Opinion
2006-1189.
Decided June 27, 2008.
KNOER, CRAWFORD BENDER, LLP, Richard E. Stanton, Esq., of Counsel, Buffalo, New York.
RICHARD LIPPES AND ASSOCIATES, Richard J. Lippes, Esq., of Counsel, Buffalo, New York.
JACKSON JACKSON, Michael Lee Jackson, Esq., of Counsel, Rachel E. Jackson, Esq., of Counsel, Buffalo, New York, for Petitioners.
PHILLIPS LYTLE LLP, Adam S. Walters, Esq., of Counsel, Buffalo, New York, for Respondents.
The Present Motion
Petitioners have filed a motion objecting to the Certified Record (hereinafter referred to as the "Record") in this matter submitted by Respondents on August 3, 2007, arguing that it is incomplete. Petitioners move pursuant to CPLR §§ 7804(e), 408, 3101, 3104 and 3124 requesting that the Respondents each be directed to fully comply and produce a full and complete certified transcript of the Record of each Respondent agency concerning their decisions to facilitate improvements in and around the area bounded by Michigan Street, Perry Street, Scott Street and Marvin Street in connection with the determination of Respondent City of Buffalo Common Council (hereinafter referred to "Common Council"), as lead agency approving segmented environmental review and the sale of Fulton Street to the Seneca Nation of Indians. In the alternative, Petitioners requests that Respondents' pleadings be stricken and judgment entered against them granting the full relief requested in the Petition. In opposing the motion, Respondents maintain that the approximately nineteen hundred (1,900) page Record in this matter is sufficient to allow intelligent judicial review of Petitioners' claims in this special proceeding. For the reasons set forth below, this Court denies Petitioners' motion in its entirety.
Procedural Background
On October 26, 2006, this Court issued an Order to Show Cause as to why Petitioners should not be granted a preliminary injunction enjoining the City of Buffalo (hereinafter referred to as the "City") from entering into a proposed agreement (hereinafter referred to as the "Agreement") with the Seneca Gaming Corporation, the Seneca Erie Gaming Corporation and the Seneca Nation of Indians (collectively hereinafter referred to as the "Senecas") relating the Senecas' construction and operation of a Class III gaming facility in the City of Buffalo (hereinafter referred to as the "Senecas' Casino Project"). Petitioners raised various objections to the Agreement, including the alleged failure of the City to comply with SEQR and certain errors of law that Petitioners argued were fundamental to the Agreement. After oral argument, this Court denied Petitioners' motion. This Court's analysis of the issues is set forth in its November 9, 2006 Memorandum Decision and Order (hereinafter referred to as the "November 9 Order"). This Court's determinations in the November 9 Order were affirmed by the Appellate Division, Fourth Judicial Department, on March 16, 2007. Scott, et. al. v. City of Buffalo, et. al. 16 Misc 3d 259; 835 NYS2d 803, aff'd ___ A.D.3rd ___ (2007).
Pursuant to an Order on Stipulation dated April 2, 2007, Petitioners filed a Second Amended Petition to include the Buffalo Water Board as a named Respondent in this special proceeding. A review of the Second Amended Verified Petition and Petitioners' April 4, 2007
Memorandum of Law reveal that the arguments therein are virtually identical to those contained in the original petition.
On June 1, 2007, Respondents filed a single Verified Answer. Respondents also provided affidavits from the City Corporation Counsel, Alisa Lukasiewicz, dated May 31, 2007 and Buffalo City Clerk, Gerald Chawalinski, dated June 20, 2007, and a certification of the Record of Proceeding by Mr. Chawalinski dated August 3, 2007, all of which attests to the record of proceedings before the Common Council as lead agency. Petitioners' motion, the response thereto, and the Record that had been filed by the Respondents on August 3, 2007, constitute the record of the proceedings in this matter.
On June 27, 2007, Petitioners filed a Notice of Motion objecting to the Record and moving to strike Respondents' Verified Answer. On July 27, 2007, this Court at special term determined, pursuant to CPLR § 7804(e), that Respondents should prepare and file a certified Record of the proceedings before the Common Council in connection with its segmented environmental review and approval of the sale of Fulton Street to the Senecas.
