Opinion
Index No. EF2022-70258
07-27-2023
In the Matter of Whispering Pines Associates, LLC; Queensbury Holdings, LLC; and Robert Gardens North, LLC, Petitioners, For a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules v. Town of Queensbury Planning Board; Town of Queensbury Zoning Board of Appeals; Hoffman Development Corporation; and 919 State Route 9, LLC, Respondents.
Braymer Law, PLLC, Glens Falls (Claudia K. Braymer of counsel), for petitioners Whispering Pines Associates, LLC and Robert Gardens North, LLC. Fitzgerald Morris Baker Firth P.C., Glens Falls (John D. Aspland of counsel), for petitioner Queensbury Holdings LLC. Miller, Mannix, Schachner & Hafner, LLC, Glens Falls (Jacquelyn P. White of counsel), for respondents Town of Queensbury Planning Board and Town of Queensbury Zoning Board of Appeals. Harris Beach PLLC, Albany (Javid Afzali of counsel), for respondent Hoffman Development Corporation. Bartlett, Pontiff, Stewart & Rhodes, P.C., Glens Falls (John D. Wright of counsel), for respondent 919 State Route 9, LLC.
Unpublished Opinion
Braymer Law, PLLC, Glens Falls (Claudia K. Braymer of counsel), for petitioners Whispering Pines Associates, LLC and Robert Gardens North, LLC.
Fitzgerald Morris Baker Firth P.C., Glens Falls (John D. Aspland of counsel), for petitioner Queensbury Holdings LLC.
Miller, Mannix, Schachner & Hafner, LLC, Glens Falls (Jacquelyn P. White of counsel), for respondents Town of Queensbury Planning Board and Town of Queensbury Zoning Board of Appeals.
Harris Beach PLLC, Albany (Javid Afzali of counsel), for respondent Hoffman Development Corporation.
Bartlett, Pontiff, Stewart & Rhodes, P.C., Glens Falls (John D. Wright of counsel), for respondent 919 State Route 9, LLC.
ROBERT J. MULLER, J.S.C.
Respondent 919 State Route 9, LLC (hereinafter 919 State) is the owner of a 2.01-acre parcel of property located at 919 State Route 9 in the Town of Queensbury, Warren County, which property is at the northwest intersection of Weeks Road and State Route 9 (hereinafter the subject property). The subject property is zoned for "commercial intensive" use [R0002], and includes a car wash that has been vacant for more than ten years. Petitioner Robert Gardens North, LLC (hereinafter Robert Gardens) owns and operates an apartment complex on the northern side of Weeks Road, directly behind the subject property and adjacent to its western boundary line. Petitioner Whispering Pines Associates, LLC (hereinafter Whispering Pines) owns and operates an apartment complex on the southern side of Weeks Road, with an entrance approximately 540 feet from the subject property. Weeks Road is a dead end and its intersection with State Route 9 provides the only means of ingress and egress to the residents of Whispering Pines and Robert Gardens.
All references to the Administrative Return will be denoted as R followed by the page number.
Petitioner Queensbury Holdings LLC (hereinafter Queensbury Holdings) is the owner of a parcel of property located at 925 State Route 9, next door to the subject property and adjacent to its northern boundary line. Queensbury Holdings has a restaurant on its property, as well as a parking lot and private access road connecting to Route 9 at its intersection with Sweet Road (hereinafter the Access Road). It is undisputed that this Access Road is owned and maintained by Queensbury Holdings.
While the intersection of Sweet Road and State Route 9 has a traffic signal, the intersection of Weeks Road and State Route 9 does not.
On July 7, 2021, respondent Hoffman Development Corporation (hereinafter Hoffman) applied to respondent Town of Queensbury Planning Board (hereinafter the Planning Board) for site plan approval to demolish the existing car wash on the subject property and construct a 6,400 square-foot car wash building in its place, as well as queuing lanes, 18 self-serve vacuum spaces, and 6 employee parking spaces. The application proposed two access points for the car wash: (1) the construction of a new access drive to connect the subject property to Weeks Road; and (2) use of Queensbury Holdings' existing Access Road to connect the subject property to State Route 9.
To the extent that the subject property has not been conveyed to Hoffman by 919 State and the business relationship between the entities is otherwise unclear from the record, the Court requested information in this regard during oral argument. In response, counsel described Hoffman as the "contract vendee" and 919 State as the "contract vendor."
