Coppola v Good Samaritan Hosp. Med. Ctr.
2002 NY Slip Op 30150(U)
October 22, 2002
Sup Ct, Suffolk County
Docket Number: 01-10881
Judge: Thomas F. Whelan
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SHOdT FORM ORDER
INDEX NO.
01-10881
SiUPREME COURT - STATE OF NEW Y O N
I.A.S. PART33 - SUFFOLKCOUNTY
P R E S E N T :
ART 78 ADJ. DATE 6/20/02
ADJ. DATES
Amd. Petition Decided; CDISP
Hon. THOMAS F. WHELAN
Justice of the Supreme Court
...............................................................
X
MICHAEL C. COPPOL,A, JOHN S . POPOVITCH, :
JOHN CARUSO, WILLIAM MARLETTA,
WILLIAM LANE, TERESA DIOGUARDI,
DONNA DELANOY, E5EVERLY FONSECA,
LOIS BAISLEY, GARY SEIB, JOSEPH SURACE,:
KEVIN WOOD, DANEL GRIPPA and WAYNE :
S . SMITH,
Petitioners,
:
-againstGOOD SAMARITAN IlOSPITAL MEDICAL
:
CENTER, TOWN OF ISLIP and TOWN OF ISLIP :
PLANNING BOARD,
Respondents. :
ELIOT F. BLOOM, ESQ.
Atty. for Petitioners
114 Old Country Rd.
Mineola, NY 11501
VINCENT J. MESSINA, JR., ESQ.
Islip Town Attorney
Atty. for Respondent Town of Islip
655 Main St.
Islip, NY 11751
ROBERT L. FOLKS & ASSOC.
Attys. for Respondent Hospital
5 10 Broadhollow Rd.
Melville, NY 11747
0
-7
read on this amended Article 78 Droceeding
;Notice of Petition and supporting papers 1-6
;Notice of
;Answering Affidavits and supporting papers 7-8: 14: 15: 18-19
Cross Motion and supporting papers
;Other 9-1 1 meturn): 12-13 (Memo): 16-17 (Memo)
;Replying Affidavits and supporting papers 20-2 1
- - (
;
*
) it is,
Upon the following papers numbered 1 to
21
ORDERED that the amended petition seeking, among other relief, an order directing the
respondents, Good Samaritan Hospital Medical Center (“the Hospital”) and the Town of Islip Planning
Board (“Planning Board”), to comply with the procedural and substantive requirements of Article 8 of the
Environmental Conservation Law, commonly known as the State Environmental Quality Review Act
(“SEQRA”), concerning the relocation of the Emergency Room to near the intersection of Beach Drive and
Gate Lane in the Town of Islip, is granted to the extent that the Planning Board site plan approval decision
of December 9, 1999, and the Building Permit issued on June 9,2000 and the Certificate of Occupancy,
dated November 20,2001, which were both issued in reliance upon the site plan approval, are declared to
be null and void and are annulled, and it is further
ORDERED that the matter is remanded to the Planning Board and the Town for further de novo
consideration and rehearing in accordance with this Order, and it is M e r
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Index No. 01-10881
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ORDERED that the branch of the amended petition seeking an injunction, pursuant to CPLR Article
63, restraining and enjoining the Hospital from conducting business affairs and services at the relocated
Emergency Room, is granted, and it is further
ORDERED that enforcement of the order is stayed until March 21,2003, to afford respondents an
opportunity to expeditiously comply with SEQRA, without prejudice to an application for a further
extension, if necessary; if no extension is requested or if an application for an extension is denied, upon
application by petitioners, the Court shall vacate the stay.
The failure to abide by the procedural and substantive rigors ofNew York State’s environmental laws
and concomitant regulations, coupled with an agency’s declaration of no significant environmental impact
has, over the years, stymied the completion of a massive state highway improvement project (see Village
of Westbury v Departmmt of Transp. of the State of New York, 146 AD2d 578,536 NYS2d 502 [2d Dept
19891; afd 75 NY2d 62!, 550 NYS2d 604 [1989]), the enactment of a zoning amendment that created a
“Destination Commercial Planned Development Overlay District” (see Riverhead Bus. Improvement Dist.
