Opinion
No. 13–18087.
10-15-2014
Ronald PICKERELL, Steven Goldstein, Gerald McCarthy, Saumil Gandhi and Centerport Harbor Civic Association, Petitioners, For a Judgment under Article 78 of the Civil Practice Law and Rules and for Declaratory Judgment, and Article 30 of the Civil Practice Law and Rules, v. The TOWN OF HUNTINGTON, The Town of Huntington Zoning Board Of Appeals, 7–Eleven, Inc., Harborfields Realty LLC, and Suffolk County Planning Commission, Respondents.
Darrin Berger, Esq., Huntington, for Petitioners. Amato Law Group, PLLC, Garden City, for Respondent 7–Eleven, Inc. Dennis M. Brown, Esq., Suffolk County Attorney, Hauppauge, for Respondent Suffolk County. James F. Matthews, Esq., Huntington, for Respondent The Town of Huntington & The Town of Huntington ZBA.
Darrin Berger, Esq., Huntington, for Petitioners.
Amato Law Group, PLLC, Garden City, for Respondent 7–Eleven, Inc.
Dennis M. Brown, Esq., Suffolk County Attorney, Hauppauge, for Respondent Suffolk County.
James F. Matthews, Esq., Huntington, for Respondent The Town of Huntington & The Town of Huntington ZBA.
Opinion
ANDREW G. TARANTINO JR., J.
Petitioners commenced this Article 78 proceeding seeking a judgment aning a determination of respondent Town of Huntington Zoning Board of Appeals, dated June 13, 2013, which granted respondent 7–Eleven, Inc., a special use permit and an area variance for a proposed demolition and construction project on commercial premises known as 2 Little Neck Road, Centerport, New York. Petitioners also request an injunction enjoining respondent 7–Eleven, Inc., and respondent Town of Huntington from taking any further action in connection with such project “pending literal compliance with [the] procedural and substantive requirements of SEQRA and Section 274–b of the Town Law.” In addition, petitioners seek a judgment directing respondent Town of Huntington Zoning Board of Appeals to provide copies of the documents that were the subject of a Freedom of Information Law request served on June 20, 2013, and awarding them attorneys fees under Public Officers Law § 89. For the reasons set forth herein, the petition is granted to the extent that the determination awarding respondent 7–Eleven, Inc., an area variance and a special use permit for the subject project is aned, as respondent Town of Huntington Zoning Board of Appeals failed to comply with the requirements of the State Environmental Quality Review Act (SEQRA) (see Environmental Conservation Law art. 8).
Respondent Harborfields Realty, LLC, is the owner of a parcel of land located at the northeast corner of Route 25A and Little Neck Road in respondent Town of Huntington (hereinafter the Town) that for decades was used to operate a gasoline service station and automotive repair shop. Known as 2 Little Neck Road, Centerport, the subject property is improved with a one-story building and a 28' x 54' canopy. It is in an area of Route 25A designated by New York State as a scenic and historic corridor, and is zoned C–6 General Business District. Directly across the street from the subject property, on the southeast corner of Route 25A and Centerport Road (called Little Neck Road north of Route 25A), is the Suydam House, an historic home built in the early 1700s that is on the National Register of Historic Places and is operated as a museum. A second home on the National Register of Historic Places, the Nelson Velzer House and Caretaker's Cottage, also is in close proximity to the subject property. In May 2010, Harborfields Realty entered into a 15–year ground lease with respondent 7–Eleven, Inc. (hereinafter 7–Eleven), permitting the property to be developed with a convenience store. Seeking to demolish the existing structures, construct a new one-story commercial building, and make various related improvements, including the installation of curbing and sidewalks, asphalt pavement, site drainage, and changes to Little Neck Road's right-of-way, representatives of 7–Eleven met with officials with the Town's Department of Planning and Environment in 2010 and 2011 to discuss its development proposal for the land. It also secured approval from the New York State Department of Transportation for those portions of its proposal involving the dedication of land to widen the roadway for a turn lane on Little Neck Road, as well as changes in curb cuts and roadway markings.