On August 3, 2008, Respondents pursuant to CPLR § 7804(e) filed a three (3) volume Certification of the Record of Proceedings before the Common Council as lead agency.
Statement of Facts
Petitioners' challenge to Respondents in this special proceeding principally revolve around two (2) resolutions adopted by the Common Council on October 31, 2006. The first resolution entitled "Determination of Significance Pursuant to the State Environmental Quality Review Act for the Abandonment and Sale of Fulton Street and the Proposed Agreement Between the City of Buffalo and the Seneca Gaming Corporation, the Seneca Erie Gaming Corporation and the Seneca Nation of Indians" (hereinafter referred to as the "SEQR Resolution") segmented the environmental review for the Agreement from the Senecas' Casino Project and issued a negative declaration pursuant to SEQR for the Agreement. (LUK000001-1)
A second resolution entitled "Abandonment and Sale of Fulton Street and Approval of a proposed agreement between the City of Buffalo and the Seneca Gaming Corporation, the Seneca Erie Gaming Corporation and the Seneca Nation of Indians" (hereinafter referred to as the "Agreement Resolution"), approved the Agreement between the City and the Senecas pursuant to which the City agreed to abandon and sell a portion of Fulton Street to the Senecas and to provide sewer and water services to the Senecas. In exchange, the Senecas agreed to certain assurances for the citizens of Buffalo relative to their construction and operation of the Senecas' Casino Project, including spending between $5 million to $7 million making traffic and infrastructure improvements to City-owned lands around the proposed casino site. (LUK001533-1538)
Petitioners maintain that the City of Buffalo, the Common Council, Mayor Byron Brown, the Department of Economic Development Permits and Inspection, the Department of Public Works, the Buffalo Sewer Authority, and the Buffalo Water Board all violated SEQR and the City's SEQR ordinance, CERO, by failing to conduct the appropriate environmental reviews prior to entering into an Agreement with the Senecas (Second Amended Petition, paragraphs 139-161; 173-178); and that the City, the Buffalo Sewer Authority, and the Buffalo Water Board all proceeded under the mistaken belief that they had an obligation to provide sewer and water services to the Senecas. (Second Amended Petition, paragraphs 162-172)
Respondents Have Filed a Complete Record
The basic thrust of Petitioners' Motion is that the Record filed by Respondents is incomplete and does not provide an adequate basis for this Court to intelligently review
decisions of the Respondents that are being challenged in this Article 78 proceeding. For the reasons set forth below, this Court rejects this argument.
A body or officer in an Article 78 proceeding must file, with the answer, the record of the proceedings under consideration. CPLR § 7804(e). The record is comprised of the "facts and record adduced before the agency" with regard to the determinations that are challenged in the Article 78 proceeding. Kelly v. Safir, 96 NY2d 32, 39 (2001). See also, Argyle Conservation League, Inc. v. Town of Argyle, 223 AD2d 796, 798 (3rd Dept. 1996) (record comprised of the items that were presented to and considered by the Board in connection with the SEQR process). Judicial review of an administrative action in a CPLR Article 78 proceeding is limited to the facts and record adduced before the agency when the determination was made. Kelly v. Safir, supra at 39. The Court cannot consider substantive information that was not before the decision maker at the time the challenged decision was made. Welch v. New York State Division of Housing Community Renewal, 287 AD2d 725, 726 (2nd Dept. 2001); Montalbano v. Silva, 204 AD2d 457, 458 (2nd Dept. 1994); Matter of Celestial Food v. New York State Liquor Authority, 99 AD2d 25, 26-27 (2nd Dept. 1984). City of Saratoga Springs v. Zoning Bd. of Appeals of the Town of Wilton, 279 AD2d 756, 760 (3rd Dept. 2001).
