 2) impact of banning commercial excavation in parts of the Town including the impact on the availability of aggregate and road construction materials and 3) aquifer protection.
Respondents assert that petitioner lacks standing to raise the low-income and affordable housing issue. Standing must be determined as a threshold matter, with petitioner bearing the burden of establishing its standing (Rudder v. Pataki, 246 A.D.2d 183, 185 ). The Court finds that petitioner lacks standing to pursue its claims regarding the availability of low-income and affordable housing. Based on petitioner's lack of standing, the Court also rejects petitioner's related fifth cause of action alleging that Local Law No. # 4 must be vacated for failure to “provide for the development of a well-ordered and balanced community” by making provision for low-income and affordable housing.
Petitioner lacks standing because it does not allege sufficient interest in the housing issue. Petitioner does not allege that it is being deprived of low-income and affordable housing or that Local Law No. # 4's precludes petitioner from building low-income and affordable housing on its property, or that petitioner would be in any way affected in any of its activities or pastimes by Local Law No. # 4's provisions as they deal or fail to deal with low-income and affordable housing (Matter of Save the Pine Bush, Inc. v. Common Council of City of Albany, 13 NY3d 297, 306 ).
Even assuming for the purposes of the argument that petitioner had standing to raise the low-income and affordable housing issue, petitioner's SEQR challenge must be rejected because petitioner does not allege that Local Law No. # 4 has any negative impact on the availability of low-income and affordable housing in the Town of Rochester such as SEQR would have required respondents to address prior to enacting the law. The Court also rejects petitioner's argument that the Court is obliged to invalidate Local Law No. # 4 based on respondents' failure to correct the alleged problem of affordable housing. Zoning is a legislative act and as such is entitled to the strongest possible presumption of validity and must stand if there was any factual basis therefor (Voelckers v. Guelli, 58 N.Y.2d 170, 176 ; Church v. Town of Islip, 8 N.Y.2d 254, 258 ). Petitioner has merely shown that respondents did not follow the UCPB recommendation. Petitioner has not demonstrated that respondents were obligated to adopt UCPB's proposals or that the steps that respondents took lack any factual basis or violate any statute or constitutional provisions.
The Court returns to the to the second part of SEQR question: the alleged impact of banning commercial excavation in some parts of the Town including the impact on the availability of aggregate and road construction materials. Petitioner has failed to meet its burden of showing that respondents failed to give this issue a “hard look.” Instead of addressing that issue, petitioner attempts to substitute a new standard. The essence of petitioner's substitute argument is that respondents' conclusions that those parts of Local Law No. # 4 would have minimal effect on the environment and provide for significant expansion of mining activities should be rejected by the Court because petitioner thinks that respondents should have looked harder, not because respondents did not look or because there is any evidence that Local Law No. # 4 would have any significant impact. The contrived quality of petitioner's approach is underscored by the absence of evidence from petitioner that respondents overlooked any evidence or that there is any evidence demonstrating that changes in mining brought forth by Local Law No. # 4 would have any significant detrimental effect on the environment or any effect on the availability of aggregate and road construction materials.
As noted previously, a “rule of reason” is applicable to an agency's judgments about the environmental concerns it finds relevant and its level of investigation (Matter of Save the Pine Bush, Inc. v. Common Council of City of Albany, 13 N.Y.2d 297, 307–308). It bears repeating that the Court may not substitute its judgment for that of the agency for it is not the Court's role to weigh the desirability of underlying projects, administrative actions, or choose between discretionary alternatives (Matter of Riverkeeper, Inc. v. Planning Bd. of Town of Southeast, 9 NY3d 219, 231–232 ). In the absence of any evidence that Local Law No. # 4 actually threatens Rochester's or the region's sand and gravel supply or continued economic viability, petitioner's argument is nothing more than an invitation for the Court to improperly substitute the Court's judgment for respondents' judgment regarding how much more research was necessary after respondents examined the maps and aerial information and concluded that the Natural Resources District contains enough land that has not been mined to allow for considerable expansion of mining.
The Court turns next to petitioner's “aquifer protection” claims contained in the first and third causes of action. Petitioner essentially makes the same faulty argument petitioner employed in its previous claim about the potential impact on the availability of aggregate and road construction materials. Petitioner mistakenly equates respondents' not agreeing with petitioner to respondents' failing to take a “hard look.” Petitioner's argument is not that respondents' conclusion is completely unsupported, but only that respondents' conclusion is not supported by the quality and quantity of evidence that petitioner would like to require respondents to gather and consider or that the maps are not as precise as petitioner would like them to be. Noticeably absent from petitioner's presentation regarding the alleged 200 to 280 foot change in the aquifer boundary is any evidence establishing that shifting the line has no beneficial effect on the acquifer, or that significant amounts of petitioner's land that is completely unrelated to the acquifer was placed inside of the protected zone.
