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In re Frigault

Supreme Court of New York, Third Department

June 27, 2013

In the Matter of LAWRENCE J. FRIGAULT et al., Respondents- Appellants,
v.
TOWN OF RICHFIELD PLANNING BOARD et al., Appellants- Respondents, et al., Respondent.

Calendar Date: May 22, 2013

Young Sommer, LLC, Albany (J. Michael Naughton of counsel), Kehoe & Merzig, PC, Oneonta (David S. Merzig of counsel) and Tooher & Barone, LLP, Albany (Meave M. Tooher of counsel), for appellants-respondents.

Douglas H. Zamelis, Manlius, for respondents- appellants.

Before: Peters, P.J., Rose, Stein and Garry, JJ.

MEMORANDUM AND ORDER

Stein, J.

Cross appeals from a judgment of the Supreme Court (Cerio Jr., J.), entered August 16, 2012 in Madison County, which partially granted petitioners' application, in a combined proceeding pursuant to CPLR article 78 and action for declaratory judgment, to, among other things, annul a determination of respondent Town of Richfield Planning Board granting a request by respondent Monticello Hills Wind, LLC for a special use permit.

In March 2011, respondent Monticello Hills Wind, LLC (hereinafter the applicant) applied to respondent Town of Richfield Planning Board for a special use permit in connection with a project involving the proposed construction of six wind turbines and associated facilities (hereinafter the project) on 1, 190 acres of land located in the Town of Richfield, Otsego County. The Board designated itself as the lead agency for purposes of the State Environmental Quality Review Act (see ECL art 8 [hereinafter SEQRA]), retained an outside consulting firm, held a public hearing on September 12, 2011, conducted multiple meetings and considered public comments both in support of, and in opposition to, the project. At a November 22, 2011 meeting, the Board reviewed the full environmental assessment form (hereinafter EAF), issued a negative declaration of significance under SEQRA and granted the applicant a special use permit. However, the approval of the special use permit was contingent upon the applicant entering into a host community agreement with the Town, the purpose of which was to address the applicant's ongoing obligations and responsibilities with respect to the project.

As a result of the Board's actions, petitioners — a group of local citizens and property owners in the Town — commenced this combined CPLR article 78 proceeding and action for declaratory judgment seeking, among other things, to annul the Board's determinations, and asserted claims that the Board failed to comply with SEQRA, the Open Meetings Law (see Public Officers Law art 7), the Town Law and the Town's special use permit ordinance. Petitioner Lawrence J. Frigault also sought certain relief pursuant to the Freedom of Information Law (see Public Officers Law art 6 [hereinafter FOIL]) [1]. Ultimately, Supreme Court rejected petitioners' challenge to the Board's SEQRA review, but found that the Board violated the Open Meetings Law in the manner in which it conducted the November 22, 2011 meeting and violated Town Law § 274-b with respect to the September 12, 2011 hearing. As a result of these violations, the court annulled the negative declaration and special use permit, prompting these appeals by respondents [2] and cross appeal by petitioners.

We now modify. Turning first to petitioners' argument that the Board failed to comply with the requirements of SEQRA, we begin our analysis by noting that an environmental impact statement (hereinafter EIS) is required "'on any action... which may have a significant effect on the environment'" (Matter of Bronx Comm. for Toxic Free Schs. v New York City Sch. Constr. Auth., 20 N.Y.3d 148, 155 [2012], quoting ECL 8-0109 [2]; accord Matter of Troy Sand & Gravel Co., Inc. v Town of Nassau, 82 A.D.3d 1377, 1378 [2011]; see 6 NYCRR 617.9 [a] [5] [i] [b]; Matter of Kittredge v Planning Bd. of Town of Liberty, 57 A.D.3d 1336, 1337 [2008]). A type I action, such as the project here, "carries with it the presumption that it is likely to have a significant adverse impact on the environment" (6 NYCRR 617.4 [a] [1]; see Matter of City Council of City of Watervliet v Town Bd. of Town of Colonie, 3 N.Y.3d 508, 518 n 8 [2004]; Matter of Troy Sand & Gravel Co., Inc. v Town of Nassau, 82 A.D.3d at 1378). However, when a lead agency "'determine[s] either that there will be no adverse environmental impacts or that the identified adverse environmental impacts will not be significant, '" it may issue a negative declaration and, in such instance, no EIS is required (Matter of Troy Sand & Gravel Co., Inc. v Town of Nassau, 82 A.D.3d at 1378, quoting 6 NYCRR 617.7 [a] [2]; accord Matter of New York City Coalition to End Lead Poisoning v Vallone, 100 N.Y.2d 337, 347 [2003]; Matter of Gabrielli v Town of New Paltz, 93 A.D.3d 923, 924 [2012], lv denied 19 N.Y.3d 805 [2012]).

