| Matter of Eadie v Town Bd. of Town of N. Greenbush |
| 2008 NY Slip Op 00132 [47 AD3d 1021] |
| January 10, 2008 |
| Appellate Division, Third Department |
| In the Matter of John L. Eadie et al., Appellants, v Town Board ofthe Town of North Greenbush, Appellant, and John Gallogly et al., Respondents, et al.,Respondents. |
—[*1] Joshua A. Sabo, Albany, for Town Board of the Town of North Greenbush, appellant. Pattison, Sampson, Ginsberg & Griffin, P.C., Troy (Michael E. Ginsberg of counsel), forJohn Gallogly and another, respondents. Stockli, Greene & Slevin, L.L.P., Albany (Mary Elizabeth Slevin of counsel), for VanRensselaer Square, L.L.C. and another, respondents. Gleason, Dunn, Walsh & O'Shea, Albany (Richard C. Reilly of counsel), for Linda MandelClemente and another, respondents.
Cardona, P.J. Appeals (1) from a judgment of the Supreme Court (McNamara, J.), enteredOctober 20, 2006 in Albany County, which dismissed petitioners' application, in a proceedingpursuant to CPLR article 78, to vacate, among other things, a site plan approval issued byrespondent [*2]Planning Board of the Town of North Greenbush,and (2) from a judgment of said court, entered March 13, 2007 in Albany County, which awardedcertain respondents counsel fees.
This appeal is the latest in an extensive history of litigation relating to the plannedcommercial development of a 35-acre parcel of land located near the intersection of Routes 4 and43 in the Town of North Greenbush, Rensselaer County (see Matter of Defreestville Area Neighborhoods Assn., Inc. v Tazbir, 23AD3d 70 [2005], lv denied 5 NY3d 711 [2005]; Matter of Eadie v Town Bd. of Town of N. Greenbush, 22 AD3d1025 [2005], affd 7 NY3d 306 [2006]; Matter of Defreestville Area Neighborhood Assn., Inc. v Planning Bd. ofTown of N. Greenbush, 16 AD3d 715 [2005]; Matter of Defreestville AreaNeighborhoods Assn. v Town Bd. of Town of N. Greenbush, 299 AD2d 631 [2002]). Asrelevant herein, after receiving several applications from property owners who sought to rezonetheir properties to allow for commercial development, including respondent Van RensselaerSquare, LLC (hereinafter VRS), which, in conjunction with respondents Thomas Gallogly andJohn Gallogly, sought to build a retail shopping center (hereinafter the VRS project), respondentTown Board of the Town of North Greenbush prepared a final generic environmental impactstatement (hereinafter GEIS) pursuant to the State Environmental Quality Review Act(see ECL art 8 [hereinafter SEQRA]). Despite the objections of some local residents,including certain petitioners herein, the Town Board modified the zoning code to include a newcategory of "planned commercial" land use.
In January 2005, an application for site plan review of the VRS project was submitted, alongwith a full environmental assessment form. Respondent Planning Board of the Town of NorthGreenbush, which had designated itself the lead agency, conducted public hearings in Februaryand November 2005 to receive comments concerning the VRS project. The Planning Boardagreed that any unresolved issues would be addressed during a meeting scheduled for January 9,2006.
Thereafter, during a December 2005 meeting, the Town Board accepted the resignation ofrespondent Linda Mandel Clemente as Town Attorney. At the same meeting, the Town Boardheard motions to appoint her and respondent James Reid to the Planning Board, both of whichpassed with a 3-2 vote. Subsequently, the leadership of the Town Board, which had changed dueto the November 2005 elections, held two unannounced meetings on January 2, 2006 wherein theTown Board attempted to, among other things, cancel the upcoming January 9, 2006 PlanningBoard meeting, vacate the appointments of Clemente and Reid and appoint new members to thePlanning Board. VRS and the Gallogly respondents then, by order to show cause, sought to voidthe actions taken by the Town Board on January 2, 2006, as violative of the Open Meetings Law.Supreme Court (McCarthy, J.), in an order entered January 6, 2006, issued a temporaryrestraining order which, among other things, ruled that the January 9, 2006 meeting "beconducted as originally scheduled and the Town Planning Board remain comprised of themembers thereof prior to the January 2, 2006 meeting."[FN1] Accordingly, the Planning Board met [*3]on January 9, 2006 and,after issuing a negative declaration of significance under SEQRA, approved the VRS project siteplan application by a 5-1 vote.
