SIERRA CLUB v. VILLAGE OF PAINTED POST ( 2015 )


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  •         SUPREME COURT OF THE STATE OF NEW YORK
    Appellate Division, Fourth Judicial Department
    202/14
    CA 13-01558
    PRESENT: SCUDDER, P.J., CENTRA, PERADOTTO, LINDLEY, AND WHALEN, JJ.
    IN THE MATTER OF SIERRA CLUB, PEOPLE FOR A
    HEALTHY ENVIRONMENT, INC., COALITION TO PROTECT
    NEW YORK, JOHN MARVIN, THERESA FINNERAN, MICHAEL
    FINNERAN, VIRGINIA HAUFF AND JEAN WOSINSKI,
    PETITIONERS-RESPONDENTS,
    V                              MEMORANDUM AND ORDER
    VILLAGE OF PAINTED POST, PAINTED POST
    DEVELOPMENT, LLC, SWEPI, LP,
    RESPONDENTS-APPELLANTS,
    AND WELLSBORO AND CORNING RAILROAD, LLC,
    RESPONDENT-RESPONDENT.
    HARRIS BEACH PLLC, PITTSFORD (JOSEPH D. PICCIOTTI OF COUNSEL), FOR
    RESPONDENTS-APPELLANTS.
    RICHARD J. LIPPES & ASSOCIATES, BUFFALO (RICHARD J. LIPPES OF
    COUNSEL), AND RACHEL TREICHLER, HAMMONDSPORT, FOR
    PETITIONERS-RESPONDENTS.
    JANE E. TSAMARDINOS, ALBANY, FOR NEW YORK STATE CONFERENCE OF MAYORS
    AND MUNICIPAL OFFICIALS, AMICUS CURIAE.
    JAMES BACON, NEW PALTZ, FOR COMMUNITY WATERSHEDS CLEAN WATER
    COALITION, INC., AMICUS CURIAE.
    KATHERINE HUDSON, WATERSHED PROGRAM DIRECTOR, WHITE PLAINS, FOR
    RIVERKEEPER, INC. AND KATHERINE SINDING, NEW YORK CITY, FOR NATURAL
    RESOURCES DEFENSE COUNCIL, AMICI CURIAE.
    Appeal from a judgment (denominated order) of the Supreme Court,
    Steuben County (Kenneth R. Fisher, J.), entered April 8, 2013 in a
    proceeding pursuant to CPLR article 78. The judgment, insofar as
    appealed from, denied in part the motion of respondents Village of
    Painted Post, Painted Post Development, LLC, and SWEPI, LP to dismiss
    the petition and granted petitioners summary judgment on the first
    cause of action. The judgment was reversed insofar as appealed from
    by memorandum and order of this Court entered March 28, 2014 (115 AD3d
    1310), and petitioners on October 23, 2014 were granted leave to
    appeal to the Court of Appeals from the order of this Court (24 NY3d
    908), and the Court of Appeals on November 19, 2015 reversed the order
    and remitted the case to this Court for consideration of issues raised
    but not determined on the appeal to this Court (___ NY3d ___ [Nov. 19,
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    CA 13-01558
    2015]).
    Now, upon remittitur from the Court of Appeals,
    It is hereby ORDERED that, upon remittitur from the Court of
    Appeals, the judgment so appealed from is unanimously affirmed without
    costs.
    Memorandum: Petitioners commenced this CPLR article 78
    proceeding seeking, inter alia, to annul certain determinations of
    respondent Village of Painted Post (Village), which permitted
    respondent Painted Post Development, LLC (PPD) to lease land to
    respondent Wellsboro and Corning Railroad, LLC (WCOR) for the
    construction and operation of a transloading facility (Lease
    Agreement) and permitted the Village to sell approximately one million
    gallons per day (gpd) of water from its water supply to respondent
    SWEPI, LP (SWEPI) (Water Agreement). The water was to be loaded onto
    trains at the transloading facility and transported to Pennsylvania
    via an existing rail line that traversed the entire Village.
    Respondents filed motions in which they sought, inter alia,
    dismissal of the petition pursuant to CPLR 3211 and 3212. Petitioners
    opposed those motions but did not file a cross motion. Supreme Court
    granted respondents’ motions in part, but denied respondents’ motions
    insofar as they sought dismissal of the first cause of action, which
    alleged that the Village had failed to comply with the strict
    procedural requirements of New York State Environmental Quality Review
    Act ([SEQRA] ECL 8-0101 et seq.; 6 NYCRR 617.1 et seq.). Instead, the
    court searched the record, awarded petitioners summary judgment on
    that cause of action and issued an injunction enjoining any further
    water withdrawals from the Village’s water supply pursuant to the
    Water Agreement. Respondents-appellants (hereafter, respondents)
    appealed.
    When this matter was first before this Court, we determined that
    none of the petitioners had established standing to commence the
