Omni Partners, L.P. v. County of Nassau

In a hybrid action for a judgment declaring Nassau County Ordinance Nos. 76-1996 and 77-1996 null and void, and a proceeding pursuant to CPLR article 78 to review a determination of the Nassau County Planning Commission, dated April 18, 1996, issuing a negative declaration pursuant

Ordered that the judgment is modified, on the law, by adding thereto a provision directing the Nassau County Planning Commission to issue a positive declaration and remitting the matter to the Nassau County Planning Commission for the preparation of an Environmental Impact Statement; as so modified, the judgment is affirmed, with costs to the petitioner.

The subject of this action/proceeding is a 67-acre parcel of property located in Nassau County (hereinafter the County), known as the Mitchel Park Athletic Complex (hereinafter Mitchel Park). In November 1994, the County proposed a project to replace, redesign, and reconstruct the athletic facilities at Mitchel Park. Although the project was initially designated as an "unlisted action” for which a full environmental assessment form (hereinafter EAF) was not required, (see, 6 NYCRR 617.2 [ak]; 617.6 [a] [3]), the County nevertheless prepared a full EAF. Ultimately, the Supreme Court determined that the project is a "Type I” action, a finding which is not challenged on appeal since the County had already prepared the full EAF required for a "Type I” action (see, 6 NYCRR 617.4, 617.6 [a] [2]).

In performing its review of the project pursuant to the State Environmental Quality Review Act (hereinafter SEQRA), the Nassau County Planning Commission (hereinafter the Planning Commission) reviewed the EAF and issued a "negative declaration”, finding that the project would have no significant environmental impact, and recommended that no further environmental review or action be required (see, 6 NYCRR

The primary purpose of SEQRA is " 'to inject environmental considerations directly into governmental decision making’ ” (Akpan v Koch, 75 NY2d 561 , 569, quoting Matter of Coca-Cola Bottling Co. v Board of Estimate, 72 NY2d 674 , 679). To this end, SEQRA mandates the preparation of an EIS when a proposed project "may have a significant effect on the environment” (ECL 8-0109 [2]). Because the operative word triggering the requirement of an EIS is "may”, there is a relatively low threshold for the preparation of an EIS (see, Matter of Chemical Specialties Mfrs. Assn. v Jorling, 85 NY2d 382 , 397; Matter of West Branch Conservation Assn. v Planning Bd., 207 AD2d 837 , 838-839; Matter of Merson v McNally, 227 AD2d 487 ). Further, SEQRA regulations provide that a Type I action, such as the one proposed herein, "carries with it the presumption that it is likely to have a significant adverse impact on the environment and may require an EIS” (6 NYCRR 617.4 [a] [1]; see, Matter of Merson v McNally, supra). An EIS is required if the action may include the potential for even one significant adverse environmental impact (see, 6 NYCRR 617.7 [a] [1]).

In this case, a review of the EAF reveals several areas of possible significant environmental impact in connection with the proposed project. These include a potential effect on air quality, traffic conditions, water use, sewage, and drainage. Thus, the Planning Commission should have issued a positive declaration and required the preparation of an EIS (see, Matter of West Branch Conservation Assn. v Planning Bd., supra, at 841 ). To confirm the negative declaration in this case would permit the circumvention of SEQRA’s comprehensive review process (see, Matter of Merson v McNally, supra). Consequently, we conclude that the Planning Commission’s determination was not made in accordance with lawful procedure and was arbitrary, capricious, and irrational (see, Akpan v Koch, supra, at 570 ; Matter of Merson v McNally, supra). The Supreme Court properly annulled the determination and declared Nassau