Meanwhile, in June 2011, the Town adopted a local law providing that “freestanding convenience markets” in the C–6 General Business District, like the one proposed by 7–Eleven, require a special use permit and a minimum lot size of 25,000 square feet (see Code of the Town of Huntington § 198–27[C] [11] ). Although 7–Eleven revised the project in an effort comply with the new Town requirements for freestanding convenience stores, its development proposal for the land, which measures only 21,553 square feet, was rejected by the Town's Department of Planning and Environment. Shortly thereafter, on October 12, 2011, 7–Eleven filed an application with respondent Town of Huntington Zoning Board of Appeals (hereinafter the Huntington ZBA) for a special use permit to build and operate a freestanding convenience store, and for an area variance from the 25,000 square foot minimum lot size requirement for freestanding convenience markets. As part of its application, 7–Eleven submitted a Short Environmental Assessment Form (EAF) for Unlisted Projects. The Huntington ZBA sent out notices to various agencies, including the New York State Department of Environmental Conservation, the New York State Department of Transportation, and the Suffolk County Department of Health Services, Wastewater Management Division, advising of the application filed by 7–Eleven and its intent to assume lead agency status. Included with such notice was a copy of the application and Part I of the Short EAF filed by 7–Eleven. Thereafter, by correspondence dated October 28, 2011, respondent Suffolk County Planning Commission (hereinafter the Planning Commission) advised the Huntington ZBA that 7–Eleven's application to construct a convenience store on the corner of Little Neck Road and Route 25A “was a matter for local determination as there appears to be no significant county-wide or inter-community impacts.”
Subsequently, on January 26, 2012, the Huntington ZBA conducted a public hearing on 7–Eleven's proposal to develop the subject property with a convenience store. Prior to the meeting, 7–Eleven submitted various maps, photographs, site plans and reports to the Huntington ZBA, including a traffic impact study prepared by Stonefield Engineering & Design, an engineering report prepared by High Point Engineering, a planning study prepared by VHB Engineering, Surveying and Landscape Architecture, and an appraisal report on the proposed convenience store's impact on real property values prepared by Breslin Appraisal Company. The Huntington ZBA also received numerous letters from area residents regarding the proposed project. At the opening of the hearing, the people in attendance were advised by the Huntington ZBA Chairman, Christopher Modelewski, that only 7–Eleven would be permitted to make a presentation that day. Mr. Modelewski explained that the Huntington ZBA might exercise its right to retain an expert on the issues raised by the application, and that a second public session would be held at a later date, so residents could have an opportunity to review the reports and testimony of 7–Eleven's experts and the report of any expert retained on the matter by the Huntington ZBA. The Chairman also entered into evidence a “Convenience Store Study,” dated April 28, 2011, prepared by the Town's Department of Planning and Environment. The January 26 session focused primarily on the potential traffic impacts of the proposed convenience store, with 7–Eleven presenting the testimony of the exerts who prepared the reports previously submitted to the Huntington ZBA. In an effort to address a concern regarding the use of tractor trailers and large trucks to deliver goods to the proposed convenience store raised by the Huntington ZBA, it also presented the testimony of Kenneth Barnes, Regional Development Director for 7–Eleven.
The hearing on 7–Eleven's application was held open for comment, and the Huntington ZBA retained Dunn Engineering Associates to review the proposed project, particularly the potential impacts on traffic. In addition to a reports prepared by Dunn Engineering, the Huntington ZBA received numerous supplemental reports, expert affidavits and other documents from 7–Eleven, nearly all related to the traffic issues raised during the January 26 hearing session. It also received more letters from Town residents, both in support of and in opposition to the proposed project. Although a public hearing was scheduled for October 25, 2012, the hearing was adjourned by the Huntington ZBA on the ground that it did not have sufficient time to review the material contained in the 7–Eleven's recent submissions. Finally, after months of seeking additional information related to its concerns about changes in traffic conditions and deliveries to the proposed convenience store, the Huntington ZBA conducted a second public hearing on 7–Eleven's application on May 9, 2013.