    proceeding, i.e., an “ ‘injury that [was] in some way different from
    that of the public at large’ ” (Matter of Sierra Club v Village of
    Painted Post, 115 AD3d 1310, 1312, quoting Society of Plastics Indus.
    v County of Suffolk, 77 NY2d 761, 774). We thus reversed the judgment
    insofar as it awarded summary judgment to petitioners on the first
    cause of action (id. at 1310). The Court of Appeals, finding that
    this appeal provided it with “the opportunity to elucidate and further
    address the ‘special injury’ requirement of standing,” reversed the
    order of this Court and remitted the matter for consideration of
    issues raised but not determined on the appeal to this Court (Matter
    of Sierra Club v Village of Painted Post, ___ NY3d ___, ___ [Nov. 19,
    2015], quoting Society of Plastics Indus., 77 NY2d at 778). We now
    address those issues.
    We reject respondents’ contention that the first cause of action
    should have been dismissed on the grounds of laches or mootness.
    “Dismissal based upon laches is appropriate where the following
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    circumstances are present: (1) conduct by an offending party giving
    rise to the situation complained of, (2) delay by the complainant in
    asserting his or her claim for relief despite the opportunity to do
    so, (3) lack of knowledge or notice on the part of the offending party
    that the complainant would assert his or her claim for relief, and (4)
    injury or prejudice to the offending party in the event that relief is
    accorded the complainant” (Matter of Miner v Town of Duanesburg
    Planning Bd., 98 AD3d 812, 813-814, lv denied 20 NY3d 853 [internal
    quotation marks omitted]). Although there may be triable issues of
    fact on the element of delay, we conclude that there is no evidence in
    the record that respondents would suffer any injury or prejudice in
    the event relief is accorded to petitioners.
    On February 23, 2012, the Village Board (Board) issued
    resolutions authorizing the Lease Agreement and Water Agreement.
    Among other things, the Lease Agreement authorized WCOR, as the
    Lessor, to construct the transloading facility, at no expense to the
    Lessee, i.e., PPD. By the time petitioners commenced this proceeding
    on June 25, 2012, construction on the transloading facility was
    substantially completed. Petitioners, however, are not challenging
    the construction of the transloading facility but, rather, they are
    challenging the underlying project for which the facility was
    constructed (cf. id. at 814; Matter of Paden v Planning Bd. of Town of
    Mamakating, 270 AD2d 626, 626; Matter of Caprari v Town of Colesville,
    199 AD2d 705, 706). Thus, the relief requested by petitioners has not
    been rendered moot, i.e., “impossible to grant or wholly untenable”
    (Matter of E.W. Tompkins Co., Inc. v Board of Trustees of Clifton
    Park-Halfmoon Pub. Lib., 27 AD3d 1046, 1047-1048, lv denied 7 NY3d
    704). Moreover, respondents failed to raise a triable issue of fact
    concerning whether they would suffer any injury or prejudice inasmuch
    as the nonappealing respondent, WCOR, was responsible for the
    construction of the transloading facility.
    On the merits, we agree with petitioners that the Village’s
    determination that the Water Agreement was a Type II action and not
    subject to SEQRA review was arbitrary and capricious. First, we
    reject respondents’ contention that the withdrawal and sale of surplus
    water from a municipal water supply is not an “action” for SEQRA
    purposes (see 6 NYCRR 617.2 [b] [1]). Second, we conclude that the
    Water Agreement constitutes either a Type I or an Unlisted action.
    Type I actions include any “project or action that would use
    ground or surface water in excess of [two million gpd]” (6 NYCRR 617.4
    [b] [6] [ii]). Type II actions, i.e., those that are not subject to
    SEQRA review (see 6 NYCRR 617.5 [a]), include the “purchase or sale of
    furnishings, equipment or supplies, including surplus government
    property, other than the following: land, radioactive material,
    pesticides, herbicides, or other hazardous materials” (6 NYCRR 617.5