Hoffman contends that it is entitled to use the Access Road pursuant to an April 26, 2005 resolution whereby the Planning Board granted site plan approval to Queensbury Holding's predecessor in title to, inter alia, construct the restaurant now existing on Queensbury Holding's property. In this regard, the site plan attached to the resolution includes under "drawing notes" a statement indicating that "owner shall construct vehicle interconnections to the adjoining properties shown, at the time of redevelopment of those properties" [Resolution No. SP 04-2005, attached as Exhibit "1" to Palumbo Affidavit, at p 5]. The plan then identifies two "possible future site[s]" of the interconnect, one of which is at the rear of Queensbury Holdings' property near the Access Road.
Hoffman initially appeared before the Planning Board relative to the application on August 24, 2021, at which time the proposed site plan was presented by Frank Palumbo - its project manager - in detail. Concerns were expressed relative to, inter alia, traffic safety and stormwater management, with the Planning Board requesting additional information in this regard. On October 15, 2021, Hoffman submitted a revised application which reduced the size of the proposed car wash building to 5,750 square feet, as well as included parking and lighting plans and a stormwater pollution prevention plan. A public hearing was thereafter noticed for the Planning Board's November 16, 2021 meeting, at which time counsel for Whispering Pines and Queensbury Holdings, among others, appeared in opposition to the project.
The reason for this reduction is unclear from the record.
Counsel for Whispering Pines focused primarily on the potential traffic impacts from the proposal, with several members of the Planning Board sharing those concerns. Hoffman hired VHB Engineering, Surveying, Landscape Architecture and Geology, PC (hereinafter VHB) to conduct a traffic impact study, but the study had not yet been completed at the time of the November 16 meeting - so the discussion relative to traffic impacts was tabled pending its completion. Counsel for Queensbury Holdings questioned Hoffman's right to use his client's Access Road under the April 26, 2005 resolution, with the Planning Board instructing him to "contact the Planning Staff as they have access to all... prior documents and plans and [could] provide [him] with any and all information... regarding the history of that" [R1034].
On December 8, 2021, VHB completed its traffic impact study for Hoffman, finding that "[t]he proposed project is expected to have minimal impact on local traffic operations" [R0286]. The report was thereafter reviewed by the Town of Queensbury engineer, who submitted a report to the Planning Board on February 10, 2022 with the following comments:
"16. The estimate of site trips is based on very limited data from the ITE Trip Generation Manual, particularly for the Saturday peak hour as there is only one data study when using the number of car wash tunnels as the independent variable. The use of the facility's square footage yields a trip estimate that is more than 4 times the amount presented in the study (41 trips versus 176 trips.)
"Given the limited data in the ITE manual, local trip data should be presented to verify or modify the estimates in the study with a corresponding update to the analyses....
"17. An evaluation of the internal queuing using the processing times at the pay station and through the car wash should be presented to ensure that the site circulation is sufficient to prevent vehicle queues from extending out on to the side roads [R0577]."
Whispering Pines retained an engineer to review the report as well, with that engineer likewise commenting that the traffic study failed to use "an accurate trip generation estimate" [R580] and further "fail[ed] to provide a queuing analysis" [R0581]. Whispering Pines' engineer also commented that VHB's traffic study report "fail[ed] to include a crash analysis [and] any analysis of sight distance at [the proposed driveway on Weeks Road and [State] Route 9" [R0581].
A public hearing continued on the proposal at the Planning Board's February 15, 2022 meeting, at which time discussion resumed relative to potential traffic impacts. Hoffman advised that its engineer was preparing a response to the Town engineer's February 10, 2022 report, and the Planning Board chose to table that discussion pending receipt of the response. Counsel for Whispering Pines and Queensbury Holdings again appeared, with counsel for Queensbury Holdings stating as follows:
"When we were last here we spoke briefly about the interconnect, and I was a little in the dark at the time about the interconnect because it seems to have been on the map, but there was no, my clients purchased property after the subdivision approval back in 2005 which is where the genesis of the interconnect had arisen. So I spent a lot of time going back over the minutes, historically, to find out where that came from, and it appears that when the initial subdivision application was made by the predecessor in title, the interconnect was something that was discussed in the March 2005 meeting, and there was a directive that the applicant make a motion for final approval for the April 2005 meeting to include the interconnect issue as being part of that motion. In reviewing the minutes from the April 2005 meeting it appears that that was not done. There was no mention of the interconnect at that time. There was no motion made to approve the interconnect, but there was on the approved map a designation indicating where the interconnect would be. So it appears that that is where the interconnect received 'approval,' but there was nothing in the minutes to indicate that that was actually done by resolution....
