Opinion
008948/04.
Decided January 9, 2006.
Proceeding pursuant to CPLR Article 78 brought by the Petitioner, Waldbaum, Inc., for a judgment vacating and annulling Local Law No. 8 of the Year 2004 on the grounds that it was adopted by the Respondents, The Incorporated Village of Great Neck (the "Village") and the Board of Trustees of the Incorporated Village of Great Neck (the "Board of Trustees") (collectively referred to herein as the "Municipal Respondents"), in violation of the New York State Environmental Quality Review Act ("SEQRA") (Environmental Conservation Law § 08-0101 et seq.) and its implementing regulations ( 6 NYCRR Part 617), is herewith granted.
The Respondent, the Village of Great Neck, seeks to redevelop approximately 27 acres of land that is currently improved with a variety of commercial and industrial uses including two sewage treatment plants, into a high and medium density residential community with a public park and promenade along Manhasset Bay in Nassau County. Approximately 19 acres of such land is located in the Village's former Industrial District and approximately 8 acres of the land is located in the Village's former Business C District.
In order to implement their proposed action to rezone the Village of Great Neck's Industrial and Business C Districts, the Municipal Respondents, including the Village of Great Neck and the Village's Board of Trustees, among other things, adopted Local Law No. 8 of the Year 2004 and Local Law No. 10 of the Year 2004. Local Law No. 8 rezoned the Industrial District to a newly created zoning classification known as the Waterfront Development District. Similarly, Local Law No. 10 rezoned the Business C District to a newly created zoning classification known as the Mixed Use District. The Local Laws took effect on March 15, 2004, when they were filed with the New York Secretary of State.
The Petitioner, Waldbaum, Inc., owns a 2.4 acre parcel of real property in the Village's former Industrial District and is allegedly adversely affected by Local Law No. 8. The Petitioner, therefore, seeks a judgment pursuant to Article 78 of the CPLR vacating and annulling Local Law No. 8 of the Year 2004 on the grounds that it was adopted in violation of the requirements of SEQRA and its implementing regulations, 6 NYCRR Part 617.
The Municipal Respondents, by and through the Village's Board of Trustees, were designated as the "lead agency" for the purposes of this project pursuant to SEQRA. (See, ECL 8-0101). In or about October 2001, the Village's planner retained Frederick P. Clark Associates, Inc. to conduct the initial study for the Industrial and Business C Districts and to prepare a Draft Generic Environmental Impact Statement ("DGEIS") for the proposed action, in accordance with the requirements of SEQRA and the applicable regulations. (See, ECL 8-0109(4); 6 NYCRR 617.8).
In November 2002, the "preliminary" DGEIS was completed. Although the DGEIS discussed the "relocation of some sewage treatment facilities to more appropriate locations", no further details regarding the relocation of the sewage treatment facilities were included in the preliminary DGEIS. Notably, the preliminary DGEIS also did not contain any proposed rezoning legislation.
Thereafter, in January 2003, the Village Planner prepared a revised version of the "preliminary" DGEIS. The January 2003 DGEIS revealed that "[o]ne initiative currently being explored is the relocation of a majority of the municipal sewage facilities currently in the area to more suitable locations. The combined sewer districts are pursuing a grant to utilize the existing sewage treatment facilities at the Cedar Creek site [in Wantagh], resulting in the decommissioning of the facilities in this area."
With regard to the "Impact" of the project on the existing sewer system, the Village Planner referenced a letter from an attorney for the Great Neck Water Pollution Control District (the "Control District") which stated that the proposed action with was within the Control District and that wastewater treatment from the District's existing facilities was available for the project. The letter allegedly further stated that "all collection system or treatment system improvements which are required to handle the additional flow will be at the sole cost of the developer." See Exhibit 13 at p. II-30. This Court notes, however, that said letter was not produced for this Court's consideration and therefore, its veracity remains questionable.
In the "Impact" section of the January 2003 DGEIS, the Village Planner stated: "[t]he proposed project will cause an increase in flows to the treatment plant and additional demand for water. The degree of such impacts and the ability of existing systems to meet such impacts will be determined in accordance with the requirements of the controlling organizations . . ." (See, id at p.II-30). However, the Village Planner in the DGEIS also stated that one of the "significant beneficial impacts" of the proposed rezoning was the "relocation of some existing Village sewage treatment facilities to more appropriate locations." (See id at p. S-1). Thus, although the Village Planner, on the one hand, assumed that the sewage generated from the new residential and retail development would be treated at the existing sewage treatment plants in the rezoned area, the conceptual site plan in the DGEIS showed the elimination of the sewage treatment plants and their replacement with residential and retail units.
