| Matter of Frigault v Town of Richfield Planning Bd. |
| 2013 NY Slip Op 04865 [107 AD3d 1347] |
| June 27, 2013 |
| Appellate Division, Third Department |
| In the Matter of Lawrence J. Frigault et al.,Respondents-Appellants, v Town of Richfield Planning Board et al.,Appellants-Respondents, et al., Respondent. |
—[*1] Douglas H. Zamelis, Manlius, for respondents-appellants.
Stein, J. Cross appeals from a judgment of the Supreme Court (Cerio Jr., J.), enteredAugust 16, 2012 in Madison County, which partially granted petitioners' application, in acombined proceeding pursuant to CPLR article 78 and action for declaratory judgment,to, among other things, annul a determination of respondent Town of Richfield PlanningBoard granting a request by respondent Monticello Hills Wind, LLC for a special usepermit.
In March 2011, respondent Monticello Hills Wind, LLC (hereinafter the applicant)applied to respondent Town of Richfield Planning Board for a special use permit inconnection with a project involving the proposed construction of six wind turbines andassociated facilities (hereinafter the project) on 1,190 acres of land located in the Townof Richfield, Otsego County. The Board designated itself as the lead agency for purposesof the State Environmental Quality Review Act (see ECL art 8 [hereinafterSEQRA]), retained an outside consulting firm, held a public hearing on September 12,2011, conducted multiple meetings and considered public comments both in support of,and in opposition to, the project. At a November 22, 2011 [*2]meeting, the Board reviewed the full environmentalassessment form (hereinafter EAF), issued a negative declaration of significance underSEQRA and granted the applicant a special use permit. However, the approval of thespecial use permit was contingent upon the applicant entering into a host communityagreement with the Town, the purpose of which was to address the applicant's ongoingobligations and responsibilities with respect to the project.
As a result of the Board's actions, petitioners—a group of local citizens andproperty owners in the Town—commenced this combined CPLR article 78proceeding and action for declaratory judgment seeking, among other things, to annul theBoard's determinations, and asserted claims that the Board failed to comply withSEQRA, the Open Meetings Law (see Public Officers Law art 7), the Town Lawand the Town's special use permit ordinance. Petitioner Lawrence J. Frigault also soughtcertain relief pursuant to the Freedom of Information Law (see Public OfficersLaw art 6 [hereinafter FOIL]).[FN1]Ultimately, Supreme Court rejected petitioners' challenge to the Board's SEQRA review,but found that the Board violated the Open Meetings Law in the manner in which itconducted the November 22, 2011 meeting and violated Town Law § 274-b withrespect to the September 12, 2011 hearing. As a result of these violations, the courtannulled the negative declaration and special use permit, prompting these appeals byrespondents[FN2]and cross appeal by petitioners.
We now modify. Turning first to petitioners' argument that the Board failed tocomply with the requirements of SEQRA, we begin our analysis by noting that anenvironmental impact statement (hereinafter EIS) is required " 'on any action. . . which may have a significant effect on the environment' " (Matter of Bronx Comm. for ToxicFree Schs. v New York City Sch. Constr. Auth., 20 NY3d 148, 155 [2012],quoting ECL 8-0109 [2]; accordMatter of Troy Sand & Gravel Co., Inc. v Town of Nassau, 82 AD3d 1377,1378 [2011]; see 6 NYCRR 617.9 [a] [5] [i] [b]; Matter of Kittredge v Planning Bd.of Town of Liberty, 57 AD3d 1336, 1337 [2008]). A type I action, such as theproject here, "carries with it the presumption that it is likely to have a significant adverseimpact on the environment" (6 NYCRR 617.4 [a] [1]; see Matter of City Council of Cityof Watervliet v Town Bd. of Town of Colonie, 3 NY3d 508, 518 n 8 [2004];Matter of Troy Sand & Gravel Co., Inc. v Town of Nassau, 82 AD3d at 1378).However, when a lead agency " 'determine[s] either that there will be no adverseenvironmental impacts or that the identified adverse environmental impacts will not besignificant,' " it may issue a negative declaration and, in such instance, no EIS is required(Matter of Troy Sand & Gravel Co., Inc. v Town of Nassau, 82 AD3d at 1378,quoting 6 NYCRR 617.7 [a] [2]; accord Matter of New York City Coalition to EndLead Poisoning v Vallone, 100 NY2d 337, 347 [2003]; Matter of Gabrielli v Town of NewPaltz, 93 AD3d 923, 924 [2012], lv denied 19 NY3d 805 [2012]).
