Save the Pine Bush, Inc. v. Planning Board

[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. The local law at issue here created in the City of Albany the EQRB with the duties and powers, inter alia, “to co-ordinate the efforts of the various agencies of the City of Albany and act as lead agency for the City of Albany in any action which involves more than one such agency”. SEQRA provides that the

agency responsible for an action shall make an initial determination as to whether an EIS is required and that when the action is carried out by two or more agencies, a lead agency is to be designated (ECL 8-0109, subd 4). It further provides that the determination of significance “shall be made by the lead agency having principal responsibility for carrying out or approving such action” (ECL 8-0111, subd 6). Similarly, the SEQRA regulations define lead agency as one “principally responsible for carrying out, funding or approving an action” (6 NYCRR 617.2 [>]). Where only one agency is involved in an action, it must act as lead agency (6 NYCRR 617.6 [c]). Criteria are also provided for designating a lead agency among several “involved” agencies (6 NYCRR 617.6 [d]). As noted above, in the instant matter the EQRB was designated to act as lead agency wherever more than one agency was involved in an action. In this regard, Glen Head-Glenwood Landing Civic Council v Town of Oyster Bay ( 88 AD2d 484 , 492, supra) instructs us that delegation of lead agency obligations to an entity not otherwise the decision-making entity is inconsistent with SEQRA for the simple reason that SEQRA’s “mandate is to incorporate environmental concerns into the decision-making process of State and local agencies”. Respondents’ attempts to distinguish Glen Head lack substance as does the argument that since the city’s planning board and common council discussed environmental impacts, they substantially reviewed the EQRB negative declaration. A reading of the pertinent statutes and regulations reflects an intention for the jurisdictionally responsible decision-making agency to act as lead agency and for the jurisdictionally appropriate agency to act as lead where several agencies are involved. Moreover, the planning board’s and common council’s consideration of environmental matters, even if substantially a review, does not meet the strict compliance standard (see Matter of Schenectady Chems. vFlacke, 83 AD2d 460 , supra). The determination of Special Term that delegation to the EQRB of lead agency status was null and void should, therefore, be affirmed (Glen Head-Glenwood Landing Civic Council v Town of Oyster Bay, supra). Finally, with respect to Karner Meadows, all parties concede that this court’s decision in Matter of Friends of Pine Bush v Planning Bd. ( 86 AD2d 246 , affd on opn below 59 NY2d 849 ) makes it necessary to declare the waiver of construction of improvements or the posting of a performance bond illegal. Respondents, however, argue that the remedy is simply to remit the matter to respondent planning board for compliance, rather than to nullify the plat approval. Section 33 of the General City Law provides for prospective compliance, using language such as “[bjefore the approval by the planning board”, “[i]n approving such plats”, and “[i]n making such determination”. The decision of this court also stated that: “section 33 of the General City Law requires that owners install improvements or post a performance bond sufficient to cover the full cost thereof prior to approval of a subdivision by the City of Albany Planning Board” (Matter of Friends of Pine Bush v Planning Bd., supra, p 250; emphasis added). Consequently, Special Term acted properly in determining that the approval should be nullified on this ground. Judgment affirmed, without costs. Sweeney, J. P., Kane, Casey and Yesawich, Jr., JJ., concur.