| Matter of Gabrielli v Town of New Paltz |
| 2014 NY Slip Op 02826 [116 AD3d 1315] |
| April 24, 2014 |
| Appellate Division, Third Department |
| In the Matter of Robert Gabrielli et al., Respondents, vTown of New Paltz et al., Appellants. |
—[*1] Whiteman Osterman & Hanna, LLP, Albany (Robert S. Rosborough IV of counsel),for respondents. Daniel E. Estrin, Pace Environmental Litigation Clinic, White Plains, forRiverkeeper, Inc., amicus curiae.
Garry, J. Appeal from a judgment of the Supreme Court (Elliott III, J.), enteredSeptember 12, 2012 in Ulster County, which 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 Board of the Town ofNew Paltz enacting Local Law No. 5 (2011) of the Town of New Paltz.
In 2005, respondent Town Board of the Town of New Paltz (hereinafter Board)enacted a local law to prevent the "despoliation and destruction of wetlands, waterbodiesand watercourses." In 2007, Supreme Court (Egan Jr., J.) annulled that enactment basedupon the failure to comply with General Municipal Law § 239-m. The Boardthereafter undertook redrafting of the 2005 law by, among other things, designating itselfas the lead agency for the purpose of the State Environmental Quality Review Act(see ECL art 8 [hereinafter SEQRA]), directing the Town Engineer to update apreviously-prepared report, directing respondent Town of New Paltz Wetlands Inspectorto conduct a "quality vernal pool analysis," conducting meetings, and holding publichearings upon the revised law.
In October 2011, the Board reviewed the full environmental assessment form(hereinafter EAF) that had been prepared by the Town Engineer and, in November 2011,issued a negative declaration of environmental significance under SEQRA. The Boardenacted the revised law in December 2011 as Local Law No. 5 (2011) of the Town ofNew Paltz (hereinafter the 2011 law). Petitioners, who own real property in the Townand Village of New Paltz, thereafter commenced this combined CPLR article 78proceeding and action for declaratory judgment against the Board, respondent Town ofNew Paltz, respondent Town of New Paltz Planning Board, and various Town officialschallenging the 2011 law and negative declaration on multiple grounds. Supreme Court(Elliott III, J.) annulled the 2011 law and negative declaration upon finding thatrespondents had failed to comply with SEQRA and that the 2011 law wasunconstitutionally vague. Respondents appeal.
Initially, respondents contend that Supreme Court erred in concluding that the Boardfailed to take the "hard look" required by SEQRA before concluding that anenvironmental impact statement (hereinafter EIS) was not required. SEQRA requires anEIS when an agency action "may have a significant effect on the environment," and suchan impact is presumed to be likely where, as here, a type I action is involved (ECL8-0109 [2]; see Matter ofFrigault v Town of Richfield Planning Bd., 107 AD3d 1347, 1349 [2013]; 6NYCRR 617.4 [a] [1]); however, a type I action does not, "per se, necessitate the filingof an [EIS]" (Matter ofShop-Rite Supermarkets, Inc. v Planning Bd. of the Town of Wawarsing, 82 AD3d1384, 1386 [2011], lv denied 17 NY3d 705 [2011]; see Matter of Gabrielli v Town ofNew Paltz, 93 AD3d 923, 924 [2012], lv denied 19 NY3d 805[2012]).[FN1]A negative declaration may be issued, obviating the need for an EIS, if the leadagency—here, the Board—determines that "no adverse environmentalimpacts [will result] or that the identified adverse environmental impacts will not besignificant" (6 NYCRR 617.7 [a] [2]; see Matter of City Council of City of Watervliet v Town Bd. ofTown of Colonie, 3 NY3d 508, 520 [2004]; Matter of Troy Sand & Gravel Co., Inc. v Town of Nassau, 82AD3d 1377, 1378 [2011]). Upon judicial review, we may not substitute ourjudgment for that of the Board, and may annul its decision "only if it is arbitrary,capricious or unsupported by the evidence" (Matter of Riverkeeper, Inc. v Planning Bd. of Town ofSoutheast, 9 NY3d 219, 232 [2007]; accord Matter of Residents for Responsible Govt. v Grannis, 75AD3d 963, 966 [2010], lv denied 16 NY3d 701 [2011]).