"Although the threshold triggering an EIS is relatively low" (Matter of Chinese Staff &Workers' Assn. v Burden, 19 NY3d 922, 924 [2012] [internal quotation marksand citations [*3]omitted]), judicial review of a negativedeclaration is limited to whether "the [lead] agency identified the relevant areas ofenvironmental concern, took a hard look at them, and made a reasoned elaboration of thebasis for its determination" (Matter of Shop-Rite Supermarkets, Inc. v Planning Bd. of the Townof Wawarsing, 82 AD3d 1384, 1385 [2011], lv denied 17 NY3d 705[2011] [internal quotation marks and citations omitted]; see Matter of Eadie v Town Bd. ofTown of N. Greenbush, 7 NY3d 306, 318 [2006]). In this regard, "[i]t is not theprovince of the courts to second-guess thoughtful agency decisionmaking and,accordingly, an agency decision should be annulled only if it is arbitrary, capricious orunsupported by the evidence" (Matter of Riverkeeper, Inc. v Planning Bd. of Town ofSoutheast, 9 NY3d 219, 232 [2007]).
With those principles in mind, our review of the record persuades us that the Board'snegative declaration was issued in compliance with SEQRA. The Board engaged in alengthy SEQRA review process, which included hiring an outside consulting firm andconducting no less than 11 Board meetings between the time the permit application wasfiled in March 2011 and the issuance of the negative declaration in November 2011. Thefull EAF was replete with studies on environmental issues, including the project's impacton bats and birds, "shadow flicker,"[FN3]noise, cultural resources and visual effect, and the Board afforded members of the publican opportunity to voice their concerns with respect to the project. In addition, the Boardreceived input as to the project's environmental impacts from various state agencies,including the Office of Parks, Recreation and Historic Preservation, the Department ofEnvironmental Conservation, the Department of Transportation, and the Department ofAgriculture and Markets.
At the conclusion of the environmental review process, the Board issued a thoroughand reasoned analysis addressing the areas of relevant environmentalconcern—land, water, air, plants and animals, agricultural land resources, aestheticresources, historic and archeological resources, open space and recreation, noise andodor, among others—which, in our view, demonstrates that the Board took therequisite hard look at those concerns (see Matter of Gabrielli v Town of NewPaltz, 93 AD3d at 925; Matter of West Beekmantown Neighborhood Assn., Inc. v ZoningBd. of Appeals of Town of Beekmantown, 53 AD3d 954, 956-957 [2008]). Asa result, we agree with Supreme Court that the Board fulfilled its obligations underSEQRA (see Matter of Bronx Comm. for Toxic Free Schs. v New York City Sch.Constr. Auth., 20 NY3d at 155; Matter of Rotterdam Ventures, Inc. v Town Bd. of the Town ofRotterdam, 90 AD3d 1360, 1361 [2011]; Matter of Mombaccus Excavating, Inc. v Town of Rochester,N.Y., 89 AD3d 1209, 1211 [2011], lv denied 18 NY3d 808[2012]).[FN4][*4]
However, we disagree with Supreme Court'sdetermination that a violation of the Open Meetings Law warranted annulment of theresolutions passed by the Board at its November 22, 2011 meeting. It is undisputed thatthe Board initially provided proper notice that a Board meeting was scheduled to takeplace at the Town Hall at 7:00 p.m. on that date and that the project would be the focusof the meeting (see Public Officers Law § 104 [1], [2]). As a result of thelarge public turnout at that meeting, the room in the Town Hall was filled in excess of themaximum occupancy limit and the Town Attorney announced to those in attendance thatthe meeting would be relocated to a community room in a church located approximatelytwo blocks away. A note was placed on the door of the Town Hall to inform lateattendees of the move, and the meeting commenced approximately one hour after it wasscheduled to begin.