"[S]ubsequent to that, there was a subdivision request in 2011 to divide the lot that my client owned with Red Roof Inn and what was the Outback Steakhouse..., and when that map was approved, there was no mention of the interconnect on that map.... If we set that aside and assume for the sake of argument the interconnect is a legitimate interconnect, then the issue becomes... what is the legitimate use, or the proper use, of the interconnect? The applicant seems to be taking the position that the interconnect provides unfettered access to their property from Route 9 and I'm not sure that the interconnect is defined that accurately. I mean it says that there's an interconnect, but there's no indication [what] the scope of that interconnect is" [R1061].
On March 11, 2022, VHB submitted a response to the report prepared by the Town engineer, this time estimating site trips based upon information "provided by Hoffman's Car Wash for a similar facility located on U.S. Route 11 in the Town of Binghamton, New York" [R0616]. VHB still found no substantial traffic impact. VHB also conducted an evaluation of the internal queuing times at the proposed facility, finding that "[t]he available onsite queuing is expected to accommodate typical, peak summer, and peak winter conditions without extending to the adjacent roadways" [R0620].
On April 19, 2022, the public hearing continued before the Planning Board. Counsel for Queensbury Holdings maintained his position that the 2005 resolution does not entitle Hoffman to unfettered use of the Access Road, this time advising the Planning Board of an additional issue with respect to the Access Road. Specifically, the Access Road and the land surrounding it was fully vested in Queensbury Holdings' predecessor in title due in part to a 2005 conveyance of a 30' x 168' rectangular parcel from 919 State's predecessor in title. In the conveyance, an easement was created over the exact same 30' x 168' parcel granting ingress and egress for the benefit of 919 State and its successors and assigns. This 2005 easement was specifically confined to a metes and bounds description which encompassed the 30' x 168' parcel, and it does not cover the entirety of the Access Road. Rather, it includes only the lane of the Access Road used for ingress from State Route 9 - not that used for egress. Counsel for Queensbury Holdings advised that his client would "not agree to permit the applicant to use any portion of the [Access Road] beyond what is specifically stated in the easement" [R1106].
Counsel for Whispering Pines, among others, was heard relative to the potential traffic impact of the proposal, with counsel highlighting the fact that neither a crash analysis nor a sight line analysis had been conducted in response to its engineer's report. Counsel further commented as follows:
"[I]t is not appropriate or legal for this Board to consider [as] a traffic solution... that the traffic needs to go through private property, [namely Hoffman's,] to get to a light. This is a serious problem and it needs to be solved and one of the recommendations that we have already seen through a significant study was the [August 2019] Warren County Pathway Corridor Project Final Report recommendation saying that you should have a connection to Sweet Road right through this site, so that Weeks Road has an ability to go to a light and people can turn left or right at a signalized intersection. This Board should not make a decision on this particular project without considering the report's recommendation realigning Weeks Road to provide for a four way stop.... Otherwise[,] if this project does go forward you are foreclosing forever the opportunity to have that recommendation implemented."
At the conclusion of public comment, the Planning Board conducted its review pursuant to the State Environmental Quality Review Act (see ECL article 8 [hereinafter SEQRA]), concluding that the project "would result in no significant adverse impacts on the environment" and issuing a negative declaration [R1119]. A resolution approving the site plan was thereafter prepared and approved by the Planning Board at its May 19, 2022 meeting.
Meanwhile, on March 15, 2022 Hoffman applied to respondent Town of Queensbury Zoning Board of Appeals (hereinafter the ZBA) for a sign variance. Specifically, while § 140-6 (2) (a) of the Town Code for the Town of Queensbury (hereinafter the Town Code) provides that freestanding signs "shall not exceed 45 square feet with a 15-foot setback or 60 square feet with a 25-foot setback," Hoffman sought to have a 138 square foot freestanding sign with a 15-foot setback on the subject property. A public hearing was noticed for the ZBA's April 20, 2022 meeting, at which time counsel for Whispering Pines and Queensbury Holdings appeared in opposition to the proposal. They voiced their concerns relative to the size of the sign, and once again focused on potential traffic impacts. Discussion ensued with the ZBA concluding that the proposed sign was too large.
