| Matter of Association for the Protection of the Adirondacks, Inc. vTown Bd. of Town of Tupper Lake |
| 2009 NY Slip Op 05659 [64 AD3d 825] |
| July 2, 2009 |
| Appellate Division, Third Department |
| In the Matter of Association for the Protection of the Adirondacks,Inc., et al., Appellants, v Town Board of Town of Tupper Lake et al.,Respondents. |
—[*1] Johnson & Noth, P.L.L.C., Tupper Lake (David W. Johnson of counsel), for Town Board ofthe Town of Tupper Lake and another, respondents. Whiteman, Osterman & Hanna, L.L.P., Albany (John J. Henry of counsel), for Big Tupper,L.L.C., and others, respondents. Andrew M. Cuomo, Attorney General, Albany (Susan L. Taylor of counsel), for New YorkState Department of Environmental Conservation, amicus curiae.
Rose, J. Appeal from a judgment of the Supreme Court (Demarest, J.), entered November 2,2007 in Franklin County, which dismissed petitioners' application, in a combined proceedingpursuant to CPLR article 78 and action for declaratory judgment, to, among other things, reviewa determination of respondent Town Board of the Town of Tupper Lake enacting Local Law No.2 (2006) of the Town of Tupper Lake.
Respondents Preserve Associates, LLC, Big Tupper, LLC and Tupper Lake Boat Club, LLCare potential developers of a project consisting of over 6,000 acres of land in the Town of TupperLake, Franklin County, which they are purchasing from respondent Nancy Hull Godshall, astrustee of respondent Oval Wood Dish Liquidating Trust (hereinafter collectively referred to asthe developers). The project, known as the Adirondack Club and Resort, is one of the largest[*2]ever proposed for New York State's six-million acreAdirondack Park. Petitioners are 36 individuals and one limited liability company, all of whomown property adjoining or in close proximity to the land to be used for the project, as well as theAssociation for the Protection of the Adirondacks, Inc. and the Residents' Committee to Protectthe Adirondacks, Inc., not-for-profit corporations whose purposes include protection of theAdirondack Park's environment.
In April 2005, the developers submitted an application for review and approval of theirproject to the Adirondack Park Agency (hereinafter the APA), the governmental entity primarilyresponsible for land use and development within the Adirondack Park (see ExecutiveLaw art 27). The APA classified the project as a class A regional project, subject to its moststringent review (see Executive Law §§ 809, 810), but deemed theapplication incomplete until, among other things, the land to be used for the project was rezonedas a planned development district (hereinafter PDD). In response, the developers requested therequired rezoning from respondent Town Board of the Town of Tupper Lake (hereinafterBoard). In considering that request, the Board deemed the rezoning to be one step in the overallproject or "action" as that term is defined in the regulations promulgated by the Department ofEnvironmental Conservation (hereinafter DEC) (see 6 NYCRR 617.2 [b] [1], [3]) underthe State Environmental Quality Review Act (see ECL art 8 [hereinafter SEQRA]).Noting that the action was a class A project subject to the APA's jurisdiction, and relying uponthe applicable SEQRA regulations, the Board determined that the rezoning was a type II actionand no SEQRA review was required on its part (see 6 NYCRR 617.5 [a], [c] [36]; 6NYCRR 617.6 [a] [1] [i]). The Board then enacted Local Law No. 2 (2006) of Town of TupperLake, which rezoned the project's land as a PDD, making the geographical area rezonedcorrespond exactly with the geographical area of the project.
Petitioners then commenced this CPLR article 78 proceeding challenging the Board'slegislative action on the grounds that, among other things, the Board failed to conduct fullSEQRA review of the project before rezoning the land to be used for that purpose.[FN1]The Board, respondent Town of Tupper Lake and the developers moved for dismissal of theproceeding, and petitioners cross-moved for summary judgment on the petition. Supreme Courtconcluded that the Board properly had found the action to be exempt from SEQRA review andhad complied with the procedural requirements of the Town's Land Use Code before granting therezoning. Accordingly, the court denied petitioners' cross motion and dismissed the petition.Petitioners now appeal, and we affirm.