During the May 9 hearing, 7–Eleven presented Brian Rathgaber, the principal shareholder of Harborfields Realty, who testified about the prior operations on the subject property, and Kenneth Barnes, who provided additional testimony as to 7–Eleven's ability to use only box trucks to deliver goods to the site, and to make such deliveries from Route 25A during off-peak hours. The public also was afforded an opportunity to speak on the application submitted by 7–Eleven. During the public comment period, two residents raised the issue of SEQRA review of the proposed project. One resident, Daniel Karpen, stated a positive declaration should be issued for the project. The second resident, identified only as Mr. White, inquired as to whether SEQRA review of the proposal had been performed. After being advised by Mr. Modelewski that the Board “was still gathering information,” and by Board Member Carol Gaughran that the Huntington ZBA “had been using each of the sessions as a scoping session,” Mr. White replied that the project might constitute a Type I action based on the subject property's relation to the historic home across the street. The public hearing on 7–Eleven's application was closed by the Huntington ZBA at the end of the May 9 session.
On June 6, 2013, the Huntington ZBA discussed 7–Eleven's application and agreed to grant it a special use permit with certain conditions. During such meeting, the board members discussed that a SEQRA determination had not been made on the project, and that the project was going to being classified as a Type I action based on the historic designation of the Suydam House. Mr. Modelewski also stated he was going to move for the issuance of a negative declaration for the proposed project. Subsequently, Part II and Part III of an Environmental Assessment Form (EAF) for such project were prepared by the Planning and Environmental Department. It is undisputed that despite the decision on June 6 to classify 7–Eleven's proposed project as a Type I action, a new Part I reflecting such classification was not prepared. The Planning and Environmental Department also prepared a document, dated June 13, 2013 and entitled “Summary of SEQRA Review,” which describes the proposed project, lists the agencies for coordinated SEQRA review, and sets forth a brief summary of the environmental impacts, the possible mitigation steps for minimizing such impacts, and the impacts that cannot be mitigated. At a meeting conducted on June 13, 2013, the Huntington ZBA, classifying the project as a Type I action pursuant to 6 NYCRR 617.4(b)(6), (9) and (10), voted in favor of issuing a negative declaration. That same day, it passed a resolution adopting Part II and Part III of the EAF prepared by the Planning and Environmental Department, and issued a negative declaration for the 7–Eleven project, stating it had determined the project “will not have a significant effect on the environment.” It also issued a written determination on 7–Eleven's application.
On July 11, 2013, petitioners Ronald Pickerell, Steve Goldstein, Gerald McCarthy, Saumil Gandhi, and Centerport Harbor Civic Association filed a notice of petition and petition seeking, inter alia, a judgment aning the special use permit and area variance granted to 7–Eleven and enjoining 7–Eleven and the Town from taking any further action on the proposed project pending compliance with the procedural requirements of SEQRA. Briefly stated, petitioners maintain that the Huntington ZBA failed to comply with the procedural and substantive requirements of the State Environmental Quality Review Act (SEQRA) in determining that the proposed project, a Type I action, would not have any significant adverse effects on the environment and did not require the preparation of an Environmental Impact Statement (EIS). The Planning Commission, then, moved for an order dismissing the proceeding as against it, arguing petitioners' claims are time-barred by the four-month statute of limitations, and that its determination on 7–Eleven's application is not subject to judicial review under CPLR article 78. Thereafter, petitioners served an amended petition alleging six causes of action. The first and second causes of action allege that the special permit and area variance must be aned, because the Huntington ZBA failed to comply with the procedural and substantive requirements of SEQRA. The third cause of action alleges the Planning Commission's October 2011 determination was arbitrary, capricious, unreasonable and illegal, and must be aned because it improperly was based on a short EAF. The fourth cause of action alleges the Huntington ZBA failed to comply with Town Law § 267–b when determining whether to grant and area variance, and the fifth cause of action alleges it violated General Municipal Law § 239–m and Town Law §§ 267–a and 274–b by failing to provide a full statement of the activity proposed by 7–Eleven to the Planning Commission. Finally, the sixth cause of action seeks a judgment compelling the Huntington ZBA to comply with a demand for the production of certain records made by the Centerport Harbor Civic Association in June 2013 under the Freedom of Information Law and awarding attorneys fees under Public Officers Law § 89(4). The Court notes that an order issued simultaneous with this decision grants the Planning Commission's motion for dismissal of the petition against it.
