| Matter of Mombaccus Excavating, Inc. v Town of Rochester, N.Y. |
| 2011 NY Slip Op 07778 [89 AD3d 1209] |
| November 3, 2011 |
| Appellate Division, Third Department |
| In the Matter of Mombaccus Excavating, Inc., Appellant, v Town ofRochester, New York, et al., Respondents. |
—[*1] Mary Lou Christiana, Kingston, for respondents.
Mercure, J.P. Appeal from a judgment of the Supreme Court (Melkonian, J.), entered August 25,2010 in Ulster County, which dismissed petitioner's application, in a combined proceeding pursuant toCPLR article 78 and action for declaratory judgment, to review a determination of respondent TownBoard of the Town of Rochester enacting Local Law No. 4 (2009) of the Town of Rochester.
Petitioner, which operates sand and gravel mines on property it owns in the Town of Rochester,Ulster County, commenced this combined CPLR article 78 proceeding and action for declaratoryjudgment seeking to annul Local Law No. 4 (2009) of the Town of Rochester. Enacted by respondentTown Board of the Town of Rochester in 2009, Local Law No. 4 amended respondent Town ofRochester's existing zoning law by, as relevant here, eliminating provisions that permitted unlimitedgravel mining throughout the Town and restricting full-scale mining—i.e., mining subject to thejurisdiction of the Department of Environmental Conservation under the Mined Land Reclamation Law(see ECL 23-2703 et seq.)—to natural resource zones. Local Law No. 4 alsodivided petitioner's 269-acre parcel between two zoning districts, only one of which permits unlimitedgravel mining. Supreme Court dismissed the petition and complaint, and issued a declaration in favor ofrespondents. Petitioner appeals and we now affirm.[*2]
Petitioner first argues that respondents violated the substantiverequirements of the State Environmental Quality Review Act (see ECL art 8 [hereinafterSEQRA]).[FN*] In that regard, our review is limited to whether the lead agency—here, the TownBoard—" 'identified the relevant areas of environmental concern, took a hard look at them, andmade a reasoned elaboration of the basis for its determination' " (Matter of Shop-Rite Supermarkets, Inc. v Planning Bd. of the Town ofWawarsing, 82 AD3d 1384, 1385 [2011], lv denied 17 NY3d 705 [2011], quotingMatter of Riverkeeper, Inc. v Planning Bd. ofTown of Southeast, 9 NY3d 219, 231-232 [2007]; see Matter of Troy Sand & Gravel Co., Inc. v Town of Nassau, 82 AD3d1377, 1378 [2011]). In our view, the Town Board fulfilled its obligations under SEQRA inenacting Local Law No. 4, and its determination was not arbitrary, capricious or unsupported by theevidence (see Matter of Riverkeeper, Inc. v Planning Bd. of Town of Southeast, 9 NY3d at232).
The record establishes that, following an unsuccessful attempt to revise the zoning code in 2007,the Town Board established the Comprehensive Plan, Zoning Code and Map Task Force in 2008,which was charged with reviewing the existing zoning regulations and maps, and then reporting to theTown Board. After holding numerous meetings that were open to public observation, the task forcesubmitted its report, along with proposed zoning amendments. The Town Board held several publicworkshop meetings on the proposed amendments, as well as five public hearings at which it receivedwritten and oral comments from interested parties. As part of its review process, the Town Boardreferred the matter to the Ulster County Planning Board—which provided writtenrecommendations—as well as to other municipal entities. The Town Board also consideredpetitioner's written comments, examined maps and studies, and reviewed the Town's comprehensiveplan.
In addition, the Town Board retained a planning consultant, who submitted recommendations andprepared a long environmental assessment form that the Town Board reviewed, adopted and posted onthe Town's Web site. The environmental assessment form fully set forth the relevant environmentalconcerns, including the housing, mining and groundwater resource issues raised by petitioner here, aswell as the effect of the proposed amendments on those areas of concern. Ultimately, the Town Boardissued a lengthy negative declaration of environmental significance that detailed its analysis with respectto each area of concern. Under these circumstances, we conclude that the Town Board fully compliedwith the requirements of SEQRA (see 6 NYCRR 617.3 [c] [1]; 617.7 [a], [b], [c]; Matterof Shop-Rite Supermarkets, Inc. v Planning Bd. of Town of Wawarsing, 82 AD3d at 1386; Matter of Granger Group v Town ofTaghkanic, 77 AD3d 1137, 1142 [2010], lv denied 16 NY3d 781 [2011]; Matter of Anderson v Lenz, 27 AD3d942, 944-945 [2006], lv denied 7 NY3d 702 [2006]). Moreover, we note thatdesignation as a type I action does not, per se, necessitate the filing of an environmental impact [*3]statement (see Matter of Troy Sand & Gravel Co. v Town ofNassau, 82 AD3d at 1378; Matter of Shop-Rite Supermarkets, Inc. v Planning Bd. of Townof Wawarsing, 82 AD3d at 1386), nor was one required here.
Petitioner's remaining contentions require little further discussion. First, we note that section 140-28(c) of Local Law No. 4, which regulates only mining operations that are exempt from Department ofEnvironmental Conservation permit requirements, does not violate the Mined Land Reclamation Law(see ECL 23-2703 [2] [c]) nor is it superceded by that statute (see ECL 23-2703 [2][b]; Matter of Gernatt Asphalt Prods. v Town of Sardinia, 87 NY2d 668, 680-683 [1996]).Next, we find that the division of petitioner's property is consistent with both the geographiccharacteristics of the land and petitioner's actual use thereof, and is not inconsistent with the Town'scomprehensive plan (see Town Law § 272-a [11] [a]; Matter of Gernatt AsphaltProds. v Town of Sardinia, 87 NY2d at 684-686). And finally, we conclude that the record doesnot support petitioner's claims that the Town Board improperly delegated its role as lead agency to thetask force, the planning consultant or the attorney retained by the Town Board (see Matter ofCoca-Cola Bottling Co. of N.Y. v Board of Estimate of City of N.Y., 72 NY2d 674, 682 [1988];Matter of Shop-Rite Supermarkets, Inc. v Planning Bd. of Town of Wawarsing, 82 AD3d at1386; Matter of Granger Group v Town of Taghkanic, 77 AD3d at 1142), or that the TownBoard targeted petitioner's property in bad faith.
Spain, Malone Jr., Kavanagh and McCarthy, JJ., concur. Ordered that the judgment is affirmed,without costs.
Footnote *: We agree with petitioner thatSupreme Court erred in determining that it lacked standing to assert certain of its objections underSEQRA. It is well settled that "where the challenge is to the SEQRA review undertaken as part of azoning enactment, the owner of property that is the subject of rezoning . . . has a legallycognizable interest in being assured that the town satisfied SEQRA before taking action to rezone itsland" (Matter of Gernatt Asphalt Prods. v Town of Sardinia, 87 NY2d 668, 687 [1996][internal quotation marks and citations omitted]).