Save the Pine Bush, Inc. v. Planning Board

96 A.D.2d 986, 466 N.Y.S.2d 828, 1983 N.Y. App. Div. LEXIS 19601
CourtAppellate Division of the Supreme Court of the State of New York
DecidedAugust 4, 1983
StatusPublished
Cited by20 cases

This text of 96 A.D.2d 986 (Save the Pine Bush, Inc. v. Planning Board) 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
Save the Pine Bush, Inc. v. Planning Board, 96 A.D.2d 986, 466 N.Y.S.2d 828, 1983 N.Y. App. Div. LEXIS 19601 (N.Y. Ct. App. 1983).

Opinion

— Appeal from a judgment of the Supreme Court at Special Term (Conway, J.), entered November 10, 1982 in Albany County, which granted petitioners’ application, in a combined proceeding pursuant to CPLR article 78 and an action for a declaratory judgment, to (1) declare null and void the approval of the Earner Meadows plat by the Planning Board of the City of Albany, (2) declare the waiver of construction of improvements or posting of a performance bond by the planning board null and void, (3) declare that the finding of no significant environmental impact by the City of Albany Environmental Quality Review Board is null and void, (4j declare that section 1(b) of article II of Local Law No. 2-1979 of the City of Albany is null and void, (5) declare that a zoning change for Anderson Office Park is null and void, and (6) enjoin the granting of any approvals or permits for the above projects unless and until an environmental impact statement has been completed. Petitioners brought a combined CPLR article 78 proceeding and declaratory judgment action to halt two developments, one residential and one commercial, in the Pine Bush area of the City of Albany. Petitioners were successful on all grounds at Special Term and respondents take issue on appeal with every part of the judgment except that which declared the waiver of construction of improvements or posting of a performance bond illegal. In October, 1978, respondent Planning Board of the City of Albany gave conceptual approval to intervenors Benacquista, Polsinelli and Serafini Management Corporation (hereinafter BPS) to develop a multiphase project of single-family residences (Earner Meadows), multifamily residences and commercial buildings. On May 21,1979, respondent City of Albany Common Council passed Local Law No. 2-1979 creating an environmental quality review board (hereinafter EQRB) to act as lead agency and otherwise co-ordinate environmental review under the State Environmental Quality Review Act (hereinafter SEQRA, ECL art 8). In June, 1979, the Albany County Planning Board recommended conditional approval of the BPS project, pending SEQRA compliance. In January, 1980, BPS filed an environmental assessment form (hereinafter EAF) with respondent EQRB pursuant to SEQRA. In April, 1980, the county planning board again recommended conditional approval of BPS’ Earner Meadows project. On July 1, 1980, respondent planning board held a hearing on Earner Meadows. On July 7, 1980, respondent EQRB was designated lead agency for that project, and the following day it issued a declaration of no environmental significance (hereinafter negative declaration). On July 16, 1980, respondent planning board approved the BPS plat. The Anderson Office Park project was apparently conceived in 1979. A proposal to rezone the parcel from residential to office space was introduced at respondent common council’s February 21, 1980 meeting. An EAF was filed with the EQRB and a public hearing was held by respondent common council on the zoning change on March 17, 1980. On April 15, 1980, the EQRB issued a negative declaration on the zoning change and the rezoning was approved by the common council on June 2, 1980. On August 14, 1980, petitioners commenced the instant action and proceeding; respondents moved to dismiss and the matter was transferred to this court. After ruling on standing and the Statute of Limitations issues, this court held the transfer improper and remitted the case to Special Term for a determination on the merits (Matter of Save the Pine Bush v Planning Bd., 83 AD2d 741). Special Term granted petitioners’ application and issued a declaratory judgment nullifying all of respondents’ actions. This appeal ensued. Special Term found that the underlying negative declaration