| Matter of Save Open Space v Planning Bd. of the Town ofNewburgh |
| 2010 NY Slip Op 05776 [74 AD3d 1350] |
| June 29, 2010 |
| Appellate Division, Second Department |
| In the Matter of Save Open Space et al.,Appellants, v Planning Board of the Town of Newburgh et al.,Respondents. |
—[*1] Dickover, Donnelly, Donovan & Biagi, LLP, Goshen, N.Y. (Michael H. Donnelly ofcounsel), for respondent Planning Board of the Town of Newburgh. Jacobowitz & Gubits, LLP, Walden, N.Y. (Larry Wolinsky and Tobias A. Lake of counsel),for respondents Wilder Balter Partners, Inc., and WB Interchange Associates, LLC.
In two related proceedings pursuant to CPLR article 78 (1) to review two determinations ofthe Planning Board of the Town of Newburgh dated May 3, 2007, adopting an environmentalfindings statement, and October 4, 2007, granting preliminary site plan approval, respectively,the petitioners appeal from an order and judgment (one paper) of the Supreme Court,Westchester County (Nicolai, J.), entered December 10, 2008, which denied the second amendedpetition and dismissed the proceeding, and (2) to review a determination of the Planning Boardof the Town of Newburgh dated May 29, 2008, granting preliminary and final subdivisionapproval, the petitioners appeal from an order and judgment (one paper) of the same court datedFebruary 17, 2009, which denied the petition and dismissed the proceeding.
Ordered that the orders and judgments are affirmed, with one bill of costs to the respondentsappearing separately and filing separate briefs.
The respondent developer sought to construct an approximately 850,000 square footshopping center at the intersection of Interstate 84 and Route 300 in the Town of Newburgh. InJuly 2004 the developer submitted an application for site plan review to the respondent PlanningBoard of the Town of Newburgh (hereinafter the Planning Board). The Planning Board declareditself lead agency on the project and issued a positive declaration under the State EnvironmentalQuality Review Act (ECL art 8; hereinafter SEQRA). A public scoping session was held, andwritten comments from the public were received prior to acceptance of the final scope inFebruary 2005. A draft environmental impact statement (hereinafter draft EIS) was accepted onMay 4, 2006. Two public hearings on the draft EIS were held and the public comment periodwas kept open until July 31, 2006. A final EIS was accepted on March [*2]15, 2007. On April 4, 2007 the developer submitted an applicationto the Planning Board for subdivision approval to enable it to create four parcels out of the site,each to be under separate ownership, but the application was rejected as incomplete. On May 3,2007 the Planning Board adopted an environmental findings statement (hereinafter EFS). OnAugust 27, 2007 the subdivision application was resubmitted and accepted. On October 4, 2007the Planning Board granted preliminary site plan approval to the project.
On March 6, 2008 the Planning Board adopted an amended EFS, finding that the requestedsubdivision had no potential to cause a significant adverse environmental impact, and asupplemental EIS was not warranted. A public hearing was held on the subdivision application.On May 29, 2008 the Planning Board granted preliminary and final subdivision approval subjectto certain conditions, including execution of a simplified town-owner pact agreement and areciprocal easement agreement. On June 19, 2008 the Board adopted a second amended EFS toincorporate certain changes recommended or required by other agencies, and granted finalconditional site plan approval for the project.
In the first proceeding, the petitioners challenge the Planning Board's adoption of the EFSand its grant of preliminary site plan approval. The Supreme Court denied the second amendedpetition and dismissed the proceeding. In the second proceeding, the petitioners challenge thePlanning Board's grant of preliminary and final subdivision approval. The Supreme Court deniedthat petition and dismissed the proceeding. We affirm both orders and judgments.
" '[J]udicial review of a SEQRA determination is limited to determining whether thechallenged determination was affected by an error of law or was arbitrary and capricious, anabuse of discretion, or was the product of a violation of lawful procedure' " (Matter ofCounty of Orange v Village of Kiryas Joel, 44 AD3d 765, 767 [2007], quoting Matter ofVillage of Tarrytown v Planning Bd. of Vil. of Sleepy Hollow, 292 AD2d 617, 619 [2002]).
Contrary to the petitioners' contention, the Planning Board considered a reasonable range offeasible alternatives (see Matter of Town of Dryden v Tompkins County Bd. ofRepresentatives, 78 NY2d 331 [1991]; Akpan v Koch, 75 NY2d 561, 570 [1990];Matter of County of Orange v Village of Kiryas Joel, 44 AD3d at 769; ECL 8-0109 [2][d]; [4]; 6 NYCRR 617.9 [b] [5] [v]). The Planning Board analyzed the impacts associated withthose alternatives in comparison with the initial proposal, and incorporated aspects of thealternatives in mitigation of the impacts associated with the initial proposal (see Matter ofCounty of Orange v Village of Kiryas Joel, 44 AD3d at 769). The Planning Board was notrequired to consider the petitioners' proposed alternatives. Consideration of a smaller scalealternative is permissive, not mandatory, and alternatives are to be considered in light of thedeveloper's objectives (see 6 NYCRR 617.9 [b] [5] [v]).
Further, the Planning Board did not improperly defer consideration of environmental impactsor deny the public a meaningful opportunity to participate in the process. Numerous publichearings were held during the environmental review. The Planning Board's determination thatcertain outstanding issues regarding necessary approvals from other agencies did not require thereopening of public hearings or the preparation of a supplemental EIS was not arbitrary andcapricious (see Matter of Riverkeeper, Inc. v Planning Bd. of Town of Southeast, 9NY3d 219, 231 [2007]; 6 NYCRR 617.9 [a] [7] [i]).
The Planning Board's separate approval of the subdivision application did not constituteimproper segmentation of environmental review (see Matter of East End Prop. Co. #1, LLC vKessel, 46 AD3d 817, 823 [2007]; Matter of Maidman v Incorporated Vil. of SandsPoint, 291 AD2d 499, 501 [2002]; 6 NYCRR 617.2 [ag]; cf. Matter of Defreestville AreaNeighborhoods Assn. v Town Bd. of Town of N. Greenbush, 299 AD2d 631 [2002]).Subdivision will not result in physical changes to the project and the simplified town-owner pactagreement and reciprocal easement agreement, required as conditions of preliminary site planapproval, will ensure that the responsibility to ensure enforcement of the conditions of approvalwill be held by a single entity. Accordingly, subsequent consideration of the subdivisionapplication did not distort the environmental review process (see Matter of East End Prop.Co. #1, LLC v Kessel, 46 AD3d at 823). For the same reasons, the Planning Board'sdetermination that the proposed [*3]subdivision did not warrantpreparation of a supplemental EIS was not arbitrary and capricious (see Matter ofRiverkeeper, Inc. v Planning Bd. of Town of Southeast, 9 NY3d at 231; 6 NYCRR 617.9 [a][7] [i]). Dillon, J.P., Balkin, Lott and Sgroi, JJ., concur.