Kahn v. Pasnik — 90 N.Y.2d 569

Majority

p. 569

[687 NE2d 402, 664 NYS2d 584]

In the Matter of James Kahn et al., Respondents, v Joel Pasnik et al., Respondents, and LCS Realty, Inc., Appellant.

Argued September 10, 1997;

decided October 30, 1997

p. 570

POINTS OF COUNSEL

Farrell, Fritz, Caemmerer, Cleary, Barnosky & Armentano, P. C., Uniondale (John M. Armentano and Eli Wager of counsel), and Camhy Karlinsky & Stein, L. L. P., New York City (John B. Grant, Jr., and Kenneth Auerbach of counsel), for appellant.

I. The Court below erred in concluding that the Site Review Board failed to take a "hard look” at the environmental issues before issuing the negative declaration. (Chinese Staff & Workers Assn. v City of New York, 68 NY2d 359 ; Akpan v Koch, 75 NY2d 561 ; Matter of Chemical Specialties Mfrs. Assn. v Jorling, 85 NY2d 382 ; Aldrich v Pattison, 107 AD2d 258 ; Matter of Taub v Pirnie, 3 NY2d 188 ; Matter of Neville v Koch, 79 NY2d 416 ; Matter of Jackson v New York State Urban Dev. Corp., 67 NY2d 400 ; Matter of Orange Envt. v Jorling, 161 AD2d 1069 ; Matter of Schodack Concerned Citizens v Town Bd., 148 AD2d 130 .) II. The negative declaration was proper in a type I action because the project, as proposed, includes mitigation measures that would eliminate any potential significant adverse environmental impact. (Matter of Albano v Kirby, 36 NY2d 526 ; Servomation Corp. v State Tax Commn., 51 NY2d 608 ; Matter of Howard v Wyman, 28 NY2d 434 ; Matter of Steck v Jorling, 219 AD2d 727 ; Matter of Carlson Assocs. v Jorling, 204 AD2d 540 ; Matter of James H. Rambo, Inc. v Jorling, 177 AD2d 577 ; Matter of Pius v Bletsch, 70 NY2d 920 ; Matter of David’s Lane — Pondview Preservation Assn. v Planning Bd., 216 AD2d 389 ; Matter of Lorberbaum v Pearl, 182 AD2d 897 ; Matter of Filmways Communications v Douglas, 106 AD2d 185 .)

Thomas V. Pantelis, Mineola, and Barket, Insardi & Balletta, P. C., Garden City (Janet M. Insardi of counsel), for Marilyn Richman and others, respondents.

I. The courts below correctly concluded that the Site Review Board (SRB) failed to take the requisite "hard look”. (H.O.M.E.S. v New York State Urban Dev. Corp., 69 AD2d 222 ; Matter of Jackson v New York State Urban Dev. Corp., 67 NY2d 400 ; Horn v International Bus. Machs. Corp., 110 AD2d 87 ; Aldrich v Pattison, 107 AD2d 258 ; Matter of Sun Beach Real Estate Dev. Corp. v Anderson, 98 AD2d 367 , 62 NY2d 965 ; Matter of Tri-County Taxpayers

