Calendar Date: February 10, 2012
Bond, Schoeneck & King, P.L.L.C., Albany (Robert H. Feller of counsel), for appellant.
Peter Henner, Clarksville, for Town of Amsterdam, respondent.
Before: Mercure, J.P., Lahtinen, Spain, Stein and McCarthy, JJ.
MEMORANDUM AND ORDER
Appeal from a judgment of the Supreme Court (J. Sise, J.), entered January 14, 2011 in Montgomery County, which partially granted petitioner's application, in a proceeding pursuant to CPLR article 78, to, among other things, annul two resolutions of respondent Amsterdam Industrial Development Agency permitting, among other things, respondent Amsterdam Materials Recycling, LLC, to construct and operate a construction and demolition debris landfill and recycling center.
In 2003, respondent Amsterdam Materials Recycling, LLC (hereinafter respondent) submitted an application to respondent Amsterdam Industrial Development Agency (hereinafter AIDA) (see General Municipal Law § 890-i) to develop a construction and demolition debris landfill and recycling center in an industrial park owned by AIDA in the City of Amsterdam, Montgomery County. AIDA became the lead agency with respect to the project and found that the proposed facility might have a significant effect on the environment, triggering the State Environmental Quality Review Act (see ECL art 8 [hereinafter SEQRA]) and the requirement of an environmental impact statement (hereinafter EIS) (see ECL 8-0109 ). Two periods of public comment were held on drafts of the EIS, during which many individuals and organizations interested in the project, including petitioner, submitted comments. After the second comment period, AIDA accepted the latest draft EIS — which incorporated changes and included the numerous reports that were relied upon, as well as the public comments and responses thereto — as the final EIS (hereinafter FEIS). In 2007, AIDA adopted two resolutions which, among other things, set forth a findings statement (see 6 NYCRR 617.11) and authorized AIDA to enter into a contract with respondent for the construction of the facility.
Petitioner then commenced this CPLR article 78 proceeding, challenging the FEIS and the findings statement and seeking, among other things, to annul the aforementioned AIDA resolutions. Respondent answered asserting affirmative defenses including, among others, lack of standing and failure to exhaust administrative remedies. Petitioner thereafter amended its petition in response. Supreme Court granted the amended petition in part by, as relevant here, declaring the FEIS null and void because it failed to meet SEQRA requirements and invalidating the resolutions that adopted AIDA's findings statement and authorized the contract between AIDA and respondent. Respondent now appeals. 
Preliminarily, we are unpersuaded by petitioner's argument that this appeal has been rendered moot by AIDA's adoption in February 2011 of a resolution stating that the SEQRA process would have to be repeated . There is no existing authority for an agency to independently rescind an EIS and the related findings statement in their entirety after they have already been accepted, based solely on the passage of time. Generally, "the mere passage of time does not warrant [the] reopening of environmental review" (Matter of Stewart Park & Reserve Coalition v New York State Dept. of Transp., 157 A.D.2d 1, 8-9 , affd 77 N.Y.2d 970 ; see Matter of Jackson v New York State Urban Dev. Corp., 67 N.Y.2d 400');">67 N.Y.2d 400, 425 ; see also Matter of Doremus v Town of Oyster Bay, 274 A.D.2d 390');">274 A.D.2d 390, 393 ). Even if the lead agency finds an existing EIS to be inadequate, SEQRA regulations permit the agency to require a supplemental EIS (see 6 NYCRR 617.9  [i]), where "specific significant adverse environmental impacts... arise from... changes proposed for the project[, ] newly discovered information[, ] or... a change in circumstances related to the project" (6 NYCRR 617.9 [a]  [i]; see Matter of Doremus v Town of Oyster Bay, 274 A.D.2d at 393-394). Alternatively, if the inadequacies of the FEIS did not arise from the factors set forth in 6 NYCRR 617.9 (a) (7) (i), the agency may require an amended FEIS (see generally Matter of County of Orange v Village of Kiryas Joel, 44 A.D.3d 765, 769 ). Here, since Resolution No. 2011-12 is without legal effect insofar as it purports to rescind the FEIS and findings statement, this Court's determination will clearly impact the parties' rights. Indeed, even if AIDA's resolution was authorized, our determination would necessarily implicate respondent's rights under the contract with AIDA. Thus, the appeal is not moot.