On January 7, 2003, the Board of Trustees held a public hearing on the January 2003 DGEIS. At the public hearing, the then-Mayor of the Village, Stephen Falk, explained that it was Village's intention to solicit proposals from recognized developers to redevelop the area. Although, in the instant petition, Waldbaum alleges that Mayor Falk explained at the public hearing that it was the Village's intention to have the entire 27 acres redeveloped ( see, Amended Petition, ¶ 62, emphasis added ) without the entire transcript available for the Court's consideration, including pages 39-40 of the January 7, 2003 transcript, this Court cannot assess the validity of such allegation. However, to the extent that the transcript of the January 7th public hearing is made available to this Court, it is undisputed that the Mayor and the Commissioner of the Control District acknowledged at the hearing that the sewage treatment plants were outdated and unable to comply with federal and state mandates requiring the reduction of nitrogen emissions to the Long Island Sound. The Chairman of the Village's Board of Trustees, explicitly stated at the hearing that the "diversion process is . . . the key to this development . . ." (See, Exhibit 33, January 7, 2003 Transcript, page 133, lines 9-10).
In addition to making public comments at the hearings on the DGEIS, the New York Times, in an article appearing on March 2, 2003, entitled "Not in My Sewage Plant," stated: "Mr. Falk said the linchpin of the plan is the removal of the two sewage plants, one belonging to the [Control District], which serves parts of the dozen villages on the peninsula and part of Manhasset, the other to the Village of Great Neck." See, Amended Petition, Exhibit E.
The Control District also commented on the preliminary DGEIS. Pursuant to a letter dated March 3, 2003, the Control District stated that the conceptual site plan for the proposed redevelopment of the water front area incorrectly assumed the closure of the sewage treatment plants and the redevelopment of the sewage treatment plants with residential units. (See, Exhibit 20). Specifically, the Control District stated that its future "[w]ill be influenced by a forthcoming study, and the results of that study are not presently known. Accordingly, the [Control District] has no plans to sell its property, and we recommend that the DGEIS be revised to reflect this reality." (See id).
Thereafter, in March 2003, the Village Planner issued another version of the DGEIS. This DGEIS contained a revised conceptual site plan that continued to show the elimination of the sewage treatment plant and its replacement with residential units and retail space. (See, Exhibit 19, Figure 2 at Areas A and B on the site plan).
However, the March 2003 DGEIS included, for the first time the proposed language for the zoning legislation that would apply to the new Waterfront Development District and the new Mixed Use District. The March 2003 DGEIS contained the same "Impact" analysis regarding sewage and soil contamination as the January 2003 DGEIS.
On March 4, 2003, the Board of Trustees held another public hearing on the DGEIS. Again, the Mayor reiterated that the redevelopment project was directly related to and dependent on the sewer diversion. He stated:
. . . I said all along if the diversion does not go ahead, the development dies; ok? The diversion is a critical part of the development, but the diversion is of critical importance to the North Shore, to our plants. See, Exhibit 33, March 4, 2003 Transcript, page 23.
Despite the Mayor's comments regarding what he believed was possible, allegedly no expert report was submitted to the Village during the SEQRA review process which analyzed the nature and extent of the contamination in the rezoned area and the cost and feasibility of remediating such contamination to residential clean up standards. (See, McKinney's ECL §§ 27-0900, 27-0916, 27-1313).
In April 2003, the Village Planner issued another revised DGEIS. The conceptual site plan in the April 2003 DGEIS continued to show the closure and elimination of the existing sewage treatment plants as part of the overall redevelopment plan. It also listed as one of the "significant beneficial impacts" of the rezoning the "relocation of existing sewage treatment facilities to more appropriate locations." (See, Exhibit 24, page S-1). Nonetheless, on April 7, 2003, the Municipal Respondents issued a Notice of Completion of the DGEIS and Notice of SEQRA Hearing. The notice informed the public that a DGEIS had been completed and accepted by the Board of Trustees and that a public hearing would be held on May 6, 2003.