Although petitioner's premise that respondents were obliged to adopt petitioner's opinions is insufficient on its face, even petitioner's expert John M. Orza (“Orza”) conceded in his September 10, 2009 letter that “Town-wide scale mapping would require a large array of data to be reasonably accurate, but is not logistically and financially practical.” Respondents' failure to adopt Orza's proposals is not a violation of SEQR that requires invalidating Local Law No. # 4. The Court may not substitute its judgment for that of the agency for it is not the Court's role to weigh the desirability of underlying projects, administrative actions, or choose between discretionary alternatives (Matter of Riverkeeper, Inc. v. Planning Bd. of Town of Southeast, 9 NY3d 219, 232 ).
Petitioner's second cause of action asserts that the Town Board failed to conduct itself as the SEQR “lead agency” by allegedly “designating” the lead agency responsibilities to Thomas Shepstone, John Capella, Esq., and the unelected members of RCTF2. The Court rejects petitioner's conclusory argument. Petitioner has not met its burden of showing that the determination was actually made by those individuals rather than the Town Board. Petitioner has only shown that the Town Board used the services of those persons, then conducted hearings and later made the final determination.
The Court declines petitioner's invitation to weigh the amount of influence those individuals had and to evaluate the amount of independent thinking engaged in by the Town Board. Furthermore, it is established that a lead agency may solicit technical information and suggestions from individuals and involved agencies that are more expert in particular scientific areas than it is. The lead agency under SEQR is likely to lack expertise in environmental matters, and will often need to draw on the expertise of others. The statute and regulations not only provide for this, but strongly encourage it (Matter of Coca–Cola Bottling Co. of N.Y. v. Board of Estimate of City of NY, 72 N.Y.2d 674, 682 ). The regulations specifically advise agencies to “seek the advice and assistance of other agencies” regarding “recommendations on the significance or nonsignificance of actions” (6 NYCRR § 617.4 [c][2] ). While the final determination must remain with the lead agency principally responsible for approving the project (Matter of Coca–Cola Bottling Co. of N.Y. v. Board of Estimate of City of NY, 72 N.Y.2d 674, 682–683 ), so long as the lead agency retains responsibility for making the final determination it has not violated SEQR, even in instances when the final determination adopts the experts' opinions wholesale.
Petitioner's fourth cause of action asserts that Local Law No. # 4 “arbitrarily and capriciously” divides petitioner's 269 acre parcel of land between two different zoning districts. The Court begins by noting that zoning is a legislative act and as such is entitled to the strongest possible presumption of validity and must stand if there was any factual basis therefor (Voelckers v. Guelli, 58 N.Y.2d 170, 176 ; Church v. Town of Islip, 8 N.Y.2d 254, 258 ). By the very nature of zoning, the act of setting a zoning boundary requires a certain amount of discretionary line drawing and necessarily leaves some land within and other land outside the district. Some property benefits from the line set while other property may suffer, but unless the restrictions in a district deprive the owner of profitable use of property, the owner has no redress, even though the restrictions reduce the value of the property (Dodge Mill Land Corp. v. Town of Amherst, 61 A.D.2d 216, 220 ). The drawing of the line is a legislative function which will be upheld unless it is unreasonable or arbitrary, such as where the ordinance restricts property to a use for which the property is not adapted and is therefore unusable (Dowsey v. Village of Kensington, 257 N.Y. 221, 231 ).
Petitioner has failed to meet its burden of demonstrating that the zoning line in question is arbitrary and capricious. While the zoning line in question does not follow a street or property line, that alone is not a sufficient basis for the Court to invalidate this legislative action. Once again, petitioner makes the invalid argument that the rezoning must be aned because petitioner disagrees with respondents' action, the precision of the evidence that respondents took into account and way in which respondents implemented the change. Petitioner has simply not demonstrated that the zoning line furthers no legitimate zoning purpose, restricts either part of petitioner's 269 acre property to a use for which the land is not adapted or deprived petitioner from any profitable use of the property.