Hoffman thereafter revised its application to seek an 88 square foot sign with a 20.1-foot setback. A public hearing was held relative to this revised application at the ZBA's May 18, 2022 meeting, at which time counsel for Whispering Pines and Queensbury Holdings again appeared. Their opposition notwithstanding, the ZBA issued a negative declaration under SEQRA at the meeting - finding that the proposal would "not result in any significant adverse environmental impact" [R1236] - and granted the requested variance.
Petitioners commenced this CPLR article 78 proceeding on June 16, 2022 to vacate both the Planning Board's site plan approval and the ZBA's sign variance approval as arbitrary and capricious. Petitioners assert four causes of action:
(1) the Planning Board failed to comply with SEQRA;
(2) the Planning Board erred in approving the site plan notwithstanding questions with respect to Hoffman's right to use the Access Road;
(3) the ZBA failed to comply with SEQRA; and
(4) the ZBA failed to comply with Town Law § 267-b.
Before addressing these causes of action, the Court must first address Hoffman's contention that petitioners lack standing. "To establish standing, a petitioner must show injury-in-fact, and such injury must fall within the zone of interests to be protected by the statutes or ordinances at issue" (Matter of Center Sq. Assn., Inc. v City of Albany Bd. of Zoning Appeals, 9 A.D.3d 651, 652 [3d Dept 2004]; see New York State Assn. of Nurse Anesthetists v Novello, 2 N.Y.3d 207, 211 [2004]; Matter of Sun-Brite Car Wash v Board of Zoning & Appeals of Town of N. Hempstead, 69 N.Y.2d 406, 412 [1987]; Matter of Barnes Rd. Area Neighborhood Assn. v Planning Bd. of the Town of Sand Lake, 206 A.D.3d 1507, 1508 [3d Dept 2022]).
The Planning Board, ZBA, and 919 State also assert lack of standing as an affirmative defense, but only Hoffman's papers include arguments in this regard.
Here, Hoffman contends that petitioners' claims amount to allegations of economic harm, which are insufficient to constitute an injury-in-fact. Hoffman further contends that neither economic harm nor an interference with private property rights - as alleged by Queensbury Holdings - is an injury within the zone of interests sought to be protected by SEQRA.
The Court finds these contentions to be wholly unavailing. Petitioners have clearly shown an injury-in-fact - and it is not economic harm. Both Whispering Pines and Robert Gardens have residents who will be impacted on a daily basis by any traffic delays and safety issues resulting from the new car wash - particularly because Weeks Road is a dead end and these residents have no choice but to use the intersection with State Route 9 when traveling to and from their homes (see Matter of Barnes Rd. Area Neighborhood Assn. v Planning Bd. of the Town of Sand Lake, 206 A.D.3d at 1509; Matter of Center Sq. Assn., Inc. v City of Albany Bd. of Zoning Appeals, 9 A.D.3d at 652-653). Queensbury Holdings will likewise be impacted by any traffic delays, especially considering that Hoffman plans to use its Access Road onto State Route 9. Indeed, as stated by counsel for Queensbury Holdings during oral argument, Queensbury Holdings' property is not adjacent to the project site - it is part of the project site. It must also be noted that traffic safety issues fall squarely within the zone of interests to be protected by SEQRA (see Matter of McGrath v Town Bd. of Town of N. Greenbush, 254 A.D.2d 614, 616 [3d Dept 1998], lv denied 93 N.Y.2d 803 [1999]; Matter of Lo Lordo v Board of Trustees of Inc. Vil. of Munsey Park, 202 A.D.2d 506, 506 [1994]).
Planning Board's Site Plan Approval
Turning now to petitioner's first cause of action, "'[j]udicial review of an agency determination under SEQRA is limited to 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 its determination'" (Matter of Brunner v Town of Schodack Planning Bd., 178 A.D.3d 1181, 1182-1183 [3d Dept 2019], quoting Matter of Schaller v Town of New Paltz Zoning Bd. of Appeals, 108 A.D.3d 821, 822-823 [3d Dept 2013] [internal quotation marks, brackets and citations omitted]; see Matter of Mombaccus Excavating, Inc. v Town of Rochester, NY, 89 A.D.3d 1209, 1210 [3d Dept 2011], lv denied 18 N.Y.3d 808 [2012]).