At the May 6, 2003 public hearing on the DGEIS, the Mayor and the Board of Trustees asked the public to limit their comments solely to the rezoning. See, Exhibit 33, May 6, 2003 Transcript, pages 2-6. In fact, a member of the public asked the Board if the proposed action assumed the closure of the sewage treatment plants. See id at pages 6-7. In response, the Village Attorney stated:
The Mayor had previously indicated that the diversion project is separate and apart from the rezoning, this hearing has to do with rezoning. The diversion project is not the subject of tonight's public hearing. There will be public hearings with regard to the diversion project, this is not such a hearing.
The Mayor has indicated that the practicality of the rezoning, if the diversion project does not go through, will probably make the rezoning impractical, but this hearing tonight is not with regard to the diversion project, it is solely with regard to the rezoning. See id at page 6.
One Village resident at the hearing voiced his outrage at the Village's refusal to discuss the sewer diversion in connection with the rezoning, stating as follows:
On the subject of the rezoning, I would demand that a full environmental impact study be done after the requisite [DGEIS] for the rezoning, because the Mayor has made it abundantly clear, many times, that the rezoning hinges absolutely on the diversion. Therefore, diversion is a proper topic tonight, Mr. Mayor — I'm making a comment, I'm not asking a question, I'm making a comment. You needn't look to your legal beagle here for advice. You have said this many times, and I am going to hold you to that, that you must consider the diversion because of your statements in public. And so I am demanding that full [EIS] be done that will cover the rezoning and the diversion that you have, yourself, many times, said is absolutely essential for the rezoning.
See, Exhibit 33, May 6, 2003 Transcript, page 11.
In June 2003, the Village Planner issued a Final Generic Environmental Impact Statement (the "FGEIS"). The FGEIS contained the Village's responses to the various public hearings on the FGEIS. Although the FGEIS did not respond to the public's comments regarding the odors emanating from the existing sewage treatment plants, nor did the FGEIS address the environmental impact of increased discharges of treated sewage in to the Long Island Sound, with regard to the public's comments concerning the ability of the existing sewage treatment plants to process the anticipated sewage flow from the new development, the Village stated that the capacity of the existing system to handle the additional flow would be determined at a later date when a specific project is proposed and the developer has supplied the Control District with sewage flow data. (See, Exhibit 33, page II-8). With regard to the public's comments concerning the sewer diversion project, the Village took the position that the diversion project was an independent project and that it did not have to respond to the public's comments regarding the diversion. (See id, pages II-9 through II-12).
Thereafter, on August 21, 2003, the Village deemed the FGEIS complete and accepted it. See, Exhibit 34. On September 3, 2003, the Board of Trustees held a meeting at which it discussed how the Village should proceed with the rezoning and the SEQRA process. Additionally, at the September 3, 2003 meeting, the Board of Trustees discussed how the scope of the overall project had changed since its inception and how the concept of forming a redevelopment authority with power to condemn properties and transfer them to a single developer was no longer feasible. At the conclusion of the September 3, 2003 meeting, it was unclear how the Village intended to proceed with the rezoning and the SEQRA process.
On October 2, 2003, the Village Planner issued a memorandum containing proposed revisions to the Waterfront Development District regulations consistent with the newly proposed conceptual site plan submitted by the newly elected Mayor, Richard Deem. Among other things, the proposed revisions expressly permitted "municipal facilities" (e.g., sewage treatment plants) as permitted uses in the Waterfront Development District.
In December 2003, the Village Planner issued a document entitled "East Shore Rezoning Environmental Assessment of Alternate Zoning." This document purported to examine the environmental impacts of the October and December 2003 proposed revisions to the zoning legislation. In the Environmental Assessment, the Village Planner concluded that "the inclusion of commercial uses as principal uses and the density incentives or bonuses pertaining thereto will not result in any significant adverse environmental impacts and that a Negative Declaration should be prepared for the modified proposed action." See, Exhibit 41, page 5.
On February 3, 2004, the Board of Trustees adopted a Findings Statement pursuant to SEQRA and on February 17, 2004, the Board of Trustees held a public hearing on the revised zoning legislation. The Petitioner, through its parent corporation, appeared at the hearing through its counsel and objected to the rezoning citing the reasons set forth in the instant Article 78 petition. Thereafter, the Petitioner supplemented its verbal objections to the proposed rezoning by letter dated March 1, 2004. Nonetheless, on March 2, 2004, the Board of Trustees voted to adopted Local Law No. 8 and Local No. 10 rezoning the Industrial and Business C Districts, respectively. The Local Laws became effective when they were filed with the Secretary of State on March 15, 2004.
