Citation Numbers: 131 Misc. 2d 395
Judges: Delaney
Filed Date: 2/25/1986
Status: Precedential
Modified Date: 2/5/2022
OPINION OF THE COURT
In substance this is a CPLR article 78 proceeding brought by petitioners — homeowners located in the Town of Mount Pleasant, County of Westchester and State of New York — to vacate and set aside certain resolutions passed by respondent, Town of Mount Pleasant, which issued a declaration of negative significance under the Environmental Conservation Law and commenced a condemnation proceeding under the Eminent Domain Procedure Law to acquire land along a three-
Petitioners reside in and own real property in the Town of Mount Pleasant. The Town of Mount Pleasant is a municipal corporation organized under the existing laws of the State of New York. By a previous order of this court dated January 23, 1986, the three intervenors-respondents (Capelli Development Corporation [CDC], Yonkers Contracting Co., Inc. [YCC] and Steven J. Caspi and Building 200 Nominee Corporation) were granted intervention as a matter of right under CPLR 1012 (a) (3) and under CPLR 7802 (d) as "interested” parties. All three intervenors-respondents are developers whose projects within the town had obtained independent approval by the town administration prior to the commencement of the actual underlying condemnation actions. While neither of the three independent developments border directly upon Kensico Road, Kensico Road serves as a major feeder route within the Town of Mount Pleasant and "[t]he widening of Kensico Road has been discussed as a long term planning goal in the town for over ten years and * * * various approvals in the Town of Mount Pleasant have been predicated upon the widening of Kensico Road * * * However, the Planning Board never made a recommendation or took any vote of any kind to request, recommend or suggest that the town prepare any EIS [environmental impact statement] with respect to the condemnation or road widening.” (Affidavit of Albert A. Lucchino, Chairman of the Town of Mount Pleasant Planning Board.)
Contrary to the assertions of CDC and YCC, this court has jurisdiction over the issues raised herein concerning the State Environmental Quality Review Act (SEQRA) notwithstanding the underlying acts/resolutions concerning condemnation under the Eminent Domain Procedure Law (EDPL). (See, Matter of City of Schenectady v Flacke, 100 AD2d 349.)
"As early as 1960 [Town of Mount Pleasant] officials began to be concerned about the growing traffic problems on Kensico Road.” (See, 6 [No. 2] Town of Mount Pleasant Newsletter [Sept. 1976]; see also, Kensico Road — C.R. No. 1308, History of Planned Improvements Summary, published by the County of Westchester.) In 1978, after receiving a report which indicated that a two-lane road was not feasible "in its economics or in its level of service and safety”, the town rejected the preliminary plan, however, again to consider an alternative plan to improve Kensico Road which cost was estimated at approximately $4,500,000, totally funded by the County of Westches
Kensico Road through the Town of Mount Pleasant is a county road, numbered 1308. The proposed plan and underlying condemnation action concerns itself with the widening of Kensico Road over a length of approximately three quarters of a mile from two lanes to four lanes, encasing drainage from Leith’s Pond spillway and concrete culverts, construction of a new four-foot sidewalk along the entire length of Kensico Road, the installation of traffic lights, the acquisition through condemnation of one house in toto and the condemnation of strips on either side of Kensico Road for a length of three-quarter miles necessary to widen the road from two lanes to four lanes. The total amount of land to be taken by the town for condemnation only is approximately 1.95 acres. Of import to the court is that "in September and October 1984, the Town Board passed resolutions which were intended to assure that 'The Summit’ [CDC] and other existing and proposed developments could rely upon a widening of Kensico Road to accommodate the anticipated traffic from their developments.” (Ibid.)
Therefore, by Town Resolutions Nos. 371-84 (Sept. 25, 1984) and Bond Resolution No. 392-84 (Oct. 9, 1984) it was determined that "by virtue of these resolutions the Town has endorsed, in concept, the widening of Kensico Road” pursuant to the instant plan and controversy. (See, letter of Michael L. Rovello [Oct. 10, 1984].) This action by the town is important for it is respondent’s position that SEQRA was not triggered until a specific project plan for development is actually formulated and proposed. (Cf. Matter of Programming & Sys. v New York State Urban Dev. Corp., 61 NY2d 738.) Such is true. However, respondents view SEQRA as only being triggered in December 1985, when the Town Board passed the resolutions of negative declaration (Resolution No. 699-85); condemnation (Resolution No. 700-85); and notice of Resolution No. 701-85 after having received the short-form environmental assessment form (EAF) from the Town Engineer.