Here, petitioners contend that - while the Planning Board identified the relevant areas of environmental concern, namely the potential traffic impacts of the project - it failed to take a hard look at them, as well as failed to make a reasoned elaboration of the basis for its determination. According to petitioners, the Planning Board should have required an environmental impact statement, with "the action... includ[ing] the potential for at least one significant adverse environmental impact" (6 NYCRR § 617.7 [a] [1]) - traffic safety issues. In support of this contention, petitioners have submitted a copy of the Warren County Pathway Corridor Study which - as discussed during the public hearing - found traffic safety issues at the intersection of Weeks Road and State Route 9 and recommended a connection between Weeks Road and Sweet Road, with this connection to be located precisely where the project is proposed.
In opposition, respondents contend that the Planning Board took a hard look at the potential traffic impacts, requiring Hoffman to undertake a traffic study and, further, requiring Hoffman to supplement that study to address the Town engineer's concerns. The potential traffic impacts were considered and discussed by the Planning Board over the course of five meetings. Insofar as the Warren County Pathway Corridor Study is concerned, Palumbo has submitted an affidavit stating that "the Planning Department confirmed for the Planning Board that the Corridor Study was never officially adopted by the Town of Queensbury Town Board" [Palumbo Affidavit, at ¶ 23]. The minutes from the April 19, 2022 meeting appear to confirm this, with Stephen Traver - Chairman of the Planning Board - stating as follows:
"Well I know that there was some interest in a corridor study that had been conducted, and I understand that you've had a conversation with Town representatives regarding that corridor study and what potential impact it might have on [the] application and it seems as though, if I understand correctly, there was a conclusion that this plan could go forward as proposed with regard to traffic" [R1103].
Under the circumstances, the Court finds that the Planning Board identified the relevant areas of environmental concern and took a hard look at them. The Court further finds, however, that the Planning Board failed to make a reasoned elaboration for its decision not to require an environmental impact statement. In this regard, when conducting its SEQRA review at the April 19, 2022 meeting, the Planning Board stated as follows:
"Mrs. Moore - Number Five. Will the proposed action result in an adverse change in the existing level of traffic or affect existing infrastructure for mass transit, biking or walkway?
Mr. Traver - I would say small to moderate based on the traffic study and engineer comment.
Mr. Deeb - I agree with that" [R1117].
That being said, in part 2 of the short environmental assessment form (hereinafter EAF) - which appears to have been completed by Traver - this question is then answered by checking the box "[n]o, or small impact may occur" [R1138]. The other box which could have been checked reads "[m]oderate to large impact may occur." To the extent that the Planning Board decided that the project would result in "small to moderate" changes in traffic [R1117] - and in fact there was extensive discussion relative to the potential traffic impact - it appears that this box could also have been checked in response to the question. Significantly, had this latter box been checked, then an environmental impact statement would have been required (see 6 NYCRR § 617.7 [a] [1]).
Turning now to the second cause of action, "'[a] local planning board has broad discretion in deciding applications for site plan approvals, and judicial review is limited to determining whether the board's action was illegal, arbitrary and capricious, or an abuse of discretion'" (Matter of S. Realty & Dev., LLC v Town of Hurley, ___ A.D.3d ___, ___, 2023 NY Slip Op 03744, *3 [3d Dept 2023], quoting Matter of 7-Eleven, Inc. v Town of Hempstead, 205 A.D.3d 909, 910 [2d Dept 2022]; see Matter of Barnes Rd. Area Neighborhood Assn. v Planning Bd. of the Town of Sand Lake, 206 A.D.3d 1507, 1510 [3d Dept 2022]; Matter of Town of Mamakating v Village of Bloomingburg, 174 A.D.3d 1175, 1178 [3d Dept 2019]). "'An action is arbitrary and capricious when it is taken without sound basis in reason or regard to the facts'" (Matter of S. Realty & Dev., LLC v Town of Hurley, 2023 NY Slip Op 03744 at *3, quoting Matter of Biggs v Eden Renewables LLC, 188 A.D.3d 1544, 1548 [3d Dept 2020] [internal quotation marks and citations omitted]; see Matter of Shapiro v Planning Bd. of Town of Ramapo, 155 A.D.3d 741, 743 [2d Dept 2017]).
Here, § 179-9-030 of the Town Code authorizes the Planning Board "to review and to approve, approve with modifications and/or conditions, or disapprove site plans" (see also Town Law § 274-a [2] [a]). § 179-9-050 (F) of the Town Code then provides that all site plans must include "[t]he location of all present and proposed public and private ways, off-street parking areas, driveways, outdoor storage areas, sidewalks, ramps, curbs, paths, landscaping, walls, and fences," with § 179-9-080 (F) and (G) further providing that "[t]he Planning Board shall not approve a site plan unless it first determines that such site plan meets the following standards:..
