Rye Town/King Civic Ass'n v. Town of Rye

82 A.D.2d 474, 442 N.Y.S.2d 67, 1981 N.Y. App. Div. LEXIS 11382
CourtAppellate Division of the Supreme Court of the State of New York
DecidedAugust 24, 1981
StatusPublished
Cited by41 cases

This text of 82 A.D.2d 474 (Rye Town/King Civic Ass'n v. Town of Rye) 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
Rye Town/King Civic Ass'n v. Town of Rye, 82 A.D.2d 474, 442 N.Y.S.2d 67, 1981 N.Y. App. Div. LEXIS 11382 (N.Y. Ct. App. 1981).

Opinion

OPINION OF THE COURT

Weinstein, J.

The essence of this litigation is a challenge to a determination of the Town Board of the Town of Rye, granting a permit to respondent Atrium Associates (hereafter [476]*476Atrium) for construction of an office building on a plot consisting of some 17.8 acres of land.

In 1973 the Town of Rye amended its zoning ordinance to provide for “Planned Unit Development” districts (PUD’s), or districts wherein certain regulations providing for planned, mixed development would be applied. The plot of land involved herein is part of the first PUD established pursuant to the ordinance; indeed, this PUD was established the same day as the ordinance was approved. After a series of mesne conveyances, Atrium obtained an option to purchase some 17.8 acres within the PUD, and thereupon applied to the Town of Rye for permission to erect an office building.

Atrium’s original application to the town board requested a permit to build a two-story, multitenant office building, with a floor area of 200,000 square feet and parking for 990 cars, on the plot. After public hearings, a majority of the planning board recommended authorization for an office building of 175,000 square feet in floor area. The matter was then referred to the town board for a final determination.

Prior to final action by the town board, the chairman of the planning board received a letter from the Commissioner of the Westchester County Planning Department alerting him to the town’s responsibility under the State Environmental Quality Review Act (SEQRA; ECL art 8). The commissioner recommended that the town should determine whether it is obligated to prepare an environmental impact statement (EIS), as described in ECL 8-0109 (subd 2). The town, however, declined to consider whether it had to prepare an EIS. It conceded that the project in question was such as might normally require that one be prepared. It reasoned, however, that since the PUD on which the building was to be built was established in 1973, it was exempted from preparing an EIS by ECL 8-0117 (subd 4), which sets November 1, 1978 as the effective date of the requirement to prepare an EIS for buildings such as the one under consideration. In any event, the town, on several occasions, including the time period during which it was considering Atrium’s application, did carefully examine [477]*477many environmental factors, such as traffic volume, parking capacity, drainage, soil, vegetation, noise, and aesthetics.

The final determination of the town board authorized a building with 163,000 square feet of floor area and dimensions of 421 feet by 212 feet, and with parking for 815 cars. This decision was acceptable to Atrium, and it consummated its purchase of the plot.

Certain residents of a condominium development known as The Arbors, located adjacent to the site of the proposed office building and part of the same PUD, which residents were members of the Rye Town/King Civic Association, thereupon brought the instant proceeding pursuant to CPLR article 78. They sought to set aside the construction permit granted to Atrium on two grounds: the failure of the town to adhere to the mandates of SEQRA, and the failure of the town to properly apply its zoning ordinance. Special Term dismissed the petition, setting forth its reasons in a lengthy decision. In essence, it held that although the “grandfather” provisions of ECL 8-0117 did not exempt the town from preparing an EIS in this case, this violation of SEQRA was excusable, inasmuch as “substantial, not strict compliance with SEQRA is required” and the town had “closely examined the environmental impact factors” without an EIS. The court also found that the town had properly applied its zoning ordinance. We now reverse, on the ground that the town’s failure to prepare an EIS was not excusable.

SEQRA was originally enacted in 1975 (L 1975, ch 612). Its stated purpose was to “encourage productive and enjoyable harmony between man and his environment; to promote efforts which will prevent or eliminate damage to the environment and enhance human and community resources; and to enrich the understanding of the ecological systems, natural, human and community resources important to the people of the state” (ECL 8-0101). The Legislature stated its intent that “the protection and enhancement of the environment, human and community resources shall be given appropriate weight with social and economic considerations in public policy” (ECL 8-0103, [478]*478subd 7). The central practical means set forth by the act for the implementation of these policies included the requirement of ECL 8-0109 (subd 2), that all agencies (within the meaning of which term the Town Board of the Town of Rye is included [see ECL 8-0105, subds 2, 3]) cause to be prepared an EIS with respect to any action (within the meaning of which term the proposed office building is included [see ECL 8-0105, subd 4, par (i)]) they “propose or approve which may have a significant effect on the environment.” The EIS is to contain eight enumerated items of information, intended to focus on possible adverse effects on the environment which might result from the action and how to eliminate or minimize such effects, as well as such other information as may be required by the relevant guidelines. ECL 8-0109 (subd 4) requires an agency to determine, as early as possible, whether an EIS need be prepared for a given action. Among other provisions of SEQRA are a provision directing the Commissioner of Environmental Conservation to adopt rules implementing the provisions of the act (ECL 8-0113) and a provision for phased implementation thereof (ECL 8-0117).

SEQRA itself provides few guidelines as to which types of actions “may have a significant effect on the environment” so as to require the preparation of an EIS. But regulations prepared pursuant to ECL 8-0113 (subd 2, pars [b], [c]) do provide guidance to agencies in identifying such actions. Certain actions are defined by the regulations as “Type I actions”, and actions falling within the definition of Type I actions are declared to be “more likely to require the preparation of EIS’s than those not so listed” (6 NYCRR 617.12 [a]). Among those actions defined to be Type I actions are actions which involve the construction of a new nonresidential facility and which involve either the physical alteration of 10 acres (6 NYCRR 617.12 [b] [6] [i]), or a facility with more than 100,000 square feet of gross floor area constructed in a town with a population of 150,000 or less (6 NYCRR 617.12 [b] [6] [iv]). It is undisputed that on both of these grounds, the building involved herein qualifies as a Type I action, and hence is likely to require an EIS.

[479]*479Two reasons have been advanced as to why the possibility of having to prepare an EIS need not have been considered, despite the Type I status of the proposed office building: the exclusion of this action by the “grandfather” provision of SEQRA, ECL 8-0117 (relied on by the town) and the town’s substantial compliance with the spirit, if not the letter, of SEQRA (relied on by Special Term). We hold that neither of these reasons excuses the town from literal compliance with SEQRA.

The proposed office building is not a direct undertaking by any State or local agency, and will not receive funding or any special entitlement from any government or political subdivision of the State; therefore, pursuant to ECL 8-0117 (subd 4), the EIS requirement with respect to it became effective on November 1, 1978.

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Bluebook (online)
82 A.D.2d 474, 442 N.Y.S.2d 67, 1981 N.Y. App. Div. LEXIS 11382, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rye-townking-civic-assn-v-town-of-rye-nyappdiv-1981.