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In re Youngewirth

Supreme Court of New York, Second Department

November 8, 2017

In the Matter of Elizabeth Youngewirth, appellant,
v.
Town of Ramapo Town Board, et al., respondents. Index No. 5194/10

          Argued - August 2, 2017

         D53426 O/hu

          Bruce M. Levine, Montebello, NY, for appellant.

          Michael L. Klein, Town Attorney, Suffern, NY (Janice Gittelman and Michael Specht of counsel), for respondents Town of Ramapo Town Board and Town of Ramapo.

          Rice & Amon, Suffern, NY (Terry Rice of counsel), for respondent Scenic Development, LLC.

          JOHN M. LEVENTHAL, J.P. LEONARD B. AUSTIN JEFFREY A. COHEN COLLEEN D. DUFFY, JJ.

          DECISION & ORDER

         In a proceeding pursuant to CPLR article 78 to review three determinations of the Town of Ramapo Town Board, all dated January 25, 2010, resolving to approve a findings statement pursuant to the State Environmental Quality Review Act (ECL article 8) in connection with a proposed development project, to amend the Comprehensive Plan of the Town of Ramapo so as to permit the development project, and to rezone the real property on which the development project is proposed to be constructed, respectively, the petitioner appeals from a judgment of the Supreme Court, Rockland County (Walsh II, J.), dated May 8, 2013, which denied the petition and dismissed the proceeding.

         ORDERED that the judgment is reversed, on the law, with one bill of costs payable by the respondents appearing separately and filing separate briefs, the petition is granted, the determinations of the Town of Ramapo Town Board are annulled, and the matter is remitted to the Town of Ramapo Town Board for further proceedings consistent herewith.

         In 2009, the respondent Scenic Development, LLC (hereinafter Scenic), sought a zone change for a portion of a parcel of real property it owned in the Town of Ramapo (hereinafter the subject property) to permit the development of multifamily units. In three determinations, all dated January 25, 2010, the Town of Ramapo Town Board (hereinafter the Town Board) resolved to (1) approve a findings statement pursuant to the State Environmental Quality Review Act (ECL art 8; hereinafter SEQRA) for the proposed zone change, (2) amend the Comprehensive Plan of the Town of Ramapo so as to permit the zone change, and (3) grant the zone change subject to specified conditions, respectively. The petitioner commenced this proceeding pursuant to CPLR article 78 to annul the Town Board's determinations. The Town Board and the Town of Ramapo (hereinafter together the Town), and Scenic separately moved to dismiss the proceeding, inter alia, pursuant to CPLR 3211(a)(3) on the ground that the petitioner lacked standing. The Supreme Court granted the respondents' motions, finding that the petitioner lacked standing. The petitioner appealed to this Court, and this Court concluded that the petitioner had standing with respect to several causes of action, and remitted the matter to the Supreme Court, Rockland County, for a determination of those causes of action on the merits (see Matter of Youngewirth v Town of Ramapo, 98 A.D.3d 678, 680).

         In a judgment dated May 8, 2013, the Supreme Court addressed those causes of action on the merits, denied the petition, and dismissed the proceeding. The petitioner appeals, and we reverse.

         "'[I]n a proceeding seeking judicial review of administrative action, the court may not substitute its judgment for that of the agency responsible for making the determination, but must ascertain only whether there is a rational basis for the decision or whether it is arbitrary and capricious'" (Matter of Fogelman v New York State Dept. of Envtl. Conservation, 74 A.D.3d 809, 810, quoting Flacke v Onondaga Landfill Sys., 69 N.Y.2d 355, 363; see Matter of Suffolk County Assn. of Mun. Empls., Inc. v Levy, 133 A.D.3d 676, 677; Matter of Gracie Point Community Council v New York State Dept. of Envtl. Conservation, 92 A.D.3d 123, 128; Matter of508 Realty Assoc., LLC v New York State Div. of Hous. & Community Renewal, 61 A.D.3d 753, 754-755). This is true even where the court would have reached a different result (see Matter of Terrace Ct., LLC v New York State Div. of Hous. & Community Renewal, 18 N.Y.3d 446, 454; Matter of Deerpark Farms, LLC v Agricultural & Farmland Protection Bd. of Orange County, 70 A.D.3d 1037, 1038). "An action is arbitrary and capricious when it is taken without sound basis in reason or regard to the facts" (Matter of Deerpark Farms, LLC v Agricultural & Farmland Protection Bd. of Orange County, 70 A.D.3d at 1038; see Matter of Pell v Board of Educ. of Union Free School Dist. No. 1of Townsof Scarsdale & Mamaroneck, Westchester County, 34 N.Y.2d 222, 231).