Upon the instant proceeding, Petitioner seeks a judgment vacating and annulling Local Law No. 8 of the Year 2004 on the grounds that it was adopted by the Municipal Respondents in violation of SEQRA.
NEW YORK STATE ENVIRONMENTAL QUALITY REVIEW ACT ("SEQRA")
It is well settled that the primary purpose of SEQRA is "[t]o inject environmental considerations directly into governmental decision making." (See, Matter of Coca-Cola Bottling Co. v. Board of Estimate, 72 NY2d 674, 679). To achieve these purposes and goals, SEQRA imposes procedural and substantive requirements upon the agency charged with decision making in respect to proposed "actions." The Court of Appeals in WEOK Broadcasting Corporation v. Planning Board of the Town of Lloyd, 79 NY2d 373, best summarized the regulatory framework of SEQRA as follows:
Whenever it is determined that a proposed "action" may have a significant effect on the environment, a [Draft Environmental Impact Statement] is required to be prepared and various other procedural steps are to be taken including soliciting comments on the DEIS, holding public hearings when appropriate ( ECL 8-0109, 8-0105[7]; 6 NYCRR 617.8 ) and preparing and filing a [Final Environmental Impact Statement] in respect to which comments are solicited and any further appropriate public hearing held ( 6 NYCRR 617.10[g]). In addition to the procedural requirements, SEQRA imposes substantive requirements which include listing the various types of information that must be included in the EIS, a description of the proposed action with an assessment of its environmental impact and any unavoidable adverse environmental effects ( ECL 828-0109[2][a]-[c]) and mitigation measures proposed to minimize the environmental impact (ECL 8-0109[2][f]).
If an agency proposes to approve a project, it must consider the FEIS and prepare written findings that the requirements of SEQRA have been met ( ECL 8-0109 [8]). It must also prepare a written statement of the facts and conclusions in the FEIS and comments relied upon and the social, economic and other factors and standards which form the basis of its decision ( 6 NYCRR 617.9[c]). Put differently, the agency must take a sufficiently "hard look" at the proposal before making its final determination and must set forth a reasoned elaboration for its determination (see, Akpan v. Koch, 75 NY2d 561, 570 , supra ; Matter of Jackson v. New York State Urban Dev. Corp. , 67 NY2d 400, 415-416, supra). Where an agency determines to reject a proposed project, it must likewise take a sufficiently "hard look" and set forth a reasoned elaboration for its determination (see, Matter of Jackson v. New York State Urban Dev. Corp. , supra, at 416). As we have only recently observed, "[a]n agency's compliance with its substantive SEQRA obligations is governed by a rule of reason and the extent to which particular environmental factors are to be considered varies in accordance with the circumstances and nature of particular proposals" ( Akpan v. Koch, 75 NY2d 561, 570, supra ; see also, Matter of Jackson v. New York State Urban Dev. Corp. , 67 NY2d 400 , supra ).
See, WEOK Broadcasting Corporation v. Planning Board of the Town of Lloyd, supra.
In this case, the petitioner, Waldbaum, contends that the Village violated SEQRA by: (i) engaging in improper "segmentation" of its environmental review of the rezoning; (ii) failing to take the requisite "hard look" at several key areas of environmental concern prior to adopting the rezoning; (iii)failing to consider whether a Supplemental Generic Environmental Impact Statement ("SGEIS") was necessary after the Village changed the proposed action after the acceptance of the FGEIS for the proposed action and after the Petitioner presented the Village with substantial evidence of inadequacies in the GEIS that was prepared by the Village; and (iv) failing to strictly adhere to other procedural requirements of SEQRA.
JUDICIAL REVIEW
The Court of Appeals has repeatedly made it clear that the Court's role in reviewing SEQRA determinations is as follows:
The often stated rule regarding our role in reviewing SEQRA determinations needs no extended discussion; it is not to weigh the desirability of any proposed action or to choose among alternatives and procedural requirements of SEQRA and the regulations implementing it ( Matter of Village of Westbury v. Department of Transp., 75 NY2d 62, 66), but to determine whether the agency took a "hard look" at the proposed project and made a "reasoned elaboration" of the basis for its determination ( Matter of Jackson v. New York State Urban Dev. Corp. , 67 NY2d 400 , supra ). Where an agency fails to take the requisite hard look and make a reasoned elaboration, or its determination is affected by an error of law, or its decision was not rational, or is arbitrary and capricious or not supported by substantial evidence, the agency's determination may be annulled (see, CPLR 7803[3]; Chinese Staff Workers Assn. v. City of New York, 68 NY2d 359, 363; Matter of Jackson v. New York State Urban Dev. Corp. , supra ; see generally, 55 NY Jur 2d, Environmental Rights, § 65).