SEQRA represents an attempt by the New York State Legislature to strike a balance between social and economic goals and concerns about the environment (Matter of Jackson v. New York State Urban Dev. Corp., 67 N.Y.2d 400, 414, 503 N.Y.S.2d 298 [1986] ; see, ECL 8–0103 ). Its primary purpose is to inject environmental considerations directly into governmental planning and decision making at the earliest possible time, so that social, economic and environmental factors are considered together when reaching decisions on proposed activities (see ECL 8–0103[7] ; Matter of Neville v. Koch, 79 N.Y.2d 416, 583 N.Y.S.2d 802 [1992] ; Matter of Coca Cola Bottling Co. of N.Y. v. Board of Estimate of City of NY, 72 N.Y.2d 674, 536 N.Y.S.2d 33 [1988] ; Matter of Zutt v. State of New York, 99 AD3d 85, 949 N.Y.S.2d 402 [2d Dept 2012] ; Matter of Coalition for Future of Stony Brook Vil. v. Reilly, 299 A.D.2d 481, 750 N.Y.S.2d 126 [2d Dept 2002] ). To promote the Legislature's goals and to assist agency officials in their assessment of environmental factors, SEQRA requires that an environmental impact statement (EIS) be prepared for government-sponsored or government-approved projects or activities “which may have a significant effect on the environment” (ECL 8–0109[2] ; see Matter of Long Is. Pine Barrens Soc. v. Planning Bd. of Town of Brookhaven, 80 N.Y.2d 500, 591 N.Y.S.2d 982 [1992] ). Described as the “heart of SEQRA” (Matter of Jackson v. New York State Urban Dev. Corp., 67 N.Y.2d 400, 415, 503 N.Y.S.2d 298 ), the EIS is a detailed statement setting forth, among other things, a description of the proposed action and its environmental setting; the environmental impacts of the proposed action, including both long-term and short-term effects; any adverse environmental impacts which cannot be avoided if the action is implemented; alternatives to the proposed action; and mitigation measures proposed to minimize the environmental impact (ECL 8–0109[2] ; 6 NYCRR 617.9 [b]; see Matter of Munash v. Town Bd. of Town of E. Hampton, 297 A.D.2d 345, 748 N.Y.S.2d 160 [2d Dept 2002] ; Matter of Citizens Against Retail Sprawl v. Giza, 280 A.D.2d 234, 722 N.Y.S.2d 645 [4th Dept 2001] ).
Pursuant to the regulations implementing SEQRA (see 6 NYCRR part 617),” “actions” subject to SEQRA review include “projects or physical activities * * * that may affect the environment by changing the use, appearance or condition of any natural resource or structure” that are directly undertaken or funded by an agency or that require approval from an agency (6 NYCRR 617.2 [b][1] ). SEQRA groups “actions” into three distinct categories: “Type I,” “Type II,” and “Unlisted” (see 6 NYCRR 617.2 [ai], [aj], [ak] ). Type I actions are those projects directly undertaken, funded or approved by an agency that, by definition, are considered likely to require the preparation of an environmental impact statement (EIS). Type II actions are activities which the Department of Conservation (DEC) has determined will not have a significant impact on the environment or are otherwise precluded from environmental review by the Environmental Conservation Law and, therefore, are not subject to SEQRA review (see 6 NYCRR 617.5 [a] ). Unlisted actions are all actions not identified as Type I or Type II (see 6 NYCRR 617.2 [ak] ).
