| Matter of Center of Deposit, Inc. v Village of Deposit |
| 2011 NY Slip Op 09566 [90 AD3d 1450] |
| December 29, 2011 |
| Appellate Division, Third Department |
| In the Matter of Center of Deposit, Inc., Appellant, v Village ofDeposit et al., Respondents, et al., Respondents. |
—[*1] Coughlin & Gerhart, L.L.P., Binghamton (Keith A. O'Hara of counsel), for Village ofDeposit and another, respondents.
Stein, J. Appeal from a judgment of the Supreme Court (Peckham, J.), entered August 4,2010 in Delaware County, which dismissed petitioner's application, in a proceeding pursuant toCPLR article 78, to, among other things, review a determination of respondent Village of DepositPlanning Board requiring petitioner to submit a draft environmental impact statement.
Petitioner is the owner of a parcel of real property located in the Village of Deposit, Broomeand Delaware Counties. Two vacant buildings are situated on the property. After repeatedunsuccessful attempts to sell the property, petitioner applied to respondent Village of DepositPlanning Board (hereinafter the Board) to subdivide the property into two lots, with each lotcontaining one of the two buildings. The application included a short environmental assessmentform (hereinafter EAF). The Board designated itself as the lead agency, deemed petitioner'sproposal to be unlisted for purposes of the State Environmental Quality Review Act (seeECL art 8 [hereinafter SEQRA]; 6 NYCRR part 617) and required petitioner to complete a fullEAF. Thereafter, the Board issued a positive declaration of environmental significance andrequired petitioner to submit a draft environmental impact statement (hereinafter DEIS) as part ofits subdivision application.[*2]
Petitioner commenced this proceeding pursuant to CPLRarticle 78 seeking to overturn the positive declaration of environmental significance and approveits subdivision application. Supreme Court dismissed the petition on the basis that it was not ripefor review and, in any event, that the Board's determination was not arbitrary and capricious.Petitioner now appeals.
Initially, we find that the dispute is ripe for review. A determination is final, and thereforeripe for review, when it "impose[s] an obligation, den[ies] a right or fix[es] some legalrelationship as a consummation of the administrative process[,]. . . [which] inflicts an actual, concrete injury . . . [that] may not beprevented or significantly ameliorated by further administrative action or by steps available to thecomplaining party" (Matter of Gordon v Rush, 100 NY2d 236, 242 [2003] [internalquotation marks and citations omitted]; see Matter of Essex County v Zagata, 91 NY2d447, 453 [1998]; Matter of Guido vTown of Ulster Town Bd., 74 AD3d 1536, 1536 [2010]). "This rule is 'easier stated thanapplied' " (Matter of Catskill RegionalOff-Track Betting Corp. v New York State Racing & Wagering Bd., 56 AD3d 1027,1028 [2008], quoting Matter of Essex County v Zagata, 91 NY2d at 453). Nevertheless,"the Court of Appeals has declined to adopt any bright-line rules designating particular actions asfinal, preferring instead to apply the foregoing test on a case-by-case basis in order to avoidinappropriate results in particular circumstances. Thus, in applying the test, we attempt tobalance the goals of preventing piecemeal review of each determination made in the context ofthe SEQRA process . . . against the possibility of real harm to the complainingparty" (Matter of Guido v Town of Ulster Town Bd., 74 AD3d at 1537 [internalquotation marks and citations omitted]).
Although the initial issuance of a positive declaration of environmental significancerequiring the completion of a DEIS is typically not considered to be a final determination (seeMatter of Sour Mtn. Realty v New York State Dept. of Envtl. Conservation, 260 AD2d 920,921-922 [1999], lv denied 93 NY2d 815 [1999]; cf. Matter of Gordon v Rush,100 NY2d at 242-243), we have held that, even where the "ultimate resolution of a matter is stillpending, a determination within the context of that matter may be 'final' if the governmentalentity acts beyond its statutory authority and causes injury" (Matter of Demers v New York State Dept. of Envtl. Conservation, 3AD3d 744, 746 [2004]). Thus, we may review the matter where, as here, a question of factexists as to whether, due to the particular nature of petitioner's subdivision application, it is aproper subject for a DEIS in the first instance.
