| Matter of Saratoga Lake Protection & Improvement Dist. v Departmentof Pub. Works of City of Saratoga Springs |
| 2007 NY Slip Op 09647 [46 AD3d 979] |
| December 6, 2007 |
| Appellate Division, Third Department |
| In the Matter of Saratoga Lake Protection and Improvement Districtet al., Respondents, v Department of Public Works of the City of Saratoga Springs et al.,Appellants. |
—[*1] Peters, Hogan & Carpenter, L.L.P., Albany (Michael Peters of counsel) and Michele L.Anderson, L.L.C., Saratoga Springs, for Saratoga Lake Protection and Improvement District andothers, respondents. Hiscock & Barclay, L.L.P., Albany (William A. Hurst of counsel), for Saratoga LakeAssociation, Inc., respondent.
Spain, J. Appeals (1) from an order of the Supreme Court (Nolan, Jr., J.), entered February10, 2006 in Saratoga County, which, in a combined proceeding pursuant to CPLR article 78 andaction for declaratory judgment, denied respondents' motion to dismiss the petition/complaint,and (2) from a judgment of said court, entered September 25, 2006 in Saratoga County, which,among other things, partially granted petitioners' application, in a combined proceeding pursuantto CPLR article 78 and action for declaratory judgment, to annul a determination of respondentCity Council of the City of Saratoga Springs making certain findings pursuant to the StateEnvironmental Quality Review Act.
In 1988, the Department of Environmental Conservation (hereinafter DEC) issued a reportrecommending that respondent City Council of the City of Saratoga Springs (hereinafter [*2]respondent) investigate alternative long-term sources of potabledrinking water, including tapping ground water supplies or drawing water from Saratoga Lake,the Great Sacandaga Reservoir or the upper Hudson River. In response, respondent hired aconsultant to investigate alternatives and it eventually recommended a plan for drawing waterfrom Saratoga Lake, called the Water Source Development Project (hereinafter the Project).
In January 2001, acting as lead agency, respondent issued a positive declaration for theProject and, subsequently, completed a scoping process, prepared and published a draftenvironmental impact statement (hereinafter DEIS), held hearings and accepted comments. InMarch 2004, after the formal DEIS public comment period had been closed, respondentnevertheless permitted and received a presentation regarding the DEIS from petitioner SaratogaLake Protection and Improvement District (hereinafter SLPID). Thereafter, a final environmentalimpact statement (hereinafter FEIS) was prepared, adopted and published. On or about October18, 2005, respondent passed a resolution accepting the FEIS as complete and finding that theProject presented a solution to the City's water needs which minimizes adverse environmentalimpacts to the maximum extent practicable.
In this combined declaratory judgment action and CPLR article 78 proceeding, petitionerschallenge the adequacy of respondent's review of the Project under the State EnvironmentalQuality Review Act (hereinafter SEQRA; see ECL art 8), seeking to annul respondent'sSEQRA determinations, to enjoin respondents from obtaining a water supply permit and adeclaration that SLPID is an involved agency under SEQRA. Respondents made a preanswermotion to dismiss the petition pursuant to CPLR 3211 (a) (3) on the grounds that SLPID did nothave the legal capacity to sue and that none of the petitioners had standing. In February 2006,Supreme Court denied respondents' motion. Thereafter, in a judgment entered September 25,2006, Supreme Court held that SLPID was not an involved agency but, finding that respondentfailed to adequately consider the environmental impacts the Project could have on activities, landuse and development within the lake's watershed, annulled respondent's October 18, 2005SEQRA determination. Respondents appeal from both the court's February 2006 order and itsSeptember 2006 judgment.[FN1]
Initially, respondents challenge Supreme Court's February 2006 order, asserting thatpetitioner Town of Saratoga, petitioner Town of Stillwater (hereinafter collectively referred to asthe Towns), SLPID and petitioner Saratoga Lake Association, Inc. (hereinafter SLA) all lackedstanding to sue and, as such, their SEQRA claims must be dismissed.[FN2]To establish standing to [*3]challenge respondent's governmentalaction, it was incumbent upon SLPID to demonstrate both that it might suffer an "injury infact"—i.e., actual harm by the action challenged that differs from that suffered by thepublic at large—and that such injury falls within the zone of interests, or "concerns[ ]sought to be promoted or protected by the statutory provision under which the agency has acted"(Society of Plastics Indus. v County of Suffolk, 77 NY2d 761, 773 [1991]; see Matter of Graziano v County ofAlbany, 3 NY3d 475, 479 [2004]; Matter of Save Our Main St. Bldgs. v GreeneCounty Legislature, 293 AD2d 907, 908 [2002], lv denied 98 NY2d 609 [2002];Matter of Dyer v Planning Bd. of Town of Schaghticoke, 251 AD2d 907, 908-909[1998], appeal dismissed 92 NY2d 1026 [1998], lv dismissed 93 NY2d 1000[1999]).
