Opinion
6054/2017
06-11-2019
In the Matter of the Application of BLUE POINT COMMUNITY CIVIC ASSOCIATION, INC., Edward S. Silsbe, Christopher Clarke, Linda Clarke, Marianne Rhodes, Thomas Rhodes, Elizabeth Salata, and Stephen Salata, Petitioners-Plaintiffs, v. TOWN OF ISLIP, Town Board of the Town of Islip, Planning Board of the Town of Islip, and Fairway Manor, Inc., Respondents-Defendants.
Hamburger, Maxson, Yaffe & McNulla, LLP, Attorneys for Petitioners, 225 Broadhollow Road, STE 301E, Melville, NY 11747 John R. DiCioccio, Esq., Town Attorney, Town of Islip, Attorneys for Town Respondents, Town Hall, 655 Main Street, Islip, NY 11751 Sinnreich Kosakoff & Messina, LLP, Attorneys for Respondent- Fairway Manor, 267 Carleton Avenue, Ste 301, Central Islip, NY 11722
Hamburger, Maxson, Yaffe & McNulla, LLP, Attorneys for Petitioners, 225 Broadhollow Road, STE 301E, Melville, NY 11747
John R. DiCioccio, Esq., Town Attorney, Town of Islip, Attorneys for Town Respondents, Town Hall, 655 Main Street, Islip, NY 11751
Sinnreich Kosakoff & Messina, LLP, Attorneys for Respondent- Fairway Manor, 267 Carleton Avenue, Ste 301, Central Islip, NY 11722
Joseph A. Santorelli, J.
Upon the following papers numbered 1 to 122 read on this motion Article 78 ; Notice of Motion/ Order to Show Cause and supporting papers 1 - 32 ; Notice of Cross Motion and supporting papers; Answering Affidavits and supporting papers 33 - 64 & 65 - 67 ; Replying Affidavits and supporting papers 68 - 69 ; Other; (and after hearing counsel in support and opposed to the motion) it is,
In this hybrid article 78 and declaratory judgment action, the petitioners seek an order: (1) declaring that the Town Board of the Town of Islip's resolution issued on July 27, 2017 granting TC# 5280 was issued in violation of the State Environmental Quality Review Act, hereinafter referred to as "SEQRA", and the implementing regulations void ab initio ; (2) vacating the Town Board resolution as unlawful, arbitrary and capricious, an abuse of discretion and unsupported by substantial evidence; (3) remanding the matter to the Town Board with a direction to make a finding of significant adverse environmental impact and requiring the preparation of an Environmental Impact Statement, hereinafter referred to as "EIS"; (4) enjoining the Town respondents from issuing, granting, awarding or otherwise authorizing any site-plan approval, permit, license or other approval based upon the resolution; and (5) awarding costs and disbursements. The respondents oppose the application in all respects.
Respondent Fairway Manor is the owner of the property which is the subject of this proceeding. The property consists of approximately 70 acres located in both the Town of Islip and the Town of Brookhaven. In July 1991 The Town of Islip granted an application of respondent Fairway Manor's predecessor-in-interest for a change of zone in order to construct the senior citizen residential development now known as Fairway Manor. At that time the project was deemed a "Type I Action" under SEQRA and an EIS was completed. Covenants and restrictions were recorded against the property, including restrictions limiting the number of units to be constructed at 394 for the Islip portion and 21.72 acres of the 45.6 acres in the Town of Islip to either be improved with a 9-hole golf course or to remain "open unimproved land". In January 2014 Fairway Manor applied for a change of zoning and to amend the covenants and restrictions on the property seeking approval to build an additional 260 units, which was above the residence maximum density. The application was subsequently amended to reduce the number of additional units to 156, which complies with the Town of Islip's zoning code for residence maximum density. On May 18, 2014 the Town received a short SEQRA assessment form.
An initial public hearing was held on July 10, 2014. The Planning Board prepared a report on the status, wherein it recommended that the Town Board reserve decision to complete further review. The Town Board at the conclusion of the initial hearing reserved decision and kept the record open for additional public comment and applicant submissions. A comprehensive traffic impact review was done and Fairway Manor submitted a waste and sewage treatment plan to expand the capacity of its existing sewage treatment facility to accommodate the additional units. On March 2, 2017 a Planning Board hearing was held to discuss the applications. The Planning Board reserved decision and requested that additional information be submitted. The final hearing before the Planning Board was held on May 18, 2017. The Planning Board recommended approval subject to modified covenants and restrictions. On July 12, 2017 the Suffolk County Planning Commission held a public hearing and recommended approval of the application. The Suffolk County Planning Board approved without conditions and found that the project posed no negative environmental impacts.
Senior Environmental Analyst Jessica Joyce for the Town of Islip acted on behalf of the lead agency for the SEQRA review using the SEQRA assessment form submitted in 2014. The form indicates that "No, or small impact may occur" in each of the eleven categories outlined under "Impact Assessment". On July 27, 2017, it was noted under the heading "Determination of Significance" that
The proposed project requests a change of zone from Recreation Service G District and Residence C District to all Residence C District in order to expand an existing senior citizen apartment development. The applicants are requesting 156 additional units which complies with the density limits of 12 units to the acre. Approximately 13 acres of the site will be maintained as open space and a mitigation fee will be used for parks and recreation purposes in the hamlet of Bayport. Traffic impacts have been reviewed as part of this application and no significant impacts are anticipated.