The initial step for an agency that receives an application for approval or funding, or that proposes to directly undertake an action, is to determine whether the proposed action falls within the scope of SEQRA. The statute and regulations mandate that as early as possible in an agency's formulation of an action it seeks to undertake, or as soon as an agency receives application for funding or approval of an action, the agency must determine whether the proposed action qualifies as a Type I, a Type II or an unlisted action for purposes of SEQRA review (ECL 8–0109[4] ; 6 NYCRR 617.6 [a][1] ). If a proposed project is classified as a Type II action, the agency has no further responsibilities under SEQRA (6 NYCRR 617.6 [a][1][i] ). If not, the agency must make a preliminary classification of the action as either Type I or Unlisted, and begin the process of environmental review by determining, among other things, whether an EAF or a draft EIS should be prepared and, if more than one agency is involved, which agency should act as the lead agency (6 NYCRR 617.6 ). The lead agency, then, must determine the environmental significance of the proposed action by comparing the information contained in the EAF or draft EIS with criteria established by the DEC as indicators of significant adverse impacts on the environment (6 NYCRR 617.7 [a], [c] ). The lead agency may determine either that the proposed action will not have any adverse environmental impacts or that the identified adverse environmental impacts will not be significant (6 NYCRR 617.7 [a][2] ), or that the action “may include the potential for at least one significant adverse environmental impact” (6 NYCRR 617.7 [a][1] ). A written determination by the lead agency that the a proposed action will not have a significant adverse impact on the environment, known as a “negative declaration,” ends the SEQRA process (6 NYCRR 617.2 [y], 617.7[a][2] ). Conversely, if the lead agency determines the proposed action may have a significant environmental impact, it must issue a “positive declaration” and direct the preparation of an EIS (ECL 8–0109[2] ; 6 NYCRR 617.2 [ac], 617.7[a][1] ).
SEQRA's mandate of balancing economic and social interests with environmental protection is effectuated, in part, by requiring strict compliance with the procedural requirements of the act and its implementing regulations (see Matter of New York City Coalition to End Lead Poisoning v. Vallone, 100 N.Y.2d 337, 763 N.Y.S.2d 530 [2003] ; Matter of Merson v. McNally, 90 N.Y.2d 742, 665 N.Y.S.2d 605 [1997] ; Matter of East End Prop. Co. # 1, LLC v. Kessel, 46 AD3d 817, 851 N.Y.S.2d 565 [2d Dept 2007], lv denied 10 NY3d 926, 862 N.Y.S.2d 328 [2008] ; Matter of Coalition for Future of Stony Brook Vil. v. Reilly, 299 A.D.2d 481, 750 N.Y.S.2d 126 ). Therefore, “actions” undertaken or authorized by an agency without the environmental review required by SEQRA are considered unauthorized and void (see Matter of New York City Coalition to End Lead Poisoning v. Vallone, 100 N.Y.2d 337, 763 N.Y.S.2d 530 ; Chinese Staff & Workers Assn. v. City of New York, 68 N.Y.2d 359, 509 N.Y.S.2d 499 [1986] ; Matter of Tri–County Taxpayers Assn. v. Town Bd. of Town of Queensbury, 55 N.Y.2d 41, 447 N.Y.S.2d 669 [1982] ; cf. Matter of King v. Saratoga County Bd. of Supervisors, 89 N.Y.2d 341, 653 N.Y.S.2d 233 [1996] ).