In light of the APA's comprehensive jurisdiction of the project proposed here (seeExecutive Law § 809), the fact that the area rezoned is coextensive with the project andthe statutory exemption of such projects from the requirements of ECL 8-0109 (2) (seeECL 8-0111 [5] [c]), Supreme Court properly determined that the Board had not been required todo an environmental review of the project before enacting the rezoning.[FN2]The APA is charged with the [*3]duty to ensure that certainprojects within its jurisdiction "would not have an undue adverse impact upon the natural,scenic, aesthetic, ecological, wildlife, historic, recreational or open space resources of the park"(Executive Law § 809 [9], [10] [e]). This environmental mandate predated SEQRA(see L 1973, ch 348; L 1975, ch 612, § 1) and, as reflected in the APA'sregulations (see 9 NYCRR parts 570-588), it is more protective of the environment(compare ECL 8-0109 [1]). Accordingly, to avoid unnecessary duplication of review, theLegislature excluded actions subject to the APA's review from the requirements of SEQRA(see ECL 8-0111 [5] [c]).
Since "[t]he entire set of activities or steps must be considered the action" (6 NYCRR 617.3[g]), and the zoning enacted here was solely for and coextensive with the proposed project, theBoard correctly viewed it as only one step in a single action which is subject to the APA's review(see Matter of Defreestville Area Neighborhoods Assn. v Town Bd. of Town of N.Greenbush, 299 AD2d 631, 633-634 [2002]; Matter of Schodack Concerned Citizens vTown Bd. of Town of Schodack, 148 AD2d 130, 133-134 [1989], lv denied 75NY2d 701 [1989]; Matter of Kirk-Astor Dr. Neighborhood Assn. v Town Bd. of Town ofPittsford, 106 AD2d 868, 869 [1984], appeal dismissed 66 NY2d 896 [1985]). Evenif the rezoning were deemed a separate action, as DEC urges in its amicus curiae brief, theBoard's action still would be exempt under 6 NYCRR 617.5 (c) (27), which covers legislativeenactments in connection with any other action that is exempt under another paragraph of 617.5(c), here 617.5 (c) (36). Inasmuch as the project was exempt from SEQRA review under ECL8-0111 (5) (c) and the rezoning for the project was exempt under either paragraph (27) or (36) of6 NYCRR 617.5 (c), there is a rational basis for the Board's treatment of the rezoning as asubsidiary, type II action for which no SEQRA review was required even though such rezoningwould otherwise be classified as a type I action (see 6 NYCRR 617.4 [b] [2], [3];Matter of Defreestville Area Neighborhoods Assn. v Town Bd. of Town of N.Greenbush, 299 AD2d at 632-633).
Although petitioners contend that the Board was required to conduct an environmentalreview of the project in coordination with the APA because there might be impacts of therezoning that the APA would not review, we are unpersuaded. Given the APA's determinationnot to consider the developers' application until the rezoning occurred, as well as the uncertaintyas to what the APA ultimately might approve, the only practical way for the Board to proceedwas to condition the rezoning on a finding by the APA that the project would not have anadverse impact on the environment and provide for reversion to the former zoning if the APAdid not issue a permit for the project. This is what the Board did here and its approach effectivelyprecludes a different or unapproved project from taking advantage of the rezoning. Inasmuch asthe APA's second rejection of the developers' application made clear that the rezoning was aprerequisite to further review and that some aspects of the project might be reduced in size orextent of use, the Board could not have known what environmental review might be neededbefore the project is finally approved by the APA.
Significantly, although the APA suggested coordination of its and the Board's environmentalreviews, there is nothing in the record indicating that the APA would conduct any review of itsown or agree to a limited review by the Board prior to the rezoning. Rather, the APA'ssegmentation of the project, as amplified by DEC's argument in its amicus curiae brief that therezoning is an entirely separate action, effectively placed the entire burden of [*4]environmental review of the project upon the Board. As a result,there was no requirement or incentive for the APA to participate at the rezoning stage and noassurance that the proposed uses reviewed by the Board would bear any resemblance to thoselater approved by the APA. Moreover, given that all of the uses listed in the local law whichcreated the PDD (see Local Law No. 1 [2006] of Town of Tupper Lake) are included inthe list of uses subject to the APA's approval (see Executive Law § 805), it wouldseem impossible for any proposed PDD project to escape APA review. Nor does any party to thisproceeding identify a specific, potential environmental impact of the rezoning on the Town thatwas overlooked by the Board and would not be encompassed in the APA's own review. Thus,even if it had been possible, coordination of the Board's review with the APA was not shown tobe needed to assure full environmental review.
Since the rezoning enacted by the Board would not permit another project or landowner tomake a use permitted in the PDD without environmental review by the APA, Supreme Courtcorrectly concluded that SEQRA review by the Town was not needed to preclude such apossibility, and a judicial mandate of such review under these circumstances would beburdensome and duplicative with no foreseeable benefit.
Petitioners' remaining contentions have been examined and found to be lacking in merit.
Spain and Kavanagh, JJ., concur.