In terms of evaluating the adequacy of the Record, the key issue is whether the Court has been provided sufficient material necessary to render a decision. Argyle Conservation League, Inc. v. Town of Argyle, 223 AD2d 796, 798 (3rd Dept. 1996). The Court is not limited to the record of proceedings, but should consider all of the pleadings, affidavits, and other documentation submitted by the parties. Benson v. McCaul, 268 AD2d 756, 757-58 (3rd Dept. 2000). ("The record here, which includes numerous submissions from both parties as well as the Commission's minutes, is sufficiently developed to provide an adequate basis upon which to review the decision of the Commission"); Iwan v. Zoning Board of Appeals of the Town of Amsterdam, 252 AD2d 913, 914 (3rd Dept. 1998) ("The proceedings before respondent, together with respondent's answer and return in Supreme Court contain sufficient facts to permit intelligent judicial review of the evidence it relied upon in reaching its determination").
In the case at hand, the Record before this Court is voluminous and includes numerous motions, affidavits and pleadings, together with approximately nineteen hundred (1,900) pages of documentation that was before the Common Council, when as lead agency it approved segmented review and issued a negative declaration. As demonstrated by this Court's analysis in its November 9 Order, the Court has more than a sufficient basis to render a decision on the merits of Petitioners' claims.
The Standard of Judicial Review .
Petitioners' central arguments is that the Respondents have failed to conduct an adequate environmental review pursuant to their obligations under SEQR and the City's local SEQR ordinance, CERO. The legal standards for a SEQR challenge are well established. As recited by this Court in its November 9 Order, the issue in a SEQR challenge is whether the lead agency identified the relevant areas of environmental concern, took a "hard look" at them, and made a reasoned elaboration of the basis for their determination. Chinese Staff and Workers Assn v. City of New York, 68 NY2d 359, 363 (1986)). A court's review of the administrative action in a SEQR case is limited to the record made before the agency. City of Saratoga Springs v. Zoning Bd. of Appeals of the Town of Wilton, 279 AD2d 756, 760 (3rd Dept. 2001). Not every conceivable environmental impact, mitigating measure, or alternative need be addressed in order to meet an agency's responsibility under SEQR; the degree of detail and the reasonableness of the agency's action will depend largely on the circumstances surrounding the action. Neville v. Koch, 79 NY2d 416, 425 (1992); Har Enterprises v. Town of Brookhaven, 74 NY2d 524, 530 (1989). A negative declaration is properly issued when the agency has made a thorough investigation of the problems involved and reasonably exercised its discretion. Spitzer v. Farrell, 100 NY2d 186, 190 (2003).
Where an action has been subject to a coordinated environmental review, other involved and interested agencies are precluded from conducting their own SEQR reviews. Gordon v. Rush, 100 NY2d 236, 244 (2003). Rather, involved and interested agencies are obligated to advise the lead agency of any relevant environmental concerns and are bound by any determination of significance issued by the lead agency. Id. See also, 6 NYCRR 617.6(b)(3)(III).
In the case at hand, the Common Council, as lead agency, conducted a coordinated environmental review with all relevant City agencies. See, LUK000009, Volume 1 of 3 of record of proceedings. ("This Resolution was adopted by a majority vote of the Council on October 31, 2006 and shall serve as the Negative Declaration (as defined in 6 NYCRR 617.2(y)) for the Project and is issued by the Council, acting as lead agency, in a coordinated environmental impact review pursuant to SEQR.").
The Council's SEQR Resolution contains detailed findings from the Common Council's environmental review and provides a detailed basis for the Council's determinations that segmentation of the environmental review of the Agreement from the Senecas' Casino Project was appropriate under the circumstances and that the Agreement would not have any significant adverse environmental impacts. Again, because this was done as part of a coordinated environmental review, the Council's determinations bind all other involved and interested agencies. Gordon v. Rush, 100 NY2d 236, 244 (2003). The Council's SEQR Resolution specifically identified all of the documents that were considered by the Council in its SEQR deliberations and all of those documents are included in the Record. (LUK000010-11) Accordingly, the Record for this Article 78 action relative to Petitioners' SEQR and CERO claims is limited to the information presented to the Common Council in connection with the SEQR/CERO process. Kelly v. Safir, supra at 39; City of Saratoga Springs v. Zoning Bd. of Appeals of the Town of Wilton, supra at 760.