"The establishment, maintenance, and operation of the proposed use will not create public hazards from traffic, traffic congestion or the parking of vehicles and/or equipment or be otherwise detrimental to the health, safety or general welfare of persons residing or working in the neighborhood or the general welfare of the Town. Traffic access and circulation, road intersections, road and driveway widths, and traffic controls will be adequate....
"The establishment of vehicle links between parking areas of adjacent properties [must be] provided where feasible. This furthers the Town's goal of reducing curb cuts and reducing congestion. A twenty-foot-wide connection is required. If adjacent properties are either undeveloped or previously developed without having made provision for future linkage, then a future connection must be identified and provided for in the site plan under review for such future linkage when the time arises. The Planning Board may require proof that the applicant has made contact with adjacent property owners for purposes of coordinating linkages with adjacent properties."
Petitioners contend that the Planning Board erred in approving the site plan notwithstanding substantial questions with respect to whether Hoffman has a legal right to use the Access Road to connect the subject property to Route 9. According to petitioners, neither the 2005 resolution nor the easement grant Hoffman any such right, and Hoffman made no effort whatsoever to coordinate with Queensbury Holdings relative to use of the Access Road. Petitioners further contend that, if Hoffman is unable to use the Access Road as laid out in the site plan, this will create public hazards from traffic congestion.
In opposition, 919 State and Hoffman maintain that Hoffman is permitted to use the Access Road under the 2005 resolution. Respondents further argue that any dispute relative to use of the Access Road was not properly before the Planning Board. Indeed, this position was adopted by members of the Planning Board who repeatedly stated during the public hearing that the dispute is "a civil matter... outside [their] purview" [R1108, 1113]. In this regard, counsel for the Planning Board stated during oral argument that it is not uncommon for the Planning Board to approve a site plan where a neighbor shows up in opposition, arguing that a proposed easement included in the plan is invalid. According to counsel, the Planning Board requires only a "prima facie" showing of an applicant's right of way over neighboring property, and here that prima facie showing was made.
The Court is not persuaded. Initially, there does not appear to be any dispute that 919 State's easement over the Access Road covers only the ingress lane, leaving it without access to the egress lane. Indeed, counsel for Queensbury Holdings appeared during the public hearing and explained this issue to the Planning Board, with no meaningful opposition from Hoffman. It therefore cannot be said that Hoffman made a "prima facie" showing of its right to use the Access Road based on the easement.
Further, Hoffman is not relying on the easement in any event. Rather, it is relying on the reference to an interconnect in the site plan attached to the 2005 resolution. Although it is unclear from the record, this interconnect was presumably included in the 2005 site plan pursuant to Town Code § 179-9-080 (G). As stated by counsel for Queensbury Holdings during the public hearing, there is nothing in the record to suggest what the scope of this interconnect might be, and certainly nothing to suggest that this interconnect entitles Hoffman to unfettered use of the Access Road. There is not even an exact location for the interconnect in the 2005 site plan, which includes two "possible future site[s]" for the roadway. Counsel for Queensbury Holdings also brought up the fact that there was no mention of the interconnect when the Planning Board approved his client's 2011 site plan to further subdivide its property. Hoffman had no response to any of these ambiguities. It therefore cannot be said that Hoffman made a "prima facie" showing of its right to use the Access Road based on the 2005 resolution.
While the Court agrees that the Planning Board cannot adjudicate the dispute regarding use of the Access Road - which dispute is apparently being litigated in the context of a separate action commenced by Queensbury Holdings in December 2022 - the Planning Board likewise cannot approve a site plan where there exist so many issues relative to whether Hoffman can even use one of the access points proposed. The Planning Board cannot simply turn a blind eye to these issues - particularly where, as here, there will be substantial public hazards from traffic congestion if Hoffman cannot use the Access Drive as outlined in the plan (see Town Code § 179-9-080 [G]).
Briefly, counsel for the Planning Board stated as follows during oral argument:
"These types of things come up for Planning Boards frequently where you have - you know, a different example, but to help illustrate it, it's not uncommon where a neighbor objecting to a project comes in and says, 'I have a private deed restriction right here. This can't be approved. It's not allowed on this lot.' And the answer is, not the Planning Board's problem. They can approve a project that might not ever be able to come to fruition because of some private property dispute."
