Sussman & Watkins, Goshen, NY (Michael H. Sussman of
counsel), for appellants.
& Plotsky, Port Jervis, NY (David W. Bavoso of counsel),
for respondent Town of Wawayanda Planning Board.
Peabody LLP, Albany, NY (Ruth E. Leistensnider of counsel),
for respondent CPV Valley, LLC.
C. DILLON, J.P. JEFFREY A. COHEN FRANCESCA E. CONNOLLY LINDA
DECISION & ORDER
from a judgment of the Supreme Court, Orange County (Elaine
Slobod, J.), dated September 3, 2015. The judgment denied the
petition filed pursuant to CPLR article 78 to review a
determination of the Town of Wawayanda Planning Board which
declined to direct the preparation of a supplemental
environmental impact statement, and dismissed the proceeding.
that the judgment is affirmed, with one bill of costs.
2013, the Town of Wawayanda Planning Board (hereinafter the
Planning Board) approved the site plan application of CPV
Valley, LLC (hereinafter CPV), to build the CPV Valley Energy
Center (hereinafter the Energy Center), a power plant that
would be fueled primarily by natural gas. In 2015, CPV
submitted an amended site plan application to the Planning
Board. At the public hearing held on the amended application,
opponents of the Energy Center project contended that the
Planning Board should direct the preparation of a
supplemental environmental impact statement (hereinafter
SEIS). The Planning Board determined that no SEIS was
necessary, and approved the amended application.
petitioners, who all live within one eighth of a mile of the
proposed Energy Center site, subsequently commenced this CPLR
article 78 proceeding to review the Planning Board's
determination. Thereafter, CPV withdrew its amended site plan
application, and stated that it would proceed with
construction under the original site plan. The Planning Board
interposed an answer to the petition with objections in point
of law, and CPV moved to dismiss the CPLR article 78
proceeding, both arguing that the withdrawal of the amended
site plan application rendered the proceeding academic. The
Supreme Court determined that the proceeding was not
academic, struck the Planning Board's objection on this
ground, and denied CPV's motion to dismiss the
proceeding. In a judgment dated September 3, 2015, the court
denied the petition on the merits and dismissed the
proceeding. The petitioners appeal from the judgment.
to the contentions of CPV and the Planning Board, CPV's
withdrawal of its amended site plan application did not
render this proceeding academic. Although the opponents of
the Energy Center project asked the Planning Board to direct
the preparation of a SEIS while the Planning Board was
considering the amended site plan application, the request
for a SEIS and the amended application were not inextricably
linked. The request for a SEIS was not based on the proposed
changes to the site plan, but on purportedly newly discovered
information regarding the project's potential impact on
certain animal habitats and human health. Newly discovered
information is a proper basis for directing the preparation
of a SEIS even where it is not related to proposed changes to
a project (see 6 NYCRR 617.9[a][i][b]).
Accordingly, since the request for a SEIS was not based on
the amended site plan application, the withdrawal of the
amended site plan application did not render this proceeding
academic (see Matter of In Defense of Animals v Vassar
Coll., 121 A.D.3d 991, 992).
review of an agency determination under SEQRA, "
including review of a determination that no SEIS is
necessary, "is limited to 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 Riverkeeper, Inc. v
Planning Bd. of Town of Southeast, 9 N.Y.3d 219, 231-232
[internal quotation marks omitted]). "It is not the
province of the courts to second-guess thoughtful agency
decision making and, accordingly, an agency decision should
be annulled only if it is arbitrary, capricious or
unsupported by the evidence" (id. at 232).
the Planning Board's determination that no SEIS was
necessary was not arbitrary, capricious, or unsupported by
the evidence (see id.). First, the opponents of the
Energy Center project contended that a SEIS was required
because a species known as the northern long-eared bat had
been newly listed by the United States Fish and Wildlife
Service as a threatened species. However, the impact of the
Energy Center project on the habitat of a species known as
the Indiana bat was thoroughly studied and mitigation
measures were put in place in conjunction with CPV's
initial site plan application. According to a bulletin from
the United States Fish and Wildlife Service that was annexed
to the petition, the best management practices for these two
bat species is expected to be "very similar."
Because the environmental studies already conducted and the
mitigation measures already in place for the Indiana bat were
expected to be "very similar" to those applicable
to the northern long-eared bat, it was not arbitrary and
capricious for the Planning Board to decline to direct the
preparation of a SEIS addressing this species.
it was not arbitrary and capricious for the Planning Board to
decline to direct the preparation of a SEIS addressing the
habitat of a species known as the bog turtle. The potential
for the presence of a bog turtle habitat on the proposed
Energy Center site was studied during the review of CPV's
initial site plan application, and the resulting surveys
demonstrated that, because key elements of bog turtle habitat
were missing on the property, it was unlikely that bog
turtles would inhabit the site. The evidence submitted in
support of the request for a SEIS, namely, an attack on the
expertise of the consultants who conducted the original bog
turtle habitat surveys and evidence that there was a suitable
bog turtle habitat near the proposed Energy Center site, did
not demonstrate that a SEIS was necessary. The Planning Board
had the discretion to weigh and evaluate the credibility of
the reports and comments submitted to it, and thus was not
required to credit the claim that the initial surveyors
lacked expertise in the area of bog turtle habitat (see
Matter of Riverkeeper, Inc. v Planning Bd. of Town of
Southeast, 9 N.Y.3d at 231). Further, the discovery of a
suitable bog turtle habitat near the proposed site did not
demonstrate that the studies of the proposed Energy Center
site were inadequate (see 6 NYCRR 617.9[a][i]).
it was not arbitrary and capricious for the Planning Board to
decline to direct the preparation of a SEIS based on a study
suggesting a link between autism and prenatal exposure to
fine particulates that would be emitted by the Energy Center.
In approving the original site plan application, the Planning
Board rationally relied on modeling that showed that the
anticipated level emissions of fine particulates from the
Energy Center would fall below federal limits, and ...