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Kittredge v. Planning Board of Town of Liberty

December 31, 2008

IN THE MATTER OF JOAN KITTREDGE ET AL., APPELLANTS,
v.
PLANNING BOARD OF THE TOWN OF LIBERTY ET AL., RESPONDENTS.



The opinion of the court was delivered by: Stein, J.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Calendar Date: October 16, 2008

Before: Mercure, J.P., Spain, Rose, Kane and Stein, JJ.

MEMORANDUM AND ORDER

Appeal from a judgment of the Supreme Court (Sackett, J.), entered August 16, 2007 in Sullivan County, which dismissed petitioners' application, in a proceeding pursuant to CPLR article 78, to, among other things, review determinations of respondent Planning Board of the Town of Liberty adopting a negative declaration of environmental significance and granting the application of respondent CR Menderis, LLC for preliminary subdivision approval.

In May 2006, respondent CR Menderis, LLC (hereinafter Menderis) submitted to respondent Planning Board of the Town of Liberty (hereinafter the Board) an application for approval to subdivide a 143.2-acre plat into 27 lots for single-family homes. The application was placed on the Board's next meeting agenda, after which the preliminary plat was referred to the Board's consultants. Following a review of the preliminary plat, the Board requested certain changes. Menderis thereafter amended the preliminary plat to incorporate the suggestions made by the Board's consultants, completed a full environmental assessment form and submitted substantial documentation in connection therewith. The Board declared itself lead agency for purposes of the State Environmental Quality Review Act (see ECL art 8 [hereinafter SEQRA]) and a public hearing was held in August and September 2006 regarding the proposed development. At the public hearing and during the written comment period, which extended beyond the close of the hearing, numerous surrounding landowners and interested citizens voiced their concerns regarding the proposed development and its impact on the surrounding area. After the public hearing, the Board required Menderis to conduct studies to address the environmental concerns that had been raised. The results of those studies were provided to the Board in November 2006 and were thereafter reviewed by the Board's engineer and consultants and discussed at subsequent Board meetings. The Board issued a negative declaration of environmental significance on February 6, 2007 and granted preliminary subdivision approval to Menderis on March 27, 2007.

Petitioners commenced this CPLR article 78 proceeding to annul the Board's negative declaration as being in violation of SEQRA and to annul the Board's preliminary subdivision approval as being in violation of Town Law § 276 (5) (d) (i) (1) and Liberty Town Code § 130-13 (D) (3) (a) (1). Supreme Court upheld the Board's determinations and dismissed the petition. Petitioners now appeal and we reverse.

Initially, we agree with petitioners' contention that the Board failed to take the requisite hard look at certain aspects of the potential environmental impact of this project. As lead agency, the Board was obligated to "identif[y] the relevant areas of environmental concern, [take] a hard look at them, and [make] a reasoned elaboration of the basis for its determination" (Matter of Save the Pine Bush, Inc. v Common Council of the City of Albany, ___ AD3d___, ___, 865 NYS2d 365, 373 [2008] [internal quotation marks and citations omitted]; see Matter of Eadie v Town Bd. of Town of N. Greenbush, 47 AD3d 1021, 1024-1025 [2008]). Here, petitioners argue that the Board, in reviewing the proposed action, failed to take the requisite hard look at three areas of environmental impact, namely wildlife, wetlands and storm water pollution.

We recognize that the Board solicited public input, as well as a range of scientific studies and other information, to assist it in assessing the environmental impact of the proposed development. The record reflects that the Board extensively considered the public comments, as well as the studies performed at the behest of both petitioners and respondents, and that its conclusion that no wetlands were located on or immediately adjacent to the project site was amply supported. As to the storm water impact, we similarly find that the Board fulfilled its obligations by consulting with its own engineers and the engineers employed by Menderis regarding the Storm Water Pollution Prevention Plan. Accordingly, Supreme Court properly determined that the Board took the requisite hard look at the impact on wetlands and storm water pollution.

However, we agree with petitioners' contention that the Board failed to take the requisite hard look at the effect of the proposed development on wildlife. In fact, there is no record evidence of any meaningful investigation into this area of environmental concern. In particular, the conclusion that there were no endangered or threatened species on the property was based on two letters from the Department of Environmental Conservation (hereinafter DEC). While the first letter from DEC's Natural Heritage Program indicated that the program's databases contained no record of endangered species in the area, it specifically cautioned that the absence of such records did not mean that any such species did not exist there, but only that studies of the area had not been performed. The letter further indicated that the information should not be substituted for on-site surveys. The second letter received from DEC's Bureau of Wildlife a mere two weeks later similarly indicated that the Bureau had "no records of known occurrences of threatened or endangered wildlife species on or in the immediate vicinity." In concluding that no non-threatened or non-endangered species would be affected by the proposed development, the Board apparently relied on a report concerning the age of the forest on the property and the fact that the majority of the land was abandoned agricultural land that was in the process of reverting back to woodland. There is no explanation of how those factors led to the conclusion that there would be no impact on wildlife. Nor is there any record evidence that the Board "conducted an investigation and reasonably exercised its discretion so as to make a reasoned elaboration as to the effect of [the development] on [wildlife]" (Akpan v Koch, 75 NY2d 561, 571 [1990]), despite concerns raised by the public.

Although the Board was free to determine which environmental factors merited the deepest consideration (see Matter of WEOK Broadcasting Corp. v Planning Bd. of Town of Lloyd, 79 NY2d 373, 380-381 [1992]; Akpan v Koch, 75 NY2d at 570), its failure to properly identify the impact of the proposed development on wildlife or to take the requisite hard look at such impact is contrary to the mandates of SEQRA (see Matter of City Council of City of Watervliet v Town Bd. of Town of Colonie, 3 NY3d 508, 515 [2004]; Akpan v Koch, 75 NY2d at 571). Thus, we find that the Board's SEQRA determination that there would be no significant impact on wildlife was arbitrary and capricious and must be vacated (see CPLR 7803 [3]; Matter of Save the Pine Bush, Inc. v Common Council of the City of Albany, 865 NYS2d at 374).

We also agree with petitioners' contention that the Board improperly failed to hold a public hearing regarding the proposed subdivision after it issued its negative declaration. The required timing of a public hearing is set forth in Town Law § 276 (5) (d) (i) (1) and its analogous provision in Liberty Town Code § 130-13 (D) (3) (a) (1). Town Law § 276 (5) (d) (i) provides, as pertinent here, as follows:

The time within which the planning board shall hold a public hearing on the preliminary plat shall be coordinated with any hearings the planning board may ...


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