Supreme Court correctly concluded that SLPID has standing. SLPID's enabling legislationprovides that it was formed to "supervise, manage and control" Saratoga Lake and thesurrounding lands to ensure real property values, improve water quality so as to enhancerecreational opportunities and conserve fish and wildlife, and enhance the beauty of thesurrounding municipalities (L 1986, ch 460, § 1). Furthermore, SLPID has the power "[t]oacquire, manage, operate, maintain, repair and replace aquatic weed control equipment," as wellas to "[t]ake any and all other actions reasonably necessary and proper to further the purposes ofthe district" (L 1986, ch 460, § 7 [c], [p]). The complaint alleges that the Project will limitSLPID's options for controlling aquatic weeds; specifically, it states that more aggressivemethods than the current methodology of mechanically harvesting weeds are necessary and thatat least one alternative—the lake-wide application of certain herbicides—would beincompatible with the use of Saratoga Lake as a water supply source. The FEIS acknowledgesthat the Project will impact weed control methodology, at least insofar as recognizing that, if aherbicide alternative were to be implemented, manual harvesting will be necessary withinone-quarter mile of the intake pipe. Given these specific allegations, we conclude that SupremeCourt did not err in finding that SLPID has alleged a sufficiently particularized injury. Further,the injury that SLPID seeks to prevent falls squarely within the zone of interests protected bySEQRA and, thus, Supreme Court did not err in finding that SLPID had standing (see Societyof Plastics Indus. v County of Suffolk, 77 NY2d at 772-773; Matter of Graziano vCounty of Albany, 3 NY3d at 479; Matter of Otsego 2000 v Planning Bd. of Town ofOtsego, 171 AD2d 258, 260 [1991], lv denied 79 NY2d 753 [1992]).
We also conclude that SLA has demonstrated standing to challenge respondent'sdetermination. To establish standing, an organization must demonstrate that at least one of itsmembers would have standing to sue individually, that the interests it asserts are germane to itspurpose and that the resolution of the claim does not require the participation of its individualmembers (see Society of Plastics Indus. v County of Suffolk, 77 NY2d at 775; Matter of County of Oswego v Travis,16 AD3d 733, 734 [2005]). Here, respondents' challenge to SLA's standing is premisedsolely on SLA's ability to demonstrate standing on the part of one of its members.
SLA asserts its standing based on alleged injuries "different in kind or degree from that of thepublic at large" that would be suffered by SLA president Wilma Koss (Society of Plastics[*4]Indus. v County of Suffolk, 77 NY2d at 775). Kossalleges that her property is located within 1,000 feet of the development with an unobstructedview of the proposed pumping infrastructure (see Matter of Ziemba v City of Troy, 37 AD3d 68, 71 [2006], lvdenied 8 NY3d 806 [2007] [a petitioner has standing where proposed project will affect thescenic view from his or her residence]). Koss also alleges that the Project will result inrestrictions in areas that she and her family have historically enjoyed using for boating, fishingand swimming. Although the restrictions that Koss cites will result in the same kind of harm assuffered by the public at large, the proximity of Koss's property to the proposed site will result inher suffering that harm to a greater degree. Thus, SLA has demonstrated individual standing onthe part of one of its members (see Society of Plastics Indus. v County of Suffolk, 77NY2d at 775; Matter of Ziemba v City of Troy, 37 AD3d at 71).