See, WEOK Broadcasting Corporation v. Planning Board of the Town of Lloyd, supra. The WEOK Court defined "substantial evidence" as:
"[b]eing such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact' ( 300 Gramatan Ave. Assocs. v. State Div. of Human Rights, 45 NY2d 176, 180) or the kind of evidence on which responsible persons are accustomed to rely in serious affairs' ( People ex rel. Vega v. Smith, 66 NY2d 130, 139)."
* * *
Although a particular kind or quantum of "expert" evidence is not necessary in every case to support an agency's SEQRA determination to permit SEQRA determinations to be based on no more than generalized, speculative comments and opinions of local residents and other agencies, would authorize agencies conducting SEQRA reviews to exercise unbridled discretion in making their determinations and would not fulfill SEQRA's mandate that a balance be struck between social and economic goals and concerns about the environment (see, Matter of Jackson v. New York State Urban Dev. Corp., supra ). Nor could it be said that such a determination accords with "a rule of reason" (see, Akpan v. Koch, supra ).See, WEOK Broadcasting Corporation v. Planning Board of the Town of Lloyd, supra Thus, with these guidelines in mind, this Court will address each of Petitioner's alleged SEQRA violations, in turn.
ALLEGED SEQRA VIOLATIONS
1.Improper Segmentation.
Petitioner contends that the Village engaged in improper "segmentation" of its environmental review of the rezoning.
It is impermissible under SEQRA to "segment" the environmental review of a proposed action. "Segmentation" is defined as "the division of the environmental review of an action such that various activities or stages are addressed as though they were independent, unrelated activities, needing individual determinations of significance." 6 NYCRR section 617.2(a) (g). The practice of improperly dividing a single project into separate projects to evade consideration of their cumulative effects under SEQRA is known as segmentation. See, City of Buffalo v. New York State Dep't of Env. Conservation, 184 Misc 2d 243. Under SEQRA, consideration of "only a part or segment of an action is contrary to the intent of SEQRA [r]elated actions should be identified and disclosed to the fullest extent possible." 6 NYCRR section 617.3(g)(1). The Court of Appeals in the case of In the Matter of Save the Pine Bush, Inc. et. al. v. City of Albany et al., ( 70 NY2d 193, 200), held that ". . . when an action with potential adverse effects on the environment is part of an integrated project designed to balance conflicting environmental goals within a subsection of a municipality that is ecologically unique, the potential cumulative impact of other proposed or pending projects must be considered pursuant to SEQRA before the action may be approved."
In this case, Petitioner contends that the Village improperly segmented its environmental review of the proposed rezoning by failing to consider the environmental impacts of a related project that is part of the Village's long term plan for the redevelopment of the rezoned area, mainly the proposed closure of two of the Village's sewage treatment plants in the rezoned area and the diversion of the Village's sewage to the south shore of Long Island for treatment and discharge.
The Municipal Respondents counter Petitioner's contentions with the argument that "[t]he sewer diversion project was part of a completely separate joint initiative that [is] not under the direct jurisdiction of the Village." (See, Respondent's Memo of Law, ¶ B). The Respondents further state that "[a]lthough at one time discussed as a potential intermunicipal initiative, the sewer diversion never was and still is not necessary to the Proposed Action." (See Respondent's Memo, Argument I). This Court finds Respondents' arguments to be entirely meritless.
Pursuant to 6 NYCRR 617.3(k)(1), "[i]f a lead agency believes that circumstances warrant a segmented review, it must clearly state in its determination of significance and any subsequent [environmental impact statement] the supporting reasons and demonstrate that such review is clearly no less protective of the environment. Related actions should be identified and discussed to the fullest extent possible." See, 6 NYCRR 617.3(k)(1) (emphasis added). In this case, the Village, as the lead agency herein, did not properly consider the sewer diversion project being planned for Village of Great Neck. In fact, the DGEIS for the rezoning confirmed the Mayor of the Village's statements regarding the interrelationship of the two projects. It is explicitly stated in the DGEIS that one of the "significant beneficial impacts" of the rezoning identified in the DGEIS was the "relocation of some existing Village sewage treatment facilities to more appropriate locations." See, Exhibit 24. Yet, the Village never gave any explanation as to why segmentation was permissible and no less protective of the environment. (See, 6 NYCRR 617.3(k)(1); see also, Teich v. Buchheit, 221 AD2d 452).
