| Matter of Chase Partners, LLC v Incorporated Vil. of RockvilleCtr. |
| 2007 NY Slip Op 06872 [43 AD3d 1049] |
| September 18, 2007 |
| Appellate Division, Second Department |
| In the Matter of Chase Partners, LLC,Appellant, v Incorporated Village of Rockville Centre, et al.,Respondents. |
—[*1] Cullen and Dykman, LLP, Garden City, N.Y. (Thomas B. Wassel and Gerard Fishberg ofcounsel), for respondents.
In a proceeding pursuant to CPLR article 78, inter alia, in the nature of mandamus to compelthe Planning Board of the Village of Rockville Centre to approve a site plan application, thepetitioner appeals, as limited by its notice of appeal and brief, from so much of an order andjudgment (one paper) of the Supreme Court, Nassau County (Alpert, J.), dated April 18, 2005, asgranted that branch of the respondents' motion which was for leave to renew their prior motion todismiss the petition pursuant to CPLR 3211 (a) (7) and 7804 (f), which was denied in an order ofthe same court dated December 13, 2004, vacated the prior determination, granted therespondents' motion to dismiss the petition pursuant to CPLR 3211 (a) (7) and 7804 (f), anddismissed the proceeding.
Ordered that the order and judgment is affirmed insofar as appealed from, without costs ordisbursements.
On January 8, 2003 the petitioner submitted an application to the Planning Board of theVillage of Rockville Centre (hereinafter the Planning Board) for site plan approval to constructtwo adjacent multifamily residential buildings totaling 349 units. The subject real property coversan area of approximately 7.1 acres, is currently occupied by an unused industrial building, and issurrounded by a low-income apartment complex to the north, an office building to the east, a busdepot to the south, and a lakefront park to the west. The subject real property is approximatelythree blocks from a Long Island Railroad station and a King Kullen supermarket, and close tolocal bus [*2]service and the downtown business district.
Under the Code of the Village of Rockville Centre (hereinafter the Village Code), theproperty may lawfully be used for office, commercial, recreational, or multifamily residentialpurposes (see Village Code § 340-98). When the petitioner's application wassubmitted, the Village Code permitted a density of 50 residential units per acre. The VillageCode also then contained a default provision, which provided that if the Planning Board failed tohold a hearing on a site plan application within 62 days of submission, and render a decisionwithin 62 days of the hearing, the application would be deemed approved (see VillageLaw § 7-725-a [8]; Village Code former § 330-8 [G], repealed Nov. 29, 2004).
On March 27, 2003 an architectural design review conducted under the auspices of theBuilding Department of the Village of Rockville Centre resulted in a favorable report on thepetitioner's site plan application, with some proposed revisions. Public hearings on the site planapplication commenced before the Planning Board on October 21, 2003 and continued, for a totalof nine hearings, over the course of 11 months, until September 21, 2004. On August 27, 2004,after the seventh hearing on the site plan application, the petitioner Chase Partners, LLC(hereinafter Chase) sent a letter to the Planning Board demanding approval of the site plan byoperation of law, pursuant to the default provision of the Village Code. The Planning Board didnot accede to that demand.
On April 29, 2003 the Planning Board, as lead agency under the State Environmental QualityReview Act (ECL art 8 [hereinafter SEQRA]), issued a "positive declaration," indicating thatpreparation and circulation of an environmental impact statement was required. In June 2003Chase submitted a draft environmental impact statement (hereinafter the DEIS) to the PlanningBoard, and on July 15, 2003 the Planning Board issued a notice of completion with respect to theDEIS.
On August 12, 2003 the Planning Board conducted its first public hearing to review theDEIS, and on September 16, 2003 the Planning Board conducted the second, and final, publichearing on the DEIS. On January 5, 2004 the Nassau County Planning Commission (hereinafterthe NCPC) submitted comments on the DEIS, and in February 2004 Chase submitted a finalenvironmental impact statement (hereinafter the FEIS) to the Planning Board. On July 22, 2004,in response to numerous public and agency comments on the FEIS, Chase submitted a revisedFEIS. On September 7, 2004 the Planning Board held a final hearing on the environmentalimpact statement, and adopted a notice of completion for the FEIS.
Also on September 7, 2004 Chase commenced the instant CPLR article 78 proceedingseeking, inter alia, default approval pursuant to Village Law § 7-725-a (8) and VillageCode former § 330-8 (G). After conducting the ninth, and final, hearing on the site planapplication on September 21, 2004, the Planning Board moved, on September 23, 2004 todismiss the petition, pursuant to CPLR 3211 (a) (7) and 7804 (f), on the ground that the 62-daydefault period could not begin to run until the Planning Board had adopted a statement offindings pursuant to SEQRA, and the NCPC had reviewed, and passed upon, the application. OnOctober 6, 2004 the Planning Board adopted a SEQRA statement of findings (hereinafter theSEQRA findings statement).
On November 4, 2004 the NCPC approved the site plan as originally submitted and onNovember 16, 2004 the Planning Board approved the site plan, with modifications, thus [*3]permitting a reduced scale, 230-unit alternative.
