| Matter of Basha Kill Area Assn. v Planning Bd. of Town ofMamakating |
| 2007 NY Slip Op 10454 [46 AD3d 1309] |
| December 27, 2007 |
| Appellate Division, Third Department |
| In the Matter of Basha Kill Area Association et al., Appellants, vPlanning Board of the Town of Mamakating et al., Respondents. |
—[*1] Bonacic, Krahulik & Associates, Middletown (Langdon C. Chapman of counsel), forPlanning Board of the Town of Mamakating, respondent. Charles T. Bazydlo, Thompson Ridge, for Yukiguni Mait Manufacturing Corporation ofAmerica, respondent.
Spain, J. Appeal from a judgment of the Supreme Court (Sackett, J.), entered March 21, 2007in Sullivan County, which dismissed petitioners' application, in a proceeding pursuant to CPLRarticle 78, to review a determination of respondent Planning Board of the Town of Mamakatinggranting respondent Yukiguni Maitake Manufacturing Corporation of America's application forsite plan approval and a special use permit.
In August 2006, respondent Planning Board of the Town of Mamakating (hereinafter theBoard) issued a resolution granting conditional approval of a site plan and special use permit torespondent Yukiguni Maitake Manufacturing Corporation of America (hereinafter YMMCA) inconnection with YMMCA's plans to build a mushroom production and processing facility on a48-acre parcel in the Town of Mamakating, Sullivan County.[FN1] In this CPLR article 78 [*2]proceeding, petitioner Basha KillArea Association (hereinafter BKAA), a not-for-profit corporation designated by the Departmentof Environmental Conservation as steward of the Basha Kill Wildlife Management Area, whichis partially located in Mamakating, and petitioner Jodi Rubenstein, a resident of Mamakating,seek to have the Board's resolution annulled. Supreme Court found that BKAA lacked standingto bring this proceeding but, finding that Rubenstein had standing, proceeded to the merits anddismissed the petition. Petitioners appeal, and we now affirm.
Although it appeals, BKAA does not challenge Supreme Court's conclusion that it lackedstanding. Accordingly, we dismiss the appeal as to BKAA. Respondents also challengeRubenstein's standing, asserting that she has not made the requisite showing that, as a result ofYMMCA's land use proposal, she will suffer some " 'direct harm . . . that is in someway different from that of the public at large' " (Matter of Wittenberg Sportsmen's Club, Inc. v Town of WoodstockPlanning Bd., 16 AD3d 991, 992 [2005], quoting Society of Plastics Indus. v Countyof Suffolk, 77 NY2d 761, 774 [1991]). A petitioner's close physical proximity as a neighborto a proposed project may give rise to an inference of direct harm, but standing will not berecognized unless the neighbor can show that the close proximity exposes her to a harm differentfrom the harm experienced by the public generally (see Matter of Oates v Village of WatkinsGlen, 290 AD2d 758, 761 [2002]). Rubenstein's residence is located adjacent to the proposedsite for the mushroom factory, some 360 feet from YMMCA's property line and 941 feet fromthe proposed factory itself. Further, it is alleged that Rubenstein draws her water supply from a160-year-old, 15-foot, hand-dug well. Given that the proposed factory's impact on the quality andquantity of groundwater resources was a concern specifically identified during the environmentalreview of the proposal, we concur with Supreme Court that Rubenstein has alleged direct harm,"an injury that is different in kind and degree from that of the public at large" (Chase v Boardof Educ. of Roxbury Cent. School Dist., 188 AD2d 192, 199 [1993]; see Matter of Reed v Village of PhilmontPlanning Bd., 34 AD3d 1034, 1036 [2006], lv denied 8 NY3d 807 [2007];Matter of Wittenberg Sportsmen's Club, Inc. v Town of Woodstock Planning Bd., 16AD3d at 992-993).
Turning to the merits, we address Rubenstein's assertion that the Board evaded its obligationunder the State Environmental Quality Review Act (see ECL art 8 [hereinafter SEQRA])to take a hard look at a number of environmental concerns and to provide a reasoned elaborationfor its conclusion that the mushroom factory will not significantly impact theenvironment.[FN2] Mindful that, when reviewing a SEQRA determination, " 'it is not the role of the [*3]courts to weigh the desirability of any [SEQRA] action or chooseamong alternatives, but to assure that the agency itself has satisfied SEQRA, procedurally andsubstantively' " (Matter of NorthCountry Citizens for Responsible Growth, Inc. v Town of Potsdam Planning Bd., 39 AD3d1098, 1103 [2007]), quoting Matter of Jackson v New York State Urban Dev. Corp.,67 NY2d 400, 416 [1986]), we are satisfied that the Board, as lead agency, took the requisite"hard look at the potential environmental impacts and [made] a reasoned elaboration of the basisof its findings" (Matter of North Country Citizens for Responsible Growth, Inc. v Town ofPotsdam Planning Bd., 39 AD3d at 1103; see Matter of Ellsworth v Town of Malta, 16 AD3d 948, 949[2005]). The Board arrived at its decision with the assistance of its professional planner andindependent consultants in hydrology, engineering and geology, and after feedback from thepublic, including petitioners. The extensive SEQRA findings statement defines 15 areas ofenvironmental concern, each considered in depth and containing mitigation factors. Based on theforegoing, the Board satisfied its obligations pursuant to SEQRA and took a hard look at theareas of environmental concern, including water conservation and odor, noise and visual impactmitigation, and made a reasoned elaboration of the basis for its determination (see Matter ofNorth Country Citizens for Responsible Growth, Inc. v Town of Potsdam Planning Bd., 39AD3d at 1103-1104; Matter of Ellsworth v Town of Malta, 16 AD3d at 950).