With respect to the Towns, we reach a different conclusion. In order to establish standing, amunicipality must demonstrate "how its personal or property rights, either personally or in arepresentative capacity, will be directly and specifically affected apart from any damage sufferedby the public at large" (Matter of City of Plattsburgh v Mannix, 77 AD2d 114, 117[1980]; see Matter of Dyer v Planning Bd. of Town of Schaghticoke, 251 AD2d at 909).Here, the complaint alleges that regulations and measures that would be necessary inimplementing the Project will "entail significant restrictions on both development andagricultural operations within the Saratoga Lake watershed." In its supporting affidavit, the Townof Saratoga attempts to define the threatened injury with more specificity, citing loss of theability to manage and direct development within its watershed, loss of opportunities for lakerecreation, damage to that Town's economy, limitations and loss of agriculture and continuedsuburbanization of the Town, loss of wetlands and a reduction in land values. The Town ofStillwater submitted an affidavit making general reference to the fact that the project will "havedirect effect on land use." These generalized claims of harm have failed to identify any "specific,direct environmental harm" to the Towns' personal or property rights, either personally or in arepresentative capacity, that differs from that of the public at large and, thus, the Towns lackstanding to challenge respondent's determination (Matter of Boyle v Town of Woodstock,257 AD2d 702, 704 [1999]; see Matter of Dyer v Planning Bd. of Town of Schaghticoke,251 AD2d at 909; Matter of Otsego 2000 v Planning Bd. of Town of Otsego, 171 AD2dat 260; Matter of City of Plattsburgh v Mannix, 77 AD2d at 117).
Turning to the merits, we conclude that respondent's SEQRA assessment and ultimatedetermination regarding the environmental impact of the Project should have been upheld. Therelevant inquiry is whether respondent's determination " 'was made in violation of lawfulprocedure, was affected by an error of law or was arbitrary and capricious or an abuse ofdiscretion' " (Matter of Jackson v New York State Urban Dev. Corp., 67 NY2d 400, 416[1986], quoting CPLR 7803 [3]; see Matter of Cathedral Church of St. John the Divine vDormitory Auth. of State of N.Y., 224 AD2d 95, 100 [1996], lv denied 89 NY2d 802[1996]). In evaluating an agency's SEQRA assessment, a court is charged with making sure that"the agency identified the relevant areas of environmental concern[ ] . . . and took a'hard look' at them" (Matter of Jackson v New York State Urban Dev. Corp., 67 NY2d at417; see Matter of Defreestville AreaNeighborhood Assn., Inc. v Planning Bd. of Town of N. Greenbush, 16 AD3d 715, 721[2005]; Matter of Save the Pine Bush v Planning Bd. of City of Albany, 298 AD2d 806,807 [2002]). "[T]he merits of the action and its ultimate impact on the petitioning party or othersare not in question" (Matter of Har Enters. v Town of Brookhaven, 74 NY2d 524, 529[1989]). Furthermore, an agency's obligation under SEQRA "must be viewed in light of a rule ofreason," realizing that "[n]ot every conceivable environmental impact, mitigating measure oralternative [*5]must be identified and addressed" before thesubstantive dictates of SEQRA are satisfied (Matter of Jackson v New York State Urban Dev.Corp., 67 NY2d at 417; see Matter of Save the Pine Bush v Planning Bd. of City ofAlbany, 298 AD2d at 807; Aldrich v Pattison, 107 AD2d 258, 266 [1985]).
Supreme Court annulled respondent's determination on the ground that respondent failed togive appropriate consideration to the Project's potential impact on "activities, land use, anddevelopment within the lake's watershed," specifically finding fault with respondent's failure toconsider the impacts of watershed protection measures that could be necessary to protect thelake's water quality. Upon our review of the record, we conclude that respondent amply compliedwith SEQRA by giving due consideration to the need for protections in the watershed area andsetting forth a plan for implementing such protections.
Based on data from as far back as 1972, and an extensive water sampling program,respondent concluded that the quality of Saratoga Lake water has progressively improved sincethe early 1970s. As such, respondent determined that current recreational uses of the lake or onthe lake, and current activities and uses within the watershed, are not detrimental to potential useof Saratoga Lake as a source of public water and, thus, the implementation of mandatoryrestrictions is not necessary. Instead, citing—among other things—reports onprotecting the watershed completed for SLPID in 2001 and 2002, respondent proposed a detailedwatershed protection plan pursuant to which it committed to working cooperatively withwatershed communities, businesses and individuals to encourage the voluntary implementationof appropriate watershed protection strategies. This watershed management plan is set out indetail in the FEIS. This approach to protecting the watershed was tacitly approved by theDepartment of Health (hereinafter DOH)—the agency with exclusive authority to establishcompulsory watershed rules and regulations. In a letter dated July 7, 2003 in response torespondent's DEIS, DOH wrote that: "[T]he primary alternative presented in the DEIS, of usingSaratoga Lake as an additional water supply source[,] . . . is a viable solution to[respondent's] long term and emergency source needs [and] if the [Project] is pursued[respondent] must be prepared to commit to ensuring that a long-term watershed protectionprogram, possibly including watershed rules and regulations or an equivalent program, such asthe proposed [SLPID] draft watershed protection plan, is implemented." Respondent reasonablyinterpreted the letter, both in its FEIS and in its findings statement, to mean that its proposedwatershed protection program met the criteria identified by DOH.
