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January 28, 1997


The opinion of the court was delivered by: MCAVOY

 This action focuses upon the circumstances surrounding plaintiff Cedarwood Land Planning's ["Cedarwood"] attempt to develop a residential subdivision on land it owns in the defendant Town of Schodack [the "Town"]. Cedarwood alleges that the Town, through the Schodack Planning Board [the "Planning Board"] and the Schodack Town Board [the "Town Board"], diminished the value of the land through the zoning, environmental and planning approval processes at issue. Cedarwood claims violations of the state and federal constitutions, and 42 U.S.C. § 1983.

 Defendants now move to dismiss the Complaint, or in the alternative, for summary judgment.


 A. Regulatory Summary:

 Before delving into the facts of this case, the Court will review some of the regulatory and procedural background involved, the alleged manipulation of which serves as the framework of many of plaintiff's contentions.

 (1) SEQRA

 The State Environmental Quality Review Act ("SEQRA") is codified in Article 8 of New York's Environmental Conservation Law. SEQRA provides a comprehensive assessment scheme by which environmental considerations play a mandatory role in governmental decisionmaking early on in certain proposed actions. See Billerbeck v. Brady, 224 A.D.2d 937, 637 N.Y.S.2d 890, 891 (4th Dep't 1996); WEOK Broadcasting Corp v. Planning Bd. of Town of Lloyd, 165 A.D.2d 578, 568 N.Y.S.2d 974, 975 (3d Dep't 1991), aff'd, 79 N.Y.2d 373, 583 N.Y.S.2d 170, 592 N.E.2d 778 (1992); N.Y. Envtl. Conserv. Law § 8-103 (McKinney 1984) [hereinafter "ECL"]. The "actions" subject to SEQRA's requirements include "projects or activities involving the issuance to a person of a lease, permit, license, certificate, or other entitlement for use or permission to act by one or more agencies[.]" ECL § 8-0105(4)(I). *fn1"

 The SEQRA process itself takes a considerable amount of time, and must begin "as soon as an agency receives an application for funding or for approval of an action[.]" 6 NYCRR § 617.6(a)(1). The first step is to classify the proposed action, i.e., determine whether it is subject to SEQRA's regulations. *fn2" Id. § 617(a)(1)(I). If it is, the coordinated review process begins with the project sponsor identifying all "involved agencies" in an Environmental Assessment Form ("EAF"). Id. § 617.6(a)(2). Involved agencies are those having "jurisdiction by law to fund, approve or directly undertake an action," even if an application for such approval has not yet been submitted at the start of the SEQRA process. Id. § 617.2(s). These agencies then choose a "lead agency" from among themselves to coordinate the review process. 6 NYCRR § 617.6(b)(3)(I). The lead agency completes the EAF, providing information describing the proposed action, its purpose and potential environmental impacts. Id. § 617.21 (App. A).

 The lead agency next is responsible for determining the significance of the proposed action. Id. § 617.7. To require an EIS, the lead agency must find at least one potentially significant adverse environmental impact ("positive declaration"). Id. § 617.7(a)(1). If there will be no adverse environmental impacts involved, or if such impacts would be insignificant, no EIS will be required ("negative declaration"). Id. § 617.7(a)(2). *fn3"

 Once a positive declaration is issued, the EIS process begins. Under article 8, the EIS may be prepared by the applicant or the lead agency, at the applicant's option. ECL § 8-0109(4). Should the applicant choose to prepare the EIS, a draft EIS is first prepared for submission to the lead agency. 6 NYCRR 617.8(c). *fn4" If the draft EIS is deemed inadequate by the lead agency, it must identify in writing the deficiencies and provide such information to the sponsor. 6 NYCRR § 617.9(a)(2)(I). The lead agency then has thirty days from receipt of any resubmitted draft EIS to determine its adequacy. Id. § 617.9(a)(ii).

 Within thirty days after filing the final EIS, the lead agency must file a written findings statement and decision on whether or not to approve the action. 6 NYCRR § 617.11(b). If the lead agency determines that the action should be approved, the findings statement must (1) certify that SEQRA's requirements have been met; and (2) certify that adverse environmental effects revealed in the EIS process will be minimized or avoided to the maximum extent possible. ECL 8-0109(8); 6 NYCRR 617.11(d)(5). If the agency decides not to approve the action, written findings must also be made stating the facts relied upon in the final EIS for such a determination.

 (2) Town of Schodack Requirements

 (a) Procedural Requirements

 In addition to the SEQRA procedures, provisions in the Town Code of the Town of Schodack are at issue. Those procedures are set forth in the Code of the Town of Schodack, Subdivision of Land and Design and Construction Standards, Chapter 188 (1991 and Amend.) (hereinafter "Town Code"). [See Affidavit of Daniel J. Stewart ("Stewart Aff."), Ex. E].