p. 571

Assn. v Town Bd., 55 NY2d 41 ; Matter of Desmond-Americana v Jorling, 153 AD2d 4 , 75 NY2d 709 ; Matter of New York Archaeological Council v Town Bd., 177 AD2d 923 ; Matter of LaDelfa v Village of Mt. Morris, 213 AD2d 1024 ; Matter of Cannon v Murphy, 196 AD2d 498 .) II. The approval of the LCS project was based on an illegal conditioned negative declaration. (Matter of Shawangunk Mtn. Envtl. Assn. v Planning Bd., 157 AD2d 273 ; Matter of Farrari v Town of Penfield Planning Bd., 181 AD2d 149 ; Matter of Group For S. Fork v Wines, 190 AD2d 794 ; Matter of Miller v City of Lockport, 210 AD2d 955 ; Matter of Watch Hill Homeowners Assn. v Town Bd., 226 AD2d 1031 , 88 NY2d 811 ; Matter of Hare v Molyneaux, 182 AD2d 908 ; Matter of Cathedral Church v Dormitory Auth., 224 AD2d 95 ; Matter of Orange Envt. v Jorling, 161 AD2d 1069 .) III. The State Environmental Quality Review Act (SEQRA) review performed by the SRB was legally defective in that no Environmental Impact Statement, supplemental or otherwise, was prepared for this project despite the fact that the project would have a significant effect on the environment. (Matter of Sun Beach Real Estate Dev. Corp. v Anderson, 98 AD2d 367 ; Aldrich v Pattison, 107 AD2d 258 ; Matter of Town of Henrietta v Department of Envtl. Conservation, 76 AD2d 215 ; Matter of Rye Town/ King Civic Assn. v Town of Rye, 82 AD2d 474 , 56 NY2d 985 ; Chinese Staff & Workers Assn. v City of New York, 68 NY2d 359 ; Matter of Merson v McNally, 227 AD2d 487 ; Matter of Town of Dickinson v County of Broome,. 183 AD2d 1013 ; Matter of Jackson v New York State Urban Dev. Corp., 67 NY2d 400 ; Akpan v Koch, 152 AD2d 113 ; Sierra Club v United States Army Corps of Engrs., 701 F2d 1011 .) IV. The SEQRA review performed by the SRB was legally defective in that the SRB merely compared the LCS project to the unapproved Delco project. (Matter of Neville v Koch, 79 NY2d 416 .) V. The LCS project did not comply with the Roslyn zoning code and the site plan approval should be annulled. (Sega v State of New York, 60 NY2d 183 ; Matter of Town of New Castle v Kaufmann, 72 NY2d 684 ; Matter of Elm St. Assocs. v Sniado, 159 AD2d 570 ; Matter of Chrysler Realty Corp. v Orneck, 196 AD2d 631 .)

Spellman & Walsh, L. L. P., Garden City (John M. Spellman, Kevin M. Walsh and John P. Gibbons, Jr., of counsel), for Joel Pasnik and others, respondents.

I. The courts below correctly found that the SRB failed to take a "hard look” at the environmental issues before issuing the negative declaration. (H.O.M.E.S. v New York State Urban Dev. Corp., 69 AD2d 222 ;

p. 572

Matter of Shawangunk Mtn. Envtl. Assn. v Planning Bd., 157 AD2d 273 ; Matter of Jackson v New York State Urban Dev. Corp., 67 NY2d 400 ; Aldrich v Pattison, 107 AD2d 258 ; Coalition Against Lincoln W. v City of New York, 94 AD2d 483 , 60 NY2d 805 ; Matter of Holmes v Brookhaven Town Planning Bd., 137 AD2d 601 ; Inland Vale Farm Co. v Stergianopoulos, 104 AD2d 395 , 65 NY2d 718 ; Matter of E.F.S. Ventures Corp. v Foster, 71 NY2d 359 ; Matter of Group For S. Fork v Wines, 190 AD2d 794 .) II. The negative declaration issued by the SRB was the functional equivalent of a conditioned negative declaration and impermissible under SEQRA. (Matter of Taub v Pirnie, 3 NY2d 188 ; Matter of Shawangunk Mtn. Envtl. Assn. v Planning Bd., 157 AD2d 273 ; Matter of Hare v Molyneaux, 182 AD2d 908 ; Matter of Orange Envt. v Jorling, 161 AD2d 1069 ; Matter of Cathedral Church v Dormitory Auth., 224 AD2d 95 , 89 NY2d 802 ; Matter of Rye Town/ King Civic Assn. v Town of Rye, 82 AD2d 474 ; Matter of King v Saratoga County Bd. of Supervisors, 89 NY2d 341 ; Matter of Jackson v New York State Urban Dev. Corp., 67 NY2d 400 .) III. Zoning issues presented an alternate ground to annul the site plan. (Matter of Salierno v Briggs, 141 AD2d 547 ; Matter of Elm St. Assocs. v Sniado, 159 AD2d 570 ; Matter of Chrysler Realty Corp. v Orneck, 196 AD2d 631 ; Matter of Exxon Corp. v Board of Stds. & Appeals, 128 AD2d 289 , 70 NY2d 614 ; Matter of Mandel v Nusbaum, 138 AD2d 597 .) IV. As a result of the adoption of a new comprehensive plan and of a new zoning law by Roslyn, the instant appeal may be moot. (Matter of Alscot Investing Corp. v Incorporated Vil. of Rockville Centre, 64 NY2d 921 ; Matter of Pokoik v Silsdorf, 40 NY2d 769 .)

