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MATTER VILLAGE WESTBURY v. DEPARTMENT TRANSPORTATION STATE NEW YORK ET AL. (12/19/89)

COURT OF APPEALS OF NEW YORK 1989.NY.54487 <http://www.versuslaw.com>; 549 N.E.2d 1175; 75 N.Y.2d 62 decided: December 19, 1989. IN THE MATTER OF THE VILLAGE OF WESTBURY, RESPONDENT,v.DEPARTMENT OF TRANSPORTATION OF THE STATE OF NEW YORK ET AL., APPELLANTS Appeal, by permission of the Court of Appeals, from an order of the Appellate Division of the Supreme Court in the Second Judicial Department, entered January 9, 1989, which (1) reversed, on the law, a judgment of the Supreme Court (Alfred S. Robbins, J.), entered in Nassau County in a proceeding pursuant to CPLR article 78, dismissing the petition to review a negative declaration under the State Environmental Quality Review Act (ECL art 8 [SEQRA]) issued by respondent Department of Transportation of the State of New York for reconstruction of the interchange of the Northern State Parkway and the Meadowbrook State Parkway, (2) granted the petition to the extent of annulling the negative declaration, (3) remitted the matter for reconsideration of the cumulative environmental effects of the interchange project and a proposed widening of a section of the Northern State Parkway east of it, and preparation of an environmental impact statement, and (4) enjoined construction until completion of proceedings complying with SEQRA. Counsel Robert Abrams, Attorney-General (Andrea Green, O. Peter Sherwood and Lawrence S. Kahn of counsel), for appellants. Thomas R. Derosa, Stephen L. Gordon, Sy Gruza and Craig Kravit for respondent. Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone, Hancock, Jr., and Bellacosa concur. Chief Judge, Wachtler and Judges Simons, Kaye, Alexander, Titone, Hancock, Jr., and Bellacosa concur. Author: Simons


Appeal, by permission of the Court of Appeals, from an order of the Appellate Division of the Supreme Court in the Second Judicial Department, entered January 9, 1989, which (1) reversed, on the law, a judgment of the Supreme Court (Alfred S. Robbins, J.), entered in Nassau County in a proceeding pursuant to CPLR article 78, dismissing the petition to review a negative declaration under the State Environmental Quality Review Act (ECL art 8 [SEQRA]) issued by respondent Department of Transportation of the State of New York for reconstruction of the interchange of the Northern State Parkway and the Meadowbrook State Parkway, (2) granted the petition to the extent of annulling the negative declaration, (3) remitted the matter for reconsideration of the cumulative environmental effects of the interchange project and a proposed widening of a section of the Northern State Parkway east of it, and preparation of an environmental impact statement, and (4) enjoined construction until completion of proceedings complying with SEQRA.

Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone, Hancock, Jr., and Bellacosa concur. Chief Judge, Wachtler and Judges Simons, Kaye, Alexander, Titone, Hancock, Jr., and Bellacosa concur.

Author: Simons

 OPINION OF THE COURT

Petitioner Village of Westbury instituted this CPLR article 78 proceeding seeking relief from respondents' alleged violation of the State Environmental Quality Review Act (ECL art 8). Specifically, it requests that the negative declaration issued by the respondent Department of Transportation for reconstruction of the interchange of the Northern State Parkway and the Meadowbrook State Parkway be annulled and that the matter be remitted to DOT for preparation of environmental impact statement (EIS) after consideration of the cumulative environmental effects of the interchange project and a proposed widening of a section of the Northern State Parkway east of it. Supreme Court dismissed the petition but the Appellate Division reversed its judgment, annulled the negative declaration and remitted the matter to the Department for further consideration. Construction has been enjoined until completion of proceedings complying with SEQRA.

We granted respondents leave to appeal so that we might decide whether (1) the interchange reconstruction and the proposed widening of Northern State Parkway to the east of it must be considered together when determining whether the actions of DOT will have a significant effect on the environment (see, 6 NYCRR 617.11 [a]; 17 NYCRR 15.11 [a]), (2) the regulations of the Department of Environmental Conservation or those of the Department of Transportation are to control that determination and (3) the proceeding is timely. Our review of these questions is limited to deciding whether DOT's determination was made in violation of lawful procedures, was affected by an error of law or was arbitrary or capricious or an abuse of discretion (see, CPLR 7803 [3]; Chinese Staff & Workers Assn. v City of New York, 68 N.Y.2d 359, 363). It is not our role to weigh the desirability of any proposed actions or choose among alternatives but only to insure that the agency has satisfied the substantive and procedural requirements of SEQRA and of the regulations implementing it (Matter of Jackson v New York State Urban Dev. Corp., 67 N.Y.2d 400, 416). For the reasons which follow, we conclude that it has not and that the Appellate Division order should be affirmed.

