| Matter of County of Orange v Village of Kiryas Joel |
| 2007 NY Slip Op 07699 [44 AD3d 765] |
| October 9, 2007 |
| Appellate Division, Second Department |
| In the Matter of County of Orange, Respondent, v Villageof Kiryas Joel et al., Appellants. |
—[*1] Menter, Rudin & Trivelpiece, P.C., Syracuse, N.Y. (Thomas J. Fucillo, Mitchell J. Katz, andJulian B. Modesti of counsel), for respondent.
In a proceeding pursuant to CPLR article 78 to review (a) a determination of the Board ofTrustees of the Village of Kiryas Joel dated July 8, 2004, authorizing, inter alia, the constructionof a public water supply facility and a pipeline connecting the public water supply facility withthe Catskill Aqueduct, (b) a determination of the Board of Trustees of the Village of Kiryas Joeldated July 9, 2004, adopting a findings statement pursuant to the State Environmental QualityReview Act in connection with the project, and (c) a determination of the Board of Trustees ofthe Village of Kiryas Joel dated October 29, 2004, in effect, declining to conduct any furtherenvironmental review in connection with the project, the Village of Kiryas Joel and the Board ofTrustees of the Village of Kiryas Joel appeal from (1) a judgment of the Supreme Court, OrangeCounty (Rosenwasser, J.), dated October 20, 2005, which granted the petition, annulled thedeterminations, and remitted the matter to the Board of Trustees of the Village of Kiryas Joel forthe preparation and circulation of a supplemental environmental impact statement addressingcertain environmental issues, and (2) so much of an order of the same court dated February 27,2006, as denied that branch of their motion which was for leave to renew their opposition to thepetition.
Ordered that the judgment is modified, on the law, by deleting the provision thereof remittingthe matter to the Board of Trustees of the Village of Kiryas Joel for the preparation [*2]and circulation of a supplemental environmental impact statementaddressing certain environmental issues, and substituting therefor a provision remitting thematter to the Board of Trustees of the Village of Kiryas Joel for the preparation and circulation ofan amended final environmental impact statement, in accordance herewith, which analyzes theimpact of the project on wetlands, sewage facilities, and the discharge of wastewater and treatedeffluent into surface and ground waters, includes a phase 1-B archaeological study and review,analyzes the growth-inducing effects of the project, and analyzes those alternatives to the projectwhich were identified in the final environmental impact statement with respect to these impacts;as so modified, the judgment is affirmed; and it is further,
Ordered that the order dated February 27, 2006, is affirmed insofar as appealed from; and itis further,
Ordered that one bill of costs is awarded to the petitioner.
After the Board of Trustees of the Village of Kiryas Joel (hereinafter the Board of Trustees)prepared and circulated a draft environmental impact statement (hereinafter the DEIS) and a finalenvironmental impact statement (hereinafter the FEIS) in connection with a proposal to constructwater pumping and wastewater treatment facilities within the Village, together with a13-mile-long water pipeline connecting those facilities to an aqueduct, located in the Town ofNew Windsor, that is owned and operated by the City of New York (hereinafter the project), theBoard of Trustees authorized the issuance of bonds to finance the project and approved a findingsstatement pursuant to the State Environmental Quality Review Act (ECL art 8 [hereinafterSEQRA]). In response to a resolution of the County Legislature of the County of Orangerequesting further environmental review, the Board of Trustees later resolved, in effect, to refuseto undertake any additional environmental review.
The County, in which the Village is located, commenced the instant CPLR article 78proceeding challenging the FEIS and the SEQRA findings statement, on the grounds that thosedocuments failed to contain adequate analysis of several areas of environmental concern, andfailed to identify and analyze a reasonable number of feasible alternatives to the project. TheSupreme Court granted the petition, annulled the Board of Trustees' determinations, and remittedthe matter to the Board of Trustees, directing it to prepare a supplemental environmental impactstatement that properly analyzed the areas of environmental concern that were in controversy,and addressed certain alternatives to the project proposed by the County. We modify in order toclarify that the environmental document required to be prepared by the Board of Trustees uponremittitur should be characterized as an amended FEIS, but we decline the County's request tocompel the Board of Trustees to identify and consider alternatives in addition to those alreadyidentified in the DEIS and the FEIS.