Mgt. Assn., Inc. vStarli, 253 AD2d 752,677 NYS2d 383 [2d Dept 1998]), and the construction of a large
supermarket (see Matter of Syrup v City Council of City of Yonkers, 282 AD2d 466,722 NYS2d 741 [2d
Dept 20011). Here, the relocation of a hospital’s busy emergency room into a newly constructed structure,
that was originally designed and intended to house an outpatient rehabilitation center, was accomplished
without appropriate regard to the controlling environmental regulations. While the improper governmental
action must be annulled, under the circumstancesof this case, the Town is afforded an opportunityto comply
with the State Environmental Quality Review Act (“SEQRA”).
The controversy before the Court has, to date, resulted in eight separate short form orders (June 18,
200 1,July 16,2001, September 19,200 1, October 26,200 1,two [2] dated January 17,2002, April 30,2002,
and January 17,2002 [a. related proceeding under Index No. 01-209031) and two dismissed appeals (see
Decision & Order on Motion, March 1,2002,2002-0088 1,and 296 AD2d 460,744 NYS2d 718 [2d Dept
20021). Familiarity with all of the Court’s prior short form orders related to this proceeding is presumed.
Originally, the Good Samaritan Hospital emergency room was located in the north-westerly portion
of the large parcel that constitutes the hospital complex, facing Montauk Highway, a County road and a
major thoroughfare. Ablutting that location, are various residences along Bay Drive East, in the hamlet of
West Islip, which the petitioners claim are currently owned by the Hospital and utilized by its personnel.
Now, the emergency room has been relocated to the south-easterlyportion of the parcel, facing Beach Drive,
a roadway with varied uses, but in close proximity to certain residences and, in particular, Gate Lane, which
apparently constitutes the single means of ingress and egress into a residential community, known as Cedar
Point. Aside from access to the Cedar Point homes, Beach Drive is utilized for access to West Islip Little
League Fields, Consolation Nursing Home, St. John the Baptist High School, West Islip Marina, and the
Hospital, including its delivery dock.
The Hospital is located in a General Service C Zoning District and its use is an as of right use
pursuant to the provisions of the Code of the Town of Islip. A review of the Town’s Return and the various
affidavits submitted on the final submission, as well as in past submissions, reveals that by application swom
to on April 30, 1997 (see Retum, p. 117), the Hospital applied for a building permit to build a two story
building addition, totaling over 34,500 square feet, to house, among other things, an outpatient rehabilitation
center. The building peimit called the structure an addition (see Retum, p. 116). The building permit was
issued on March 19, 1998. Apparently, the Hospital was considering a second capital improvement or
expansion, that is, for an outpatient surgical unit. A decision was then made to house the outpatient surgical
unit in the second floor of the two story addition, instead of building a separate new wing for it. By
application swom to on August 25, 1998, a second building application was submitted by the Hospital to
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Coppola v Good Samaritan Hospital
Index No. 01-10881
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accomplish same (see Return, p. 108). The permit was issued on January 8, 1999 (see Return, p. 115). In
fact, the second floor interior was completed before work was begun on the bottom floor, which was
intended to house the outpatient rehabilitation center.
During this time, a neighbor who lived adjacent to the then existing emergency room, complained
about the lack of adequate buffering and planting between his property and the Hospital property and noted
that 40 - 50 ambulances a day travel down the existing roadway (see Return, pp. 111 -1 13).
Thereafter, and apparently in consultation with the New York State Health Department, the decision
to house the outpatient rehabilitation center in the first floor was abandoned in favor of a new expanded and
relocated emergency room facility. The first indication of this intention is found in a “Letter of Proposed
Use,” dated October 15, 1999 (see Return, p. 102). Since the space required was more than that as
constructed on the first floor, by application sworn to on October 18,1999, the Hospital filed a third building
permit application for a one story addition to the new two story pavilion to house a relocated emergency
room (see Return, pp. 9’7,2 1). This application called for the construction of an additional 11,000 square
feet of floor space and was expressly conditioned upon “approved site plan” (see Return, p. 78). A Short
Environmental Assessrrient Form for Unlisted Actions (“SEAF”) was submitted, as part of the SEQRA
review process (see Return, p. 99) and an assistant site plan reviewer for the Town of Islip found no
significant environmental effects, on January 28,2000 (see Return, p. 100). By letter dated November 9,
1999 the relocation site plans were disapproved (see Return, p. 92), and due to lack of the appropriate
landscaping buffer of eight feet along Beach Drive, and the inclusion of one way aisles and angular parking,
it was noted that Planning Board approval was required (see Return, pp. 93 - 4). By letter dated December
1, 1999 the relocation site plans were, once again, disapproved (see Return, p. 88).
