Shellabarger v. Onondaga County Water Authority

105 A.D.2d 1134, 482 N.Y.S.2d 610, 1984 N.Y. App. Div. LEXIS 21231

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 7, 1984
• Status: Published

Opinion

Order unanimously reversed, without costs, and motion granted. Memorandum: Defendant, Onondaga County Water Authority (OCWA), appeals from a denial of its motion to vacate a preliminary injunction preventing it from constructing a water tank in the Town of Onondaga. The tank would extend about 30 feet above ground level and would have a capacity for 750,000 gallons.

The basis for Special Term’s decision was that OCWA’s environmental impact statement (EIS) did not “evaluate reasonable alternatives to the planned construction and its chosen site.” We find no basis for such conclusion in the record, and hold that plaintiffs have not demonstrated a sufficient likelihood of ultimate success on the merits to be entitled to an injunction (see Niagara Recycling v Town of Niagara, 83 AD2d 316, 324). On the contrary, the draft EIS (DEIS) gave adequate consideration to three technological alternatives (the ground-level tank, the elevated tank and the completely buried tank) and to seven alternative sites which were high enough and sufficiently near the low pressure areas of the water distribution system to remedy the hydraulic pressure deficiencies. Hydraulic looping, which was proposed as an alternative solution at the public hearing, was not mentioned in the DEIS. It is clear from the record, however, that looping would not meet the project objectives of providing sufficient hydraulic pressures and secondary storage capacity. A description and evaluation in the DEIS of alternatives which manifestly would not achieve the objectives of the proposed project are not required by the State Environmental Quality Review Act ([SEQRA], ECL art 8) (see 6 NYCRR 617.14 [f] [5]; Webster Assoc. v Town of Webster, 59 NY2d 220, 227-228). (Appeal from order of Supreme Court, Onondaga County, Inglehart, J. — vacate preliminary injunction.) Present — Hancock, Jr., J. P., Callahan, Doerr, Denman and Moule, JJ.