This point is well taken by the Court but, as counsel indicated, the example is different. This example involves a dispute between homeowners with no substantial issues raised - no attorneys involved, nor prior site plans implicated. More significantly, however, it involves a dispute with no apparent impact on traffic and other public safety issues. The Planning Board must obviously consider the size and scope of any project and given the size and scope of Hoffman's project - as well as its potential impact on traffic - the undisputed ambiguities regarding Hoffman's right to use the Access Road could not merely be ignored as "not the Planning Board's problem."
The Planning Board could have required Hoffman to coordinate with Queensbury Holdings relative to the scope and usage of the interconnect, as envisioned under Town Code § 179-9-080 (G). It likewise could have conditioned approval of the site plan on an agreement or resolution relative to usage of the Access Road under Town Code § 179-9-030. Indeed, "'a condition may be imposed upon property so long as there is a reasonable relationship between the problem sought to be alleviated and the application concerning the property'" (Matter of Greencove Assoc., LLC v Town Bd. of the Town of N. Hempstead, 87 A.D.3d 1066, 1066 [2d Dept 2011], quoting M atter of International Innovative Tech. Group Corp. v Planning Bd. of Town of Woodbury, NY, 20 A.D.3d 531, 533 [2005]; see Matter of Mackall v White, 85 A.D.2d 696, 696 [1981]). Instead, the Planning Board simply approved the site plan. While mindful that the Court cannot substitute its judgment for that of the Planning Board (see Matter of S. Realty & Dev., LLC v Town of Hurley, 2023 NY Slip Op 03744 at *6; Matter of Edscott Realty Corp. v Town of Lake George Planning Bd., 134 A.D.3d 1288, 1290 [3d Dept 2015]), this determination is nonetheless found to be without sound basis in the record (see Matter of S. Realty & Dev., LLC v Town of Hurley, 2023 NY Slip Op 03744 at *6;.
Based upon the foregoing, petitioners' first and second causes of action are granted to the extent that approval of the site plan is vacated and the matter remitted to the Planning Board for further proceedings consistent with this determination, with the Planning Board specifically directed to (1) clarify its response to question No. 5 in part 2 of the EAF, providing further elaboration with respect to whether the traffic impact of the project will be "[n]o, to small" or "[m]oderate to large," and (2) reconsider the application for site plan approval in view of the several issues with respect to Hoffman's proposed use of the Access Road.
ZBA's Sign Variance Approval
Turning now to the third cause of action, petitioners contend that the ZBA failed to comply with SEQRA because its review was limited to environmental impacts from the sign variance alone, as opposed to the entire project. The Court finds this contention to be without merit. "'Not every conceivable environmental impact, mitigating measure or alternative must be identified and addressed [to] satisfy the substantive requirements of SEQRA'" (Matter of Jackson v New York State Urban Dev. Corp., 67 N.Y.2d 400, 417 [1986], quoting Aldrich v Pattison,107 A.D.2d 258, 266 [2d Dept 1985]; see Coalition Against Lincoln W. v City of New York, 94 A.D.2d 483, 491 [1st Dept 1983], affd 60 N.Y.2d 805 [1983]). "The degree of detail with which each factor must be discussed... will vary with the circumstances and nature of the proposal" (Matter of Jackson v New York State Urban Dev. Corp., 67 N.Y.2d at 417; see Matter of Gabrielli v Town of New Paltz, 116 A.D.3d 1315, 1318 [3d Dept 2014]). Here, the proposal before the ZBA was the sign variance - not the entire project. The ZBA thus properly considered the potential environmental impacts of the sign variance, including the potential traffic impacts it might have.
Petitioners further contend that the ZBA failed to comply with SEQRA because it did not complete an EAF as required under 6 NYCRR § 617.6 (a) (3), nor otherwise address the criteria set forth in the form.