In considering the need for watershed controls that might be associated with the Project,respondent included in its FEIS 68 pages of responses to comments on the topic that werereceived in response to its DEIS, addressing 55 separate comments, at least 26 of which werefrom petitioners. Further, although Supreme Court took issue with the sufficiency of respondent'sdata on environmentally regulated facilities within the watershed, we note that appendix H of theDEIS includes over 2,000 pages of data related to these facilities, including maps identifyingeach facility's location.
Accordingly, on this record, we conclude that respondent took the requisite hard look at theimpact of the Project on the watershed area, including finding that the proposed voluntary [*6]watershed protection plan was sound. Petitioners' contrary view thatmandatory watershed regulations are necessary does not alter the fact that respondent compliedfully with SEQRA. Indeed, "[n]ot every conceivable environmental impact, mitigating measureor alternative must be identified and addressed" before the substantive dictates of SEQRA aresatisfied (Matter of Jackson v New York State Urban Dev. Corp., 67 NY2d at 417;see Matter of Save the Pine Bush v Planning Bd. of City of Albany, 298 AD2d at 807;Aldrich v Pattison, 107 AD2d at 266), and "[n]othing in the law requires an agency toreach a particular result on any issue, or permits the courts to second-guess the agency's choice"(Matter of Jackson v New York State Urban Dev. Corp., 67 NY2d at 417; see Matter of North Country Citizens forResponsible Growth, Inc. v Town of Potsdam Planning Bd., 39 AD3d 1098, 1102[2007]; Matter of Ellsworth v Town ofMalta, 16 AD3d 948, 950 [2005]; Matter of Defreestville Area Neighborhood Assn.,Inc. v Planning Bd. of Town of N. Greenbush, 16 AD3d at 721).
We also disagree with Supreme Court's conclusion that respondent's FEIS was deficient inthat it lacked an analysis of current land development projects, as well as those under activeconsideration or projected, and how such projects might impact respondent's Project or pose athreat to degrade the water in Saratoga Lake. Pursuant to SEQRA and its implementingregulations, " 'the lead agency must consider reasonably related long-term, short-term andcumulative effects, including other simultaneous or subsequent actions which are: (1) included inany long-range plan of which the action under consideration is a part; (2) likely to be undertakenas a result thereof; or (3) dependent thereon' " (Matter of Long Is. Pine Barrens Socy. vPlanning Bd. of Town of Brookhaven, 80 NY2d 500, 512-513 [1992], quoting 6 NYCRRformer 617.11 [b]; see ECL 8-0109; 6 NYCRR 617.7 [c] [2]; Matter of Sabad vHoule, 283 AD2d 851, 852 [2001]). Absent one of these circumstances, consideration of thecumulative effects of other projects is permissible but not mandatory (see Matter of Long Is.Pine Barrens Socy. v Planning Bd. of Town of Brookhaven, 80 NY2d at 513; Matter ofSave the Pine Bush v City of Albany, 70 NY2d 193, 205-206 [1987]). Here, no allegationhas been made that respondent's Project is part of a larger, long-range plan for development orthat any of the other projects in the Saratoga Lake watershed are "likely to be undertaken as aresult [of]" or are "dependent [on]" the Project (6 NYCRR 617.7 [c] [2] [ii], [iii]). As such, weagree with respondent that Supreme Court erred in annulling its SEQRA determination based onthe lack of a cumulative impact analysis with regard to other unrelated projects in the SaratogaLake watershed.
Petitioners have not appealed from any portion of Supreme Court's judgment and, in theirbriefs to this Court, have not objected to Supreme Court's conclusions that, contrary to theallegations in the petition, respondent in fact took the requisite "hard look" at the potential impactof the Project on Saratoga Lake's water levels, archeological resources, availability of methodsfor aquatic weed control and whether the Project will have growth inducing impacts. Our reviewof the record confirms Supreme Court's determination that respondent's review of these issues isin full compliance with SEQRA's demands and that the conclusions reached by respondent withrespect to these issues were not arbitrary or capricious (see Matter of Jackson v New YorkState Urban Dev. Corp., 67 NY2d at 416).