Petitioners, who are North Greenbush residents and a not-for-profit corporation opposed tothe VRS project, subsequently commenced this CPLR article 78 proceeding seeking to invalidatethe negative declaration as well as the site plan approval of the VRS project. In the meantime,Supreme Court (McNamara, J.) granted a motion by Clemente and Reid for an order compellingthe Town of North Greenbush to provide a defense for them as respondents to the proceeding.The court thereafter dismissed the petition in its entirety in a judgment entered October 20, 2006,and, in a judgment entered March 13, 2007, granted a motion by Clemente and Reid for counselfees. These appeals from those judgments by petitioners and the Town Board ensued.
Upon review of petitioners' various challenges to the Planning Board's actions on January 9,2006 in issuing a negative declaration under SEQRA as well as site plan approval of the VRSproject, we conclude that Supreme Court properly dismissed the petition. Notably, four of the sixcauses of action in the petition allege that the challenged actions of the Planning Board should bevacated because the votes of Clemente and Reid on January 9, 2006 are nullities. Specifically,petitioners maintain that the Planning Board positions filled by the Town Board in December2005 had not been legally vacated and, additionally, the votes of Clemente and Reid should bediscounted due to conflict of interest issues or other alleged improprieties.
Regarding petitioners' contentions that Clemente and Reid were not proper Planning Boardmembers at the time of the January 9, 2006 meeting, we find no basis to invalidate their actionsat that time. Given that the participation of Clemente and Reid was pursuant to a valid order ofSupreme Court (McCarthy, J.), their votes were cast under the "color of authority" of validPlanning Board members (Matter of County of Ontario v Western Finger Lakes Solid WasteMgt. Auth., 167 AD2d 848, 849 [1990], lv denied 77 NY2d 805 [1991]). Notably,"[t]he de facto officer doctrine is founded upon reasons of policy and necessity; it protects theinterests and reasonable expectations of the public, which must rely on the presumptively validacts of public officials" (id. at 849).[FN2]
Next, we conclude that petitioners did not establish that the votes of Clemente and Reidshould be invalidated due to claimed conflicts of interest or related improprieties. As noted bySupreme Court, the fact that both Clemente and Reid previously expressed favorable views withrespect to retail development in the town does not constitute a basis for discounting their votesdue to conflicts of interest (see Matter of Byer v Town of Poestenkill, 232 AD2d 851,853 [1996]). Furthermore, in our view, nothing in the record clearly demonstrates that eitherindividual stood to gain any financial or other proprietary benefit from the Planning Board's[*4]consideration of the VRS project that would mandateannulling their votes (see Matter ofSchupak v Zoning Bd. of Appeals of Town of Marbletown, 31 AD3d 1018, 1020-1021[2006], lv dismissed 8 NY3d 842 [2007]; Matter of Parker v Town of GardinerPlanning Bd., 184 AD2d 937, 938 [1992], lv denied 80 NY2d 761 [1992]).