Petitioner's fifth cause of action must also be dismissed. The Court previously found that petitioner lacks standing to challenge Local Law No. # 4 based on the alleged inadequacy of its provisions dealing with low-income and affordable housing. The Court also found that petitioner failed to demonstrate that respondents overlooked any evidence or that there is in fact any evidence demonstrating that any changes regarding mining contained in Local Law No. # 4 would have any significant detrimental effect on the environment or any effect on the availability of aggregate and road construction materials. Petitioner's conclusory and speculative allegations that there will be a detrimental effect are insufficient by themselves to state a cause of action (Matter of Federation of Mental Health Centers, Inc. v. De Buono, 275 A.D.2d 557, 561 ; Matter of Kirk v. Bahou, 73 A.D.2d 770, 771 ; Matter of Gagnon v. Board of Educ. of Manhasset Union Free School Dist., 119 A.D.2d 674, 675 ; Matter of Reisman v. Codd, 54 A.D.2d 878 ). To meet its burden, petitioner must support its conclusions by providing specific facts and analysis. Specific facts and analysis are notably absent from petitioner's analysis.
Petitioner's sixth cause of action depends on mischaracterizing section 140–28(c) of Local Law No. # 4 as “regulating the volume of mineral extraction as part of permissible mining land uses.” To the extent that section 140–28(c) of Local Law No. # 4 limits its application to mining that does not require any state permit (Environmental Conservation Law § 23–2711[1] ), Local Law No. # 4's definition of its own application is not a “regulation” or “restriction” of mining at all. In any event, Local Law No. # 4's limitation of its application to mining operations that do not require a state permit does not and cannot conflict with the Mined Land Reclamation Law (Environmental Conservation Law § 23–2701 et. seq., hereinafter “MLRL”). As the section of Local Law No. # 4 that petitioner seeks to invalidate does not apply to mining operations governed by MLRL's permitting process, Local Law No. # 4's effect of only allowing “un-permitted” mining of less than 1,000 tons or 750 cubic yards in a 12–month period in those areas is neither preempted nor superceded by Environmental Conservation Law § 23–2703(2).
The Court rejects petitioner's seventh cause of action asserting that Local Law No. # 4 violates Town Law § 263 and 272–a(11)(a). As was noted previously, petitioner's conclusory and speculative allegations are insufficient by themselves to state a cause of action (Matter of Federation of Mental Health Centers, Inc. v. De Buono, 275 A.D.2d 557, 561 ; Matter of Kirk v. Bahou, 73 A.D.2d 770, 771 ; Matter of Gagnon v. Board of Educ. of Manhasset Union Free School Dist., 119 A.D.2d 674, 675 ; Matter of Reisman v. Codd, 54 A.D.2d 878 ). To meet its burden, petitioner must support its conclusions by providing specific facts and analysis. The Court finds that such facts and analysis as petitioner provides fail to support petitioner's conclusions that Local Law No. # 4 “inhibits industrial growth and creates practical barriers to ... economic growth,” “supports the concept of a bedroom community over a balanced community, and targets heavy commercial/industrial growth as a negative for the Town of Rochester,” etc. Petitioner has not demonstrated that unrestricted sand and gravel mining is necessary for Rochester to remain economically viable or for petitioner to prosper in the mining business.
Finally, the Court rejects petitioner's eighth cause of action asserting that respondents are guilty of bad faith and targeted petitioner for improper treatment. Administrative determinations and official actions carry a presumption of regularity and honest motivation (Matter of Altamore v. Barrios–Paoli, 90 N.Y.2d 378, 386 [1997] ; Matter of Nehorayoff v. Mills, 282 A.D.2d 932, 933 ; Ensley v. New York City Dept., of City–Wide Administrative Services, 259 A.D.2d 286, 287 ). Petitioner must overcome the presumption of regularity by submission of factual allegations of an evidentiary nature or other competent evidence tending to establish its entitlement to the requested relief (Matter of Rodriguez v. Goord, 260 A.D.2d 736, 736–737 ; Matter of Vandermark–Crayne v. New York State Dept., of Civ. Serv., 225 A.D.2d 979, 980 ). Conclusory, argumentative and speculative assertions of dishonesty such as petitioner and his expert make are insufficient to overcome the presumption of regularity and honest motivation that attaches to official acts (Matter of Altamore v. Barrios–Paoli, 90 N.Y.2d 378, 386 ; Ensley v. New York City Dept., of City–Wide Administrative Services, 259 A.D.2d 286, 287 ).
Accordingly, petitioner's petition seeking to annul respondents' Local Law No. # 4 is dismissed and the Court declares that section 140–28(c) of Local Law No. # 4's definition of its own application is not a regulation or restriction of mining, does not and cannot conflict with MLRL and is neither preempted nor superceded by Environmental Conservation Law § 23–2703(2).
This constitutes the Decision, Order and Judgment of the Court. This Decision, Order and Judgment is returned to respondents' counsel. All other papers are delivered to the Supreme Court Clerk for transmission to the County Clerk. The signing of this Decision, Order and Judgment shall not constitute entry or filing under CPLR 2220. Counsel is not relieved from the applicable provisions of this rule with regard to filing, entry and Notice of Entry.
SO ORDERED.?