By transmittal letter, dated December 2,1999, the Application for Modification of Land Usage, site
plans, and a new SEAF .were submitted to the Planning Board (see Return, p. 84), along with a request for
a hearing date. The modification request noted that the property was within 500 feet of a county or state
road (see Return, pp. 87,, 1l), making same subject to referral to the Suffolk County Planning Commission
pursuant to General Municipal Law §239-m(3) (iv).’
The Planning Board entertained the application just seven days thereafter, on December 9, 1999.
The minutes of that meeting (see Return, pp. 8 1-2,13 - 12) show that the Town’s then Acting Commissioner
of Planning and Development “represented the application.” He discussed the Town’s reluctance to approve
the one-way access system, but noted that the relocation of the emergency room away from the west side
of the property “will malke these residents very happy.” Concern was expressed for the “few residents” on
the east side of Beach Dirive and “we just want to make sure that if this is considered to be approved by the
Board that we would have the ability to mitigate any potential noise concerns that might occur after the
property is up and functioning. So we feel it could work from a Traffic Safety standpoint.” He
recommended that approval be “subject to the ability to exhaust any potential noise impacts that may result
from the relocation of the Emergency Service Area.” A Planning Board member agreed with the restrictions
and stated ‘rjust be very careful, because there are residents as you mentioned over there.” The minutes
reflect that no one else spoke at the meeting, and that the approval was unanimously passed by the Planning
Board. No party has claimed that these minutes have ever been filed with the Town Clerk prior to the
commencement of this proceeding.
’ The Return is devoid of any indication that this matter was ever submitted to the Suffolk
County Planning Commission.
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IndexNo. 01-10881
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By letter, dated December 10, 1999 (see Return, p. 1A, 1B, 80), the Acting Commissioner (not the
Planning Board), notifie:d Good Samaritan of the approval, subject to the following important conditions:
3. The Planning Board reserves the right to hold a public hearing to
address any future noise and/or loitering complaints and to consider
any mitigation necessary to alleviate any Droblems resulting from the
relocation ofthe Emergency Room facilitu. The Planning Board shall
be solely responsible for the determination regarding noise and
loitering impacts.
5 . The above reference conditions shall be placed on the Building
Certificate of Occupancy (emphasis added).
The letter did-not reflect who was present or the actual vote of the Planning Board. Additionally,
by notation dated May 24, 2000, a special condition was added to the building permit to change the
Certificate of Occupancy to reflect the new building use (see Return, p. 72). A review of the latest
Certificate of Occupancy, dated November 20, 200 1, finally reflects the required conditions.* By letter,
dated January 3 1,2000, the relocation site plans were, once again, disapproved (see Return, p. 76). Finally,
by letter dated February 18,2000 the relocation site plans were approved (see Return, p. 73).
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Thereafter, on Mfarch 7,2000, the assistant site plan reviewer for the Town of Islip, upon reviewing
the SEAF submitted to the Planning Board, found no significant environmental effects resulting from the
relocation (see Return, 11. 86). However, before doing so, she noted that the project wouldnot be subject
to coordinated S E Q M review, that she was relying upon “site plan review to mitigate any impacts regarding
change to existing traffic patterns," and as to the potential for change in use or intensity of use of land, it was
noted, rather contradictlory, that “intensity & use remain the same or increase. Relocation of Emergency
room away from residences on w/s/o site is an improvement.” Moreover, the Return is devoid of any
approval of the negative: declaration by the Planning Board.
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The Return does contains additional correspondence from a neighbor on the west side of the
property, complaining about constant noise from the ambulances at the then existing emergency room (see
Return, p. 65-6,63,62,61,24,23,22). After approvals were forthcoming from the Suffolk County Health
Department in March 2000 (see Return, p. 70), the building permit was ready for issuance in June 2000 (see
Return, p. 69).