Petitioners' Motion Seeks to Include Information in the Record That was not Before the Common Council
Petitioners' argue that the Record should go beyond the record of Common Council proceedings contained in the Certified Record before the Court. Petitioners argue that Respondents, including the Buffalo Sewer Authority, the Buffalo Water Board, and the Department of Public Works, have "an independent obligation to comply with SEQRA." (Affidavit of Robert E. Knoer, Esq., in Reply dated July 10, 2007, hereinafter referred to as the "Knoer Reply Affidavit," paragraphs 5-8). Further, Petitioners argue that the Record "should encompass each every one of the respondents actions and not simply the Common Council's determinations to adopt the Agreement between the City of Buffalo and the Seneca[s]." (Knoer Reply Affidavit, paragraph 13.) For the reasons discussed below, the scope of judicial review in this matter is limited to review of the Record before the Common Council in connection with its determination. Petitioners' attempt to go beyond the information actually before the Common Council is improper.Kelly v. Safir, supra at 39.
The Mayor's Negotiations
Petitioners object that the Record fails to include documents relative to Mayor Byron Brown's negotiations with the Senecas and proof that the Mayor mitigated adverse environmental impacts in his negotiations. However, such documents, if they exist, are entirely irrelevant to Petitioners' SEQR and CERO claims. The Court may not consider information that was not before the lead agency at the time the challenged decision was made. Welch v. New York State Division of Housing Community Renewal, supra at 726. The issue is whether the lead agency, in this case the Common Council, made a thorough investigation of the problems involved and reasonably exercised its discretion. Spitzer v. Farrell, 100 NY2d 186, 190 (2003). Therefore, Petitioners' objections for failing to include any record of Mayor Brown's negotiations with the Senecas is rejected as a matter of law.
Proceedings of the Buffalo Sewer Authority and Buffalo Water Board
Petitioners similarly object to the lack of documentation from any proceedings of the Buffalo Sewer and Water Authority. This objection is also rejected by the Court. The present Record establishes that there are a number of documents in the Record provided from or on behalf of the Buffalo Sewer Authority and the Water Board, all of which were a part of the information presented to the Common Council in its deliberations on both the SEQR and Agreement Resolutions. These are the only documents from the Buffalo Sewer Authority and the Water Board which are relevant to Petitioners' claims, as these were the only documents from these agencies that were before the Common Council. City of Saratoga Springs v. Zoning Bd. of Appeals of the Town of Wilton, supra at 760; Welch v. New York State Division of Housing Community Renewal, supra at 726. Accordingly, Petitioners' arguments that the Record must include documentation from the proceedings of the Buffalo Sewer Authority and Buffalo Water Board are rejected.
Minutes of Meetings
Petitioners also object to the Record on the grounds that Respondents have failed to provide the meeting minutes or transcripts of fifty-three (53) City meetings where Petitioners claim the Senecas' Casino Project appeared on the agenda. Affidavit of Richard E. Stanton in Support of Petitioners' Objections to the Record dated June 29, 2007 ("Stanton Affidavit"), paragraph 42. As discussed above, the only proceedings of relevance to Petitioners' claims are the proceedings of the Common Council and only to the extent such proceedings involve the Council's adoption of the SEQR Resolution and/or the Agreement Resolution of October 31, 2006. The minutes from the Common Council meetings of October 17, 2006 and October 31, 2006, as well as the minutes from the Common Council's Finance Committee meeting of October 24, 2006, are included in the Affidavit of Gerald Chwalinski, the Clerk of the City of Buffalo. These minutes add nothing to the Record and do not assist this Court in its evaluation of Petitioners' claims.
The Court rejects Petitioners' claims that meeting minutes or transcripts of fifty-three (53) City meetings be included in the Record. Such meeting minutes were not part of the Record of proceedings before the Common Council. Kelly v. Safir, supra at 39. Furthermore, the absence of the meeting minutes will add nothing to "intelligent judicial review" of the Common Council's determination in this matter. See, Iwan, supra at 914. Petitioners' objections in this regard are denied.