Before passing the negative declaration, the Board reviewed the EAF, whichidentified five environmental areas on which the 2011 law would have "small tomoderate impact," including land, plants and animals, aesthetic resources, space andrecreation and "growth and character of community or neighborhood." As no "potentiallylarge" impacts were identified, completion of part 3 of the EAF—in which suchimpacts must be analyzed in detail—was not required (Matter of YellowLantern Kampground v Town of Cortlandville, 279 AD2d 6, 11 [2000]). The Townnevertheless elected to complete part 3, in which the identified impacts were evaluated,and each was found to have either no impact or a beneficial impact. Included in the EAFwere data and conclusions from the Town Engineer's updated report regarding thepotential impact of the 2011 law on tax revenue and land planning, the Town's writtenresponses to numerous public comments, and a list of properties potentially locatedwithin wetland buffer areas to be created by the proposed law. The Board also solicitedinput from the Town's [*2]Environmental ConservationBoard and from the Department of Agriculture. As the proposed law included "qualityvernal pools" (hereinafter QVPs) among the wetlands to be regulated,[FN2]the Town considered the Wetlands Inspector's report on the quantity and area ofunregulated vernal pools in the Town. Following its review, the Board issued a negativedeclaration that included a detailed description of the action to be taken, reasonssupporting the Board's determination, and an evaluation of the areas of relevantenvironmental concern, incorporating the EAF and the reports and informationconsidered.
Petitioners contend that the identification of the area to be regulated was notsufficiently specific, thus precluding accurate assessment and rendering the Town'sreview inadequate. The 2011 law defines regulated areas with reference to the Town's"Wetland & Watercourse Map" (hereinafter the Town map). The Town map wasprepared by the Town Engineer based upon a compilation of state and federal wetlandand watercourse maps, electronic mapping resources, and data from other sources. Asacknowledged in the 2011 law, the Town map delineates the approximate boundaries ofthe regulated areas, but, because of its scale, does not reveal the precise locations of theboundaries, which can only be accurately determined by a field survey. Notably,however, the 2011 law provides a mechanism by which property owners can determinethe presence and location of regulated areas on their land, by requesting an onsiteinspection, at the Town's cost, by the Wetlands Inspector. Following such inspection, awritten determination must be provided within 60 days or, if delay is required because ofweather or ground conditions, "as early as practicable" (Code of Town of New Paltz§ 139-6 [D], as added by Local Law No. 5 [2011] of Town of New Paltz §1).[FN3]Following passage of the 2011 law, the Town notified all real property owners in theTown and Village of its enactment, included a copy of the Town map with the notice,and advised owners of the availability of property inspections.
Considering the record evidence relative to the methodology employed in preparingthe Town map, the expense and impracticality of alternate methods of identifyingregulated areas, and the availability of Town-financed property inspections, we areunpersuaded by petitioners' contention that the Town's identification of regulated areaswas insufficient to permit the environmental impact assessment required by SEQRA.Although, as petitioners argue, "strict compliance with SEQRA is required" (Matterof Troy Sand & Gravel Co., Inc. v Town of Nassau, 82 AD3d at 1379), it is also truethat "an agency's obligation under SEQRA must be [*3]viewed in light of a rule of reason, realizing that not everyconceivable environmental impact, mitigating measure or alternative must be identifiedand addressed before the substantive dictates of SEQRA are satisfied" (Matter of Saratoga Lake Protection& Improvement Dist. v Department of Pub. Works of City of Saratoga Springs, 46AD3d 979, 984 [2007], lv denied 10 NY3d 706 [2008] [internal quotationmarks, brackets and citations omitted]; see Matter of Gernatt Asphalt Prods. v Townof Sardinia, 87 NY2d 668, 688 [1996]). Here, the record establishes that the Boardengaged in a thorough and lengthy review process, identified relevant areas ofenvironmental concern, took the requisite hard look at these concerns, and made areasoned and detailed elaboration of the basis for its determination—thussatisfying its obligations under SEQRA (see 6 NYCRR 617.7 [b]; Matter ofFrigault v Town of Richfield Planning Bd., 107 AD3d at 1350-1352; Matter of Mombaccus Excavating,Inc. v Town of Rochester, N.Y., 89 AD3d 1209, 1211 [2011], lv denied18 NY3d 808 [2012]). We, therefore, find that Supreme Court erred in annulling the2011 law and negative declaration on this basis.