    [c] [25]). Unlisted actions are defined as all actions not previously
    identified as either a Type I or Type II action (see 6 NYCRR 617.2
    [ak]).
    It is undisputed that the purchase or sale of one million gpd of
    water is not specifically defined as a Type I or Type II action (see 6
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    NYCRR 617.4, 617.5). Respondents thus contend that it is a Type II
    action because it involves the purchase and sale of surplus government
    “property” (6 NYCRR 617.5 [c] [25]). We reject that contention
    inasmuch as water constitutes a natural resource, not property (see
    ECL 8-0105 [6]; see also ECL 15-0505 [3]; cf. 6 NYCRR 617.5 [b] [25]).
    Although the Water Agreement does not call for the use of “ground
    or surface water in excess of [two million gpd]” (6 NYCRR 617.4 [b]
    [6] [ii]) and thus is not a Type I action under that subsection, Type
    I actions also include “any Unlisted action[] that exceeds 25 percent
    of any threshold in this section, occurring wholly or partially within
    or substantially contiguous to any publicly owned or operated
    parkland, recreation area or designated open space” (6 NYCRR 617.4 [b]
    [10]). Where, as here, the Department of Environmental Conservation
    (DEC) has set a threshold clarifying that the use of a certain amount
    of a natural resource, e.g., land or water, constitutes a Type I
    action, it is reasonable to assume that the DEC has “implicitly
    determined that an annexation of less than [that threshold] is an
    ‘[U]nlisted action’ ” (Matter of City Council of City of Watervliet v
    Town Bd. of Town of Colonie, 3 NY3d 508, 517-518). We thus conclude
    therefrom that the Water Agreement is implicitly an Unlisted action.
    Inasmuch as there is also evidence in the record that the transloading
    facility may be substantially contiguous to a publicly owned park and
    the Water Agreement calls for the use of surface water in the amount
    of one million gpd, i.e., 50% of the threshold in section 617.4 (b)
    (6) (ii), the Water Agreement could also be deemed a Type I action
    under 6 NYCRR 617.4 (b) (10).
    Consequently, SEQRA review was required for the Water Agreement.
    Although the Village conducted a SEQRA review of the Lease Agreement,
    segmentation, i.e., the division of environmental review for different
    sections or stages of a project (see 6 NYCRR 617.2 [ag]), is generally
    disfavored (see Matter of Forman v Trustees of State Univ. of N.Y.,
    303 AD2d 1019, 1019). We thus conclude that the court properly
    determined, on the merits of the first cause of action, that all of
    respondent Village’s resolutions should be annulled and that a
    consolidated SEQRA review of both agreements was required.
    Respondents further contend that the Susquehanna River Basin
    Compact ([Compact] ECL 21-1301) and its regulations (21 NYCRR part
    1806) preempt the Village from undertaking a SEQRA review and that the
    proceeding should be dismissed for failing to join the Susquehanna
    River Basin Commission (Commission) as a necessary party. Even
    assuming, arguendo, that we may address those contentions where, as
    here, there is no evidence in the record that respondents raised those
    contentions at any time before this appeal, we conclude that the
    contentions lack merit. The Compact does not preempt SEQRA review
    because nothing in SEQRA “conflicts with the Compact” (Tarrant
    Regional Water Dist. v Herrmann, ___ US ___, ___, 
    133 S Ct 2120
    , 2130
    n 8). Moreover, the Commission recognized that its approval of the
    withdrawal of water from the Corning aquifer did not preempt state or
    local agency approval when it wrote that its approvals were “subject
    to any approval or authorization required by the Commission’s (host)
    member state to utilize” the water. For the same reasons, we conclude
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    that the Commission is not a necessary party to the instant
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    proceeding (see CPLR 1001 [a]).
    Entered:   December 31, 2015            Frances E. Cafarell
    Clerk of the Court
    

Document Info

Docket Number: CA 13-01558

Filed Date: 12/31/2015

Precedential Status: Precedential

Modified Date: 10/7/2016