Turning to petitioners' remaining causes of action challenging the issuance of the negativedeclaration and site plan approval as violative of SEQRA, we disagree with petitioners' assertionthat the Planning Board failed to give adequate consideration to the potential traffic impacts ofthe VRS project and that a supplemental environmental impact statement (hereinafter SEIS) wasnecessary before approval of the site plan application could be granted. In reviewing a leadagency's SEQRA determination, the focus is whether it " 'identified the relevant areas ofenvironmental concern, took a 'hard look' at them, and made a 'reasoned elaboration' of the basisfor its determination' " (Matter of Eadie v Town Bd. of Town of N. Greenbush, 7 NY3dat 318, quoting Matter of Jackson v New York State Urban Dev. Corp., 67 NY2d 400,417 [1986]). Under these guidelines, "municipalities enjoy considerable discretion" where issuesimpacting the environment are resolved (Matter of Danyla v Town Bd. of Town ofFlorida, 259 AD2d 850, 852 [1999]). It became apparent during the open meetings andsubsequent period of public comment that the impact on local traffic was of great concern to thecommunity and, after consulting with local law enforcement and public safety agencies, as wellas the Department of Transportation, several mitigation measures were incorporated in the VRSproject site plan (see Matter ofEllsworth v Town of Malta, 16 AD3d 948, 950 [2005]). After extensive review of thefinal plans with the VRS project engineers and making detailed findings that the VRS project, assubmitted, posed no "significant adverse environmental effects," the Planning Board did notabuse its discretion in rendering the negative declaration and ultimately approving the VRSproject site plan (see Matter of Hoffman v Town Bd. of Town of Queensbury, 255 AD2d752, 753 [1998], lv denied 93 NY2d 803 [1999]).
Additionally, there is no support for petitioners' contention that a SEIS was required."[W]here a GEIS is used, an SEIS must be prepared in connection with a 'subsequent proposedaction' that was 'not addressed or was not adequately addressed' in the GEIS" and the action mayimpact negatively upon the environment (Matter of Eadie v Town Bd. of Town of N.Greenbush, 7 NY3d at 319, quoting 6 NYCRR 617.10 [d] [4]). Inasmuch as the GEISexecuted during the rezoning of the Routes 4 and 43 corridor included a comprehensive trafficimpact study which, as discussed above, fully contemplated the effects that the VRS projectwould have on local traffic, it cannot be said that an SEIS was necessitated in this instance.
Finally, the Town Board challenges the award of counsel fees to Clemente and Reid as beingwithout legal basis or, alternatively, excessive. Initially, we are unpersuaded that counsel feescould not validly be imposed by law. The intent of the Public Officers Law is to shield publicemployees from claims arising out of their public employment or service to the municipality.Although the Town Board claims to have replaced Clemente and Reid as Planning Boardmembers on January 2, 2006 as a result of a resolution that was stayed by Supreme Court(McCarthy, J.), inasmuch as those individuals served on the Planning Board as confirmed in thatcourt order, and suit was brought against them in their "official capacity," they reasonablyexpected that they would be provided with a defense or counsel fees for actions related to thatemployment (see Matter of Hogue v Zoning Bd. of Appeals of Vil. of Canajoharie, 239AD2d 807, 808 [1997]).
As for the propriety of the amount awarded, the Town Board correctly maintains that [*5]Supreme Court did not afford it an adequate opportunity to contestthe amount after a final bill was presented to the court on February 27, 2007. Under thecircumstances, we deem it appropriate to remit the matter to Supreme Court for a hearing todetermine which counsel fees are allowable, providing the Town an opportunity to heard (see Matter of Graziano v County ofAlbany, 25 AD3d 1059, 1061 [2006]).
We have considered the parties' remaining contentions and find them to be unpersuasive.
Peters, Spain, Rose and Kane, JJ., concur. Ordered that the judgment entered October 20,2006 is affirmed, without costs. Ordered that the judgment entered March 13, 2007 is reversed,on the law, without costs, and matter remitted to the Supreme Court for further proceedings notinconsistent with this Court's decision.
Footnote 1: The Town Board unsuccessfullysought to modify the temporary restraining order. While Supreme Court (McNamara, J.) found inan April 2006 order that the Town Board failed to fully comply with the Open Meetings Law onJanuary 2, 2006, it, nevertheless, dismissed the proceeding brought by VRS and the Galloglyrespondents on the basis of mootness or ripeness.
Footnote 2: Given the above result, it isunnecessary to address petitioners' various arguments as to why they believe this Court shouldignore the restraining order in place at the time of the January 9, 2006 meeting and invalidate theparticipation of Clemente and Reid.