Initially, the County has established "a demonstrated interest in the potential environmentalimpacts of the project" (Matter of Townof Babylon v New York State Dept. of Transp., 33 AD3d 617, 618-619 [2006]), andthus, had standing to prosecute this CPLR article 78 proceeding, predicated upon both its statusas an involved agency (see Village of Chestnut Ridge v Town of Ramapo, 45 AD3d 74 [2007]; Matter of Town ofPleasant Val. v Town of Poughkeepsie Planning Bd., 289 AD2d 583 [2001]; see also6 NYCRR 617.2 [s]), and as an interested property owner facing injury in fact (seeSociety of Plastics Indus. v County of Suffolk, 77 NY2d 761, 774 [1991]; Village ofChestnut Ridge v Town of Ramapo, 45 AD3d 74 [2007]; Town [*3]of Riverhead v New York State Dept. of Envtl. Conservation,193 AD2d 667, 669 [1993]). Moreover, this proceeding was commenced within the four-monthstatute of limitations that is applicable (see CPLR 217), measured from when the leadagency committed itself to a definite course of future action (see Matter of Eadie v Town Bd. of Town of N. Greenbush, 7 NY3d306, 316 [2006]; Matter of Village of Pelham v City of Mount Vernon Indus. Dev.Agency, 302 AD2d 399, 400 [2003]; Matter of Mule v Hawthorne Cedar Knolls UnionFree School Dist., 290 AD2d 698, 699-700 [2002]; see also 6 NYCRR 617.2 [b] [2],[3]).
"The law is well settled that judicial review of a SEQRA determination is limited todetermining whether the challenged determination was affected by an error of law or wasarbitrary and capricious, an abuse of discretion, or was the product of a violation of lawfulprocedure" (Matter of Village of Tarrytown v Planning Bd. of Vil. of Sleepy Hollow, 292AD2d 617, 619 [2002]; see Akpan v Koch, 75 NY2d 561 [1990]; Matter of Jackson vNew York State Urban Dev. Corp., 67 NY2d 400, 416 [1986]; Matter of City of Rye vKorff, 249 AD2d 470 [1998]). In reviewing the lead agency's determination, the court mustdetermine whether the lead agency "identified the relevant areas of environmental concern, tooka 'hard look' at them, and made a 'reasoned elaboration' of the basis for its determination"(Matter of Jackson v New York State Urban Dev. Corp., 67 NY2d at 417; seeChinese Staff & Workers Assn. v City of New York, 68 NY2d 359 [1986]; Matter ofDoremus v Town of Oyster Bay, 274 AD2d 390 [2000]). In this regard, "it is not the role ofthe courts to weigh the desirability of any action or choose among alternatives, but to assure thatthe agency itself has satisfied SEQRA, procedurally and substantively" (Matter of Jackson vNew York State Urban Dev. Corp., 67 NY2d at 416; Matter of Village of Tarrytown vPlanning Bd. of Vil. of Sleepy Hollow, 292 AD2d at 619).
Where, as here, a lead agency determines that a proposed action may have a significantimpact upon the environment, and thus requires the preparation of an EIS, that document mustset forth "a description of the proposed action," including its environmental impact and anyunavoidable adverse environmental effects (ECL 8-0109 [2] [a]-[c]; 6 NYCRR 617.9 [b]);alternatives to the proposed action (ECL 8-0109 [2] [d]); and mitigation measures to minimizethe environmental impact (ECL 8-0109 [2] [f]; 6 NYCRR 617.9 [b] [5] [iv]). Where an agencyfails or refuses to undertake necessary analyses, improperly defers or delays a full and completeconsideration of relevant areas of environmental concern, or does not support its conclusionswith rationally-based assumptions and studies, the SEQRA findings statement approving theFEIS must be vacated as arbitrary and irrational (see Matter of Riverkeeper, Inc. v Planning Bd. of Town of Southeast,32 AD3d 431, 436 [2006], lv granted 8 NY3d 808 [2007]; see generally Matterof Penfield Panorama Area Community v Town of Penfield Planning Bd., 253 AD2d 342[1999]).