At a Town Board meeting on July 27, 2017, the Board heard testimony from several individuals in support of the application and several individuals in opposition to the application, including petitioner Edward S. Silsbe. The Town Board limited testimony per individual to three minutes. Mr. Silsbe's time expired during his testimony. A senior environmental planner for VHB Engineering also testified at the hearing. She testified that the proposed project builds "into an already existing development" and will take advantage of existing infrastructure that includes a private sewage treatment plant, She further testified that the plant was to be expanded and upgraded which would "protect groundwater usage". Matthew Schneider of RMS Engineering also testified as to concerns about sewage treatment and waste water. He testified that the existing sewage treatment plant would be upgraded with modern state-of-the-art technology, known as "membrane bioreactor technology", allowing the plant to maintain its existing footprint. On July 27, 2017 the Town Board passed the resolution granting Fairway Manor's application and adopting a negative declaration under SEQRA. The petitioners now challenge that determination and argue that a positive declaration should have been adopted and an EIS completed.
The Court in Jackson v. NY State Urban Dev. Corp. , 67 NY2d 400, 416-417 [1986] ; held that
SEQRA requires agencies to "act and choose alternatives which, consistent with social, economic and other essential considerations, to the maximum extent practicable, minimize or avoid adverse environmental effects" ( ECL 8-0109 [1] ). An agency may not approve an action unless it makes "an explicit finding that the requirements of [SEQRA] have been met and that consistent with social, economic and other essential considerations, to the maximum extent practicable, adverse environmental effects revealed in the environmental impact statement process will be minimized or avoided" ( ECL 8-0109 [8] ; see, 6 NYCRR 617.9 [c] [2] [I] ), and that, "consistent with social, economic and other essential considerations, to the maximum extent practicable, adverse environmental effects revealed in the environmental impact statement process will be minimized or avoided by incorporating as conditions to the decision those mitigative measures which were identified as practicable" ( 6 NYCRR 617.9 [c] [2] [ii] ).
SEQRA contains no provision regarding judicial review, which must be guided by standards applicable to administrative proceedings generally: "whether a determination was made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion" ( CPLR 7803 [3] ; see, Matter of City of Schenectady v. Flacke , 100 AD2d 349, 353, lv denied 63 NY2d 603 ; Matter of Environmental Defense Fund v. Flacke , 96 AD2d 862 ). In a statutory scheme whose purpose is that the agency decision-makers focus attention on environmental concerns, it is not the role of the courts to weigh the desirability of any action or choose among alternatives, but to assure that the agency itself has satisfied SEQRA, procedurally and substantively.
More particularly, in a case such as this, courts may, first, review the agency procedures to determine whether they were lawful. Second, we may review the record to determine whether the agency identified the relevant areas of environmental concern, took a "hard look" at them, and made a "reasoned elaboration" of the basis for its determination ( Aldrich v. Pattison , 107 AD2d 258, 265, supra; Coalition Against Lincoln W. v. City of New York , 94 AD2d 483, 491, affd 60 NY2d 805, supra ; H.O.M.E.S. v. New York State Urban Dev. Corp. , 69 AD2d 222, 232 ). Court review, while supervisory only, insures that the agencies will honor their mandate regarding environmental protection by complying strictly with prescribed procedures and giving reasoned consideration to all pertinent issues revealed in the process.
Our inquiry is tempered in two respects. First, an agency's substantive obligations under SEQRA must be viewed in light of a rule of reason. "Not every conceivable environmental impact, mitigating measure or alternative must be identified and addressed before a FEIS will satisfy the substantive requirements of SEQRA" ( Aldrich v. Pattison , 107 AD2d 258, 266, supra; Coalition Against Lincoln W. v. City of New York , 94 AD2d 483, 491, affd 60 NY2d 805, supra). The degree of detail with which each factor must be discussed obviously will vary with the circumstances and nature of the proposal (see, Webster Assoc. v. Town of Webster , 59 NY2d 220, 228 ). Second, the Legislature in SEQRA has left the agencies with considerable latitude in evaluating environmental effects and choosing among alternatives (see, e.g., ECL 8-0109 [8] ). Nothing in the law requires an agency to reach a particular result on any issue, or permits the courts to second-guess the agency's choice, which can be annulled only if arbitrary, capricious or unsupported by substantial evidence ( Aldrich v. Pattison , 107 AD2d 258, 267, supra; see also, Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council , 435 U.S. 519, 555 ).
In Nielsen v. Planning Bd. of E. Hampton , 110 AD2d 767, 768 [2d Dept 1985], the Court held
Before an agency may make a finding of nonsignificance pursuant to SEQRA, it must identify the relevant areas of environmental concern, take a "hard look" at them, and make a reasoned elaboration for the basis of its declaration (Matter of Tehan v. Scrivani , 97 AD2d 769 ; Matter of Schenectady Chems. v. Flacke , 83 AD2d 460 ). We have consistently required literal compliance with the procedures promulgated under SEQRA (see, Matter of Rye Town/King Civic Assn. v. Town of Rye , 82 AD2d 474, appeal dismissed 55 NY2d 747 ).
Upon reviewing the resolution of the Planning Board on July 27, 2017, as well as the record from the July 10, 2014, March 2, 2017, May 18, 2017 and July 27, 2017 public hearings, the Court is satisfied that the Planning Board and Town Board took a hard look at the relevant areas of environmental concern and made a reasoned elaboration for their basis of approving a Negative Declaration and then approving the application. The Planning Board's determination was not arbitrary and capricious or an abuse of discretion. In making its determination, the Planning Board considered all of the statutory factors and used the requisite balancing test. The Town Board's determination was not arbitrary and capricious or an abuse of discretion. In making its determination, the Town Board also considered all of the statutory factors and used the requisite balancing test.
Accordingly, the petition is denied and the proceeding is dismissed.
The foregoing shall constitute the decision and Order of this Court.