Petitioner's application did not include any development plans; it merely requestedpermission to subdivide one parcel of land into two parcels, allegedly in order to facilitate theultimate sale of the property to one or more unidentified parties who may, themselves, wish todevelop it. Upon review of petitioner's long form EAF, the Board determined that there werepotentially significant environmental impacts to water quality, air quality and public health giventhe probable presence of friable asbestos in at least one of the buildings and the density of theexisting neighborhood in the event of the property's potential, but unspecified, futuredevelopment. This prompted the Board to, among other things, issue a positive declaration ofenvironmental significance and require petitioner to complete a DEIS addressing potential issuesbased upon multiple possible future uses of the property, presumably because the actual intendeduse was undetermined. Even if petitioner's request to subdivide the land is ultimately granted,petitioner would have already expended considerable time and money to prepare the DEIS,which it would have no available avenue to recoup. Under these particular circumstances, wefind that a question exists as to whether—due to the nature of petitioner's subdivisionapplication—it is a proper subject for a DEIS in the first instance and, further, whether the[*3]obligation to prepare a DEIS imposes an actual injury onpetitioner that cannot be ameliorated by further administrative action (see Matter of Gordon vRush, 100 NY2d at 242).
Turning to the merits, we note that, in reviewing the Board's decision to require a DEIS, wemust evaluate whether the Board identified the relevant areas of environmental concern, took a"hard look" and "reasonably exercised its discretion so as to make a reasoned elaboration as tothe effect of a proposed action on a particular environmental concern" (Akpan v Koch, 75NY2d 561, 571 [1990]; see Matter of WEOK Broadcasting Corp. v Planning Bd. of Town ofLloyd, 79 NY2d 373, 382 [1992]; Matter of Shop-Rite Supermarkets, Inc. v Planning Bd. of the Town ofWawarsing, 82 AD3d 1384, 1385 [2011], lv denied 17 NY3d 705 [2011]). Ourreview is limited to considering "whether [the] determination was made in violation of lawfulprocedure, was affected by an error of law or was arbitrary and capricious or an abuse ofdiscretion" (CPLR 7803 [3]; see Matterof Saratoga Lake Protection & Improvement Dist. v Department of Pub. Works of City ofSaratoga Springs, 46 AD3d 979, 983 [2007], lv denied 10 NY3d 706 [2008]).
Here, the Board properly determined that petitioner's proposal was an unlisted action (see generally Matter of City Council of Cityof Watervliet v Town Bd. of Town of Colonie, 3 NY3d 508, 518 n 8 [2004]). As such, aDEIS was required only if the Board rationally determined that petitioner's proposed actionincluded the potential for at least one significant adverse environmental impact (see ECL8-0109 [2]; 6 NYCRR 617.7 [a] [1]; Matter of Rafferty v Town of Colonie, 300 AD2d719, 722 [2002]). On the record before us, we find that the Board failed to provide a reasonedelaboration for its determination to require a DEIS. The only "action" for which petitioner soughtapproval from the Board was the legal division of one parcel of land into two separate parcels ofland. There is absolutely no record evidence that petitioner—or, indeed, any prospectivepurchaser—had any solidified plans to develop either parcel. Nor is there any evidence toestablish, and the Board completely failed to articulate, how the proposed action—thesimple division of the property on a map—could potentially alter drainage flow or patternsor surface water runoff, affect air quality, affect public health and safety, result in the diminutionof open space or affect the character of the existing community by changing the density of landuse. The concerns of the Village respondents regarding petitioner's possible future abandonmentof the property containing the building with asbestos are purely speculative and do not provide arational basis for the Board's determination (see generally Seaview Assn. of Fire Is. vDepartment of Envtl. Conservation of State of N.Y., 123 AD2d 619, 620 [1986]). Nor do wefind persuasive their contention that petitioner's application constitutes improper segmentation.Inasmuch as we find the Board's determination to be arbitrary and capricious, it must be reversed.
Mercure, A.P.J., Malone Jr., McCarthy and Egan Jr., JJ., concur. Ordered that the judgmentis modified, on the law, without costs, by reversing so much thereof as dismissed that part ofpetitioner's application seeking to annul the determination of respondent Village of DepositPlanning Board finding a positive declaration of environmental significance and requiring thatpetitioner submit a draft environmental impact statement; petition granted to said extent andmatter remitted to the Village of Deposit Planning Board for further proceedings not inconsistentwith this Court's decision; and, as so modified, affirmed.