From the above recital, the Court surmises that since the building permit was expressly conditioned
upon approval of site plan modification by the Planning Board, if the site plan approval is defective, so must
fall the building permit. Here, site plan approval was issued on December 9,1999. However, the SEAF not
completed by the Town’s reviewer, until some three months thereafter, on March 7, 2000. Nor does it
appear that the EAF was ever considered by or a negative declaration ever approved by the Planning Board.
Such constitutes the chaillenged negative declaration.
On April 25, 2001, petitioners commenced this proceeding by Order to Show Cause seeking a
preliminary injunction rlestraining and enjoining the Hospital from operating the new emergency room. At
* In keeping with this Court’s suggestion set forth in the July 16,2001 Order, numerous
written requests have been made by petitioners for a hearing before the Planning Board. These
requests have been ignored.
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Coppola v Good Samaritan Hospital
Index No. 01-10881
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that time, this Court refiised to grant a temporary restraining order since the petition and supporting papers
failed to delineate how the challenged action constituted a “Type I” action under SEQRA and failed to
particularize the procedural and substantiveviolations of that Act. The emergency room opened for business
the next day, April 26,2001.
The original petition mistakenly claimed that the Town issued a special use permit to the Hospital
for the construction of a building for pain management. The petition M e r alleged that the switch to an
emergency room use was accomplished without notice and without an environmental study. At oral
argument, petitioners’ counsel conceded the fact that the relocation of the emergency room fails to qualify
as a “Type I” action under the SEQRA regulations, but pointed to the conhsion of the Hospital’s claim that
such constitutes a “Type: 11” action and the Town’s utilization of an Environmental Assessment Form that
is reserved for “Unlistecl” actions.
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By Order dated July 16,200 1, the Court disposed of various motions to dismiss and permitted the
filing of an amended petition. The amended petition before the Court seeks judicial review of certain
determinations of the Planning Board and other officers of the Town concerning the relocation of an
emergency room entrance of an existing hospital. It alleges that the relocation of the emergency room
constitutes a “Unlisted” action as defined in the regulations promulgated under SEQRA and that the Town
failed to undertake a fhll environmental review, or, as alleged by petitioners, any appropriateenvironmental
review. Petitioners allege, among other things, the lack of proper public notice and public hearing of the
application, the issuance of a negative declaration of environmental significance without conducting a
proper review, a review which did not identify significant adverse traffic impacts and avoided consideration
of some significant impacts by postponing review of them until after construction was begun, and a review
which failed to comply with the procedural and substantive requirements of SEQRA.
It is well-settled that “SEQRA’s goal [is] to incorporate environmental considerations into the
decision-making process at the earliest possible opportunity” (Matter of Neville v Koch, 79 NY2d 4 16,426,
583 NYS2d 802 [1992]; see, ECL $ 8-0109[4]). “The basic purpose of SEQR[A] is to incorporate the
consideration of environmental factors into the existing planning, review and decision makihg processes of
state, regional and local government agencies at the earliest possible time. To accomplish this goal,
SEQR[A] requires that all agencies determine whether the actions they directly undertake, fund or approve
may have a significant impact on the environment, and, if it is determined that the action may have a
significant impact on the environment, and, if it is determined that the action may have a significant adverse
impact, prepare or request an environmental impact statement” (6 NYCRR 617.1 [c]). An EIS is required
if the proposed project “may include the potential for at least one significant adverse environmental impact”
(6 NYCRR 617.7[a][ 11). “Because the operative word triggering the requirement of an EIS is ‘may’, there
is a relatively low threshold for the preparation of an EIS” (Matter of Omni Partners v County of Nassau,
237 AD2d 440,442, 6544 NYS2d 824 [2d Dept 19971). Pursuant to regulation (6 NYCRR part 617), an
Environmental Assessment Form is the form to used by an agency to assist it in determining the
environmental significance or non-significance of its actions. “A properly completed Environmental
Assessment Form must contain enough information to describe the proposed action, its location, its purpose
and its potential impacts on the environment” (6 NYCRR 617.2[m]).
Pursuant to SEQ.RA, an agency may issue a negative declaration, obviating the need for an EIS, only
after it has identified the: relevant areas of environmental concern, taken a “hard look” at them, and made
a “reasoned elaboration of the basis for its determination” (Matter of Jackson v New YorkState UrbanDev.
