| Matter of Cade v Stapf |
| 2012 NY Slip Op 00439 [91 AD3d 1229] |
| Jnury 26, 2012 |
| Appellate Division, Third Department |
| In the Matter of William J. Cade, Appellant, v Robert Stapf, asChairperson of the Planning Board of the Town of New Scotland, et al., Respondents, et al.,Respondent. |
—[*1] Young, Sommer, Ward, Ritzenberg, Baker & Moore, L.L.C., Albany (Jeffrey S. Baker ofcounsel), for Robert Stapf and others, respondents. Stockli Slevin & Peters, L.L.P., Albany (Mary Elizabeth Slevin of counsel), for GarrisonProjects, L.L.C., respondent.
Rose, J. Appeal from that part of a judgment of the Supreme Court (McDonough, J.), enteredMay 20, 2010 in Albany County, which partially dismissed petitioner's application, in aproceeding pursuant to CPLR article 78, to, among other things, review a determination ofrespondent Planning Board of the Town of New Scotland granting the application of respondentGarrison Projects, LLC for cluster subdivision approval.
In 2005, respondent Garrison Projects, LLC applied for approval of a planned unitdevelopment on property located in the Town of New Scotland, Albany County. The TownBoard of the Town of New Scotland identified numerous involved agencies and commenced acoordinated review of the project as lead agency pursuant to the State Environmental QualityReview Act (see ECL art 8 [hereinafter SEQRA]). In 2007, when the project wasmodified so [*2]that it fell within the provisions of the Townordinance for a cluster subdivision, the Town Board transferred lead agency status to respondentPlanning Board of the Town of New Scotland. As successor lead agency, the Planning Boardaccepted the positive declaration and scoping document prepared during the proceedings beforethe Town Board and continued with a full SEQRA review. Ultimately, the Planning Board issuedSEQRA findings and, in December 2009, granted approval of the subdivision applicationconditioned upon, among other things, issuance of a height variance for the project's proposedwater tower by respondent Zoning Board of Appeals of the Town of New Scotland (hereinafterZBA) and approval of the project's open space maintenance plan by the Town Board. Petitioner,an adjacent landowner, commenced this CPLR article 78 proceeding seeking, among otherthings, to annul the Planning Board's conditional approval of the subdivision application.Supreme Court dismissed that portion of the petition, and this appeal ensued.
We turn first to the threshold issue of standing, and petitioner's contention that SupremeCourt erred by narrowly limiting his standing to challenge the Planning Board's determinations.Supreme Court found that petitioner demonstrated an injury-in-fact within the zone of interestsought to be protected by SEQRA so as to have standing to challenge the Planning Board'sSEQRA determination based on the proximity of his property to the project and his view of theproposed water tower located 400 feet from his house (see Society of Plastics Indus. v Countyof Suffolk, 77 NY2d 761, 773-774 [1991]; Matter of Ziemba v City of Troy, 37 AD3d 68, 70-71 [2006], lvdenied 8 NY3d 806 [2007]; Matter of Steele v Town of Salem Planning Bd., 200AD2d 870 [1994], lv denied 83 NY2d 757 [1994]). Despite that finding, however,Supreme Court concluded that petitioner lacked standing to raise the specific issue of whether thePlanning Board adequately considered the impact of the water tower on the more distant viewfrom the Helderberg Escarpment. Supreme Court also concluded that petitioner did not havestanding to claim that the Planning Board's approval of the project was in violation of theapplicable Town ordinance.
As for petitioner's standing to challenge the SEQRA review, we are persuaded by hisargument that Supreme Court's ruling that he has standing—regardless of its specificbasis—gives him a significant interest in having all of the mandates of SEQRA enforced.Petitioner's challenge to the Planning Board's SEQRA determination encompasses the issue ofwhether the Planning Board "identified the relevant areas of environmental concern, took a 'hardlook' at them, and made a 'reasoned elaboration' of the basis for its determination" (Matter ofJackson v New York State Urban Dev. Corp., 67 NY2d 400, 417 [1986]; see Matter of West BeekmantownNeighborhood Assn., Inc. v Zoning Bd. of Appeals of Town of Beekmantown, 53 AD3d954, 956 [2008]). Thus, petitioner's challenge, in our view, properly includes his contentionthat the Planning Board was required to take a hard look at all of the relevant and identifiedconcerns regarding the visual impact of the project, and not just the view from his own home (see Matter of Mombaccus Excavating, Inc.v Town of Rochester, N.Y., 89 AD3d 1209, 1210 n [2011]).