Respondents further argue that, as a matter of policy and law, segmentation does not exist where future actions are speculative. (See, Vill. Of Tarrytown v. Planning Bd., 292 AD2d 617, 621). Specifically, Respondents argue that "although at one time discussed as a potential intermunicipal initiative, the sewer diversion never was and still is not necessary to the Proposed Action." (See, Respondent's Memo of Law, page 14, emphasis in original).
Petitioners have, however, sufficiently established by submitting, inter alia, the statements by the Mayor of the Village, that a long range plan, one that is not speculative, existed for the development of Great Neck and that "the diversion process is the key to this development." (See, Exhibit 33, January 7, 2003 Transcript, p. 133). In fact, based upon a plain reading of the Village's own "conceptual site plan" for the redevelopment of the rezoned area, which site plan is set forth in the DGEIS, it is explicitly acknowledged that the location of the existing sewage treatment plants are redeveloped with residential units and retail space. The proposed redevelopment therefore involved the closure of the existing sewage treatment plants and the diversion of the Village's sewage to a new location for treatment.
In addition, Petitioner's exhibits include a news article about the interrelationship between the two projects wherein the Mayor of the Village stated that the closure of the sewage treatment plants was the "linchpin" of the rezoning. (See, Petitioner's Memo of Law, p. 9). Thus, clearly, the closure of the sewage treatment plants introduces additional possibilities for adverse environmental effects; those effects should have been properly considered in a cumulative review process prior to the adoption of the Local Laws. The record of proceedings in this case establishes that the Village's rezoning of the Industrial District is related to the proposed closure of the sewage treatment plants and that both projects are part of a long range plan by the Village to redevelop the Industrial District into a high and medium density residential community.
2. Failure to take a "Hard Look" prior to adopting the rezoning.
Among Petitioner's primary contentions is that the determination made by the Village was flawed because the Village failed to take a "hard look" at several key areas of environmental concern related to the rezoning in connection with its environmental review. Petitioner's claim this is especially true for the following environmental impacts associated with the rezoning: (a) the closure of the sewage treatment plants and the diversion of sewage; (b) the development of high and medium density residential units in close proximity to the existing sewage treatment plants; (c) the impact of the additional sewage from the development on the water quality of the Long Island Sound; (d) the soil and groundwater contamination in the rezoned area; and (e) the dredging of Manhasset Bay and the extension of the shoreline to construct a public promenade.
As stated above, "A court's authority to examine a SEQRA review conducted by an agency that was required to do so is limited to reviewing whether the 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." ( Gernatt Asphalt Prods. v. Town of Sardinia, 87 NY2d 668, 688). Thus, the question before this court is "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 Jackson v. New York State Urban Dev. Corp, supra at 417 ; Gernatt Asphalt Prods. v. Town of Sardinia, supra at 688 ; Matter of New York City Coalition to End Lead Poisoning v. Vallone, 100 NY2d 337, 348).
At the outset, this Court notes that in response to the Petitioner's allegation, that the Village failed to take a hard look at several environmental aspects of the proposed action, the Municipal Respondents, in relying on the Second Department's decision, Aldrich v. Pattison, ( 107 AD2d 258) argue that the Petitioner's claims are barred by the doctrine of exhaustion of administrative remedies. Specifically, Respondents' sole argument is that, as the petitioner did not comment upon or otherwise raise the issues raised in the second cause of action (alleging failure to take a hard look) during the lengthy and extensive public comment period prior to the Village Board's adoption of the FGEIS or the Findings Statement, under the exhaustion of administrative remedies doctrine, the petitioner's claims are barred.
It is well settled that SEQRA allows an administrative agency or governmental body considerable latitude in evaluating the environmental impacts and alternatives discussed in an environmental impact statement to reach a determination concerning a proposed project. (See, Aldrich v. Pattison, supra at 267). "While an [environmental impact statement] does not require a public agency to act in any particular manner, it constitutes evidence which must be considered by the public agency along with other evidence which may be presented to such agency . . . Thus the general substantive policy of the act is a flexible one. It leaves room for a responsible exercise of discretion and does not require particular substantive results in particular problematic instances." ( Matter of Town of Henrietta v. Department of Envtl. Conservation., 76 AD2d 215, 222).