OPINION OF THE COURT

In 1989, the Village Board of the Village of Roslyn approved the construction of a 116,000 square foot mall that would contain an assortment of shops and a riverfront promenade. The developer of that project (the Delco project) then applied for a Tidal Wetlands Permit from the Department of Environmental Conservation (DEC). The permit was granted by DEC, but the developer was required to reduce the size of the mall, and to eliminate the riverfront promenade and over 25% of the parking spaces. Shortly thereafter, the developer abandoned the project.

In 1994, LCS Realty acquired the rights to the project site. Instead of an assortment of shops on the riverfront, LCS

p. 573

proposed to construct a single, large 24-hour supermarket on the site. Not surprisingly, the supermarket was projected to generate higher traffic volumes by a consultant for the Village Board.

LCS Realty submitted a long form Environmental Assessment Form (EAF) to the Board’s environmental consultant at 7:00 p.m. on Friday, October 14. On October 17, the consultant issued a report listing nine areas that remained to be addressed before a determination of environmental significance could be made.

On October 18, the Board conducted a public hearing on LCS Realty’s application for site plan approval. One of the trustees then read a lengthy resolution that contained a negative declaration under the State Environmental Quality Review Act (SE-QRA). The resolution compared the LCS Realty project favorably with the Delco project and recited that DEC had issued a Tidal Wetlands Permit for the Delco project without noting that DEC had first required significant reductions in the scope of the Delco project. Based in part upon the Environmental Impact Statement (EIS) for the Delco project and the mitigation measures proposed by LCS Realty, the Board found that the project would not result in significant environmental impacts.

Petitioners commenced this CPLR article 78 proceeding to have the site plan approval annulled. Supreme Court found that the Board had issued a negative declaration despite the request of the Village’s environmental consultant for additional information on the nine items identified in the EAF. The court further found that when the negative declaration was issued the Board had been misinformed that DEC had issued a permit for the Delco project as approved by the Board in 1989. In addition, the court found that the Village’s traffic consultant had advised the Board of the need for further traffic safety analysis, but this analysis was not completed until l1/2 months after the negative declaration was issued. The court granted the article 78 petition, annulled the negative declaration, annulled the site plan approval, and remanded the matter to the Village’s Site Review Board for preparation of a supplemental environmental impact statement. On appeal, the Appellate Division affirmed, agreeing with Supreme Court that the Board had not taken a hard look at the relevant areas of environmental concern, and that the Board’s negative declaration was the functional equivalent of a conditioned negative declaration.

p. 574

We need not determine if the Board’s decision was the functional equivalent of a conditioned negative declaration (see, Matter of Merson v McNally, 90 NY2d 742 [decided today]), because we agree with the Appellate Division’s conclusion that the Board had not taken a hard look at the relevant areas of environmental concern.

"A court’s authority to examine a SEQRA review conducted by an entity that was required to do so is limited to reviewing whether the determination was made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion. The relevant question before the court is 'whether the agency identified the relevant areas of environmental concern, took a "hard look” at them, and made a "reasoned elaboration” of the basis for its determination’ ” (Matter of Gernatt Asphalt Prods. v Town of Sardinia, 87 NY2d 668 , 688, quoting Matter of Jackson v New York State Urban Dev. Corp., 67 NY2d 400 , 417).

"[T]he extent to which particular environmental factors are to be considered varies in accordance with the circumstances and nature of particular proposals” (Akpan v Koch, 75 NY2d 561 , 570, mot to amend remittitur denied 76 NY2d 846 ).

