| Matter of Shop-Rite Supermarkets, Inc. v Planning Bd. of the Town ofWawarsing |
| 2011 NY Slip Op 01764 [82 AD3d 1384] |
| March 10, 2011 |
| Appellate Division, Third Department |
| In the Matter of Shop-Rite Supermarkets, Inc., et al., Appellants, etal., Petitioner, v Planning Board of the Town of Wawarsing et al., Respondents. (AndAnother Related Proceeding.) |
—[*1] Harter, Secrest & Emery, L.L.P., Buffalo (Marc A. Romanowski of counsel), forrespondents.
Peters, J. Appeals from an order and judgment of the Supreme Court (Connolly, J.), enteredMarch 16, 2010 and March 25, 2010 in Ulster County, which, among other things, dismissedpetitioners' applications, in two combined proceedings pursuant to CPLR article 78 and actionsfor declaratory judgment, to review two determinations of respondent Planning Board of theTown of Wawarsing adopting a negative declaration of environmental significance andapproving the site plan, subdivision and special use permit applications of respondent Wal-MartReal Estate Business Trust.
In 2006, respondent Wal-Mart Real Estate Business Trust (hereinafter Wal-Mart) enteredinto negotiations with respondents Joseph Tso and Cecilia Tso Warner to purchase a110,000-square-foot strip mall located along State Route 209 in the Town of Wawarsing, UlsterCounty for the purpose of constructing, among other things, a 132,000-square-foot superstore. InOctober 2008, Wal-Mart submitted site plan, subdivision and special use permit applications,along with an environmental assessment form (hereinafter EAF), to respondent Planning Board[*2]of the Town of Wawarsing (hereinafter Planning Board).After classifying the proposed development as a type I action under the State EnvironmentalQuality Review Act (see ECL art 8 [hereinafter SEQRA]) and declaring itself leadagency, the Planning Board identified areas of environmental concern and sought input frominterested government agencies. Following several public meetings and the submission ofvarious studies, in March 2009 the Planning Board issued a negative declaration ofenvironmental significance. Two months later the Planning Board approved Wal-Mart'sapplications.
Petitioners commenced two combined proceedings pursuant to CPLR article 78 and actionsfor declaratory judgment—later joined by Supreme Court—challenging the negativedeclaration of environmental significance and the resolutions approving the applications.Supreme Court dismissed the petitions and these appeals by petitioners Shop-Rite Supermarketsand Wawarsing-Ellenville for Responsible Development (hereinafter collectively referred to aspetitioners) ensued.
Initially, petitioners contend that the Planning Board failed to take the requisite "hard look"at the potential adverse impacts of the Wal-Mart project. Specifically, they argue that thePlanning Board did not seriously consider the environmental concerns raised by, among others,the Ulster County Planning Board. Petitioners further contend that, upon designating theWal-Mart project a type I action, the Planning Board should have required an environmentalimpact statement.
"Judicial review of an agency determination under SEQRA is limited to whether the agencyidentified the relevant areas of environmental concern, took a hard look at them, and made areasoned elaboration of the basis for its determination" (Matter of Riverkeeper, Inc. v Planning Bd. of Town of Southeast, 9NY3d 219, 231-232 [2007] [internal quotation marks and citation omitted]; see Matter of Granger Group v Town ofTaghkanic, 77 AD3d 1137, 1141 [2010], lv denied 16 NY3d 781 [2011]). "It isnot the province of the courts to second-guess thoughtful agency decision making and,accordingly, an agency decision should be annulled only if it is arbitrary, capricious orunsupported by the evidence" (Matter of Riverkeeper, Inc. v Planning Bd. of Town ofSoutheast, 9 NY3d at 232; see Matter of Granger Group v Town of Taghkanic, 77AD3d at 1141-1142; Matter ofResidents for Responsible Govt. v Grannis, 75 AD3d 963, 966 [2010], lv denied16 NY3d 701 [2011]).