In response to the enactment of SEQRA, the State promulgated rules and regulations that carried out its legislative intent (6 NYCRR 617.1 [b].) 6 NYCRR 617.1 (c) states: "The basic purpose of SEQR is to incorporate the consideration of
6 NYCRR 617.5 states:
“As early as possible in an agency’s formulation of an action it proposes to undertake, or as soon as an agency receives an application for a funding or approval action, it shall do the following:
“(a) Determine whether the action is subject to SEQR.” (Emphasis added.)
The trigger factor in the agency’s determination is a low one. Their standard is one of determining whether or not “the actions they directly undertake, fund or approve may have a significant effect on the environment” (6 NYCRR 617.1 [c]; emphasis added).
Why is it that it has been determined by the Legislature and implementing rules and regulations that the local agencies take the environment into consideration ”[a]s early as possible”? (Cf. ECL 8-0109 [4]; 6 NYCRR 617.1 [c].)
If such determination “is not prepared at an early stage * * * later governmental decisions may be influenced by prior governmental decisions or commitments (see Matter of TriCounty Taxpayers Assn. v Town Bd. [55 NY2d 41, 46-47] * * * 'the initiatory action by the town board might well have been practically determinative. In effect the purpose of SEQRA is to assure the preparation and availability of an environmental impact statement at the time any significant authorization is granted for a specific proposal.’ ” (Matter of Sun Beach Real Estate Dev. Corp. v Anderson, 98 AD2d 367, 371-372; emphasis added.) It is important to understand that the condemnation process legally instituted by the town in December 1985 was inexorably intertwined with the development projects of the
6 NYCRR 617.12 (a) categorizes what are known as Type I actions. However, "the fact that an action or project has not been listed as a Type I action does not carry with it the presumption that it will not have a significant effect on the environment” (emphasis added). Respondent, Town of Mount
It is interesting to note that 6 NYCRR 617.13 lists what are known as Type II actions which had previously been determined by the rules and regulations not to have a significant effect upon the environment which would, therefore, not require environmental impact statements or any other determination by the lead agency. 6 NYCRR 617.13 (d) (4) read in conjunction with subdivision (a) reads as follows: "[R]epaving of existing highways not involving the addition of new travel lanes * * * [has] been determined not to have a significant effect on the environment * * * [and does] not require environmental impact statements.” (Emphasis added.) Therefore, by negative implication, such section might well have served as a key to respondents that when talking about the road widening of Kensico Road and the condemnation process, the finding therein of their own determination of significance, visá-vis such road widening/land acquisition, might well be, by the nature of the project, more likely to require the preparation of an EIS than a strict "unlisted action”. By opting and classifying Kensico Road project as an "unlisted action” the procedural requirements under SEQRA were less extensive than those which would have been required had the town determined that the Kensico Road project was a Type I action. (See, 6 NYCRR 617.12 [a].)
Listed as a Type I action under 6 NYCRR 617.12 (b) (6) (i) is "[Construction of new nonresidential facilities which meet or exceed any of the following thresholds * * * a project or action which involves the physical alteration of 10 acres”.
In determining such threshold issue, 6 NYCRR 617.12 (b) (10) also, therefore, defines a Type I action as "any project or action, which exceeds 25 percent of any threshold in this section [i.e., subdivision (b) (6) (i)], occurring wholly or partially within or substantially contiguous to any publicly owned or operated parkland, recreation area or designated open space” (emphasis added).