Corp., 67 NY2d 400, 417, 503 NYS2d 298 [1986]; Matter of Munash v Town Bd. of Town of East
Hampton, AD2d , NYS2d-, 2001 WL 1940855 [2d Dept 20021). “Where an agency fails to take
the requisitehard look and make a reasoned elaboration, or its determination is affected by an error of law,
or its decision was not rational, or is arbitrary and capricious or not supported by substantial evidence, the
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Coppola v Good Samaritan Hospital
Index No. 01-10881
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agency’s determination :maybe annulled” (Mutterof WEOKBroadcasting Corp. v Planning Bd., 79 NY2d
373,383,583 NYS2d 170 [ 19921). Accordingly, this Court must determine whether the Planning Board (or
the Town) complied with the procedural mandates of SEQRA, identified the relevant areas ofenvironmental
concern, whether they took a “hard look” at them, and whether they reasonably elaborated on the finding
of no significance.
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Upon this Court’s review of the record, it concludes that the Town failed to satisfy the above
standard. The analysis undertaken on March 7,2000 by the assistant site plan reviewer for the Town of Islip,
which deferred consideration of the one obvious environmental impact, that is, traffic, to “site plan review
to mitigate any impacts regarding change to existing traffic patterns,” and which analysis occurred three
months after the Planning Board had already approved the site plan application at an unnoticed meeting,
without public comment, underscores the superficiality of the challenged SEQRA process. In addition, the
Planning Board’s approval, which deferred consideration of the one obvious environmental impact, that is,
trflic, to some fkture public hearing to “consider any mitigation necessary to alleviate any problems
resulting from the relocation of the Emergency Room facility,” despite the fact that the Planning Board
acknowledged that it had to “be very careful, because there are residents as you mentioned over there,”
reveals a complete misunderstanding of the SEQRA process. Instead of the mandatory “hard look,” the
Planning Board and the Town, at best, offered a “confused gaze” at the potential traffic implications of the
relocation of the Emergency Room. While acknowledging a traffic and noise concern at the prior location
and that the relocation of the emergency room away from the west side of the property “will make these
residents very happy,” the Planning Board and the Town failed to adequately address the impact to the
residents on the east side of the property. The concern is not sufficiently detailed in the EAF, particularly
in light of the unexplored comment that the potential for change in use or intensity of use of land will
“remain the same or increase.”
It is not for this Court to weigh the desirability of having the Emergency Room relocated to the east
side of the Hospital property, but only to insure that the Town and the Planning Board satisfied the
procedural and substantive requirements of SEQRA and the rules and regulations implementing it (see
Chemical Specialties Manufactures Assoc. v Jorling, 85 NY2d 382,397,626 NYS2d 1[19951;Matter of
Jackson, 67 NY2d at 416, supra).
Since this was an Unlisted Action where there was no coordinated review, the procedures set forth
in 6 NYCRR 617.6(b)(4) were to be followed (see $617.6[b][2]). The Planning Board was permitted to
proceed as if it were the only involved agency. As explained at 6 NYCRR 617.4(a)(l), “[flor all individual
actions which are Type I or Unlisted, the determination of significance must be made by comparing the
impacts which may be reasonably expected to result from the proposed action with the criteria listed in
subdivision 6 17.7(c) of this Part.” A review of that subdivision’s Criteria for Determining Significance
reveals two possible potential impacts, which may possibly trigger a third impact. The first is “a substantial
adverse change in ...traffic or noise levels ...”($617.7[c][ l][i]). The second is “the encouraging or attracting
of a large number of peolple to a place or places for more than a few days, compared to the number of people
who would come to such absent the action” ($6 17.7[c][ l][ix]). Additionally, $617.7(c)(l)(xi) may be
relevant (“changes in two or more elements of the environment, no one of which has a significant impact
on the environment, but when considered together result in a substantial adverse impact on the
environment”) (see also §617.7[~][3]).
