| Matter of Friends of Stanford Home v Town of Niskayuna |
| 2008 NY Slip Op 03280 [50 AD3d 1289] |
| April 11, 2008 |
| Appellate Division, Third Department |
| In the Matter of Friends of the Stanford Home et al., Respondents, vTown of Niskayuna et al., Respondents, and Highbridge Development BR, LLC, et al.,Appellants. |
—[*1] Oliver & Oliver, Albany (Lewis B. Oliver Jr. of counsel), for Friends of the Stanford Homeand others, respondents.
Cardona, P.J. Appeal from a judgment of the Supreme Court (Sise, J.), entered September17, 2007 in Schenectady County, which granted petitioners' application, in a proceeding pursuantto CPLR article 78, to annul a determination of respondent Town Board of the Town ofNiskayuna issuing a special use permit to respondent Highbridge Development BR, LLC.
Respondent Ingersoll Adult Home, Inc. operates an adult residential facility in a historicmansion located at 3421 State Street in the Town of Niskayuna, Schenectady County. In January2005, Ingersoll entered into a contract to sell the property to respondent Highbridge DevelopmentBR, LLC, conditioned upon Highbridge completing construction of, and subsequently selling toIngersoll, a new adult home facility at 3359 Consaul Road, which is located within respondentTown of Niskayuna, approximately one mile from the State Street property. In April 2006,respondent Town Board of the Town of Niskayuna approved a special use permit for [*2]construction of the new facility at the Consaul Road site andconstruction began in 2007.
Meanwhile, in June 2006, Highbridge applied to the Town Board for a special use permit toconstruct a commercial/retail complex called Stanford Crossings at the State Street site. TheTown Board designated the project a type I action. After holding a public hearing on theapplication, completing a full environmental assessment form in accordance with the StateEnvironmental Quality Review Act (see ECL art 8 [hereinafter SEQRA]), andconsidering, among other things, the impact of the Stanford Crossings project on water qualityand quantity, traffic, noise and the existing character of the community, the Town Boarddesignated itself as lead agency and issued a negative declaration. The Town Board then issuedHighbridge a special use permit to construct the Stanford Crossings project.
Petitioners commenced this CPLR article 78 proceeding seeking to annul the negativedeclaration and the special use permit for Stanford Crossings, and seeking injunctive reliefprohibiting approval or further development of the State Street site. Supreme Court granted thepetition, holding that the Consaul Road project and the State Street project should have beenconsidered a single action for purposes of SEQRA. The court concluded that the Town Board'sfailure to conduct a cumulative review of the environmental impacts of the two projectsimproperly segmented the SEQRA review process. Highbridge and respondent LJC Properties,LLC[FN1](hereinafter collectively referred to as respondents) appeal.[FN2]
Segmentation is "the division of the environmental review of an action such that variousactivities or stages are addressed [for purposes of environmental quality review] as though theywere independent, unrelated activities, needing individual determinations of significance" (6NYCRR 617.2 [ag]). Such division is impermissible when the environmental review of an actionis divided into smaller stages in order to avoid the detailed review called for under SEQRA(see Matter of Forman v Trustees of State Univ. of N.Y., 303 AD2d 1019, 1020 [2003];Matter of Long Is. Pine Barrens Socy. v Planning Bd. of Town of Brookhaven, 204AD2d 548, 550-551 [1994], lv dismissed and denied 85 NY2d 854 [1995]). Thus,individual projects should be considered together when they are integrated components of alarger plan, dependent upon one another and sharing a common purpose (see Matter ofVillage of Westbury v Department of Transp. of State of N.Y., 75 NY2d 62, 69 [1989];Matter of Teich v Buchheit, 221 AD2d 452, 454 [1995]). However, where seeminglyrelated projects are, in fact, independent and not part of a larger plan of development, cumulativereview is not required (see Matter of Forman v Trustees of State Univ. of N.Y., 303AD2d at 1020; Matter of Village of Tarrytown v Planning Bd. of Vil. of Sleepy Hollow,292 AD2d 617, 620 [2002], lv denied 98 NY2d 609 [2002]; Matter of ConcernedCitizens for Envt. v Zagata, 243 AD2d 20, 23 [1998], lv denied 92 NY2d 808[1998]).
Respondents contend that the State Street and Consaul Road projects are unrelated actionswith independent utility and that, accordingly, the Town Board did not impermissibly segmentSEQRA review of the two projects. Petitioners argue that contingencies in the contract [*3]of sale for the State Street property establish a nexus between thetwo projects. Those contingencies provided that the sale of that property would not go forwardunless the Consaul Road facility was timely constructed and title to the two properties wassimultaneously transferred between Ingersoll and Highbridge.
We agree with respondents. The contractual contingencies, standing alone, do not create ageographic or environmental interrelationship between the two projects. Rather, theyaccommodate a practical consideration which would have applied to the transaction no matterwhere the new facility was to be constructed; specifically, the fact that the residents of the StateStreet facility could not be moved out of the old facility until the new facility was completed.Importantly, the State Street and Consaul Road projects have entirely different and separatepurposes, they are located approximately one mile apart and they are not part of a commondesign. Furthermore, and significantly, neither the construction of the Consaul Road facility,which is already underway, nor the sale of the State Street property to Highbridge is contingentupon issuance of a special use permit for Stanford Crossings. In short, the contractual linkbetween these otherwise independent actions is not sufficient to establish that they are part of anoverall plan of development that would require cumulative review.
As an alternative ground for affirmance, petitioners argue that the special use permit shouldbe annulled because the Town Board failed to identify alternative sites or mitigation measuresand did not offer a reasoned elaboration of its decision with regard thereto. However, neither theregulations nor case law requires the Town Board to do so where, as here, a negative declarationwas issued (see Matter of Fuss v Hannibal Town Planning Bd., 295 AD2d 921, 922[2002], lv denied 99 NY2d 505 [2003]).
Finally, we do not agree with petitioners' contention that the Town Board violated 6 NYCRR617.3 (a). Although the Planning Board noted that its approval recommendation was "based onthe Town Board requiring a full Environmental Impact Statement," that body did not "determine[] that the action may have a significant adverse impact on the environment" (6 NYCRR 617.3[a]).
Carpinello, Lahtinen, Malone Jr. and Kavanagh, JJ., concur. Ordered that the judgment isreversed, on the law, without costs, and petition dismissed.
Footnote 1: LJC Properties, LLC purchasedthe Consaul Road property from the previous owners and then sold it to Highbridge.
Footnote 2: The Town and the Town Boardwithdrew their appeals.