with respect to Anderson Office Park was not in accordance with SEQRA regulations (6 NYCRR 617.6 [987]*987[d] [2]; 617.11, 617.12, 617.13) and that it disregarded the clear and specific requirements of those regulations, resulting in an arbitrary and unreasonable decision. SEQRA requires agency consideration of environmental factors to the fullest extent possible and as early as possible in the formulation of a proposal of an action (ECL 8-0103, subd 6; 8-0109, subd 4). An agency prepares an EAF, a checklist of environmental impacts, to determine initially if the action may have a significant effect on the environment (6 NYCRR 617.6, 617.7). If a proposed action meets certain thresholds (6 NYCRR 617.12), it is classed as a type I action and is deemed likely to require the filing of a more detailed report, the environmental impact statement (hereinafter EIS). The action, whether type I or unlisted, is then compared to other criteria for significant effect (6 NYCRR 617.11). Once a certain threshold of effects is reached, an EIS must be filed (ECL 8-0109, subd 2). The threshold for requiring an EIS is relatively low and the standard for compliance is strict (see Matter of Schenectady Chems. v Flacke, 83 AD2d 460; Matter of Town of Henrietta v Department of Environmental Conservation, 76 AD2d 215). In order for the court to determine that an agency has met the requirements of SEQRA, the record must show that the agency identified relevant areas of environmental concern, took a “ ‘hard look’ ” at them, and made a “ ‘reasoned elaboration’ ” of the basis for its determination (H.O.M.E.S. v New York State Urban Dev. Corp., 69 AD2d 222, 232). Petitioners alleged that the lead agency’s failure to classify the Anderson Office Park project as a type I action and require an EIS was a violation of SEQRA. They note that the action is a zoning change which exceeds the alteration of 10 acres (6 NYCRR 617.12 [b] [3], [6] [i]) and involves construction of approximately 250,000 square feet of office space (6 NYCRR 617.12 [b] [6] [iv]). Petitioners also note the failure to give due weight in part II of the EAF to certain effects and the failure to include mitigation measures. They also point to the failure to determine the existence of any impacts of importance to the City of Albany in part III of the EAF (see 6 NYCRR 617.11, 617.19). Although an EIS is not a per se requirement of all type I actions (see Devitt v Heimbach, 58 NY2d 925), neither can agencies turn a blind eye to those impacts which meet the EIS threshold (see Glen Head-Glenwood Landing Civic Council v Town of Oyster Bay, 88 AD2d 484, 493). A review of the record in light of the above considerations fully supports Special Term’s determination. Such determination reflects the standard set by the courts to prevent SEQRA from becoming one more step in a “bureaucratic maze” {supra, p 493), wherein the fundamental impact requirements are circumvented (see Matter of Schenectady Chems. v Flacke, 83 AD2d 460, 463, supra). Petitioners’ complaints regarding the Earner Meadows proposal are essentially the same as those set forth above, except that petitioners allege additional criteria for type I classification and EIS requirements which were ignored. The plat submitted by BPS was for 248 residences on 121 acres, phase one of a proposed three-phase project. Petitioners note that the project meets the type I requirements in that it is substantially a 250-unit residential development (6 NYCRR 617.12 [b] [5] [iii]), is substantially contiguous to a publicly designated open space and exceeds the 25% threshold of 6 NYCRR 617.12 (b) (5) (iii) (see 6 NYCRR 617.12 [b] [10]), is part of a multiphase project with cumulative impacts (6 NYCRR 617.11 [a] [11], [b] [1]) and is one of several separate projects with cumulative impacts (6 NYCRR 617.11 [a] [11], [b] [1]). These arguments are substantially identical to those submitted with respect to the Anderson Office Park project and, accordingly, the result must be the same.

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Bluebook (online)
96 A.D.2d 986, 466 N.Y.S.2d 828, 1983 N.Y. App. Div. LEXIS 19601, Counsel Stack Legal Research, https://law.counselstack.com/opinion/save-the-pine-bush-inc-v-planning-board-nyappdiv-1983.