Here, the Supreme Court correctly determined that neither the DEIS nor the FEIS fullyidentified the nature and extent of all of the wetlands that would be disturbed or affected by theconstruction of the proposed water pipeline, how those wetlands would be disturbed, and howsuch disturbance, if any, would affect the salutary flood control, pollution absorption,groundwater recharge, and habitat functions of those wetlands. Moreover, neither the DEIS northe FEIS fully identified the location, nature, or extent of the bodies of surface water into whichwastewater from the proposed treatment plant would be discharged, and which State classes andstandards of quality and purity apply to those water bodies (see 6 NYCRR ch X, arts 4,10). Nor did the DEIS or the FEIS adequately identify how much effluent would be dischargedinto those bodies of water over what periods of time, what the nature of the effluent might be,and what the effect upon those bodies of water are likely to be. With respect to historical andarchaeological resources, the Supreme Court properly determined that the DEIS and the FEISwere rendered inadequate by the absence of a site-specific and design-specific phase 1-Barchaeological study.[*4]
The Supreme Court also properly found that the DEISand the FEIS provided no demographic analysis or projections with respect to the effect of theavailability of a steady and stable supply of potable water on population movement into or out ofthe Village, other than a conclusory assumption that the Village birth rate would continue togrow at a steady rate of 6% per year, and thus failed to take a "hard look" at the secondaryimpacts of the project.
Hence, the determinations of the Board of Trustees were properly annulled. However, thematter should have been remitted to the Board of Trustees for the preparation of an amendedFEIS which considers and analyzes these issues as they apply to the proposal and the alternativesidentified in the DEIS and the FEIS. A supplemental environmental impact statement (hereinafterSEIS), as directed by the Supreme Court, is not the proper vehicle in which to consider theseissues. An agency may require an SEIS where inadequacies in the FEIS "arise from. . . (a) changes proposed for the project; (b) newly discovered information; or (c) achange in circumstances related to the project" (6 NYCRR 617.9 [a] [7] [i]; seeMatter of Jackson v New York State Urban Dev. Corp., 67 NY2d at 429-430; Matter ofRiverkeeper, Inc. v Planning Board of Town of Southeast, 32 AD3d at 438 [Spolzino, J.,concurring in part and dissenting in part]; see also 6 NYCRR 617.9 [a] [7] [i]). Since theinadequacies here did not "arise from" those factors, but rather from deficiencies in the initialFEIS, the FEIS must be amended to address the additional issues of environmental concern.Contrary to the County's contention, however, the DEIS and the FEIS were not inadequate forfailing to consider a reasonable number of feasible alternatives. Where an EIS identifies feasiblealternatives to a proposed project, analyzes the impacts associated with those alternatives incomparison to the initial proposal, and incorporates aspects of the alternatives in mitigation ofthe impacts associated with the initial proposal, the lead agency has satisfied its obligations underSEQRA (see ECL 8-0109 [2] [d]; 6 NYCRR 617.9 [b] [5] [v]). The FEIS, in thisinstance, considered three alternative pipeline routes, "no action," alternative pipe dimensions, analternate site for a filtration and pump station, and the potential drilling of additional wells. Thealternatives section of an FEIS need not identify or discuss every conceivable alternative,including the particular alternatives propounded by the County, and need not be exhaustive,particularly where the various options lie along a continuum of possibilities (see Matter of Halperin v City of NewRochelle, 24 AD3d 768, 777 [2005]). A rule of reason is applicable to the discussion ofalternatives in an FEIS (see Akpan v Koch, 75 NY2d at 570). Where there has been sucha reasonable consideration of alternatives, the judicial inquiry is at an end (see Matter ofTown of Dryden v Tompkins County Bd. of Representatives, 78 NY2d 331, 333-334 [1991];Matter of Halperin v City of New Rochelle, 24 AD3d at 777).
The parties' remaining contentions either are without merit or have been rendered academic.Spolzino, J.P., Ritter, Dillon and Dickerson, JJ., concur.