We further conclude that the 2011 law is not unconstitutionally vague. A local law isentitled to an "exceedingly strong presumption of constitutionality" that may be rebuttedonly by establishing its unconstitutionality beyond a reasonable doubt (LighthouseShores v Town of Islip, 41 NY2d 7, 11 [1976]; see de St. Aubin v Flacke, 68NY2d 66, 76 [1986]). "[S]o long as [the 2011 law] provides persons of ordinary intellectreasonable notice of the proscribed conduct," it will withstand a constitutional challengeon vagueness grounds (Matterof Oakwood Prop. Mgt., LLC v Town of Brunswick, 103 AD3d 1067, 1070[2013], lv denied 21 NY3d 853 [2013] [internal quotation marks and citationsomitted]; see Foss v City of Rochester, 65 NY2d 247, 253 [1985]). As set forthabove, property owners can determine whether their land is within the area regulated bythe 2011 law by reviewing the Town map and, if a more precise determination isnecessary, by obtaining an inspection at no cost. The Town map does not indicate thelocation of regulated QVPs; respondents contend that no existing maps depict thesefeatures and that they can be identified only by onsite field surveys. However, the 2011law does include a detailed description of the characteristics of QVPs that we findsufficient to permit persons of ordinary intelligence to make a preliminary assessment asto whether a natural feature that might be a QVP is present on their land; the inspectionmechanism is then available to provide a final determination. We find these provisionssufficient to provide the requisite reasonable notice.
Petitioners further challenge the constitutionality of a "catch-all" provision in the2011 law permitting the regulation of any activity that the Wetlands Inspector, with theconcurrence of the Planning Board, determines "to have the potential for substantialadverse [e]ffect to the regulated areas" (Code of Town of New Paltz § 139-8 [L]).The 2011 law clarifies the meaning of the provision by defining "substantial adverseeffect" as "activity that will substantially alter or impair the natural function(s) orbenefit(s) of a regulated area" (Code of Town of New Paltz § 139-4). Theseprovisions are not so vague as to force a person of ordinary intelligence to guess at theirmeaning, or to be susceptible to arbitrary or discriminatory enforcement (see Matterof Oakwood Prop. Mgt., LLC v Town of Brunswick, 103 AD3d at 1070; Matter of Morrissey v Apostol,75 AD3d 993, 996 [2010]; Clements v Village of Morristown, 298 AD2d777, 778 [2002]). Accordingly, petitioners failed to rebut the presumption that the 2011law is constitutional, and it should not have been annulled on this ground.
Having thus determined that Supreme Court erred in annulling the 2011 law, we willfurther address the remaining causes of action, in the interest of judicial economy and as[*4]requested by the parties. We find no merit in any ofpetitioners' remaining claims. Two of the petition's causes of action pertain to SEQRA;as to the first, the record does not reveal that the claimed procedural violations occurred.The second alleges that the Board improperly segmented its environmental review byincluding the previously-discussed "catch-all" provision in the 2011 law. The record doesnot support this assertion; inclusion of this provision did not result insegmentation—that is, the division of the environmental review of an action intoseparate stages (see 6 NYCRR 617.2 [ag]; Matter of Saratoga Springs Preserv. Found. v Boff, 110 AD3d1326, 1328 [2013]).
The petition further claims that the 2011 law violates ECL 24-0501 (2) by regulatingactivities that are exempt from Department of Environmental Conservation (hereinafterDEC) permit requirements pursuant to ECL 24-0701, and that it was not enacted incompliance with enabling regulations pertaining to local government implementation ofECL article 24 (see 6 NYCRR part 665). However, the 2011 law expresslyprovides that the Town intends to exercise its regulatory authority concurrently with thatof the DEC, and that the 2011 law does not supersede or assume DEC's authority(see Code of Town of New Paltz § 139-3 [D]). The statutory provisionsand enabling regulations upon which petitioners' claims rely control circumstances inwhich municipalities elect to assume and replace DEC's regulatory authority; they do notapply here, as no such assumption is intended (see ECL 24-0501, 24-0509; 6NYCRR 665.4; Philip Weinberg, Practice Commentaries, McKinney's Cons Laws ofNY, Book 17½, ECL 24-0501 at 424-425). Petitioners concede that the 2011 law is"at least as protective" as the DEC's wetlands protection regulations issued pursuant toECL article 24 (ECL 24-0509). Accordingly, the Town's exercise of concurrentjurisdiction is permissible, and the 2011 law is not invalid on the ground that it requirespermits for some activities that are statutorily exempt from DEC regulation (seePhilip Weinberg, Practice Commentaries, McKinney's Cons Laws of NY, Book17½, ECL 24-0509 at 430-431).