"Although the threshold triggering an EIS is relatively low" (Matter of Chinese Staff & Workers' Assn. v Burden, 19 N.Y.3d 922, 924 [2012] [internal quotation marks and citations omitted]), judicial review of a negative declaration is limited to 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" (Matter of Shop-Rite Supermarkets, Inc. v Planning Bd. of the Town of Wawarsing, 82 A.D.3d 1384, 1385 [2011], lv denied 17 N.Y.3d 705 [2011] [internal quotation marks and citations omitted]; see Matter of Eadie v Town Bd. of Town of N. Greenbush, 7 N.Y.3d 306, 318 [2006]). In this regard, "[i]t is not the province of the courts to second-guess thoughtful agency decisionmaking and, accordingly, an agency decision should be annulled only if it is arbitrary, capricious or unsupported by the evidence" (Matter of Riverkeeper, Inc. v Planning Bd. of Town of Southeast, 9 N.Y.3d 219, 232 [2007]).

With those principles in mind, our review of the record persuades us that the Board's negative declaration was issued in compliance with SEQRA. The Board engaged in a lengthy SEQRA review process, which included hiring an outside consulting firm and conducting no less than 11 Board meetings between the time the permit application was filed in March 2011 and the issuance of the negative declaration in November 2011. The full EAF was replete with studies on environmental issues, including the project's impact on bats and birds, "shadow flicker, " [3] noise, cultural resources and visual effect, and the Board afforded members of the public an opportunity to voice their concerns with respect to the project. In addition, the Board received input as to the project's environmental impacts from various state agencies, including the Office of Parks, Recreation and Historic Preservation, the Department of Environmental Conservation, the Department of Transportation, and the Department of Agriculture and Markets.

At the conclusion of the environmental review process, the Board issued a thorough and reasoned analysis addressing the areas of relevant environmental concern — land, water, air, plants and animals, agricultural land resources, aesthetic resources, historic and archeological resources, open space and recreation, noise and odor, among others — which, in our view, demonstrates that the Board took the requisite hard look at those concerns (see Matter of Gabrielli v Town of New Paltz, 93 A.D.3d at 925; Matter of West Beekmantown Neighborhood Assn., Inc. v Zoning Bd. of Appeals of Town of Beekmantown, 53 A.D.3d 954, 956-957 [2008]). As a result, we agree with Supreme Court that the Board fulfilled its obligations under SEQRA (see Matter of Bronx Comm. for Toxic Free Schs. v New York City Sch. Constr. Auth., 20 N.Y.3d at 155; Matter of Rotterdam Ventures, Inc. v Town Bd. of the Town of Rotterdam, 90 A.D.3d 1360, 1361 [2011]; Matter of Mombaccus Excavating, Inc. v Town of Rochester, N.Y., 89 A.D.3d 1209, 1211 [2011], lv denied 18 N.Y.3d 808 [2012]). [4]

However, we disagree with Supreme Court's determination that a violation of the Open Meetings Law warranted annulment of the resolutions passed by the Board at its November 22, 2011 meeting. It is undisputed that the Board initially provided proper notice that a Board meeting was scheduled to take place at the Town Hall at 7:00 p.m. on that date and that the project would be the focus of the meeting (see Public Officers Law § 104 [1], [2]). As a result of the large public turnout at that meeting, the room in the Town Hall was filled in excess of the maximum occupancy limit and the Town Attorney announced to those in attendance that the meeting would be relocated to a community room in a church located approximately two blocks away. A note was placed on the door of the Town Hall to inform late attendees of the move, and the meeting commenced approximately one hour after it was scheduled to begin.

Supreme Court found that the Board should have anticipated the large crowd at the meeting and made appropriate arrangements to accommodate its size and that the Board violated the Open Meetings Law by relocating the meeting without proper notice. We do not agree. As relevant here, the Open Meetings Law provides that "[e]very meeting of a public body shall be open to the general public" (Public Officers Law § 103 [a]) and it is incumbent upon a public body to "make or cause to be made all reasonable efforts to ensure that meetings are held in an appropriate facility which can adequately accommodate members of the public who wish to attend such meetings" (Public Officer Law § 103 [d]). Here, when it became clear that the space in the Town Hall was not large enough for the number of people who wished to attend the meeting, the Board notified everyone present — including the media — that the meeting was being relocated, and took steps to make certain that anyone arriving late would be aware of ...


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