We also agree with petitioner that he has standing to challenge the Planning Board's approvalof the cluster subdivision application. In this regard, there is no dispute that petitioner hassufficiently established an injury based on his close proximity to the subdivision and, in ourview, his injury is within the zone of interest protected by the Town ordinance governing thecluster subdivision approval process (see Matter of Sun-Brite Car Wash v Board of Zoning &Appeals of Town of N. Hempstead, 69 NY2d 406, 413-414 [1987]; Matter of Wittenberg Sportsmen's Club,Inc. v Town of Woodstock Planning Bd., 16 AD3d 991, 992-993 [2005]). Contrary topetitioner's contention, however, the Planning Board complied with the relevant [*3]ordinance by conditioning final approval of the cluster subdivisionon the Town Board's approval of the management and ownership of the resultant open space.Inasmuch as the Town Board's authority to approve the open space maintenance plan was in noway infringed upon, we decline to disturb the Planning Board's conditional approval (seeCode of the Town of New Scotland § 190-61 [F]; Matter of Hickey v Planning Bd. ofTown of Kent, 173 AD2d 1086, 1088 [1991]).
Nor are we persuaded that the Planning Board's failure to identify and include the ZBA as aninvolved agency in the SEQRA review process was fatal to that process here. The Town Boardinitially served as the lead agency and the original application proposed a community watersupply system utilizing a ground-level storage tank. There was no water tower in the proposaland no indication that any aspect of the project would require a variance from the ZBA.Accordingly, the Town Board engaged in due diligence in identifying all involved agencies andputting them on notice (see 6 NYCRR 617.6 [b] [3] [iii]), and the Planning Board had noneed to repeat that procedural step when it succeeded the Town Board as lead agency (seeMatter of Heritage Co. of Massena v Belanger, 191 AD2d 790, 792 [1993]). When the needfor a variance eventually became apparent, the Planning Board fully considered the impact of theheight of the water tower and, in our view, the failure to include the ZBA as an involved agencyunder these circumstances was inconsequential for purposes of the Planning Board's SEQRAreview (see Matter of Scenic Hudson v Town of Fishkill Town Bd., 266 AD2d 462, 464[1999], lv denied 94 NY2d 761 [2000]; Matter of King v County of Monroe, 255AD2d 1003, 1004 [1998], lv denied 93 NY2d 801 [1999]). Furthermore, because thewater tower was included in the Planning Board's full SEQRA review, the review was notimpermissibly segmented (see Matter of Scenic Hudson v Town of Fishkill Town Bd.,266 AD2d at 464). Accordingly, we find no procedural error requiring reversal.
Turning to the substance of petitioner's SEQRA claims, we find no merit to his contentionthat the Planning Board failed to consider the visual impact of the water tower, its growthinducing impact or alternatives to it. The record reveals a full SEQRA review of a long formenvironmental assessment form, a draft environmental impact statement, a final environmentalimpact statement, engineering and planning reports, simulated digital photographs of the project,input from other interested agencies and several public hearings. With respect to the watertower's impact on the viewshed, the Planning Board, in addition to reviewing the reports andsimulations, required a number of steps designed to mitigate the visual impact, includingpreserving the existing vegetation, painting the tank a neutral color to minimize contrast andbuilding the tower into the hillside. The review process included consideration of the capacity ofthe water system designed to serve the development, with any excess capacity available forpotential consolidation with the existing water district. The record also reveals that alternatives toa water tower were considered in consultation with engineers, who ultimately concluded that thetower was needed to meet the requirements for domestic use and fire protection. In sum, therecord amply supports the conclusion that the Planning Board made a reasoned elaboration of itsfindings after properly identifying and taking a hard look at the relevant environmental concerns(see Matter of Mirabile v City ofSaratoga Springs, 67 AD3d 1178, 1181 [2009]; Matter of Reed v Village of Philmont Planning Bd., 34 AD3d1034, 1036 [2006], lv denied 8 NY3d 807 [2007]; Matter of Oates v Village ofWatkins Glen, 290 AD2d 758, 762 [2002]).
Mercure, A.P.J., Peters, Lahtinen and Garry, JJ., concur. Ordered that the judgment isaffirmed, without costs.