Despite the Board’s reliance on the EIS prepared in connection with the Delco project, the impact of the project proposed by LCS Realty diifered dramatically from the Delco project as finally approved. In comparing the EAF for this project with the EIS for the Delco project, the Board disregarded the reductions in scope that DEC had required for the Delco project. In addition, as noted above, the Board’s consultant identified at least nine major areas of concern that were not subsumed within the Delco EIS. Without waiting for the information identified as necessary by its own consultants, the Board issued a negative declaration (see, Matter of New York Archaeological Council v Town Bd., 177 AD2d 923 , 925; Matter of Shawangunk Mtn. Envtl. Assn. v Planning Bd., 157 AD2d 273 , 276). We agree with the determination of Supreme Court, affirmed by the Appellate Division, that the Board did not take a hard look at .the relevant areas of environmental concern before issuing the negative declaration.

Accordingly, the order of the Appellate Division should be affirmed, with costs.

p. 575

Chief Judge Kaye and Judges Titone, Bellacosa, Smith, Levine and Cipabick concur.

Order affirmed, with costs.

Cases cited

Chinese Staff & Workers Ass'n v. City of New York 68 NY2d 359 N.Y. 1986-11-18 p. 570, p. 571
Akpan v. Koch 75 NY2d 561 N.Y. 1990-04-05 at 570 p. 570, p. 574
Chemical Specialties Manufacturers Ass'n v. Jorling 85 NY2d 382 N.Y. 1995-02-09 p. 570
Aldrich v. Pattison 107 AD2d 258 N.Y. App. Div. 1985-03-04 p. 570, p. 571, p. 572
Taub v. Pirnie 3 NY2d 188 N.Y. 1957-07-03 p. 570, p. 572
Neville v. Koch 79 NY2d 416 N.Y. 1992-05-05 p. 570, p. 571
Jackson v. New York State Urban Development Corp. 67 NY2d 400 N.Y. 1986-05-08 at 417 p. 570, p. 571, p. 572, p. 574
Orange Environment Inc. v. Jorling 161 AD2d 1069 N.Y. App. Div. 1990-05-31 p. 570, p. 571, p. 572
Schodack Concerned Citizens v. Town Board of Schodack 148 AD2d 130 N.Y. App. Div. 1989-07-13 p. 570
Albano v. Kirby 36 NY2d 526 N.Y. 1975-05-07 p. 570
Servomation Corp. v. State Tax Commission 51 NY2d 608 N.Y. 1980-12-22 p. 570
Howard v. Wyman 28 NY2d 434 N.Y. 1971-06-10 p. 570
Steck v. Jorling 219 AD2d 727 N.Y. App. Div. 1995-09-25 p. 570
Carlson Associates v. Jorling 204 AD2d 540 N.Y. App. Div. 1994-05-16 p. 570
James H. Rambo, Inc. v. Jorling 177 AD2d 577 N.Y. App. Div. 1991-11-12 p. 570
Pius v. Bletsch 70 NY2d 920 N.Y. 1987-12-23 p. 570
David's Lane-Pondview Preservation Ass'n v. Planning Board 216 AD2d 389 N.Y. App. Div. 1995-06-12 p. 570
Lorberbaum v. Pearl 182 AD2d 897 N.Y. App. Div. 1992-04-02 p. 570
Filmways Communications of Syracuse, Inc. v. Douglas 106 AD2d 185 N.Y. App. Div. 1985-01-29 p. 570
H.O.M.E.S. v. New York State Urban Development Corp. 69 AD2d 222 N.Y. App. Div. 1979-07-13 p. 570, p. 571
Horn v. International Business Machines Corp. 110 AD2d 87 N.Y. App. Div. 1985-08-26 p. 570
