Cahn v. Planning Board of the Town of Gardiner

157 A.D.2d 252, 557 N.Y.S.2d 488, 1990 N.Y. App. Div. LEXIS 5813
CourtAppellate Division of the Supreme Court of the State of New York
DecidedMay 17, 1990
StatusPublished
Cited by5 cases

This text of 157 A.D.2d 252 (Cahn v. Planning Board of the Town of Gardiner) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cahn v. Planning Board of the Town of Gardiner, 157 A.D.2d 252, 557 N.Y.S.2d 488, 1990 N.Y. App. Div. LEXIS 5813 (N.Y. Ct. App. 1990).

Opinion

OPINION OF THE COURT

Yesawich, Jr., J.

In the fall of 1988, respondent conditionally approved the preliminary subdivision plats for Luna Estates and Greenvale Partners, neighboring subdivisions in the Town of Gardiner, Ulster County. Respondent had previously classified Luna Estates, an 80-acre parcel upon which 28 residential units were to be built, as a Type I action under the State Environmental Quality Review Act (ECL art 8) (hereinafter SEQRA) due to its proximity to a national register historic home. Representatives of Luna Estates and respondent met to discuss environmental matters, specifically traffic, visual and drainage impacts, and soil compatibility. After holding public hearings, respondent determined that the proposed action might significantly impact the environment and therefore had Luna Estates prepare a draft environmental impact statement (hereinafter EIS). The draft EIS was submitted in late May 1988. Thereafter, respondent directed Luna Estates to address in the final EIS some of the additional concerns raised by the [255]*255public during the second set of hearings. A completed final EIS was submitted in September 1988. Respondent reviewed this statement and a negative SEQRA report that had been prepared by its own planning consultant. Following the review, respondent conditionally approved Luna Estates’ preliminary plat subject to its implementation of mitigation measures which had been identified in the final EIS.

During this review process, respondent also concurrently considered a subdivision plan for Greenvale Partners, which abuts Luna Estates. Greenvale’s developers proposed to construct 31 residential units upon a 112-acre parcel of land. Upon initial review, respondent identified concerns regarding drainage, wetlands, traffic congestion and lot and road design. With respect to this project, respondent’s planning consultant noted that a second and required point of access to the Greenvale subdivision would be by way of a proposed road running through Luna Estates and that the alignment of this latter connection was unsatisfactory. As required by respondent, Greenvale submitted a revised sketch plan which addressed these various concerns. Thereafter, respondent recommended that a traffic assessment study be completed to supplement Greenvale’s previously submitted environmental assessment form, classified the action as unlisted and granted conditional approval pending public hearings. After these hearings, respondent issued a negative declaration conditioned upon implementation of particularized mitigation measures. A 30-day public comment period followed, after which respondent granted Greenvale conditional preliminary subdivision plat approval.

Thereafter, petitioners, Rosanne M. Cahn, as executrix of the estate of Herbert Cahn, the owner of the Hendrikus Dubois House, and AFFIRM, an association which monitors rural development in the Town of Gardiner, commenced the instant litigation to have the plat approvals for Luna Estates and Greenvale declared null and void for a variety of reasons, namely, because respondent: failed to take a hard look at the environmental impact of Luna Estates; failed to issue a cumulative EIS; neglected to classify the Greenvale project as a Type I action; ignored the town’s municipal code by illegally approving construction of an impermissibly long dead-end street; and approved the projects despite claimed conflicts of interest on the part of two of respondent’s members. Supreme Court credited none of these, and dismissed the petition. Petitioners appeal. We find that respondent’s decision to ap[256]*256prove both subdivisions was made in accordance with lawful procedure and was neither affected by error of law nor arbitrary, capricious or an abuse of discretion (see, Akpan v Koch, 75 NY2d 561, 574), and accordingly affirm.

The record belies petitioners’ first contention, that respondent failed to take a hard look at the potential impact of Luna Estates on the neighboring historic Hendrikus Dubois House, which is located on a 52-acre parcel adjacent to and north of the Luna Estates property. Only the house and one acre surrounding it have been placed in the State and National Register of Historic Places. Respondent weighed drainage, traffic congestion and visual impact concerns relating to the Dubois home. Concluding that the 50-acre buffer zone would adequately alleviate all but the drainage problems, respondent determined that the EIS need only speak to this latter issue. Eventually respondent incorporated into the final EIS, as an identified mitigation measure, a plan designed to direct drainage away from the Dubois house. That Luna Estates’ draft EIS and final EIS failed to address all the potential adverse environmental impacts of the subdivision on the historic site is of no consequence. Once respondent found that an EIS was essential, the EIS had to deal only with "those specific adverse or beneficial environmental impacts * * * reasonably anticipated and/or * * * identified in the scoping process” (6 NYCRR 617.14 [c]). An EIS need not be encyclopedic, nor must it exhaustively analyze every possible environmental impact (6 NYCRR 617.14 [b]). Accordingly, because respondent subjected the Luna Estates project to a hard look, identified drainage as the only potentially adverse environmental impact on the Dubois house and had the EIS address that concern, the SEQRA regulations were fully satisfied.

Nor do we find respondent’s failure to require a cumulative EIS violative of SEQRA. Petitioners claim that Luna Estates and Greenvale, though separately owned and acquired from different owners at different times, are "related actions” necessitating a cumulative EIS. The basis for this assertion is that the two subdivisions are geographically contiguous, share a connecting road (insisted upon by respondent), were planned by the same engineer, employed the same law firm and were simultaneously scrutinized by respondent. We are not necessarily persuaded that these two projects are indeed related actions, for no long-range area or community-wide plan appears to be involved and there is no showing that these subdivisions are integrated, dependent upon each other and [257]*257devoid of independent utility (cf., Matter of Village of Westbury v Department of Transp., 75 NY2d 62, 69; Matter of Save the Pine Bush v City of Albany, 70 NY2d 193, 205-206; Chinese Staff & Workers Assn. v City of New York, 68 NY2d 359, 367). But even assuming that they are related actions, respondent’s obligation was to consider the cumulative environmental impact of these actions (6 NYCRR 617.11 [b]) and include in any EIS those impacts that respondent considered likely to have a significant effect on the environment (6 NYCRR 617.14 [c], [f] [3]). This is exactly what respondent did. The record indicates that respondent reviewed many cumulative impacts of the proposed subdivisions, e.g., wetlands, soil erosion, groundwater pollution, potential for flooding and destruction of bird habitats, and required of Luna Estates that its draft EIS and final EIS specifically deal with two of these, traffic and visual impacts.

As the cumulative impacts of the proposed subdivisions which respondent found to be significant were given bona fide consideration, a cumulative EIS was not necessary. And since neither subdivision contains greater than 50 lots, petitioners’ corollary claim that a central water and sewer system to serve these subdivisions is mandated, is meritless. The town’s code does not dictate any such result (see, Municipal Code of Town of Gardiner § 31.46 [F]).

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Bluebook (online)
157 A.D.2d 252, 557 N.Y.S.2d 488, 1990 N.Y. App. Div. LEXIS 5813, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cahn-v-planning-board-of-the-town-of-gardiner-nyappdiv-1990.