         "Judicial review of an agency determination under SEQRA is limited to whether the agency procedures were lawful and whether the 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 Village of Kiryas Joel, N.Y.v Village of Woodbury, N.Y., 138 A.D.3d 1008, 1011-1012 [internal quotation marks omitted]; see Matter of Bronx Comm. for Toxic Free Schs. v New York City Sch. Constr. Auth., 20 N.Y.3d 148, 155; Akpan v Koch, 75 N.Y.2d 561, 570; Matter of Jackson v New York State Urban Dev. Corp., 67 N.Y.2d 400, 417; Matter of DeFeo v Zoning Bd. of Appeals of Town of Bedford, 137 A.D.3d 1123, 1127; Matter of Saint James Antiochian Orthodox Church v Town of Hyde Park Planning Bd., 132 A.D.3d 687; Matter of Falcon Group Ltd. Liab. Co. v Town/Village of Harrison Planning Bd., 131 A.D.3d 1237, 1239; Matter of Village of Chestnut Ridge v Town of Ramapo, 99 A.D.3d 918, 925). "[A]n agency, acting as a rational decision maker, must have conducted an investigation and reasonably exercised its discretion so as to make a reasoned elaboration as to the effect of a proposed action on a particular environmental concern" (Akpan v Koch, 75 N.Y.2d at 571). However, "'[i]n a statutory scheme whose purpose is that the agency decision-makers focus attention on environmental concerns, it is not the role of the courts to weigh the desirability of any action or choose among alternatives, but to assure that the agency itself has satisfied SEQRA, procedurally and substantively'" (Matter of Village of Kiryas Joel, N.Y. v Village of Woodbury, N.Y., 138 A.D.3d at 1012, quoting Matter of Jackson v New York State Urban Dev. Corp., 67 N.Y.2d at 416; see Akpan v Koch, 75 N.Y.2d at 571; Matter of Saint James Antiochian Orthodox Church v Town of Hyde Park Planning Bd., 132 A.D.3d at 687-688; Matter of Village of Chestnut Ridge v Town of Ramapo, 99 A.D.3d at 925).

         Here, we agree with the petitioner's contention that the Town Board failed to take a "hard look" at the environmental impact of placing the proposed development in close proximity to the existing Columbia Gas pipeline, and the combined environmental impact of the pipeline and the development together. The Draft Environmental Impact Statement (hereinafter DEIS) contains only a brief mention of the pipeline which bisects the property, and Columbia Gas was omitted from the list of "interested agencies." In addition, there is nothing in the Town Board's determinations that suggests that it considered these issues outside the context of the DEIS and the final environmental impact statement (hereinafter FEIS), and they are not discussed in the Town's SEQRA findings statement. Thus, the record supports the petitioner's contention that the Town Board did not take a "hard look" at these issues or make a "reasoned elaboration" of the basis for its determination regarding them (see Matter of Bronx Comm. for Toxic Free Schs. v New York City Sch. Constr. Auth., 20 N.Y.3d at 155; Akpan v Koch, 75 N.Y.2d at 570; Matter of Jackson v New York State Urban Dev. Corp., 67 N.Y.2d at 417; Matter of Village of Kiryas Joel, N.Y. v Village of Woodbury, N.Y., 138 A.D.3d at 1011-1012; Matter of DeFeo v Zoning Bd. of Appeals of Town of Bedford, 137 A.D.3d at 1127; Matter of Saint James Antiochian Orthodox Church v Town of Hyde Park Planning Bd., 132 A.D.3d at 687; Matter of Falcon Group Ltd. Liab. Co. v Town/Village of Harrison Planning Bd., 131 A.D.3d at 1239; Matter of Village of Chestnut Ridge v Town of Ramapo, 99 A.D.3d at 925), and the Supreme Court should have annulled the Town Board's determination resolving to approve the findings statement pursuant to SEQRA for the proposed zone change.

         Turning to the petitioner's contentions regarding the Comprehensive Plan and the proposed zoning change determinations, "[t]he power to zone is derived from the Legislature and must be exercised in the case of towns and villages in accord with a 'comprehensive plan'" (Nicholson v Incorporated Vil. of Garden City, 112 A.D.3d 893, 894, quoting Asian Ams. for Equality v Koch,72 N.Y.2d 121, 131 [internal quotation marks omitted]; see Town Law § 263; Matter of Birchwood Neighborhood Assn. v Planning Bd. of the Town of Colonie,112 A.D.3d 1184, 1185; Matter of Bergami v Town Bd. of the Town of Rotterdam,97 A.D.3d 1018, 1019). "The function of land regulation is to implement a plan ...


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