| Matter of Gabrielli v Town of New Paltz |
| 2012 NY Slip Op 01538 [93 AD3d 923] |
| March 1, 2012 |
| Appellate Division, Third Department |
| In the Matter of Robert M. Gabrielli et al., Appellants, v Town ofNew Paltz et al., Respondents. |
—[*1] Rapport Meyers, L.L.P., Rhinebeck (George A. Rodenhausen of counsel), forrespondents.
McCarthy, J. Appeal from an order and judgment of the Supreme Court (Melkonian, J.),entered March 31, 2011 in Ulster County, which dismissed petitioners' application, in acombined proceeding pursuant to CPLR article 78 and action for declaratory judgment to, amongother things, review a determination of respondent Town Board of the Town of New Paltzenacting Local Laws Nos. 1, 2 and 3 (2010) of the Town of New Paltz.
To ensure its continued participation in the National Flood Insurance Program andpotentially obtain reduced insurance rates for property within its borders, respondent Town ofNew Paltz began drafting new zoning ordinances addressing development and constructionstandards in floodplains. Respondent Town Board of the Town of New Paltz declared itself leadagency and determined that adoption of the ordinances was a type I action under the StateEnvironmental Quality Review Act (see ECL art 8 [hereinafter SEQRA]). The Town'sengineer prepared an environmental assessment form (hereinafter EAF) that did not note anypotential large impacts. Pursuant to General Municipal Law §§ 239-m and 239-n,the Ulster County Planning Board approved the proposed floodplain laws (Local Laws Nos. 1, 2and 3 [2010] of the Town of New Paltz). The Town Environmental Conservation Board and theTown Planning Board each recommended passage of the laws as well. After holding a publichearing and receiving comments on the floodplain laws, the Town Board issued negativedeclarations under SEQRA and adopted the laws. Petitioners commenced this combinedproceeding pursuant to [*2]CPLR article 78 and action fordeclaratory judgment alleging, among other things, that the laws must be annulled becauserespondents failed to comply with SEQRA. Supreme Court dismissed the petition. Petitionersappeal.
The Town Board satisfied its obligations under SEQRA. To fulfill SEQRA's goal to"minimize or avoid adverse environmental effects" (ECL 8-0109 [1]), the lead agency mustidentify "the relevant areas of environmental concern, [take] a 'hard look' at them, and [make] a'reasoned elaboration' of the basis for its determination" (Matter of Jackson v New York StateUrban Dev. Corp., 67 NY2d 400, 417 [1986]; accord Matter of Riverkeeper, Inc. v Planning Bd. of Town ofSoutheast, 9 NY3d 219, 231-232 [2007]). While type I actions, such as amendments ofzoning ordinances, are presumed "likely to have a significant adverse impact on the environmentand may require an" environmental impact statement (6 NYCRR 617.4 [a] [1]), the preparationof such a statement is not a per se requirement for a type I action (see Matter of Mombaccus Excavating, Inc.v Town of Rochester, N.Y., 89 AD3d 1209, 1211 [2011], lv denied 18 NY3d808 [2012]; Matter of Citizens forResponsible Zoning v Common Council of City of Albany, 56 AD3d 1060, 1061[2008]). A lead agency may issue a negative declaration, thereby obviating the need to prepare anenvironmental impact statement, if the agency has determined that the action will result in "noadverse environmental impacts or that the identified adverse environmental impacts will not besignificant" (6 NYCRR 617.7 [a] [2]; see Matter of Troy Sand & Gravel Co., Inc. v Town of Nassau, 82AD3d 1377, 1378 [2011]). A court may only annul an agency's determination to issue anegative declaration where it is "arbitrary, capricious or unsupported by the evidence" (Matterof Riverkeeper, Inc. v Planning Bd. of Town of Southeast, 9 NY3d at 232).
The Town Board had before it the EAF, a summary from the Town engineer, publiccomments, approval of the Ulster County Planning Board and recommendations of the TownPlanning Board and the Town Environmental Conservation Board. While petitioners assert thatthe public comments were mainly opposed to adoption of the floodplain laws, most of thecomments addressed economic issues and did not raise environmental concerns. The EAF did notnote any potential large impacts, only some small to moderate impacts. The EAF's comments onareas with such potential impacts indicate that most of those impacts would be beneficial. As noadverse impacts were identified, and the EAF instead noted that any impacts would be neutral orbeneficial to the environment, the Town Board did not err in issuing negative declarations(see 6 NYCRR 617.7 [a] [2]; see also Matter of Gernatt Asphalt Prods. v Town ofSardinia, 87 NY2d 668, 690 [1996]; Matter of Aspen Cr. Estates, Ltd. v Town of Brookhaven, 47 AD3d267, 273-274 [2007], affd 12 NY3d 735 [2009], cert denied 558 US—, 130 S Ct 96 [2009]; Matter ofMcCarthy v Town of Smithtown, 19 AD3d 695, 696 [2005]).
The negative declarations—adopted by resolutions of the TownBoard—satisfied the requirement for "a written form containing a reasoned elaboration"for the determination and references to supporting documentation (6 NYCRR 617.7 [b] [4]).Although the resolutions themselves do not contain sufficient elaboration, they specifically referto the EAF.[FN*] The EAF [*3]here consists of more than just checked boxes; theexpanded additional comments on the EAF constitute a reasoned elaboration for the areasidentified as potentially being affected by the floodplain laws (compare Matter of Troy Sand& Gravel Co., Inc. v Town of Nassau, 82 AD3d at 1379; Matter of Bauer v County of Tompkins, 57 AD3d 1151, 1153[2008]). Because those comments relate to beneficial impacts, with no adverse impacts havingbeen raised, the Town Board complied with its obligations under SEQRA.
Supreme Court was required to declare the rights of the parties, one way or the other, becausepetitioners sought a declaratory judgment (see CPLR 3001; Stonegate Family Holdings, Inc. vRevolutionary Trails, Inc., Boy Scouts of Am., 73 AD3d 1257, 1262 [2010], lvdenied 15 NY3d 715 [2010]; Matterof Shellard v Town Bd. of the Town of Queensbury, 70 AD3d 1288, 1290 [2010]). Wetherefore modify the judgment by issuing a declaration that the floodplain laws are valid.
Mercure, A.P.J., Rose, Spain and Malone Jr., JJ., concur. Ordered that the order andjudgment is modified, on the law, without costs, by declaring that Local Law Nos. 1, 2 and 3(2010) of the Town of New Paltz are valid, and, as so modified, affirmed.
Footnote *: We note that the better practicewould be for a lead agency to include the reasoned elaboration for its SEQRA determinationwithin the written form or resolution containing that determination, rather than merely referringto other documents that contain the elaboration.