Judicial review of the SEQRA process is limited to whether an agency's determination was made in violation of proper procedures, was affected by an error of law, or was arbitrary and capricious or an abuse of discretion (see Matter of Gernatt Asphalt Prods. v. Town of Sardinia, 87 N.Y.2d 668, 642 N.Y.S.2d 164 [1996] ; Matter of Zutt v. State of New York, 99 AD3d 85, 949 N.Y.S.2d 402 ; Matter of Coalition for Future of Stony Brook Vil. v. Reilly, 299 A.D.2d 481, 750 N.Y.S.2d 126 ). The court must review the administrative 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” (Matter of New York City Coalition to End Lead Poisoning v. Vallone, 100 N.Y.2d 337, 348, 763 N.Y.S.2d 530, quoting Matter of Jackson v. New York State Urban Dev. Corp., 67 N.Y.2d 400, 416, 503 N.Y.S.2d 298 ; see Matter of Riverkeeper, Inc. v. Planning Bd. of Town of Southeast, 9 NY3d 219, 851 N.Y.S.2d 76 [2007] ; Chinese Staff & Workers Assn. v. City of New York, 68 N.Y.2d 359, 509 N.Y.S.2d 499 ). However, “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” (Matter of Jackson v. New York State Urban Dev. Corp., 67 N.Y.2d 400, 416, 503 N.Y.S.2d 298 ; see Matter of Chemical Specialties Mfrs. Assn. v. Jorling, 85 N.Y.2d 382, 626 N.Y.S.2d 1 [1995] ; Matter of WEOK Broadcasting Corp. v. Planning Bd. of Town of Lloyd, 79 N.Y.2d 373, 583 N.Y.S.2d 170 [1992] ; Matter of Kirquel Dev., Ltd. v. Planning Bd. of Town of Cortlandt, 96 AD3d 754, 946 N.Y.S.2d 576 [2d Dept], lv denied 19 NY3d 813, 954 N.Y.S.2d 8 [2012] ).
A careful review of the record reveals that the Huntington ZBA did not comply with its procedural or substantive SEQRA obligations when determining 7–Eleven's application for the construction of a convenience store at the corner of Route 25A and Little Neck Road. 6 NYCRR 617.4, which identifies those actions classified as likely to require an EIS, provides, in relevant part, that “any Unlisted action ... occurring wholly or partially within, or substantially contiguous to, any historic building ... listed on the National Register of Historic Places” is a Type I action for purposes of SEQRA review, as is any Unlisted action that “exceeds 25 percent of any threshold in this section, occurring ... substantially contiguous to any publicly owned parkland, recreation area or designated open space, including any site on the Resiger of National Natural Landmarks” (6 NYCRR 617[b][9], [10] ). Here, despite Mr. Modelewski's statement at the first public hearing that “[a]ll of us, as residents of the Town are quite familiar” with the intersection of Route 25A and Little Neck Road, a statement in the January 2012 report prepared by High Point Engineering that the proposed project was located across the street from an historic home museum, and references to the proposed project's proximity to the museum made to the Huntington ZBA by residents in a letter dated February 9, 2012 and during the second public hearing, the Huntington ZBA inexplicably did not address 7–Eleven's classification of the project on the short EAF as an Unlisted Action, waiting until the June 6, 2013 meeting, held after the public hearing was closed, to classify the project as Type I (see 6 NYCRR 617.6 [a] ). The Court notes the Huntington ZBA's attorneys' assertion, made for the first time in this proceeding, that, in fact, the proposed project is not a Type I action, but a Type II action, is immaterial.