The cause of action asserting a failure to comply with the referral requirements ofGeneral Municipal Law § 239-m in enacting the 2011 law is unsupported in therecord, and thus lacks merit. The cause of action alleging a violation of Town Law§ 264 is likewise without merit; that provision does not apply, as the 2011 law wasenacted in accord with the Municipal Home Rule Law (see Code of Town ofNew Paltz § 139-2 [A]; Matter of Pete Drown, Inc. v Town Bd. of Town ofEllenburg, 229 AD2d 877, 878 [1996], lv denied 89 NY2d 802 [1996]).
The petition includes several challenges to provisions in the 2011 law by which, incertain circumstances, applicants can submit conservation plans and/or pay conservationfees to obtain approval of permit applications that would otherwise be denied. First, wereject the claim that the conservation fee established by these provisions is an ultra virestax. The fee is imposed only in certain limited circumstances, when an applicant proposesits payment as an alternative to disapproval, and then consents to pay the amount that thePlanning Board determines is "necessary to mitigate the substantial adverse effects or toreplace the resources lost as a result of the proposed regulated activity" (Code of Townof New Paltz § 139-16 [G]). This fee—imposed with the applicant's consentand for the applicant's benefit—is not "imposed for the purpose of defraying thecosts of government services generally without relation to particular benefits derived bythe taxpayer," and is therefore not a tax (Matter of Walton v New York State Dept. of CorrectionalServs., 57 AD3d 1180, 1183 [2008], affd 13 NY3d 475 [2009] [internalquotation marks and citation omitted]; compare Matter of Phillips v Town of CliftonPark Water Auth., 286 AD2d 834, 836-837 [2001], lv denied 97 NY2d 613[2002]; New York [*5]Tel. Co. v City ofAmsterdam, 200 AD2d 315, 317-318 [1994]). Moreover, the Planning Board doesnot have "unfettered discretion" to determine the amount of the fee; instead, the 2011 lawrequires the fee to reflect the cost of mitigation or replacement of lost resources, andspecifies certain expenses that the Planning Board must consider in determining thatamount. Such a method of determining the amount is appropriate, as the conservation feeis not a flat amount charged to all applicants, but is paid in lieu of mitigation of theparticular adverse environmental effects caused by a specific activity.[FN4]
The petition further challenges the 2011 law's conservation plan provisions on theground that they improperly and unconstitutionally empower the Planning Board to makequasi-judicial determinations as to whether enforcement of the 2011 law constitutes ataking. However, the 2011 law neither requires nor permits the Planning Board to make alegal or judicial determination beyond its authority. Instead, the 2011 law provides thatthe Planning Board may allow an applicant to submit a conservation plan if, among otherthings, it determines that a court might reasonably find that a taking had occurred bydenying the owner all substantial use of his or her property or causing a significanteconomic effect. Thus, this provision allows factual review by the Planning Board for thepurpose of avoiding a potential taking, by permitting the applicant to submit aconservation plan as a means of obtaining approval for the activity in question. Further,petitioners have not shown that the provisions pertaining to conservation plans arepreempted by the EDPL, as they have not met "the heavy burden of showing that thestatutory provisions work a regulatory taking" such that the EDPL would apply (Held v State of New YorkWorkers' Compensation Bd., 85 AD3d 35, 43 [2011], lv dismissed anddenied 17 NY3d 837 [2011], cert denied 566 US —, 132 S Ct 1906[2012] [internal quotation marks and citation omitted]; see EDPL 101). Thus, thecauses of action pertaining to conservation plans lack merit.
