In the Matter of the Application of John Delvecchio and Delvecchio Family, LLC, Petitioners,
City of Cortland Planning Commission, Respondents.
This case is not published in a printed volume and its disposition appears in a table in the reporter.
Scott F. Chatfield, Esq. City of Cortland
By: Lawrence J. Knickerbocker, Esq. Corporation Counsel Law Department
Phillip R. Rumsey, J.
Petitioner owns a parcel of real property in the City of Cortland, which is improved with a building that was originally constructed, in the early twentieth century, as an imposing single-family residence for a local industrial icon, George Brockway. More recently, the structure was used as a sorority house and an insurance office, prior to being converted to a multi-family residence containing three apartments and an office. Petitioner now proposes to change the interior configuration of that structure so that it will comprise four apartments, and to add another building on the same lot, which would contain four additional apartments ("the project").
Although the project is a permitted use in the "R-4" zoning district where the property is located, and apparently meets all applicable area and setback requirements, the zoning ordinance also requires site plan approval for all multi-family uses in an R-4 zone. Petitioner applied for such approval, and attended several meetings of respondent City Planning Commission at which various site configurations were discussed. A public hearing was held on April 23, 2007, and additional Commission meetings, and further modification of the plan, ensued. On July 23, 2007, the Commission - having designated itself "lead agency" under the State Environmental Quality Review Act (SEQRA) - completed a "long form" Environmental Assessment Form, as a result of which it determined that the project "may result in one or more large and important impacts * * * on the environment," and voted to issue a positive declaration, requiring the petitioner to prepare an Environmental Impact Statement.
Petitioner challenges that determination, arguing that it was arbitrary and capricious because the Commission had previously issued negative declarations (finding no significant environmental impact would result) in connection with several similar projects in the same neighborhood. Moreover, petitioner contends that the Commission's findings, as to ways in which the project might have a potentially large impact on the environment, are entirely without basis in the record.
At the outset, the court is not convinced that this proceeding is premature, as respondent argues. In
Gordon v Rush, the Court of Appeals rejected the respondent's contention that issuance of a positive declaration did not constitute a "final" agency action subject to judicial review, finding that "the obligation to prepare a DEIS [Draft Environmental Impact Statement ] imposes an actual injury * * * as the process may require considerable time and expense" (Gordon v Rush, 100 N.Y.2d 236, 242 ). The issuance of a positive declaration was therefore found to "clearly impose  an obligation on petitioners because [it] requires them to prepare and submit a DEIS" (id.). The court further noted that "[e]ven if the Board ultimately granted the variances, petitioners would have already spent the time and money to prepare the DEIS and would have no available remedy for the unnecessary and unauthorized expenditures" (id.). Because it found both the imposition of an actual, concrete injury, and no opportunity to prevent or ameliorate the harm administratively, the Court held that the action was sufficiently final to permit judicial review.
Although at least one appellate court has apparently interpreted the Gordon holding as limited to its somewhat unusual facts, or at least to situations where the respondent is charged with acting entirely beyond its jurisdiction (see, Matter of Modern Landfill v New York State DEC, 21 A.D.3d 1381, 1382 ), the rationale underlying the holding does not seem to admit of so narrow an application. If, as the Court of Appeals found, a decision which requires the preparation of a DEIS "clearly imposes an obligation" upon the applicant, due to the time and expense of complying with that requirement, and that harm cannot be ameliorated by any other administrative action or remedy (as is usually the case when a positive declaration is made), then it would seem that the criteria for ripeness would be satisfied whenever a positive declaration is allegedly wrongfully issued, regardless of the reason why it was improper. The harm inflicted is no less, nor the opportunity to remedy it greater, merely because an agency has acted arbitrarily and capriciously, rather than entirely beyond its jurisdiction.
Because the issuance of a positive declaration by respondent will require petitioner to expend substantial time and money participating in a scoping session, preparing a DEIS, and completing the remainder of the SEQRA review process, and those expenditures cannot be recouped even if the petitioner ultimately obtains the right to complete the project, the court finds that the matter is ripe for review.
Turning to the merits,  the threshold for issuing a positive declaration, requiring the preparation of an environmental impact statement (EIS), is low (
see, e.g., Oak Beach Inn Corp. v Harris, 108 A.D.2d 796, 797 ). If there is a possibility that an action may have a significant environmental impact, it is appropriate for the reviewing agency to issue a positive declaration (id.).
Guidance in determining whether that threshold has been met is provided by the instructions set forth on the Environmental Assessment Form (EAF) itself. That form identifies 20 possible areas of impact, including not only changes to land, air, water, and other natural resources, but also impacts on aesthetic, historical and neighborhood characteristics. For each area, the agency completing the form is directed to determine first whether there will be any impact; if so, whether the impact will be "small to moderate" or "potentially large"; and if "large," whether it can be mitigated. To aid in determining whether an impact should be deemed "small to moderate" or "potentially large," several examples of "potentially large" impacts are given. For example, if an action involves "construction of a paved parking area for 1,000 or more vehicles," the reviewer is instructed that this would constitute a "potentially large" impact. If the same type of change is proposed, ...