Supreme Court found that the Board should have anticipated the large crowd at themeeting and made appropriate arrangements to accommodate its size and that the Boardviolated the Open Meetings Law by relocating the meeting without proper notice. We donot agree. As relevant here, the Open Meetings Law provides that "[e]very meeting of apublic body shall be open to the general public" (Public Officers Law § 103 [a])and it is incumbent upon a public body to "make or cause to be made all reasonableefforts to ensure that meetings are held in an appropriate facility which can adequatelyaccommodate members of the public who wish to attend such meetings" (Public OfficersLaw § 103 [d]). Here, when it became clear that the space in the Town Hall wasnot large enough for the number of people who wished to attend the meeting, the Boardnotified everyone present—including the media—that the meeting wasbeing relocated, and took steps to make certain that anyone arriving late would be awareof the change. In our view, the Board's efforts in relocating the meeting were aimed ataccommodating the large crowd and ensuring public access, and were entirely reasonableunder the circumstances (see Comm on Open Govt OML-AO-05210 [2011]).
Even if we were to agree with Supreme Court that the relocation of the meetingrepresented a technical violation of the Open Meetings Law, the resolutions issued by theBoard at the meeting are "not void but, rather, voidable upon good cause shown" (Matter of Oakwood Prop. Mgt.,LLC v Town of Brunswick, 103 AD3d 1067, 1069-1070 [2013], lvdenied 21 NY3d 853 [2013] [internal quotation marks and citation omitted]; see Matter of Perryman v Villageof Saranac Lake, 64 AD3d 830, 833 [2009]). Inasmuch as the Board clearlychanged the location of the meeting not to frustrate, but to ensure, the public's attendanceat the meeting, and the Board's actions were consistent with the purpose of the OpenMeetings Law (see Public Officers Law § 100; Matter of MCITelecom. Corp. v Public Serv. Commn. of State of N.Y., 231 AD2d 284, 291[1997]), we conclude that petitioners have not shown good cause for us to declare voidthe actions taken by the Board at the November 22 meeting (see Matter of New YorkUniv. v Whalen, 46 NY2d 734, 735 [1978]; Matter of Imburgia v Procopio, 98 AD3d 617, 619 [2012];Matter of Chenkin v New YorkCity Council, 72 AD3d 548, 549 [2010], lv denied 16 NY3d 703[2011]; Matter of Carrier vTown of Palmyra Zoning Bd. of Appeals, 30 AD3d 1036, 1038 [2006], lvdenied 8 NY3d 807 [2007]; Matter of Center Sq. Assn., Inc. v City of Albany Bd. of ZoningAppeals, 19 AD3d 968, 969-970 [2005]).[FN5]Thus, neither the special use permit nor the [*5]negativedeclaration should have been annulled on the basis of any claimed violation of the OpenMeetings Law.
Nonetheless, Supreme Court properly annulled the special use permit on othergrounds. First, the Board was required to hold a public hearing on the permit application(see Town Law § 274-b [6]) and was required to provide the OtsegoCounty Planning Department with at least 10 days written notice of the hearing,"accompanied by a full statement of such proposed action" (Town Law § 274-b[7]), consisting of "all materials required by and submitted to the [Board] as anapplication on [the] proposed action, including a completed [EAF] and all other materialsrequired by [the Board] in order to make its determination of significance pursuant to[SEQRA]" (General Municipal Law § 239-m [1] [c]). Here, the only publichearing held by the Board in connection with the project occurred before the negativedeclaration was issued and prior to the Board's referral of the project to the CountyPlanning Department for its review (see General Municipal Law § 239-m[2], [3] [a] [iii]). The County Planning Department was not provided with written noticeof the public hearing, nor have respondents demonstrated that the County PlanningDepartment received all of the materials on which the Board relied in reaching itsnegative declaration (see General Municipal Law § 239-m [2], [3] [a][iii]). In fact, the record does not reflect that the County Planning Department wasprovided with a full statement of the proposed action until November 2011, just daysbefore the Board issued its resolution granting the special use permit. As a result, weagree with Supreme Court that the Board's failure to abide by the requirements of TownLaw § 274-b requires nullification of the special use permit (cf. Matter of TroySand & Gravel Co., Inc. v Town of Nassau, 82 AD3d at 1379; Matter ofCipperley v Town of E. Greenbush, 213 AD2d 933, 934 [1995]).