The thrust of Rubenstein's arguments to the contrary is that the Board improperly deferred itsSEQRA obligations by conditioning its findings statement and its site plan/special use permitapproval on the submission of further plans and other state and federal requirements. [*4]Rather than an improper deferral of its independent judgment asalleged by Rubenstein, the Board's imposition of conditions reflects a proper effort to mitigateconcerns identified during the review process (see Matter of Riverkeeper, Inc. v Planning Bd. of Town of Southeast, 9NY3d 219, 234-235 [2007]). There can be no question that the law permits andcontemplates that site plan approvals and special use permits can be conditional (seeTown Law § 274-a [4]; § 274-b [4]). Indeed, the Board's acknowledgment that otherstate and federal requirements would have to be met "does not rise to the level of improperdeferral" (Matter of Riverkeeper, Inc. v Planning Bd. of Town of Southeast, 9 NY3d at235).
Next, Rubenstein alleges that the Board's resolution is void because, after the application wasreferred to the county planning agency—the Sullivan County Division of Planning andCommunity Development (hereinafter SCDPCD) (see General Municipal Law §239-m [2], [3])—and SCDPCD recommended certain modifications, the Board could "notact contrary to such recommendation except by a vote of a majority plus one of all the membersthereof" (General Municipal Law § 239-m [5]). Contrary to Rubenstein's assertions, ourreview of the SCDPCD recommendations and the Board's resolution reveals that the Boardincorporated the recommendations into its resolution, including—as conditions for siteplan approval and the special use permit—landscaping provisions to mitigate the visualimpact of the proposed mushroom factory, the submission of a water conservation plan and anodor mitigation plan, and the inclusion of benchmarks for monitoring progress. As the Board didnot act contrary to the SCDPCD modifications, the majority plus one requirement was nottriggered.
Nor are we persuaded that the Board failed to provide the SCDPCD with all materialsrequired pursuant to General Municipal Law § 239-m. At the time of its recommendation,the SCDPCD had before it all the studies and documentation that the Board considered in issuingits resolution; Rubenstein's assertion that respondents were thereafter obligated to provideSCDPCD with proposed mitigation plans to address the recommendations made by SCDPCDfollowing its review of the proposal is simply unsupported by the language of the statute(see General Municipal Law § 239-m [1] [c]; Matter of Batavia First v Town of Batavia, 26 AD3d 840, 842[2006], lv denied 7 NY3d 709 [2006]).
Finally, we find no merit in Rubenstein's remaining contentions, i.e., that the Boardimproperly delegated its decision-making powers to its chair by authorizing the chairperson tosign the final approval once certain conditions were met (see e.g. Matter of MunicipalConsultants & Publs. v Town of Ramapo, 47 NY2d 144, 150 [1979]; Matter of Karedesv Colella, 292 AD2d 138, 141 [2002], revd on other grounds 100 NY2d 45 [2003]),or that she was denied due process of law by virtue of the Board's failure to hold an additionalpublic hearing after YMMCA revised its site plans (see Town Law § 274-a [8];Matter of Hickey v Planning Bd. of Town of Kent, 173 AD2d 1086, 1088-1089 [1991]).
In sum, we hold that the Board made a rational decision in approving the resolution, which issupported by substantial evidence in the voluminous record and, therefore, the determination willnot be disturbed (see Matter of Gilchrist v Town of Lake George Planning Bd., 255AD2d 791, 792 [1998]; Matter of M & M Partnership v Sweenor, 210 AD2d 575,575-577 [1994]).
Crew III, J.P., Peters, Carpinello and Mugglin, JJ., concur. Ordered that the judgment isaffirmed, without costs.
Footnote 1: The approved projectencompasses 12.6 acres within the parcel and, when completed, the project will consist of afootprint of a 200,000 square foot structure, 65 feet in height, larger and higher than any otherstructure within Mamakating.
Footnote 2: Notably, Rubenstein is notbarred from challenging the Board's SEQRA determination although the Board issued itsSEQRA findings statement on May 24, 2005 and, in a previous CPLR article 78 proceeding,BKAA unsuccessfully challenged it, alleging essentially the same SEQRA violations assertedhere. Although, in our view, that challenge was premature (see Matter of North Country Citizens for Responsible Growth, Inc. v Townof Potsdam Planning Bd., 39 AD3d 1098, 1103 [2007]), BKAA did not appeal the 2005Supreme Court decision upholding the Board's SEQRA findings statement and, thus, with regardto BKAA, that decision became the law of the case (see Matter of Defreestville Area Neighborhood Assn., Inc. v Planning Bd. ofTown of N. Greenbush, 16 AD3d 715, 719 [2005]; Bonded Concrete v Town ofSaugerties, 282 AD2d 900, 903 [2001], lv dismissed 97 NY2d 653 [2001]; SpaRealty Assoc. v Springs Assoc., 213 AD2d 781, 783 [1995]). Rubenstein, however, was nota party to the prior proceeding. Further, her challenge to the Board's SEQRA determination istimely because, in this case, the 30-day limitations period did not commence in 2005 when theBoard issued its SEQRA findings statement but, rather, when it passed its resolution approvingthe site plan and granting the special use permit, because "it was the same agency that made theSEQRA determination and the site plan approval—both steps in an integrated process"(Matter of North Country Citizens for Responsible Growth, Inc. v Town of Potsdam PlanningBd., 39 AD3d at 1103; see Matter ofEadie v Town Bd. of Town of N. Greenbush, 7 NY3d 306, 317 [2006]).