Thus, the Huntington ZBA violated SEQRA by failing to promptly make its own preliminary classification of the proposed demolition and construction project as a Type I, Type II or Unlisted action, and by failing to verify the accuracy of the information provided in the EAF Part I (see 6 NYCRR 617.6 [a] ). It also admittedly failed to have 7–Eleven, the project sponsor, complete Part I of a full EAF, as required for Type I actions (see 6 NYCRR 617.6 [a][2] ). Furthermore, while the negative declaration and the Huntington ZBA's attorney both state the Board conducted a coordinated SEQRA review of the proposed project, there is no evidence in the record that any of the involved or interested agencies were notified the proposed project, contrary to the Part I EAF previously provided, had been classified as a Type I action, or that they were supplied with copies of the full EAF. Rather, the transcripts and documentary evidence show the Type I classification was not discussed by the Huntington ZBA until the June 6, 2013 meeting, when Ms. Gaughran raised the SEQRA issue. The evidence also shows that Part II and Part III of the EAF, prepared by the staff of the Town's Department of Planning and Environment, were not completed until after the June 6, 2013 meeting, and that the decision to classify the project as a Type I action and issue a negative declaration was made one week later, on June 13, 2013, without a deliberative consideration of the various environmental issues by the Huntington ZBA (see Matter of Munash v. Town Bd. of Town of E. Hampton, 297 A.D.2d 345, 748 N.Y.S.2d 160 ; Matter of New York Archaeological Council v. Town Bd. of Town of Coxsackie, 177 A.D.2d 923, 576 N.Y.S.2d 680 [3d Dept 1991] ; Matter of Holmes v. Brookhaven Town Planning Bd., 137 A.D.2d 601, 524 N.Y.S.2d 492 [2d Dept], lv denied 72 N.Y.2d 807, 533 N.Y.S.2d 56 [1988] ; cf. Matter of Gabrielli v. Town of New Paltz, 93 AD3d 923, 939 N.Y.S.2d 641 [3d Dept], lv denied 19 NY3d 805, 949 N.Y.S.2d 343 [2012] ). In addition, the Huntington ZBA violated Town Law § 274–b and General Municipal Law § 239–m in connection with 7–Eleven's application for a special use permit by failing to submit a “full statement of the proposed project” to the Planning Commission (General Municipal Law § 239–m [4 ]; Town Law § 274[b][7] ; see Matter of Frigault v. Town of Richfield Planning Bd., 107 AD3d 1347, 968 N.Y.S.2d 673 [3d Dept 2013] ).
Moreover, Part II of the Full EAF indicated the proposed project would have potential impacts on surface or groundwater, drainage flow or surface water runoff, aesthetic resources, historic resources, transportation, and the character of the community. Missing from the form, however, are determinations as to the size of the potential impacts to groundwater and to drainage flow or surface water runoff. Further, while the Full EAF form states the examples listed would apply to column 2, meaning a potential large impact, and various examples on the form are checked, the only potentially large impact identified on Part II was for the topic of transportation, namely “the alteration of the present patterns of movement of people and/or goods.” Part III of the EAF, however, states that the proposed project conflicts with the Town's Horizons 2020 Comprehensive Plan, and has “the potential to pose substantial adverse affects by establishing a precedent for future applications adversely affecting the Town's overall intent in land use planning.” Further, as to the topic of aesthetic resources, it states “based on the limited information that has been submitted” regarding building design and landscaping plans, “there is a potential for a negative visual impact” on the community from the proposed convenience store. As to the topic of historic and archaeological resources, Part III states that the proposed project is across the street from a site listed on the State and National Register of Historic Homes and within the North Shore Heritage Area historic corridor, that the project has not been designed to conform to the historic character of the area, and that it “may potentially have a significant environmental impact by breaking the appearance of the scenic historic character and negatively affecting the historic nature of the neighborhood.” In addressing the finding of potentially significant impacts on transportation, Part III of the EAF discusses the mitigation measures suggested by Dunn Engineering Associates and 7–Eleven's agreement to limit the type of vehicles used to make deliveries to the proposed convenience store and to restrict the time of day such deliveries may be made. It also states that such restrictions are difficult, if not impossible, to enforce, and that 7–Eleven did not present satisfactory solutions to the traffic circulation issues raised by the project. The EAF concludes that the traffic issue “remains a significant environmental issue that has not been mitigated by the project design or acceptable mitigation measures,” and that, due to the traffic issues, the proposal “may have a deleterious impact” on public health and safety.