Transcripts of Meetings
Petitioners have also objected to the Record noting that transcripts of certain informational hearings and informational meetings be created and included in the Record. However, transcripts of informational hearings or meetings are not properly part of the record. United States v. City of New York, 96 F.Supp2d 195, 208-09 (EDNY 2000). In rejecting identical arguments the ones Petitioners make in this case, the court (in the context of a SEQR claim) recited:
The requirement in CPLR 7804(e) of filing a certified transcript of the record of the proceedings under consideration does not require the kinds of documents at issue here, minutes of public hearings held for information purpose and internal deliberations of public entities . . . A hearing transcript is necessary to review adjudicative hearings, but it is not required to review decisions in administrative or quasi-legislative proceedings that were conducted to consider proposed actions of public agencies.
Id. See also, Save the Pine Bush, Inc. v. Planning Board of the City of Albany, 83 AD2d 741 (3rd Dept. 1981) (SEQR hearings are informational and not the type of hearings where evidence is taken to support Findings of Fact). See also, Leewen Contracting Corp. v. City of New York, 272 AD2d 246 (3rd Dept. 2001).
The transcripts Petitioners seek will add nothing to "intelligent judicial review" (See, Iwan, supra at 914) of the Common Council's determinations in this matter. For instance, Petitioners argue that the Record must include the transcript from an October 25, 2006 Common Council work session which was held to review updated SEQR documentation relative to the Agreement. (Stanton Affidavit, paragraph 34.) Petitioners, relying on the Affidavit of Brendan Mehaffy, dated November 3, 2006, argue that the transcript will show that the Common Council was improperly informed, among other things: that the Agreement was an unlisted action; the Common Council could segment their environmental review to the Agreement and exclude consideration of the Senecas' Casino Project; and that the Common Council had no ability to stop the Senecas' Casino Project. (Stanton Affidavit, paragraphs 34-38). These facts are already established in the Record, and a transcript of the meeting would add nothing to the Record. The SEQR Resolution itself clearly states that the Agreement was classified as an unlisted action by the Common Council; the Common Council was segmenting its environmental review of the Agreement from the Senecas' Casino Project; and that the City had no ability to stop the Senecas from building and operating a casino on the Buffalo Creek Territory. (LUK000001-11.) Moreover, in their Verified Answer, Respondents admit that they had been advised that they were limited in their ability to impact the development of the Senecas' Type III casino. (Verified Answer, paragraph 29.)
This Court has already noted that "[t]he City of Buffalo simply does not have the ability or the authority to prevent the Nation's construction of a Type III gaming casino." (November 9 Order, page 44.) A transcript of the October 25, 2006 Common Council work session is not required for this Court to conduct an "intelligent judicial review" of Petitioners' arguments in this matter. Iwan, supra at 914.
Respondents Have Provided a Certified Transcript of the Record
Petitioners object to the certification of the Record made by Respondents provided by Corporation Counsel, Alisa A. Lukasiewicz. As stated in her affidavit, Ms. Lukasiewicz has personal knowledge of the proceedings and information provided therein.
Nonetheless, in an effort to avoid further motion practice, Respondents arranged for the Clerk of the City of Buffalo, Gerald Chawalinski, via affidavit and certification to attest that the documents submitted by Respondents under Bates-stamps LUK000001 through LUK001887 constitute the entire Record of the proceedings in this matter. The affidavit and certification from the City Clerk resolves Petitioners' objections relative to the certification of the Record.
Petitioners' Motion to Strike
Petitioners motion to strike Respondents' Answer is rendered moot by the Court's determination of July 27, 2007 which required Respondents to file a certified record of the proceedings before the Common Council. On August 3, 2007, Respondents filed a certified record of the proceedings before the Common Council in compliance with this Court's directive. .
ORDER OF THE COURT
For the reasons recited herein, Petitioners' motion is in all respects denied. This Memorandum Decision shall constitute the Order of the Court.