| Matter of East Moriches Prop. Owners' Assn., Inc. v Planning Bd. ofTown of Brookhaven |
| 2009 NY Slip Op 07632 [66 AD3d 895] |
| October 20, 2009 |
| Appellate Division, Second Department |
| In the Matter of East Moriches Property Owners' Association, Inc.,et al., Appellants, v Planning Board of Town of Brookhaven et al.,Respondents. |
—[*1] Lewis Brisbois Bisgaard & Smith LLP, New York, N.Y. (Peter J. Biging and Jennifer H.Feldscher of counsel), for respondents Planning Board of Town of Brookhaven and Town ofBrookhaven. Certilman Balin Adler & Hyman, LLP, Hauppauge, N.Y. (John M. Wagner and Kevin P.Walsh of counsel), for respondents Heritage Square Builders at East Moriches, LLC, andMcLean-Katter, LLC.
In a hybrid proceeding pursuant to CPLR article 78 to review two determinations of thePlanning Board of the Town of Brookhaven, both dated August 20, 2007, which, inter alia,granted the application of McLean-Katter, LLC, for site plan approval and issued a negativedeclaration pursuant to the State Environmental Quality Review Act (ECL art 8), and action for ajudgment declaring that the site plan approval and issuance of a negative declaration are illegal,the petitioners-plaintiffs appeal, as limited by their brief, from so much of a judgment of theSupreme Court, Suffolk County (Weber, J.), dated April 3, 2008, as denied those branches of thepetition which were to annul so much of the determinations as granted the application ofMcLean-Katter, LLC, for site plan approval and issued a negative declaration pursuant to theState Environmental Quality Review Act.
Ordered that the judgment is modified, on the law, by adding a provision thereto dismissing,as unnecessary, the causes of action for a judgment declaring that the site plan approval andissuance of the negative declaration are illegal; as so modified, the judgment is affirmed insofaras appealed from, with one bill of costs payable to the respondents.
In this hybrid proceeding and action, the petitioners-plaintiffs (hereinafter the petitioners)challenge a determination of the Planning Board of the Town of Brookhaven (hereinafter thePlanning Board) approving a site plan application for a development project sponsored byHeritage Square Builders at East Moriches, LLC, and McClean-Katter, LLC. The petitionersfurther challenge a separate determination of the Planning Board, made in connection with thatapproval, that the project would not have a significant adverse impact on the environment, thatthe issuance of a negative declaration pursuant to the State Environmental Quality Review Act(ECL art 8; hereinafter SEQRA) was, therefore, warranted, and [*2]that no environmental impact statement need be prepared andcirculated with respect to the project.
Contrary to the petitioners' contention, the Planning Board "identified the relevant area[s] ofenvironmental concern," took a "hard look" at them, and made a "reasoned elaboration" of thebasis for its determination (Matter of Merson v McNally, 90 NY2d 742, 751 [1997];see Matter of Chemical Specialties Mfrs. Assn. v Jorling, 85 NY2d 382, 397 [1995]). Asrelevant to the environmental concerns raised by the petitioners, namely, aesthetic impacts andimpacts on community character, the Planning Board staff conducted a field investigation of theproposed project site, heard oral presentations from the public as to community character and thearea's aesthetic resources, evaluated the site for potential resources of historical, cultural, andarcheological significance—finding that none were present on or near the site—andreviewed the Town's open space study and comprehensive land use plan, among various otherland use and environmental plans, to assess the project's potential ecological and land useimpacts. The Planning Board's subsequent determination that the proposed project—whichincluded significant landscaping, open space, and an 11-acre nature preserve—would notadversely impact the community's character or aesthetic resources is supported by the record andshould not be disturbed (see Matter ofTown of Babylon v New York State Dept. of Transp., 47 AD3d 721, 722 [2008]; Matter of Gyrodyne Co. of Am., Inc. vState Univ. of N.Y. at Stony Brook, 17 AD3d 675 [2005]).
Moreover, contrary to the petitioners' contention, the annulment of the SEQRA negativedeclaration and the Planning Board's approval of the subject site plan was not warranted on theground that the Planning Board failed to consider the proposed project's compatibility with aland use plan known as the County Road 51 corridor land use plan. That land use planacknowledged the proposed project and expressly declined to make any recommendations as tothe subject property. Thus, the land use plan had no significance with respect to the proposedproject.
While the petitioners are correct that a town planning board is not authorized to interpret theprovisions of the local zoning law (see Matter of Gershowitz v Planning Bd. of Town ofBrookhaven, 52 NY2d 763, 765 [1980]; Matter of Jamil v Village of Scarsdale Planning Bd., 24 AD3d 552,554 [2005]), nothing in the Planning Board's resolution approving the site plan purports toevaluate the proposed use of the property in light of the zoning code or to otherwise interpret theprovisions of the zoning code. The petitioners' suggestion that the Planning Board necessarilymade an implicit interpretation of the zoning code merely by approving the site plan is bothunsound as a general proposition and unsupported by the record.
Since the issues of law in dispute here are limited to whether the challenged determinationswere made in violation of lawful procedure, affected by an error of law, arbitrary and capricious,an abuse of discretion, or irrational, they are subject to review only pursuant to CPLR Article 78(see CPLR 7803 [3]; Town Law § 274-a [3]; Matter of Young v Board ofTrustees of Vil. of Blasdell, 89 NY2d 846, 848 [1996]; Matter of Save the Pine Bush vCity of Albany, 70 NY2d 193, 203 [1987]; Matter of Jones v Amicone, 27 AD3d 465, 469 [2006]; Matterof Haggerty v Planning Bd. of Town of Sand Lake, 166 AD2d 791, 792 [1990], affd79 NY2d 784 [1991]), thus rendering unnecessary the causes of action for a judgment declaringthat the site plan approval and issuance of a negative declaration are illegal (see Matter of 1300 Franklin Ave.Members, LLC v Board of Trustees of Inc. Vil. of Garden City, 62 AD3d 1004, 1007[2009]; Matter of Kogel v Zoning Bd.of Appeals of Town of Huntington, 58 AD3d 630 [2009], lv denied 13 NY3d701 [2009]).
In light of our determination, we need not reach the respondents' remaining contentions.Dillon, J.P., Dickerson, Lott and Austin, JJ., concur.