 The Town requires that the owner of the land proposed for subdivision first submit a sketch plan to the Director of the Planning Board for classification and discussion. Town Code § 188-4(a). After preliminary discussion of regulatory requirements at a board meeting, the Planning Board classifies the plan as a major or minor subdivision. Id. § 188-4(B)(2). If classified as a major subdivision, the developer will then file a preliminary plat for approval. Id. § 188-6.

 A public hearing will be held within 45 days from submission of the plat. Town Code § 188-6(F)(1). Within 45 days of that hearing, the Planning Board must act to conditionally approve, conditionally approve as modified, disapprove, or grant final approval. Id. § 188-5(F)(1). *fn5" After preliminary approval of the plat, the developer must apply for final approval from the Planning Board. Id. § 188-7. Within 45 days, another public hearing is held, id. § 188-7(E), and the Planning Board's final approval or disapproval is due within 45 days of the hearing. Town Code § 188-7(F).

 (b) Zoning Requirements

 The Town's Zoning Schedule provides that in a Residential Agricultural ("RA") district, single family dwellings are required to have a minimum lot area of 60,000 square feet. Town of Schodack Zoning Schedule of Area and Bulk Requirements, Part I [hereinafter "Zoning Schedule"] [Affidavit of Salvatore Ferlazzo ("Ferlazzo Aff."), Ex. F]. Prior to 1992, however, the Zoning Schedule had a density bonus provision in effect, by which multiple dwellings served by central sewer and water required minimum lot areas of 20,000 square feet.

 The density bonus provision was eliminated from the Town Zoning Schedule by Local Law # 5, adopted December 10, 1992. [See Ferlazzo Aff. Ex. C].

 In 1987, Cedarwood purchased 63 acres of land in the Town of Schodack for the purpose of developing a housing subdivision. [Compl., PP 3-4; Stewart Aff., P 3]. The property in question is zoned RA with a minimum lot size of 60,000 square feet; at the time the land was purchased, however, the density bonus provision was in effect, enabling the lot size to be reduced to 20,000 square feet if the developer proposed proper central water and drainage. [Ferlazzo Aff., Ex. F., Part 1].

 Taking advantage of the density bonus provision, Cedarwood submitted a proposal for 116 units to the Planning Board in 1987. [Stewart Aff., Ex. F (Transcript of Planning Board Hearing, Sept. 7, 1992) at 9]. Because of the potential environmental impact of the proposal, SEQRA review was required; defendants assert without documentation that a positive declaration was made in September of 1987. [Stewart Aff., P 12]. Defendants further allege that a completed draft EIS was not filed with the Planning Board until May of 1990. [Stewart Aff., P 12, Ex. F at 7]. This assertion, however, must be qualified in light of plaintiff's submissions.

 In his affidavit, Cedarwood President Richard P. Benko asserts that a draft EIS was submitted on September 12, 1988. [Benko Aff. at 1]. Benko also submits a September 22, 1988 letter from Engineer Doug Clark (whose engineering firm was retained by the Planning Board as review engineer for the project in July of 1988) to the Planning Board, stating that "the revised DEIS dated 12 September 1988 for this project is satisfactory with respect to scope, content and adequacy and we recommend acceptance by the Lead Agency." [Benko Aff., Ex. B].

 Furthermore, other correspondence submitted by Cedarwood indicates that Clark Engineering was in fact reviewing a submitted draft EIS from September of 1988 until April of 1990. *fn7" [See Benko Aff., Ex. B,C,D,E,F]. Thus, Stewart's assertion in his affidavit that "a completed [draft EIS] was not filed with the planning Board until May of 1990", [Stewart Aff., P 12] (emphasis added) may refer only to the point at which the Planning Board considered the draft EIS complete.

 Public hearings were held on the draft EIS in June and August of 1990. [Stewart Aff., Ex. F at 7]. At some point, concerns arose among members of the public regarding the proposed sewage disposal system. [Affidavit of Plaintiff's Engineer Thomas Brewer ("Brewer Aff."), P 7; Stewart Aff., P13]. As originally designed, the subdivision utilized an extended aeration system (a "package plant"), followed by filtration, with surface discharge into the Vierda Kill. [Brewer Aff., P 7; Stewart Aff., P 13 and Ex. F at 9]. This proposal, however, eventually was abandoned in favor of subsurface discharge. By the time Cedarwood submitted the final EIS in June of 1992, the size of the project had been reduced to 83 units, and the sewage treatment proposal utilized individual septic tanks with each unit, with effluent running through normal sewer lines to a central treatment facility ultimately resulting in subsurface disposal. [Stewart Aff., P 13]. *fn8"

 On June 1, 1992, the final EIS was deemed complete by the Planning Board. [Stewart Aff., P 14, Ex. F at 8]. On June 15, however, the Planning Board's acceptance was rescinded, apparently due to concerns that they had not acted in compliance with correct SEQRA procedure. Specifically, the Planning Board expressed concern over its own failure to hold public hearings regarding the changes in the draft EIS concerning sewage and the reduction in units. [Benko Aff., Ex 2 (Transcript of June 15, 1992, Meeting of ...

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