Applying the doctrine of exhaustion of administrative remedies, courts have refused to review a determination on environmental matters based upon evidence or arguments not presented during the proceeding before the lead agency. ( Matter of Town of Candor v. Flacke, 82 AD2d 951, 952;
Natural Resources Defense Council v. City of New York, 112 Misc 2d 106, 108). Although the Municipal Respondents correctly cite the Second Department's 1985 decision in Aldrich v. Pattison for the principle that "[t]he doctrine of exhaustion of administrative remedies requires litigants to address their complaints initially to administrative tribunals, rather than to the courts, and . . . to exhaust all possibilities of obtaining relief through administrative channels before appealing to the courts'" (See , Aldrich v. Pattison, supra at 268), where environmental matters are involved, the Respondents have failed to take into consideration the Court of Appeals subsequent decision in Jackson v. New York State Urban Development Corp., ( 67 NY2d 400).
In Jackson, the petitioners argued, among other things, that the lead agency's environmental review of the proposed action was improper because the lead agency failed to consider the environmental impact of the proposed action on archaeological resources and a water tunnel. (See id at 426-28). The lead agency countered by arguing that the petitioner's archaeology and water tunnel claims were barred by the doctrine of exhaustion of remedies because the petitioners did not raise them during the SEQRA review process before the lead agency.
The Court of Appeals disagreed with the lead agency, finding that the doctrine of exhaustion of administrative remedies did not foreclose judicial review. (id p. 427). Instead, the Court found that the petitioners' failure to raise the issues at the administrative level was merely a factor to be considered in determining whether the lead agency acted reasonably in failing to consider the issues in its environmental review of the proposed action.
Thus, even assuming that the Petitioner failed to raise its SEQRA objections during the proceedings before the Municipal respondents, such a failure does not foreclose judicial review of those objections herein. Therefore, this Court is left to determine whether the Municipal Respondents acted reasonably in failing to consider the numerous environmental issues associated with the rezoning.
A. Closure of the Sewage Treatment Plants
As stated above, to the extent that this Court has determined that the Municipal Respondents improperly segmented the rezoning and the sewage diversion projects, based upon the papers submitted for this Court's consideration, including the Expert Affidavits of Theresa Elkowitz and David Stolman, submitted in support and in opposition to the within Article 78 petition, respectively, this Court finds that the Village in fact failed to take a "hard look" at the environmental impacts of closing its sewage treatment plants. For example, this Court is not convinced that the Board of Trustees, as the lead agency, took a "hard look" at the environmental impacts of having to excavate streets to lay approximately 6.5 miles of underground piping to connect the Village's sewer lines to Nassau County lines; nor did the Village consider the impacts on the water quality of the Atlantic Ocean.
B. Residential Units in Close Proximity to the Existing Sewage Treatment Plants
It is abundantly clear that during the SEQRA Review Process, the noxious odors emanating from the existing sewage treatment plants and their negative impact on existing, residential houses in the vicinity of plants were discussed at several hearings. Nonetheless, the Village never considered how these odors might impact the new residential development that would be constructed in the vicinity of the plants under the new zoning.
C. Water Quality of Long Island Sound
At the public hearings, the Village admitted that its sewage treatment plants are functionally obsolete and need to be rebuilt in order to comply with the federal and state environmental standards. During its environmental review, however, the Village failed to consider the environmental impacts on the water quality of Long Island Sound of increased discharges of sewage from its obsolete plants that would be caused by the sewage from the new development envisioned by the rezoning.
D. Soil and Groundwater Contamination in the Rezoned Area
It is undisputed that in the January 2003 DGEIS, the Village Planner acknowledged that it was in receipt of environmental reports regarding the Petitioner's vacant property and that said reports concluded that "portions of the site contain pollution levels that exceed NYSDEC soil clean up objectives,' and that these isolated hot spots' should be removed in accordance with NYSDEC guidelines." The report also recommended follow-up groundwater testing. (See Exhibit 13 at p. II-15). Moreover, the DGEIS for the rezoning stated that a FOIL request for information regarding contamination in the rezoned area was filed with the DEC and that the DEC never responded. (See Exhibit 24 at p. II-15). However, there is no indication that the Village took any further action to identify and clean up the contamination in the rezoned area. It simply rezoned the properties without considering whether the residential standards had been met.