Within the Town of Mount Pleasant is a public parkland known as Carroll Park which abuts upon Kensico Road and the proposed Kensico Road project/condemnation for an area of approximately 395.85 feet. The total area of the actual
Thus, having found initially that the Kensico Road project in the Town of Mount Pleasant was and should have been considered a Type I action under SEQRA, the town was required to follow the procedural requirements of 6 NYCRR 617.6 which are more extensive than those of the unlisted actions for which the town has designated such property improvement. (Cf. 6 NYCRR 617.12 [a].) Type I actions are required to have a long-form EAF completed and submitted prior to finding or approval of the Type I action. (6 NYCRR 617.3 [d]; see also, 6 NYCRR 617.6 [b].) No such environmental assessment form in its long form and with the scope demanded by SEQRA was submitted or considered by the town prior to approval and funding, although the town did utilize a short-form EAF which was authorized for "unlisted actions” (cf. 6 NYCRR 617.2 [l]; 6 NYCRR 617.7 [b]). A mere cursory review of the model long-form environmental assessment form contained in 6 NYCRR 617.19 makes it clear that the short-form EAF submitted by the Town Engineer, James Vanoli, to the town dated December 6, 1985, falls far short of the scope concerns addressed by SEQRA for such actions in enabling the town as lead agency to determine the environmental significance or nonsignificance of its actions. "[Substantial compliance with the 'spirit’ of the act does not constitute adherence to its policies 'to the fullest extent possible’ ” (Town Assn. v Town of Rye, 82 AD2d 474, 480-481).
Accordingly, this court finds for petitioner initially under CPLR 7803 (3) and finds that the resolution of condemnation numbered 700-85 passed by the Town of Mount Pleasant on December 10, 1985, not having complied with requirements of SEQRA categorized above, was made in "violation of lawful procedure” and that such determination should properly be held void, of no effect and, accordingly, is vacated. On the same grounds, the court finds that resolution numbered 699-85 passed by the Town of Mount Pleasant which included a
However, in the alternative, this court also finds that even if the action of the town in passing Resolutions Nos. 699 and 700 of 1985 were properly based upon determining the Kensico Road project to be an "unlisted action” that such determination of environmental nonsignificance was made by the Town Board of Mount Pleasant in an arbitrary and capricious manner and was also not based upon substantial evidence, as those standards are recognized under CPLR article 78.
In issuing a determination that a proposed project would not have any significant environmental impact, such a negative declaration will pass judicial scrutiny only if the record before the court indicates that 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” (cf. Aldrich v Pattison, 107 AD2d 258, 265; see also, H.O.M.E.S. v New York State Urban Dev. Corp., 69 AD2d 222, 232). This court specifically finds, under the circumstances in the record, that no such "hard look” was given to the environmental concerns prior to the declaration of nonsignificance by the Town of Mount Pleasant. This is not to say that under the circumstances, Kensico Road should not be improved and/or altered. That is not the issue before the court. However, the record demonstrates that the environmental concerns of the Kensico Road project in toto were given short shrift by the town in their last minute rush for approval. As this court has indicated above, when the town passed its resolutions in September and October of 1984, for all practical purposes the Kensico Road project in its current form was approved by the town and the town’s part of funding was underway. Indeed, at the public hearing on December 9, 1985, ex-Supervisor Rovello had the following colloquy with a citizen:
"Mr. Mauro: Will it [EIS] be in your hands before the Town approves this project?
"Supervisor Rovello: The Town has already approved this project, Mr. Mauro * * * This Town Board took action last year. It voted a bond resolution last year.”
The respondent, Town Board, failed to follow procedures requiring it to "make an initial determination whether an [EIS] need be prepared * * * as early as possible” (ECL 8-0109
Under the circumstances as described above, even consider
Accordingly, this court finds for petitioners to the extent that the resolution of the Town Board of the Town of Mount Pleasant numbered 699-85, the environmental negative declaration regarding the Kensico Road project is void and hereby vacated for the reasons stated above; this court further finds that Resolution No. 700-85, the town’s condemnation resolution for the Kensico Road project property, is also void and hereby vacated for the reasons stated above. To the extent that petitioners seek a preliminary injunction enjoining respondent, Town of Mount Pleasant, from proceeding with the Kensico Road project, such issue is mooted by the above declaration and judgment of the court negating the condemnation resolutions. Accordingly, the application for a preliminary injunction is denied without prejudice.
Judgment for petitioners.