Indeed, "[s]trict compliance with SEQRA's procedural mechanisms is mandated and anything less will result in annulment of the determination" (Matter of Bauer v County of Tompkins, 57 A.D.3d 1151, 1152-1153 [2008]; see Matter of King v Saratoga County Bd. of Supervisors, 89 N.Y.2d 341, 347 [1996]; State of New York v Town of Horicon, 46 A.D.3d 1287, 1290 [2007]). Here, while the ZBA found during its May 18, 2022 meeting that the sign variance "[would] not result in any significant adverse environmental impact" [R1236] and "[gave] it a [n]egative [d]eclaration" [R1236], it did not complete an EAF nor provide any other elaboration with respect to why it reached this conclusion. The Court thus finds that the ZBA failed to comply with SEQRA and its determination must be annulled on this basis (see Matter of King v Saratoga County Bd. of Supervisors, 89 N.Y.2d 341, 347 [1996]; Matter of Bauer v County of Tompkins, 57 A.D.3d 1151, 1152-1153 [2008]; State of New York v Town of Horicon, 46 A.D.3d 1287, 1290 [2007]).
Finally, insofar as the fourth cause of action is concerned, Town Law § 267 (3) (b) provides that
"in making its determination, the [ZBA] shall take into consideration the benefit to the applicant if the variance is granted, as weighed against the detriment to the health, safety and welfare of the neighborhood or community by such grant. In making such determination the board shall also consider: (1) whether an undesirable change will be produced in the character of the neighborhood or a detriment to nearby properties will be created by the granting of the area variance; (2) whether the benefit sought by the applicant can be achieved by some method, feasible for the applicant to pursue, other than an area variance; (3) whether the requested area variance is substantial; (4) whether the proposed variance will have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district; and (5) whether the alleged difficulty was self-created, which consideration shall be relevant to the decision of the board of appeals, but shall not necessarily preclude the granting of the area variance."
Here, petitioners contend that the ZBA failed to adequately consider the criteria listed in Town Law § 267 (3) (b). The Court, however, finds this contention unavailing. The ZBA reviewed each of the criteria during its May 18, 2022 meeting, expressly finding as follows:
(1) The proposed sign will not result in an undesirable change to the character of the neighborhood nor will it be a detriment to nearby properties;
(2) The ZBA "could ask for a smaller sign, but [Hoffman has] reduced the sign from 138 square feet down to 88 square feet" [R1237].
(3) The requested sign variance is not substantial; "[i]t's slightly oversized but it's not going make a big difference" [R1237].
(4) The proposed sign will have no adverse impact on the physical or environmental conditions of the neighborhood.
(5) The alleged difficulty is not self-created.
Based upon the foregoing, petitioners' third cause of action is granted to the extent that the ZBA's approval of the sign variance is vacated and the matter remitted to the ZBA to complete part 2 of the EAF relative to the impact of the sign variance, and to further elaborate on its consideration of the criteria set forth in part 2 of the EAF. The relief requested in the fourth cause of action is denied.
Therefore, having considered NYSCEF document Nos. 1 through 4, 21 through 41, 46 through 50, 52 through 57, and 61 through 66, and oral argument having been heard on July 20, 2023 with Claudia K. Braymer, Esq. appearing on behalf of petitioners Whispering Pines Associates, LLC and Robert Gardens North, LLC, John D. Aspland, Esq. appearing on behalf of petitioner Queensbury Holdings LLC, Jacquelyn P. White, Esq. appearing on behalf of respondents Town of Queensbury Planning Board and Town of Queensbury Zoning Board of Appeals, Javid Afzali, Esq. appearing on behalf of respondent Hoffman Development Corporation, and John D. Wright, Esq. appearing on behalf of respondent 919 State Route 9, LLC, it is hereby
ORDERED AND ADJUDGED that petitioners' first and second causes of action are granted to the extent that approval of the site plan is vacated and the matter remitted to the Planning Board for further proceedings consistent with this determination, with the Planning Board specifically directed to (1) clarify its response to question No. 5 in part 2 of the EAF, providing further elaboration with respect to whether the traffic impact of the project will be "[n]o, to small" or "[m]oderate to large," and (2) reconsider the application for site plan approval in view of the several issues with respect to Hoffman's proposed use of the Access Road; and it is further
ORDERED AND ADJUDGED that petitioners' third cause of action is granted to the extent that the ZBA's approval of the sign variance is vacated and the matter remitted to the ZBA to complete part 2 of the EAF relative to the impact of the sign variance, and to further elaborate on its consideration of the criteria set forth in the part 2 of the EAF; and it is further
ORDERED AND ADJUDGED that the relief requested in petitioners' fourth cause of action is denied.
The original of this Decision and Judgment has been e-filed by the Court. Counsel for Queensbury Holdings LLC is hereby directed to serve a copy of the Decision and Judgment with notice of entry in accordance with CPLR 5513.