We also reject respondent's assertion that petitioner lacks standing to challenge the SEQRA determination. In order to establish standing to challenge a SEQRA determination, a municipality "must demonstrate 'how its personal or property rights, either personally or in a representative capacity, will be directly and specifically affected apart from any damage suffered by the public at large'" (Matter of Saratoga Lake Protection & Improvement Dist. v Department of Pub. Works of City of Saratoga Springs, 46 A.D.3d 979');">46 A.D.3d 979, 983 , lv denied 10 N.Y.3d 706 , quoting Matter of City of Plattsburgh v Mannix, 77 A.D.2d 114, 117 ; accord Matter of Village of Canajoharie v Planning Bd. of Town of Florida, 63 A.D.3d 1498');">63 A.D.3d 1498, 1501 ), and "'that it will suffer an injury that is environmental and not solely economic in nature'" (Matter of Village of Canajoharie v Planning Bd. of Town of Florida, 63 A.D.3d at 1501, quoting Matter of Mobil Oil Corp. v Syracuse Indus. Dev. Agency, 76 N.Y.2d 428, 433 ; see Society of Plastics Indus. v County of Suffolk, 77 N.Y.2d 761, 787-788 ). Here, petitioner has held an option to purchase property owned by the Butterfield family (hereinafter the Butterfield property), located directly adjacent to the proposed site, since January 2007. Petitioner argues that, by virtue of such interest, it will be subject to "greater exposure to the pollution and nuisance of the landfill." Petitioner further argues that it has standing in a representative capacity on behalf of its residents living on Chapman Drive, which is also directly adjacent to the proposed landfill site . Given that the proposed landfill's impact on, among other things, groundwater resources was specifically identified as a concern during the environmental review of the proposal, petitioner has alleged direct harm with respect to both the Butterfield property and the residences located on Chapman Drive (see generally Matter of Basha Kill Area Assn. v Planning Bd. of Town of Mamakating, 46 A.D.3d 1309');">46 A.D.3d 1309, 1311 , lv denied 10 N.Y.3d 712 ). Accordingly, Supreme Court properly found that petitioner had standing. 
Nor do we find merit in respondent's contention that petitioner was required to obtain a zoning determination prior to commencing this proceeding. The FEIS specifically acknowledges that a zoning amendment would be necessary in order for the landfill project to comply with the City of Amsterdam's zoning ordinance. As petitioner is not challenging the applicability of the zoning ordinance, no zoning determination has been made that would necessitate an appeal to the City's building inspector or zoning board of appeals. Thus, petitioner is not precluded from commencing this proceeding by a failure to exhaust its administrative remedies with respect to zoning compliance.
Turning to the merits, petitioner challenges both procedural and substantive aspects of AIDA's compliance with SEQRA requirements. Procedurally, it is axiomatic that, once an agency determines that a proposed development project "may have a significant effect on the environment" (ECL 8-0109 ) and, therefore, that an EIS is necessary, it must prepare or cause to be prepared a draft EIS for public consideration and solicit comments from the public to aid the agency in its decision-making process (see ECL 8-0109 ). After the public comment period, the EIS "is reevaluated to determine in what way, if any, the EIS should be revised or supplemented so as to adequately address issues raised by the comments" (Akpan v Koch, 75 N.Y.2d 561');">75 N.Y.2d 561, 569  [emphasis added]; see ECL 8-0109 ; 6 NYCRR 617.9 [b] ). The agency then files an FEISand, before approving the proposed project, must make express written findings that SEQRA's requirements have been satisfied (see ECL 8-0109 ) and must prepare a written statement of the facts and conclusions relied on in the FEIS or comments (see 6 NYCRR 617.9 [c]).
"In addition to these procedural requirements, SEQRA also imposes substantive requirements, delineating the content of the EIS (ECL 8-0109 ) and requiring the lead agency to 'act and choose alternatives which, consistent with social, economic and other essential considerations, to the maximum extent practicable, minimize or avoid adverse environmental effects'" (Akpan v Koch, 75 N.Y.2d at 570, quoting ECL 8-0109 ; see Matter of Jackson v New York State Urban Dev. Corp., 67 N.Y.2d at 417). In this regard, the statute and applicable regulations contain general guidelines regarding the content of the EIS, including the general categories of information that must be included and analyzed therein (see Aldrich v Pattison, 107 A.D.2d 258');">107 A.D.2d 258, 265 ).
Judicial review of a lead agency's SEQRA determination is, as with administrative proceedings generally, limited to whether the determination was made in accordance with lawful procedure and whether it "was affected by an error of law or was arbitrary and capricious or an abuse of discretion" (CPLR 7803 ; see Akpan v Koch, 75 N.Y.2d at 570; Matter of Jackson v New York State Urban Dev. Corp., 67 N.Y.2d at 416). The court's function is to assure that the agency has satisfied SEQRA, procedurally and substantively, not to evaluate data de novo, weigh the desirability of any particular action, choose among alternatives or otherwise substitute its judgment for that of the agency (see Akpan v Koch, 75 N.Y.2d at 570; Matter of Jackson v New York State Urban Dev. Corp., 67 N.Y.2d at 416). When approval of a proposed project is sought to be set aside on the ground that the FEIS was substantively deficient regarding the scope or lack of coverage devoted to specific environmental concerns, mitigation measures or project alternatives, judicial review of the record is focused on whether the lead 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. An agency's compliance with its substantive SEQRA obligations is governed by a rule of reason and the extent to which particular environmental factors are to be considered varies in accordance with the circumstances and nature of particular ...