Here, procedurally, the Planning Board violated 6 NYCRR 617.3(a), that is, “[nlo agency involved
in an action may undertake, fbnd or approve the action until it has complied with the provisions of
SEQR[A].” As detailed above, the Planning Board approved the site plan submitted to it just seven days
earlier, without first considering and approving a resolution concerning SEQRA compliance. Ifthe Planning
Board seeks to rely upon the SEAF completed by the Town’s reviewer, such was not accomplished until
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Index No. 01-10881
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March 7,2000, three months after approval of the site plan. Furthermore, no explanation is offered as to
the authority of the Town’s reviewer to undertake SEQRA review on behalf of the Planning Board. It may
be that said individual undertakes such review for the Building Department, but under the applicable
SEQRA regulations the Planning Board has to approve its separated review. Such is indicated by the
submission of the SEAF to the Planning Board by the Hospital by letter dated December 2, 1999.
Having found that the Planning Board failed to comply with the procedural rigors of SEQRA,the
Court need not address the substantive requirements, that is, the Town reviewer’s determination of nonsignificance. However,,in light of the fact that the courts have failed to set forth the precise limits of the
“hard look” test beyond that found in Mrrtter o Jnckson, 67 NY2d 400, supra, the Court makes the
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following observations. Based upon the current record, the Court cannot find that the Town adequately
considered the probable environmental impact of the emergency room relocation and reasonably addressed
all prevailing concerns. The SEAF is intemally inconsistent and fails to contain sufficient evidence to
provide a rational basis to support a determination that the requisite “hard look” was undertaken.
That is not to sa.y that a determination of non-significance is not possible. While the record does
contain evidence of the traffic and noise concerns of the original neighbors on the west side of the Hospital
and generalized objectionsto the relocation from a traffic consultant submitted with the original petition and
from a safety expert (see Return, p. 30), Beach Drive is, apparently, a widely utilized roadway. The record
fails to disclose how the:addition of ambulances, hospital workers, walk-in patients, and visitors to that site
will affect conditions, if at all. The record is also devoid of objective reports of a significant impact
(compare Matter o Miinash, -AD2d -, szrprn). Once the Town corrects the procedural errors, it may
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still be able to articulate a rational basis to support a determination of non-significance. As previously noted
by the Court, the fact tha.t petitioners would require further mitigation measures is not a basis for invalidating
findings that satisfy SEQR4 criteria (see, Ct ofRye v Korsf, 249 ADS2d 470,671 NYS2d 526 [2d Dept
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19981). A court should not second-guess the environmental review conducted by an agency if the
substantive requirements of SEQRA are met (see, Matter of Finger vDelFino, 275 AD2d 745,713 NYS2d
490 [2d Dept 20001).
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The Court does reject the Town’s claim that the relocation constitutes a “Type 11”action, since it fails
to satisfy any one of the 37 categories found at §617.5(c). The claim from the then Commissioner of
Planning and Development that “ambulances turn off their sirens at Montauk Highway, well before they ever
begin to travel along Be:ach Drive” (Gulizio aff., par. 14), is offered without support, is contradicted by the
complains of the original neighbors to the west, and fails to address the traffic concerns.
Another issue looming over the remanded proceedings is whether or not the building permit for the
relocated emergency room required a front yard variance. All parties concede that the Hospital property
constitutes a corner lot: and pursuant to Town of Islip Zoning Code §68-189.B., ‘‘[all1 main buildings
hereafter erected on a c’ornerlot in a General Service C District shall also have a front yard facing the side
street. This front yard shall be a minimum of 30 feet, unless arterial highway setback is greater (see Article
XXXII).” Here, the setback is 45 feet. However, the issue is whether this new construction for the relocated
emergency room (the building permit at issue called for an approximately 11,036 sq. ft. addition to the
existing first floor area) is a main building or an accessory building, for pursuant to $68-189.D.(2),
“[a]cessory buildings 011 corner lots shall have a minimum front yard setback from the side street of 50 feet.”
The Town argues that the new structure is not an accessory building, but instead, attached to the main
building.
It appears that the structure was built separately and subsequently connected to the main building of
the Hospital by virtue of a connecting and enclosed hallway. The record is incomplete as to whether this
connecting hallway was part of the original design when the structure was intended as an outpatient
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rehabilitation center or added when the decision was made to relocate the emergency room. The certificate
of occupancy does not explain this addition. Moreover, the question arises as to whether one can simply
build satellite structures that are connected like spokes to a main structure and claim the benefit of a main
building for front yard set back purposes. However, with the annulment of the building permit, petitioners
can advance their claim that the relocation of the emergency room constitutes an accessory building with
the Building Inspector and if they disapprove of his decision, they can appeal it to the Zoning Board of
Appeals (see Town Law 9 267-a).