Despite the findings of potential significant environmental impacts set forth in the Full EAF, the Huntington ZBA issued a negative declaration for the project without making any further inquiries into the environmental concerns raised therein. Rather than providing a “reasoned elaboration” for its determination, the negative declaration issued by the Huntington ZBA on June 13, 2013 states only that “[t]he Zoning Board of Appeals has determined that the project will not have a significant effect on the environment.” Further, the written determination issued on June 13, 2013 focuses on the issue of traffic, and addresses the transportation and aesthetic concerns by imposing certain conditions on the special permit, such as the type of delivery trucks used and the time deliveries are made, and requiring the proposed building be “architecturally consistent” with the historic nature of the area. As to the finding in Part III of the EAF that the project conflicts with the Town's Horizons 2020 Comprehensive Plan, the written determination states simply that the “[T]own's master plan is an evolving process,” and that the proposed project as granted “is consistent with the master plan.” Thus, the Court finds the Huntington ZBA failed to take the requisite “hard look” at the relevant areas of environmental concern and failed give a reasoned elaboration for its determination of no environmental significance (see Chinese Staff & Workers Assn. v. City of New York, 68 N.Y.2d 359, 509 N.Y.S.2d 499 ; Matter of Zutt v. State of New York, 99 AD3d 85, 949 N.Y.S.2d 402 ; Matter of Prand Corp. v. Town Bd. of Town of E. Hampton, 78 AD3d 1057, 911 N.Y.S.2d 468 [2d Dept 2010], lv denied 17 NY3d 703, 929 N.Y.S.2d 93 [2011] ; Matter of Avy v. Town of Amenia, 27 AD3d 557, 813 N.Y.S.2d 134 [2d Dept 2006] ; Matter of Coppola v. Good Samaritan Hosp. Med. Ctr., 309 A.D.2d 862, 765 N.Y.S.2d 888 [2d Dept 2003] ; Matter of Munash v. Town Bd. of Town of E. Hampton, 297 A.D.2d 345, 748 N.Y.S.2d 160 ).
SEQRA is designed to insure that agencies responsible for approving, funding or undertaking projects, “enlightened by public comment ... identify and focus attention on” any environmental impacts of such projects, balance such consequences against relevant social and economic considerations, work to minimize any adverse effects to the greatest extent practicable, and articulate the reasons for their determinations, and such agencies actions with respect to both the procedural and substantive requirements of SEQRA are subject to judicial review (Matter of Jackson v. New York State Urban Dev. Corp., 67 N.Y.2d 400, 414–415, 503 N.Y.S.2d 298 ). Here, the Huntington ZBA failed to meet the SEQRA procedural obligations imposed on a lead agency. Further, as the Type I designation for the proposed project was made after the public hearing had closed, the Huntington ZBA improperly cut off the public's opportunity to participate in the SEQRA process in a meaningful way. And while it properly investigated the traffic issues that could potentially result from the proposed development, the Huntington ZBA inexplicably failed to give due consideration to the other potential environmental impacts raised in the Full EAF, or to explain in detail the reasons for its determination that no significant adverse environmental impacts will result from the project. Accordingly, the portion of the petition for a judgment aning the determination of the Huntington ZBA, dated June 13, 2013, which granted 7–Eleven a special use permit and an area variance for the proposed construction of a convenience store at the premises known as 2 Little Neck Road, Centerport, New York, is aned. The portion of the petition seeking injunctive relief, however, is denied, as moot.
Finally, the portion of the petition seeking mandamus relief and attorneys fees based on the Huntington ZBA's failure to comply with Centerport Harbor Civic Association's demand for the production of certain records made in June 2013 under the Freedom of Information Law is dismissed. Public Officers Law § 89(4)(a) provides that, to preserve the right to judicial review, any person denied access to a record must, within 30 days, file an administrative appeal of such denial in writing. Here, there is no evidence, or even an allegation, that petitioners exhausted their administrative remedies with respect to their FOIL demand (see Doe v. Lake Grove School, 107 AD3d 841, 968 N.Y.S.2d 538 [2d Dept 2013] ; Matter of Town of Hempstead v. Commissioner of State of N.Y. Off. of Mental Retardation & Dev. Disabilities, 119 A.D.2d 582, 500 N.Y.S.2d 751 [2d Dept 1986] ).