| Matter of Muir v Town of Newburgh, N.Y. |
| 2008 NY Slip Op 02597 [49 AD3d 744] |
| March 18, 2008 |
| Appellate Division, Second Department |
| In the Matter of Wilbur Muir, Appellant, v Town ofNewburgh, N.Y., et al., Respondents. |
—[*1] Dickover, Donnelly, Donovan & Biagi, LLP, Goshen, N.Y. (Michael H. Donnelly ofcounsel), for respondent Town of Newburgh, New York. Segel, Goldman, Mazzotta & Siegel, P.C., Albany, N.Y. (Polly J. Feigenbaum of counsel),for respondent Northeast Realty Holdings, LLC.
In a proceeding pursuant to CPLR article 78 to review two determinations of the Town ofNewburgh Planning Board, named herein as Town of Newburgh, New York, one dated March30, 2006, rendering a favorable report on a "sketch plan" for a hotel and commercialdevelopment project submitted by the respondent Northeast Realty Holdings, LLC, and one datedJuly 6, 2006, finding that the project was in conformance with several findings statementsadopted pursuant to the State Environmental Quality Review Act (ECL art 8) during earlierstages of development of the subject site and that preparation of a supplemental environmentalimpact statement was not warranted, the petitioner appeals from a judgment of the SupremeCourt, Westchester County (Loehr, J.), entered December 23, 2006, which denied the petitionand dismissed the proceeding.
Ordered that the judgment is affirmed, with one bill of costs.
In 1986 a developer applied for the necessary permits to develop anoffice/warehouse/distribution center (hereinafter the center) on a 141-acre parcel of land in theTown of Newburgh. Later that year, the Town of Newburgh Planning Board, sued herein asTown of Newburgh, New York (hereinafter the Planning Board), as lead agency under the State[*2]Environmental Quality Review Act (ECL art 8 [hereinafterSEQRA]), issued a positive declaration regarding this application and required the preparation ofa draft and final environmental impact statement. In 1987, the developer submitted a finalenvironmental impact statement (hereinafter FEIS) to the Planning Board, and the PlanningBoard accepted the FEIS and adopted a SEQRA findings statement. As the proposed center wasdeveloped over the years, changes were made to the development plan, and the SEQRA findingsstatement was amended in 1992, 1994, and 1999 to reflect these changes.
In December 2005 the respondent Northeast Realty Holdings, LLC (hereinafter NortheastRealty), acquired 11.72 acres of the 141-acre parcel, and applied to the Planning Board forsubdivision/site plan approval to subdivide those 11.72 acres, and to construct a hotel andrestaurant on one resulting parcel and a commercial warehouse on the other. On March 30, 2006the Planning Board rendered a favorable report on Northeast Realty's "sketch plan" pursuant tosection 185-57 (B) of the Town of Newburgh Code. The "sketch plan" was then reviewed by thePlanning Board's respective planning, traffic, landscaping, and drainage consultants, each ofwhom made detailed recommendations that were incorporated into the "sketch plan." The trafficconsultant, after reviewing a 2006 traffic study that had been conducted for a nearby project,determined that after the hotel/restaurant and commercial warehouse were constructed, the totalamount of traffic would still be less than the original amount anticipated in the 1987 FEIS. Thedrainage consultant reviewed Northeast Realty's drainage plans and found that they compliedwith the earlier SEQRA findings statements and with current New York State Department ofEnvironmental Conservation regulations, and that no environmental issues were raised stemmingfrom changes to the original drainage design. On July 6, 2006 the Planning Board determinedthat the current proposal was within the scope of the previous SEQRA findings statements andthat there were no new significant adverse environmental impact which had not been previouslyaddressed. The Planning Board thus determined that the preparation of a supplementalenvironmental impact statement (hereinafter SEIS) was not warranted.
Contrary to the respondents' contention, the petitioner, who alleges that he residesapproximately 1,000 feet from the project site and would suffer visual, noise, traffic, and waterimpacts different from the public at large, had standing to commence this proceeding pursuant toCPLR article 78 to review the determinations dated March 30, 2006 and July 6, 2006,respectively (see Matter of Barrett vDutchess County Legislature, 38 AD3d 651, 653 [2007]; Matter of McGrath v TownBd. of Town of N. Greenbush, 254 AD2d 614, 616 [1998]; Matter of Parisella v Town ofFishkill, 209 AD2d 850, 851-852 [1994]).
Nevertheless, the Supreme Court properly denied the petition and dismissed the proceedingon the merits.
Contrary to the petitioner's contention, the Planning Board's SEQRA review was notrendered invalid by virtue of the fact that it occurred after the March 30, 2006 determinationrendering a favorable report on Northeast Realty's "sketch plan," since this determination wasneither practically determinative of the matter nor a significant authorization (see Matter ofKing v Saratoga County Bd. of Supervisors, 89 NY2d 341, 349 [1996]; Matter ofTri-County Taxpayers Assn. v Town Bd. of Town of Queensbury, 55 NY2d 41, 46-47[1982]; Matter of East End Prop. Co. #1,LLC v Kessel, 46 AD3d 817 [2007]). The Town of Newburgh zoning regulationsprovide that a favorable report "shall in no way imply immediate or eventual approval status" andthat it "is merely intended to convey to the applicant the relative assurance that the developmentas conveyed is basically [*3]conforming to the Master Plan of theTown of Newburgh and its implementing land use regulations" (Town of Newburgh Code§ 185-57 [B] [2]).
Further, the Planning Board's July 6, 2006 determination that the project was in conformancewith the earlier SEQRA findings statements, that there were no new adverse significantenvironmental impacts that had not been previously addressed, and that the preparation of anSEIS was not warranted, was not arbitrary or capricious and is supported by the evidence(see 6 NYCRR 617.9 [a] [7] [i]; Matter of Riverkeeper, Inc. v Planning Bd. of Town of Southeast, 9NY3d 219, 233-234 [2007]; Matter of Jackson v New York State Urban Dev. Corp.,67 NY2d 400, 425 [1986]). In making its determination, the Planning Board identified "therelevant areas of environmental concern," took a "hard look" at them (Matter of ChemicalSpecialties Mfrs. Assn. v Jorling, 85 NY2d 382, 397 [1995]), and made a "reasonedelaboration" of the basis for its determination (Matter of Merson v McNally, 90 NY2d742, 751-752 [1997]).
In light of our determination, we need not address the petitioner's remaining contention.Miller, J.P., Covello, Eng and Chambers, JJ., concur.