Supreme Court expressly declined to rule on petitioners' remaining assertion in itspetition/complaint that the FEIS is deficient because respondent failed to properly assessalternatives to the Project, specifically its alleged failure to give adequate consideration to aproposal currently under consideration by Saratoga County to develop a county-wide watersupply and distribution system utilizing the upper Hudson River as a raw water source. Given theextensive record before us, that no hearings were required and the parties relied on [*7]documentary submissions, and in the interest of judicial economy,we now reach the issue (see Matter of Verna HH., 302 AD2d 714, 715 [2003], lvdismissed 100 NY2d 535 [2003]).
There can be no dispute that respondent considered the county alternative; the countyproposal is addressed in its own section of the FEIS, the impacts of a city-wide alternativeutilizing the upper Hudson River as a water source is independently considered in a separatesection and, in addition to the original and updated county-wide plans, the record includes over150 pages of correspondence and memoranda reflecting the exchange of information andnegotiations between the County and the City with regard to the City's involvement, if any, in thecounty-wide proposal. The petition's essential objection to respondent's treatment of the countyproposal alleges that respondent purposefully inflated the cost of the county proposal to supportits conclusion that the county alternative was not as cost effective as the Project. We areunpersuaded that this record contains sufficient evidence to conclude that respondentinaccurately calculated the costs involved or that its discretionary decision that the Projectpresents a better option than the county proposal for the residents of the City of Saratoga Springsis otherwise arbitrary.
Pursuant to the county proposal, the City would purchase a minimum supply of water at afixed rate for 10 years. Comparing the cost of supplying the City's water needs through theProject (estimated at $1.34 per 1,000 gallons) as opposed to purchasing the water at the initial,fixed rate from the County ($1.95 per 1,000 gallons), respondent concluded that the Project was aless expensive alternative. Further, citing the need for future capital investments to support thecounty-wide proposal and concerns about the County's proposed funding structure and the impactof PCB contamination in the upper Hudson River, respondent rationally concluded that waterrates could increase significantly after 10 years. Although the petition asserts that it was error forrespondent to base its cost analysis on the cost of supplying 100% of the water needs by theCounty, rather than the cost of purchasing water on an as-needed basis, because the Projectwould have the capacity to supply the City with 100% of its water supply—should theneed arise—we conclude that the comparison and cost analysis employed by respondentare not irrational.
Finally, the petition suggests that the FEIS fails to adequately address the "no action"alternative, inasmuch as well over 10 years have passed since the DEC report whichrecommended finding an alternate water supply—on the basis that Loughberry Lake wouldbegin to exhibit problems with algae bloom within 10 years—was issued, and LoughberryLake remains a viable water source. DEC's report, however, identifies a variety of problems withthe continued use of Loughberry Lake as the City's principal water supply which present arational basis for respondent's conclusion that some action is necessary. Significantly, DEC foundthat even at the City's usage levels in 1986, "it is quite clear that the system presently is stressedbeyond its reliable capacity during dry periods of the year." Further, DEC expressed concernsthat increased urbanization of the area could create an emergency situation—such as atoxic spill or an unacceptable increase in pollutants in the watershed, both scenarios described as"distinct possibilities"—which could create the need for an immediate, alternate watersupply source. Given this information, and assuming a reasonable amount of growth in the area,we cannot conclude that respondent's conclusion to reject the "no action" alternative wasarbitrary or capricious.
Mercure, J.P., Crew III, Peters and Rose, JJ., concur. Ordered that the appeal from the orderis dismissed, without costs. Ordered that the judgment is modified, on the law, without costs, byreversing so much thereof as partially granted the petition; petition dismissed in its entirety; and,as so modified, affirmed. [See 11 Misc 3d 780 (2006).]
Footnote 1: As an appeal as of right does notlie from a nonfinal order in a CPLR article 78 proceeding (see CPLR 5701 [b]),respondents' appeal from the February 2006 order must be dismissed (see Matter of Hebel v West, 25 AD3d172, 175 n 1 [2005]). However, respondents' appeal from the final judgment brings up forreview this order (see id.).
Footnote 2: Respondents' original motion todismiss was also premised on the ground that SLPID did not have the legal capacity to sue.Inasmuch as respondents have not addressed on appeal the issue that found that SLPID had thecapacity to bring suit, it is deemed abandoned (see Carney v Carozza, 16 AD3d 867, 868 n [2005]; Jones vGeneral Motors Corp., 287 AD2d 757, 759 n 1 [2001]).