We further conclude that annulment of the special use permit is required based uponpetitioners' alternative argument that the Board failed to comply with the applicableTown of Richfield Land Use and Building Management Ordinance. Town of RichfieldOrdinance § 7.3 (e) provides that special use permits may only be granted if eachof eight enumerated conditions are met. While the Board's resolution granting the specialuse permit states that it "considered and addressed each of the matters referred to in [theordinance]," the resolution itself does not provide any explanation or elaboration thereof.Instead, the resolution refers to the document issued by the Board explaining its rationalefor the negative declaration under SEQRA. Indeed, some of the issues relevant to thenegative declaration under SEQRA and to the special use permit overlap. However, theBoard's explanation of its rationale for the negative declaration does not directly addresseach of the conditions set forth in the ordinance. We are, therefore, unable to undertakeintelligent review of whether the Board's determination that the project complied with theordinance was rational and supported by substantial evidence (see generally Matter ofRetail Prop. Trust v Board of Zoning Appeals of Town of Hempstead, 98 NY2d190, 194 [2002]; Matter of Wegmans Enters. v Lansing, 72 NY2d 1000,1001-1002 [1988]; Troy Sand &Gravel Co., Inc. v Town of Nassau, 101 AD3d 1505, 1509 [2012]).
As a result of the foregoing, we conclude that the Board's resolution granting thenegative declaration must be reinstated, but that the resolution granting the special usepermit was properly annulled. We have examined the parties' remainingcontentions—including petitioners' claims for counsel fees under the OpenMeetings Law and FOIL—and find them to be either academic or without merit.[*6]
Peters, P.J., Rose and Garry, JJ., concur. Orderedthat the judgment is modified, on the law, without costs, by reversing so much thereof as(1) granted the first cause of action and directed respondent Town of Richfield PlanningBoard to participate in training sessions concerning the obligations imposed under PublicOfficers Law article 7 and (2) dismissed the fifteenth cause of action; petition dismissedas to the first cause of action and granted as to the fifteenth cause of action; and, as somodified, affirmed.
Footnote 1: Frigault eventuallyobtained all of the documents he sought and the only issue on this appeal in connectionwith the FOIL requests is an application for counsel fees under that law.
Footnote 2: Notwithstanding thatrespondent Harold F. Ferguson Jr. did not file an answer to the verifiedpetition/complaint or a notice of appeal, we refer to the remaining respondentscollectively as respondents.
Footnote 3: According to the reporton shadow flicker contained as an attachment to the EAF, that term "refers to the movingshadows that an operating wind turbine casts over an identified receptor at times of theday when the turbine rotor is between the sun and a receptor's position."
Footnote 4: We reject petitioners'arguments that the Board failed to comply with various procedural requirements ofSEQRA, as well as its contention that the host community agreement required by thespecial use permit represented an impermissible conditioned negative declaration (seeMatter of Merson v McNally, 90 NY2d 742, 753 [1997]; Matter of Granger Group v Townof Taghkanic, 77 AD3d 1137, 1143 [2010], lv denied 16 NY3d 781[2011]; 6 NYCRR 617.2 [h]).
Footnote 5: Nor do we find, underthe particular circumstances presented here, that there was a violation of the OpenMeetings Law because the meeting was relocated to a community room in a church.