Peters, J. (concurring). In light of the unique and circumscribed facts of this case, we agreewith the majority's ultimate conclusion. Initially, we agree that there was a rational basis for thefinding of respondent Town Board of the Town of Tupper Lake (hereinafter Board) that therezoning of the subject property in conjunction with the specific project proposed by thedevelopers is a single "action" for purposes of the State Environmental Quality Review Act(see ECL art 8 [hereinafter SEQRA]; Matter of Defreestville Area NeighborhoodsAssn. v Town Bd. of Town of N. Greenbush, 299 AD2d 631, 633-634 [2002]; Matter ofKirk-Astor Dr. Neighborhood Assn. v Town Bd. of Town of Pittsford, 106 AD2d 868, 869[1984], appeal dismissed 66 NY2d 896 [1985]). We cannot agree, however, with themajority's conclusion that an "action" subject to the project review of the Adirondack ParkAgency (hereinafter APA) is wholly excluded from the requirements of SEQRA. While"[a]ctions subject to the class A or class B regional project jurisdiction of the [APA]" are notsubject to SEQRA's procedural requirements, namely, that an environmental impact statement beprepared for any action that may have a significant adverse effect on the environment (ECL8-0111 [5] [c]; see ECL 8-0109 [2]), in our view, state and local agencies are notrelieved from the substantive requirements contained within ECL 8-0109 (1) (see Matter ofDudley Rd. Assn. v Adirondack Park Agency, 214 AD2d 274, 280 [1995], lv dismissedand denied 87 NY2d 952 [1996]; see generally Weinberg, Practice Commentaries,McKinney's Cons Laws of NY, Book 17½, ECL 8-0111, at 351, 354). That is, in thecontext of the rezoning here, respondent Town of Tupper Lake remained bound by "SEQRA['s]. . . substantive requirements . . . to 'act and choose alternatives which,consistent with social, economic and other essential considerations, to the maximum extentpracticable, minimize or avoid adverse environmental effects' " (Akpan v Koch, 75NY2d 561, 570 [1990], quoting ECL 8-0109 [1]; see Matter of Jackson v New York StateUrban Dev. Corp., 67 NY2d 400, 416 [1986]; Matter of Shawangunk Mountain Envtl.Assn. v Planning Bd. of Town of Gardiner, 157 [*5]AD2d273, 276 [1990]).
Nonetheless, given the circumscribed facts presented here—where the rezoning (1) iscoextensive with the proposed project subject to APA review, (2) is conditioned on the ultimateapproval by the APA that the project would not have an adverse effect on the environment, and(3) provides for a reversion to the former zoning if, among other things, the APA does not issuea permit for the project within 48 months—we believe that SEQRA's substantiverequirements were satisfied. The enactment of SEQRA represents a legislative attempt "to ensurethat state and local agencies consider the environmental impact of their proposed actions [and]. . . forces agencies to 'strike a balance between social and economic goals andconcerns about the environment' " (Matter of Spitzer v Farrell, 100 NY2d 186, 190[2003], quoting Matter of Jackson v New York State Urban Dev. Corp., 67 NY2d at 414;see ECL 8-0109 [1]). The APA, on the other hand, is not charged with such a balancingof goals and concerns but, rather, is required to ensure that certain projects within its jurisdiction"would not have an undue adverse impact upon the natural, scenic, aesthetic, ecological,wildlife, historic, recreational or open space resources of the park" (Executive Law § 809[9], [10] [e]). Clearly, by placing environmental concerns above all others, the APA's mandate ismore protective of the environment than that embodied within SEQRA.
Here, the Town did more than address the environmental impacts along with otherconsiderations; it elevated environmental concerns over and above all others by providing thatthe rezoning would stand if, and only if, the project was found to pass the more stringentenvironmental review performed by the APA. Moreover, the rezoning was an identical footprintof the project itself and there is no possibility that a different project or landowner could takeadvantage of the rezoning in the event that this particular project falls through. Under theseunique circumstances, we agree that Supreme Court's judgment should be affirmed because thesubstantive requirements of SEQRA have been satisfied.
Kane, J., concurs. Ordered that the judgment is affirmed, without costs. [See 17 Misc3d 1122(A), 2007 NY Slip Op 52119(U).]
Footnote 1: Although styled as a combinedproceeding pursuant to CPLR article 78 and declaratory judgment action, the relief requested bypetitioners is solely in the nature of CPLR article 78.
Footnote 2: Given the coextensive nature ofthe rezoning and the project here, there is no need to consider, as the concurrence does, whetherthe statute's exemption relieves state and local agencies from all or only the proceduralrequirements of SEQRA.