I

The Northern State Parkway is a limited-access parkway running generally east and west and serving the northern corridor of Long Island. It presently consists of eight lanes of traffic west of the interchange and four lanes east of it. The Meadowbrook State Parkway is a six-lane limited-access parkway running generally north and south and extending from the interchange with the Northern State Parkway southerly to Jones Beach State Park. The interchange is located in Nassau County, principally in petitioner Village of Westbury.

Reconstruction was undertaken because the design of the exit and entry ramps of the interchange is confusing, requiring drivers in some instances to leave one parkway to obtain access to the other, and the road capacity, particularly east of the interchange, is inadequate and produces excessive traffic congestion. As a result of these conditions, the accident rate in the area is more than six times the State-wide average.

The proposed reconstruction was started in June 1988 and scheduled to be completed in 1991. It will change the configuration of the interchange, providing new entrance and exit ramps, and include a new connection between the Northern State Parkway and the Meadowbrook State Parkway. The reconstruction will also provide two additional lanes (a total of four in each direction) for traffic on the Northern State Parkway for a short distance east of the interchange. Although these additional lanes on the east end of the interchange will be built as part of the interchange project, they will not be used until after Northern State Parkway is widened from the interchange east to Wantagh State Parkway. They serve no purpose independent of the widening project, so appropriate traffic control devices will prevent their use until the widening project is completed.

The widening project is tentatively scheduled to begin after completion of the interchange project and funding for it has been programmed for 1991. It will result in the continued expansion of the Northern State Parkway to four lanes in each direction east of the easterly limit of the interchange project. The projected lane alignment will match the widened alignment of the Northern State Parkway built as part of the interchange project. When the widening east of the interchange is complete, the traffic control devices preventing use of the additional lanes built during the interchange project will be removed and maximum capacity and traffic flow will be achieved.

In making its environmental review, DOT relied on the provisions of SEQRA and its own implementing regulations (see, ECL art 8; 17 NYCRR part 15). Pursuant to its regulations, DOT characterized the project as a non-Type II action, which required preparation of an environmental assessment to determine whether an environmental impact statement was needed (see, 17 NYCRR 15.6). The draft environmental assessment, issued in November 1986, originally included a proposed alternative to widen the Northern State Parkway from four to eight lanes easterly of the interchange from the Meadowbrook Parkway to the Wantagh Parkway. Serious public objections to the construction were expressed by the Village of Westbury and others. The Village objected particularly to parts of the widening proposal, and the necessary closing or elimination of certain bridges in connection with it, and the rerouting of traffic through the Village during construction of this extended improvement. Consequently, in June 1987 DOT issued a final report/environmental assessment which revised the easterly limit of the project by shifting it about 1,200 feet west towards the interchange. DOT determined the project, as so modified, would have no significant environmental impact and issued a negative declaration.

Petitioners contend this declaration must be annulled because it was issued without considering the cumulative environmental impact of both the interchange and the projected construction to widen Northern State Parkway, as required by applicable regulations, was arbitrary and capricious and an abuse of discretion. II

Generally speaking, SEQRA charges State and local agencies with the responsibility of implementing the procedures and purposes it sets forth. To that end, they must determine first whether a proposed action may have a "significant effect" on the environment and, if it does, prepare or cause to be prepared an environmental impact statement in the manner set forth in the statute (ECL 8-0109 [2]). The idea is to insure investigation and study before proceeding so that "agency decision-makers -- enlightened by public comment where appropriate -- will identify and focus attention on any environmental impact of proposed action, that they will balance those consequences against other relevant social and economic considerations, minimize adverse environmental effects to the maximum extent practicable, and then articulate the bases for their choices." (Matter of Jackson v New York State Urban Dev. Corp., 67 N.Y.2d 400, 414-415, supra). Inquiry starts with an assessment of the action and a determination of whether it "may ...


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