As for the other preemption claims, the 2011 law is not preempted by the MinedLand Reclamation Law (see ECL 23-2701 et seq.), as the inclusion ofmining as a regulated activity does "not directly regulate the specifics of the miningactivities or reclamation process" and "is merely incidental to [the Town's] right toregulate land use within its boundaries" (Preble Aggregate v Town of Preble, 263AD2d 849, 850 [1999], lv denied 94 NY2d 760 [2000]; see Matter of GernattAsphalt Prods. v Town of Sardinia, 87 NY2d 668, 680-683 [1996], supra; Troy Sand & Gravel Co., Inc. vTown of Nassau, 101 AD3d 1505, 1509 [2012]). Likewise, the provisionspertaining to the displacement or destruction of beaver dams are not preempted by statelaw, as nothing in the permit requirements for such activity in ECL article 24 and its[*6]enabling regulations reflects the state's intent to enacta comprehensive regulatory scheme that explicitly or implicitly occupies the field ofbeaver control (see ECL 24-0701; 6 NYCRR 663.1, 663.4; Vatore vCommissioner of Consumer Affairs of City of N.Y., 83 NY2d 645, 649-651 [1994];Matter of Pete Drown, Inc. v Town Bd. of Town of Ellenburg, 188 AD2d 850,851 [1992]).
The record provides no support for the cause of action contending that the 2011law—which provides that its purpose is to protect the health, safety and well-beingof Town citizens and property "by preventing despoliation and destruction of wetlands,waterbodies and watercourses, and associated buffer areas" (Code of Town of New Paltz§ 139-1)—is not reasonably related to a legitimate governmental purpose(see Spilka v Town of Inlet,8 AD3d 812, 815 [2004]). Finally, petitioners contend that the 2011 law must beannulled because the Town did not strictly comply with a provision therein requiringproperty owners to be notified of the law within 45 days of its enactment. It appears fromthe record that the required notice was indeed provided, but that the mailing did notoccur until a few days after the 45-day period elapsed. Petitioners do not claim and havenot shown any harm or prejudice resulting from the brief delay, which did not violate theTown Law or any other enactment (compare Matter of Kuhn v Town ofJohnstown, 248 AD2d 828, 829-830 [1998]; Matter of Cipperley v Town of E.Greenbush, 213 AD2d 933, 934 [1995]). Accordingly, this minor proceduralirregularity does not require annulment.
Petitioners' remaining contentions, to the extent not specifically addressed herein,have been considered and found to be without merit.
Lahtinen, J.P., Stein and Rose, JJ., concur. Ordered that the judgment is reversed, onthe law, without costs, petition dismissed, and it is declared that Local Law No. 5 (2011)of the Town of New Paltz has not been shown to be unconstitutional.
Footnote 1: The Board chose totreat the 2011 law as a type I action although it believed that it was in fact an unlistedaction, as it found that the 2011 law could arguably come within the purview of 6NYCRR 617.4 (b) (2) (see 6 NYCRR 617.2 [ai], [ak]).
Footnote 2: Vernal pools areisolated, seasonal wetlands; QVPs are vernal pools that satisfy additional criteria as tosize, breeding habitat and other characteristics as set forth in the 2011 law.
Footnote 3: An amicus curiae briefsubmitted by Riverkeeper, Inc. lists approximately 80 municipal wetlands laws in effectin New York. According to Riverkeeper, Inc., most of these laws identify regulated areasby reference to wetlands maps that—like the Town map—do not preciselydelineate the boundaries of the regulated wetlands, and impose the cost of more specificidentification on individual property owners. It is asserted that the 2011 law challengedhere is the only one of these enactments that provides an individualized identification toproperty owners free of charge.
Footnote 4: On appeal, petitionersalso challenge the conservation fee as unconstitutional in that it does not satisfy the "'rough proportionality' " test applied to certain regulatory takings claims arising from landuse restrictions (Twin LakesDev. Corp. v Town of Monroe, 1 NY3d 98, 104-105 [2003], cert denied541 US 974 [2004], quoting Dolan v City of Tigard, 512 US 374, 391 [1994]).However, this claim was not made in the petition, nor have petitioners claimed that theconservation fee falls within the narrow category of exactions to which the roughproportionality test is applicable (see Matter of Smith v Town of Mendon, 4 NY3d 1, 11-12[2004]). Therefore, the merits of this argument are not addressed.