| Matter of Troy Sand & Gravel Co., Inc. v Town of Nassau |
| 2011 NY Slip Op 01760 [82 AD3d 1377] |
| March 10, 2011 |
| Appellate Division, Third Department |
| In the Matter of Troy Sand & Gravel Company, Inc., et al.,Respondents, v Town of Nassau et al., Appellants. |
—[*1] Tuczinski, Cavalier, Gilchrist & Collura, P.C., Albany (Andrew W. Gilchrist of counsel), forrespondents.
Mercure, J.P. Appeal from a judgment of the Supreme Court (Lynch, J.), entered February26, 2010 in Rensselaer County, which partially granted petitioners' application, in a combinedproceeding pursuant to CPLR article 78 and action for declaratory judgment, to, among otherthings, invalidate the comprehensive plan and zoning law of respondent Town of Nassau.
In 2004, petitioner Troy Sand & Gravel Company, Inc. submitted applications to respondentTown of Nassau for a special use permit and site plan approval in connection with a quarry that itproposed to open on land owned by petitioner Henkel Realty Associates, LLC in RensselaerCounty. After passing successive moratoria on new mining applications, respondent Town Boardof the Town of Nassau passed an extensive 2008 zoning law that, among other things,permanently banned commercial excavation. The Town Board also adopted a comprehensiveplan pursuant to Town Law § 272-a, setting forth the Town's long-term land use goals andpolicies.
Petitioners commenced this combined proceeding pursuant to CPLR article 78 and action fordeclaratory judgment asserting numerous claims based upon respondents' alleged bad faith inseeking to prevent the operation of the proposed quarry. As detailed in our prior decision in thismatter, the article 78 claims were submitted for judgment, and discovery commenced on theremaining claims (80 AD3d 199 [2010]). Supreme Court ruled in petitioners' favor on their [*2]seventh, eighth and fifteenth causes of action, and annulled thecomprehensive plan and Local Law No. 1 (2008) of Town of Nassau. The court determined thatthe Town Board violated Town Law § 272-a when adopting the comprehensive plan andfailed to follow the requirements of the State Environmental Quality Review Act (seeECL art 8 [hereinafter SEQRA]) when approving both the comprehensive plan and the zoninglaw. Respondents appeal, and we now affirm.
Initially, we reject respondents' argument that Supreme Court erred in determining that theyfailed to comply with SEQRA in adopting the comprehensive plan and enacting the zoning law.Pursuant to SEQRA, an environmental impact statement (hereinafter EIS) "must be preparedregarding any action that 'may have a significant effect on the environment' " (Matter ofJackson v New York State Urban Dev. Corp., 67 NY2d 400, 415 [1986], quoting ECL8-0109 [2]). A type I action, such as the adoption of zoning regulations or a comprehensive landuse plan, "carries with it the presumption that it is likely to have a significant adverse impact onthe environment" (6 NYCRR 617.4 [a] [1]; see Matter of Land Master Montg I, LLC v Town of Montgomery, 54AD3d 408, 411 [2008], lv dismissed 11 NY3d 864 [2008]). Nevertheless, a leadagency may issue a negative declaration obviating the EIS requirement even for type I actions ifthe agency "determine[s] either that there will be no adverse environmental impacts or that theidentified adverse environmental impacts will not be significant" (6 NYCRR 617.7 [a] [2];see Matter of New York City Coalition to End Lead Poisoning v Vallone, 100 NY2d 337,347 [2003]). Our review of an agency's determination to issue a negative declaration is limited"to 'whether the agency identified the relevant areas of environmental concern, took a "hard look"at them, and made a "reasoned elaboration" of the basis for its determination' " (Matter ofNew York City Coalition to End Lead Poisoning v Vallone, 100 NY2d at 348, quotingMatter of Jackson v New York State Urban Dev. Corp., 67 NY2d at 417). If the agencyhas failed to take the required hard look or set forth a reasoned elaboration for its determination,its action will be annulled as arbitrary and capricious (see e.g. Matter of Merson vMcNally, 90 NY2d 742, 752 [1997]).
Here, respondents concede that the record does not contain a "formal" reasoned elaboration.A review of the record indicates that the only express reasoning set forth for the negativedeclaration is found in the full environmental assessment form; respondents checked a boxindicating that "[t]he project will not result in any large and important impact(s) and, therefore, isone which will not have a significant impact on the environment, [and] a negative declarationwill be prepared" (emphasis omitted). While respondents argue that Supreme Court elevatedform over substance in annulling the comprehensive plan and zoning law for lack of a reasonedelaboration regarding the negative declaration determination, it is settled that strict compliancewith SEQRA is required (see Matter of New York City Coalition to End Lead Poisoning vVallone, 100 NY2d at 348). The comprehensive plan and zoning law very well may, asrespondents assert, represent the considered, thorough product of a long and deliberativelegislative process. A record evincing an extensive legislative process, however, is neither asubstitute for strict compliance with SEQRA's reasoned elaboration requirement nor sufficient toprevent annulment (see id. at 349-350). Accordingly, given the absence of a reasonedelaboration for the negative declaration, we conclude that Supreme Court properly annulled boththe comprehensive plan and zoning law (see Matter of Shannon v Village of Rouses Point Zoning Bd. ofAppeals, 72 AD3d 1175, 1177 [2010]; Matter of Bauer v County of Tompkins, 57 AD3d 1151, 1152-1153[2008]; State of New York v Town ofHoricon, 46 AD3d 1287, 1290 [2007]; see also Matter of Land Master Montg I, LLCv Town of Montgomery, 54 AD3d at 411).[*3]
Finally, we agree with Supreme Court that respondents'failure to abide by the requirements of Town Law § 272-a further requires nullification ofthe comprehensive plan. Respondents do not dispute that the proposed comprehensive plan wasnot made available to the public for 10 days prior to a public hearing on the plan before the"special board" appointed to prepare it; nor do they dispute that the special board failed to dulyadopt a resolution recommending the proposed plan to the Town Board (see Town Law§ 272-a [4], [6] [c]). Rather, they argue that the provisions of Town Law § 272-aregarding the activity of a special board are merely advisory. Inasmuch as this argument conflictswith the plain language of the statute setting forth mandatory procedures to be followed in theevent that a special board is appointed, Supreme Court properly rejected respondents' contentionsin this regard.
Rose, Lahtinen, Malone Jr. and Stein, JJ., concur. Ordered that the judgment is affirmed,with costs.