On December 16, 2004 the Supreme Court denied the motion of the Incorporated Village ofRockville Centre and the Planning Board (hereinafter the respondents) to dismiss the petitionpursuant to CPLR 3211 (a) (7) and 7804 (f), finding that Chase had stated a cause of action fordefault approval pursuant to Village Law § 7-725-a (8) and Village Code former §330-8 (G). On January 3, 2005 the respondents moved, inter alia, for leave to renew their motionto dismiss on the ground that the default approval provision contained in the Village Code hadbeen repealed before the Supreme Court issued its December 16, 2004 order, and therefore thecourt had incorrectly found that the petition stated a cause of action for default approval. Therespondents also argued that, in any event, the Planning Board's determination to approve the siteplan with modifications was timely because the determination was rendered within 62 days of thelast hearing, held on September 21, 2004. In an order dated April 18, 2005, the Supreme Courtgranted that branch of the respondents' motion which was for leave to renew the motion todismiss the petition, granted the motion to dismiss the petition, and dismissed the proceeding.We affirm the order insofar as appealed from.
Notwithstanding the applicability of the default provision, the Planning Board'sdetermination of the site plan application did not trigger an approval by default in any eventbecause the determination was rendered within 62 days of the completion of the SEQRA reviewprocess. SEQRA is intended to minimize to the greatest degree possible the adverseenvironmental consequences of government actions (see Matter of Sun Beach Real EstateDev. Corp. v Anderson, 98 AD2d 367, 369 [1983]), while Village Law § 7-725-a (8),along with Village Code former § 330-8 (G), are intended to "limit the depredations ofdilatory planning boards" (Matter of Sun Beach Real Estate Dev. Corp. v Anderson, 98AD2d at 375). The facts of the instant case thus bring the environmental review provisions ofSEQRA and the default provisions of the Village Law and the Village Code into apparentconflict, because the former frequently requires an extended review period in order to ensure thatenvironmental values are properly considered, while the latter requires an application to bereviewed and determined in as little as 124 days.
"[A]pparently conflicting statutory provisions should be harmonized in a manner thatpreserves the essential purposes of both" (Matter of Sun Beach Real Estate Dev. Corp. vAnderson, 98 AD2d at 369; ECL 8-0109 [8]; 6 NYCRR 617.1 [c]). However, where thepurposes of a statute and local ordinance come into conflict with SEQRA, as they do here,SEQRA must prevail. As we have observed, "[w]e have no difficulty in according priority toSEQRA because the legislative declaration of purpose in that statute makes it obvious thatprotection of 'the environment for the use and enjoyment of this and all future generations' (ECL8-0103 [8]) far overshadows the rights of developers to obtain prompt action on their proposals"(Matter of Sun Beach Real Estate Dev. Corp. v Anderson, 98 AD2d at 375-376; seeVillage Law § 7-725-a [10] [requiring planning boards to comply with SEQRA]).
This Court has previously held that a subdivision plat application is deemed complete forpurposes of triggering a default approval period upon the lead agency's issuance of a notice ofcompletion for a DEIS (see Matter of Sun Beach Real Estate Dev. Corp. v Anderson, 98AD2d at 372). However, even though an application for a land-use approval may be deemedcomplete at that point, a lead agency's SEQRA review obligations are not considered completeuntil it issues a SEQRA findings statement (see Matter of Jones v Amicone, 27 AD3d 465, 467 [2006], citingMatter of Long Is. Pine Barrens Socy. v Planning Bd. of Town of Brookhaven, 78 NY2d608 [1991]). The [*4]SEQRA findings statement must, inter alia,"certify that consistent with social, economic and other essential considerations from among thereasonable alternatives available, the action is one that avoids or minimizes adverseenvironmental impacts to the maximum extent practicable . . . by incorporating asconditions to the decision those mitigative measures that were identified as practicable [in thefinal EIS]" (6 NYCRR 617.11 [d] [5]). And, "[p]rior to the lead agency's decision on an actionthat has been the subject of a final EIS, it shall . . . consider the final EIS beforeissuing its written findings statement" (6 NYCRR 617.11 [a] [emphasis added]; seeMatter of Town of Henrietta v Department of Envtl. Conservation of State of N.Y., 76 AD2d215, 223 [1980] ["an agency in approving an action must make a written finding that it hasimposed whatever [reasonable] conditions are necessary to minimize or avoid all adverseenvironmental impacts revealed in the EIS"]). Therefore, the issuance of a SEQRA findingsstatement is necessary for the Planning Board to establish its full compliance with SEQRA, andto justify the imposition of any reasonable conditions on or modifications to the site plan. Sincethe default provision at bar provides for two separate default periods—62 days fromcompletion of the application to the public hearings, and another 62 days from the publichearings to the final determination—we hold that, where an action has been the subject ofa FEIS, the latter period does not begin to run until the lead agency has issued its SEQRAfindings statement.
In the instant case, the Planning Board issued its SEQRA findings statement on October 6,2004 and rendered its decision on the site plan application less than 62 days later, on November16, 2004. Therefore, the Planning Board's determination of the site plan application was timely inthis regard, and, upon renewal, the Supreme Court properly granted the Planning Board's motionto dismiss the petition for failure to state a cause of action. Schmidt, J.P., Dillon, Angiolillo andMcCarthy, JJ., concur.