Sun Beach Real Estate Development Corp. v. Anderson 98 AD2d 367 N.Y. App. Div. 1983-12-27 p. 570, p. 571
Sun Beach Real Estate Development Corp. v. Anderson 62 NY2d 965 N.Y. 1984-06-29 p. 570
Tri-County Taxpayers Ass'n v. Town Board of Queensbury 55 NY2d 41 N.Y. 1982-02-16 p. 571
Desmond-Americana v. Jorling 153 AD2d 4 N.Y. App. Div. 1989-12-21 p. 571
In re New York Archaeological Council v. Town Board of Coxsackie 177 AD2d 923 N.Y. App. Div. 1991-11-27 at 925 p. 571, p. 574
LaDelfa v. Village of Mt. Morris 213 AD2d 1024 N.Y. App. Div. 1995-03-17 p. 571
Cannon v. Murphy 196 AD2d 498 N.Y. App. Div. 1993-08-02 p. 571
Shawangunk Mountain Environmental Ass'n v. Planning Board of the Town of Gardiner 157 AD2d 273 N.Y. App. Div. 1990-05-17 at 276 p. 571, p. 572, p. 574
Ferrari v. Town of Penfield Planning Board 181 AD2d 149 N.Y. App. Div. 1992-07-14 p. 571
Group For The South Fork, Inc. v. Wines 190 AD2d 794 N.Y. App. Div. 1993-02-16 p. 571, p. 572
Watch Hill Homeowners Ass'n v. Town Board 226 AD2d 1031 N.Y. App. Div. 1996-04-25 p. 571
Hare v. Molyneaux 182 AD2d 908 N.Y. App. Div. 1992-04-02 p. 571, p. 572
Cathedral Church of Saint John Divine v. Dormitory Authority 224 AD2d 95 N.Y. App. Div. 1996-07-25 p. 571, p. 572
Town of Henrietta v. Department of Environmental Conservation 76 AD2d 215 N.Y. App. Div. 1980-07-10 p. 571
Rye Town/King Civic Ass'n v. Town of Rye 82 AD2d 474 N.Y. App. Div. 1981-08-24 p. 571, p. 572
Town of Dickinson v. County of Broome 183 AD2d 1013 N.Y. App. Div. 1992-05-14 p. 571
Akpan v. Koch 152 AD2d 113 N.Y. App. Div. 1989-11-21 p. 571
Sega v. State 60 NY2d 183 N.Y. 1983-10-25 p. 571
Town of New Castle v. Kaufmann 72 NY2d 684 N.Y. 1988-12-20 p. 571
Elm Street Associates v. Sniado 159 AD2d 570 N.Y. App. Div. 1990-03-12 p. 571, p. 572
Chrysler Realty Corp. v. Orneck 196 AD2d 631 N.Y. App. Div. 1993-08-23 p. 571, p. 572
Coalition Against Lincoln West, Inc. v. City of New York 94 AD2d 483 N.Y. App. Div. 1983-07-07 p. 572
Coalition Against Lincoln West, Inc. v. City of New York 60 NY2d 805 N.Y. 1983-10-27 p. 572
Holmes v. Brookhaven Town Planning Board 137 AD2d 601 N.Y. App. Div. 1988-02-08 p. 572
Inland Vale Farm Co. v. Stergianopoulos 104 AD2d 395 N.Y. App. Div. 1984-08-13 p. 572
E.F.S. Ventures Corp. v. Foster 71 NY2d 359 N.Y. 1988-02-09 p. 572
King v. Saratoga County Board of Supervisors 89 NY2d 341 N.Y. 1996-11-21 p. 572
Salierno v. Briggs 141 AD2d 547 N.Y. App. Div. 1988-06-06 p. 572
Exxon Corp. v. Board of Standards 128 AD2d 289 N.Y. App. Div. 1987-05-28 p. 572
Mandel v. Nusbaum 138 AD2d 597 N.Y. App. Div. 1988-03-21 p. 572
Alscot Investing Corp. v. Incorporated Village of Rockville Centre 64 NY2d 921 N.Y. 1985-03-19 p. 572
Pokoik v. Silsdorf 40 NY2d 769 N.Y. 1976-12-02 p. 572
Merson v. McNally 90 NY2d 742 N.Y. 1997-10-30 p. 574
Gernatt Asphalt Products, Inc. v. Town of Sardinia 87 NY2d 668 N.Y. 1996-03-28 at 688 p. 574