E. Dredging of Manhasset Bay and Extension of Shoreline to Construct a Public Promenade
As part of its long range plan for the redevelopment of the Industrial District, the Village sought to dredge Manhasset Bay and use the dredge spoils to extend the shoreline of the industrial district. However, in a letter dated March 31, 2004, the DEC specifically informed the Village that the construction of a public promenade along the shoreline would require a DEC tidal wetlands permit. (See, Exhibit 48). Nonetheless, without having evaluated the impact of extending the shoreline on existing tidal wetlands, the Village adopted the rezoning measures challenged herein.
Based upon the foregoing, this Court finds that the Petitioners have adequately demonstrated that the Village failed to take a "hard look" at several key areas of environmental concern to the rezoning.
3. Failure to Prepare an SGEIS
Pursuant to SEQRA, a Supplemental Environmental Impact Statement (SEIS) may be required for significant environmental impacts not addressed or inadequately addressed in the EIS arising from: (I) changes in the proposed project; (ii) newly discovered information; and (iii) a change in circumstances related to the proposed project. (See 6 NYCRR 617.9(a)(7)(I)). In this case, the Village modified the proposed rezoning legislation after the issuance of the FGEIS. On February 17, 2004 and March 1, 2004, after the adoption of the FGEIS but before the adoption of the rezoning, Petitioner presented the Village with new information regarding significant environmental impacts that were not addressed or were inadequately addressed in the FGEIS, including engaging in improper segmentation and failure to take the requisite "hard look" at the proposed project.
Although the plain language of SEQRA regulation 6 NYCRR § 617.9(a)(7)(I) does not require a supplemental EIS, this Court notes that subsection (ii) of the foregoing regulation states as follows:
(ii) The decision to require preparation of a supplemental EIS, in the case of newly discovered information, must be based upon the following criteria:
(a) the importance and relevance of the information; and
(b) the present state of the information in the EIS.
Thus, although the Municipal Respondents were not obligated to provide a SGEIS under 6 NYCRR 617.9(a)(7)(I), based upon the papers submitted for this Court's consideration, this Court finds that they were required to submit a supplemental EIS under 6 NYCRR 617.9(a)(7)(ii). Clearly, a failure to take the requisite "hard look" at the nature and extent of its environmental review and the failure to consider the environmental impacts of permitting high and medium density residential development in close proximity to existing sewage treatment plants are "importan[t] and relevan[t]" pieces of information that was omitted from the EIS in its "present state." ( 6 NYCRR 617.9(a)(7)(ii)). The Village, however, refused to consider the issues raised by the Petitioner and it failed to determine whether a SGEIS was necessary to address them.
4. Failing to adhere to procedural requirements
The Court of Appeals in King v. Saratoga Board of Supervisors, 89 NY2d 341, stated that strict, not substantial compliance with the procedural requirements of SEQRA is required by government agencies. Specifically, the Court stated:
The mandate that agencies implement SEQRA's procedural mechanisms to the "fullest extent possible" reflects the Legislature's view that the substance of SEQRA cannot be achieved without its procedure, and that departures from SEQRA's procedural mechanisms thwart the purposes of the statute. Thus it is clear that strict, not substantial, compliance is required.
See, King v. Saratoga Board of Supervisors, 89 NY2d 341, 347.
First, this Court notes that Respondents do not counter Petitioner's allegation that the Village failed to comply with other procedural requirements of SEQRA.
Second, although the Municipal respondents complied with substantially all of the procedural requirements of SEQRA, their failure to strictly comply with the remaining procedural requirements of SEQRA, including the failure to preliminarily classify the proposed action as a "Type I" or "Unlisted Action" [ 6 NYCRR 617.6(a)(1)(iv)]; its failure to prepare an Environmental Assessment Form (EAF) or to treat any of its multiple versions of the DGEIS as an EAF for the purposes of rendering a written determination of significance for the proposed action [ 6 NYCRR (a)(2), (3) and (4) ], compels this Court to find that the procedural requirements of SEQRA were not satisfied.
As a result, the instant proceeding by Petitioner, Waldbaum, seeking a judgment vacating and annulling Local Law No. 8 of the Year 2004 on the grounds that it was adopted by the Municipal Respondents in violation of SEQRA, is herewith granted.
Submit judgment.