Notably, "[t]he lead agency . . . has the responsibility to comb through reports,analyses and other documents before making a determination; it is not for [the] reviewing courtto duplicate these efforts" (Matter of Riverkeeper, Inc. v Planning Bd. of Town ofSoutheast, 9 NY3d at 232). Here, the Planning Board retained the services of a professionalengineering firm and, with its assistance, reviewed the EAF, various technical reports,photographs, simulations, input received from other interested agencies, correspondence, therecommendations of the Ulster County Planning Board, and public comments received at threepublic hearings on the project. As specifically pertains to the impact on traffic, an area ofparticular concern to petitioners, the Planning Board reviewed, among other things, a trafficimpact analysis, which concluded that Wal-Mart's proposed mitigation efforts would offset theprojected increase in traffic. As to the project's impact on the overall growth and character of thecommunity, the Planning Board considered, among other things, that the site was alreadydeveloped as commercial space, had been used for retail businesses for decades, and wascurrently in use for that purpose. In our view, the record establishes that the Planning Board tooka hard look at the identified areas of environmental concern and gave a reasoned elaboration ofthe basis for its [*3]negative declaration (see 6 NYCRR617.3 [c] [1]; Matter of Granger Group v Town of Taghkanic, 77 AD3d at 1142).Furthermore, the Planning Board's designation of the project as a type I action did not, per se,necessitate the filing of an environmental impact statement (see e.g. Matter of Granger Groupv Town of Taghkanic, 77 AD3d at 1142-1143; Matter of Mirabile v City of Saratoga Springs, 67 AD3d 1178,1181 [2009]). Accordingly, we find that the Planning Board satisfied its obligations underSEQRA.
Petitioners next contend that the Planning Board erred in reviewing Wal-Mart's site plan,subdivision and special use permit applications under the Town's former zoning code, which wasin effect when the applications were filed. Rather, petitioners contend, the Planning Board shouldhave applied the new zoning code (see Local Law No. 1 [2009] of Town of Wawarsing),which was enacted in January 2009, four months before the Planning Board approved theapplications.[FN*]Respondents assert that the applications fall within the new code's savings clause, which providesthat "complete applications pending at the time of [the new law's] enactment" should be reviewedunder the former code (Local Law No. 1 [2009] of Town of Wawarsing § 112-9).According to petitioners, the savings clause does not apply because Wal-Mart's applications werenot "complete" until, at the earliest, March 24, 2009, when the Planning Board made its negativedeclaration of environmental significance. Respondents dispute this interpretation of the savingsclause, arguing instead that, because all of the submission requirements of the former code hadbeen met prior to the enactment of the new code, the Planning Board rationally consideredWal-Mart's applications to be "complete" within the meaning of the savings clause.
"We accord great deference to a planning board's interpretation of a zoning ordinance" (Matter of North Country Citizens forResponsible Growth, Inc. v Town of Potsdam Planning Bd., 39 AD3d 1098, 1100[2007]; see Appelbaum v Deutsch, 66 NY2d 975, 977-978 [1985]; Matter of Committee to Protect Overlook,Inc. v Town of Woodstock Zoning Bd. of Appeals, 24 AD3d 1103, 1104 [2005], lvdenied 6 NY3d 714 [2006]), and will uphold its reasonable construction of a term that is nototherwise defined in the zoning code (see Appelbaum v Deutsch, 66 NY2d at 977-978).Here, petitioners rely on definitions of a "complete" application as found in the Town Law(see Town Law § 276 [5] [c]), SEQRA (see ECL 8-0109 [5]), and theUlster County Land Use Referral Guide to support their claim that the Planning Board could notrationally have interpreted the savings clause to include Wal-Mart's applications. However, thePlanning Board was not required to import a definition from other statutes or sources havingpurposes different from the savings clause at issue here (see Appelbaum v Deutsch, 66NY2d at 978). Rather, given both its own experience and the clear purpose of the savings clauseto preserve the status quo for certain applications made under the former code, it was reasonablefor the Planning Board to consider applications such as Wal-Mart's—where the formercode's submission requirements were met and several public hearings had been held prior to thenew code's enactment—to be "complete" (see id.). Accordingly, the PlanningBoard's decision to [*4]review the applications under the formercode was not irrational and the approvals granted thereon will not be annulled (see Matter ofNorth Country Citizens for Responsible Growth, Inc. v Town of Potsdam Planning Bd., 39AD3d at 1100).
The foregoing renders petitioners' standing argument academic. Petitioners' remainingcontentions, to the extent not explicitly addressed herein, have been considered and found to beunpersuasive.
Lahtinen, McCarthy and Garry, JJ., concur; Cardona, P.J., not taking part. Ordered that theorder and judgment are affirmed, without costs.
Footnote *: Petitioners commenced aseparate proceeding challenging the Town Board's enactment of the new zoning code (Matterof Shop-Rite Supermarkets v Town Bd. of the Town of Wawarsing, Sup Ct, Ulster County,Mar. 16, 2010, Connolly, J., index No. 09-2386). Petitioners' appeal from the order and judgmentin that case is decided herewith.