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In re Shapiro

Supreme Court of New York, Second Department

November 8, 2017

In the Matter of Susan Hito Shapiro, as successor executor of the estate of Sonya Shapiro, et al., petitioners/plaintiffs-appellants,
v.
Planning Board of the Town of Ramapo, et al., respondents/defendants-respondents, et al., respondents/defendants.

          Susan H. Shapiro, named herein as Susan Hito Shapiro, Nanuet, NY, petitioner/plaintiff-appellant pro se, and for petitioner/plaintiff-appellant Benjamin Ostrer.

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

          Terry Rice, Suffern, NY, for respondents/defendants-respondents Scenic Development, LLC, and Scenic Development SM, LLC.

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

          DECISION & ORDER

         In a hybrid proceeding pursuant to CPLR article 78 to review three determinations of the Planning Board of the Town of Ramapo, all dated March 22, 2013, which granted three separate applications of the respondent Scenic Development, LLC, for final subdivision and site plan approval of three housing development projects, respectively, and action for injunctive relief, the petitioners/plaintiffs appeal, as limited by their brief, from so much of a judgment of the Supreme Court, Rockland County (Walsh II, J.), dated May 19, 2014, as, in effect, denied the petition and dismissed the proceeding.

         ORDERED that the judgment is reversed insofar as appealed from, on the law, with one bill of costs payable by the respondents appearing separately and filing separate briefs, the petition is granted, the determinations dated March 22, 2013, are annulled, and the matter is remitted to the Planning Board of the Town of Ramapo for further proceedings consistent herewith.

         In three determinations, all dated March 22, 2013, the Planning Board of the Town of Ramapo (hereinafter the Planning Board) granted three separate applications, respectively, of the respondent Scenic Development, LLC (hereinafter Scenic), for final subdivision and site plan approval for portions of a planned housing development on property it owns in the Town of Ramapo (hereinafter the project). The petitioners/plaintiffs (hereinafter the petitioners) commenced this hybrid proceeding/action challenging those approvals, contending that a Supplemental Environmental Impact Statement (hereinafter SEIS) is needed. Insofar as appealed from, the judgment, in effect, denied the petition and dismissed the proceeding.

         " [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). 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).

         Judicial review of an agency determination under the State Environmental Quality Review Act (ECL art 8; hereinafter 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 [internal quotation marks omitted]; see Matter of Jackson v New York State Urban Dev. Corp., 67 N.Y.2d 400, 417; Matter of Falcon Group Ltd. Liab. Co. v Town/Village of Harrison Planning Bd., 131 A.D.3d 1237, 1239). "[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 561, 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 Matter of Saint James Antiochian Orthodox Church v Town of Hyde Park Planning Bd., 132 A.D.3d 687, 687-688).

         "A lead agency's determination whether to require a SEIS... is discretionary" (Matter of Riverkeeper, Inc. v Planning Bd. of Town of Southeast, 9 N.Y.3d 219, 231). "The lead agency may require a supplemental EIS, limited to the specific significant adverse environmental impacts not addressed or inadequately addressed in the EIS that arise from: (a) changes proposed for the project; (b) newly discovered information; or (c) a change in circumstances related to the project" (6 NYCRR 617.9[a][7][i]; see Matter of Riverkeeper, Inc. v Planning Bd. of Town of Southeast, 9 N.Y.3d at 231). "The decision to prepare a SEIS as a result of newly discovered information must be based upon... (a) the importance and relevance of the information; and (b) the present state of the information in the EIS'" (Matter of Riverkeeper, Inc. v Planning Bd. of Town of Southeast, 9 N.Y.3d at 231, quoting 6 NYCRR 617.9[a][7][ii]). The limitations that apply to a court's review of an agency's SEQRA determination, that is, only to ascertain whether the agency took a hard look at the relevant areas of environmental concern and made a reasoned elaboration of the basis for its determination, also apply to the agency's determination regarding whether a SEIS is needed, and the court may no more substitute its judgment on this point than it may on other aspects of agency decision-making (see Matter of Riverkeeper, Inc. v Planning Bd. of Town of Southeast, 9 N.Y.3d at 231-232).

         Here, the petitioners contend that a SEIS is needed because Scenic never obtained a jurisdictional determination from the United States Army Corps of Engineers (hereinafter ACOE) validating Scenic's delineation of wetlands on the subject property. They argue that, prior to issuing the determinations challenged on appeal, the Planning Board was presented with critical new evidence demonstrating that no jurisdictional determination had been issued by the ACOE for the subject property. The petitioners are correct.

         Although the Planning Board and Scenic relied upon a February 1, 2007, letter from Dr. Christopher Mallery of the ACOE, which they contend constituted a jurisdictional determination, the letter expressly informed Scenic's consultants that a 2004 cease and desist order applying to the subject property had been lifted and was not issued in response to any request for a jurisdictional determination. Moreover, although the letter states that the ACOE had reviewed Scenic's development plans, it did not state that the ACOE had reviewed Scenic's wetlands delineations. The letter also states that ACOE's review was based upon Scenic's then-proposed 139-home plan, not the 497-unit plan at issue in these proceedings, and notes that: "[i]f, at any time during the course of construction, the project [was] modified in such a manner that it would have additional impacts to areas identified on the above-referenced drawing as wetlands and waters of the United States, additional written authorization from this office [would] be necessary prior to the implementation of such modifications."

         Thus, the Planning Board's reliance on Mallery's letter as a jurisdictional determination by the ACOE applicable to Scenic's 497-unit plan was unreasonable and irrational. For the same reasons, the Planning Board's reliance on two additional letters from the ACOE dated January 5, 2011, and November 28, 2011, respectively, as jurisdictional determinations was unreasonable and irrational. Moreover, since jurisdictional determinations by the ACOE are only valid for five years (see Army Corps of Engineers Regulatory Guidance Letter No. 05-02 [June 14, 2005] ["Expiration of Geographic Jurisdictional Determinations of Waters of the United States"], reprinted in William Want, Law of Wetlands Regulation app. 8 [May 2017 Update]), Mallery's February 1, 2007, letter, even if it did constitute a jurisdictional determination, would have expired by the time of the Planning Board's March 22, 2013, determinations.

         Contrary to Scenic's contentions, an ACOE jurisdictional determination was required for this project. A SEQRA Final Scoping Document dated June 25, 2008, provided that the Draft Environmental Impact Statement (hereinafter DEIS) was required to "[d]elineate and flag the boundary of all State and Federal Jurisdictional Wetlands in accordance with the methodology provided in the 1987 Army Corps of Engineers Wetlands ...


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