By prior Orders of this Court, dated July 16,200 1 and October 26,2001, it has been determined that
petitioners possess the requisite standing to bring this proceeding (see Town of Southold v Cross Sound
F e r y Serus., Inc., 256 AD2d 403,404,68 1NYS2d 571 [2d Dept 19981wherein neighboring homeowners
“some of whom suffered from an increase in noise, traffic, and air emissions on the streets upon which they
reside, possessed a real and substantial interest in the outcome of this action”).
Additionally, both of those Orders examined the statute of limitations issue in detail, reserving final
judgment until the submission of the entire record. In summary, a person aggrieved by a decision of any
board of a town must se:ekjudicial review by filing a proceeding under CPLR article 78 within 30 days of
the filing of the board’s decision in the office of the Town Clerk (see Town Law $274-a[11]; §267-c[1]).
If the challenged action relates to SEQRA review, the statute of limitations is triggered by the filing of the
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decision which embodies the final determination for SEQRA issues (seeklatterof Ct of SaratogaSprings
v Zoning Bd. ofAppenh o the Toiun o Wiltort,279 AD2d 756,719 NYS2d 178 [3d Dept 20011). Here,
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the basis of petitioners’ challenge is the P1,aiming Board’s noncompliance with SEQRA in approving the
relocation of the emergency room, before the issuance of a negative declaration, without the benefit of an
environmental impact statement, and apparently, without that Board ever taking part in the SEQRA process.
Petitioners’ primary challenge is to the site plan modification by the Planning Board issued on
December 9, 1999, ho.wever, the Town Attorney conceded at oral argument that neither the site plan
modification or the negative declaration prepared by Elizabeth K. Anderson were ever filed with the Town
Clerk. The records of the Town Clerk were the subject of various Freedom of Informatidn Requests by
petitioners, none of which disclosed the required filing with the Town Clerk. Long thereafter, the Town
came forward with a copy of the Acting Commissioner’s December 10,1999 letter concerning the Planning
Board’s site plan modification, with a date stamp showing receipt by the Town Clerk on December 15,1999.
However, although such was requested in this Court’s Order of October 26,2001, no explanation is offered
from the Town Attorne:y, from an individual responsible for filing the determination with the Town Clerk,
or from an individual responsible for record-keeping and safe-keeping within the Town Clerk’s office.
Moreover, the then Acting Commissioner’s December 10,1999 letter is nothing more than a hearsay
account of what transpired at the Planning Board. A Planning Director is without authority to approve or
disapprove a site plan (see Figgie Itit/., Inc. v Town o Huntington, 203 AD2d 416,610 NYS2d 563 [2d
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Dept 19941; Matter o ZVemeroffRealty Corp. v Kerr, 38 AD2d 437,330 NYS2d 632 [2d Dept 19721, afld
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32 NY2d 873,346 NYS2d 532[ 19731). The Planning Board is expressly authorized by statute (Town Law
9 271) and its powers are statutory (Town Law $9 274-a, 274-b, 276,277,278,282). Since only a Planning
Board can approve a site plan, and since it is acknowledged that the minutes of the December 9, 1999
meeting were never filed until, at best, long after the filing of this proceeding, the statute of limitations claim
(Town and Planning Board’s first affirmative defense) must be dismissed.
The Court also agrees with petitioners’ contention that the letter does not enumerate the vote of the
Planning Board and does not constitute a“decision” for statute of limitation purposes in keeping WithMatter
of Allens CreeWCorbett’s Glen Preserv. Group v Town o Penjield Planning Bd., 249 AD2d 921,673
f
NYS2d 222 (4th Dept l998).
[* 9]
Coppola v Good Sarnaritan Hospital
IndexNo. 01-10881
Page 9
Additionally, the Court rejects the Hospital’s claim that the issuance of the building permit was a
ministerial act not subject to SEQR4 review (see 6 NYCRR $617.5[~][19];see aZso Incorporated VU. o
f
Atl. Beach vGavalas, 81 NY2d322,599NYS2d218 [1993];MatterofLighthouseHill
CivicAssoc. vCity
o New York, 275 AD2d 322,712 NYS2d 558 [2d Dept 20001). Where permits are issued as a matter of
f
right, that is, as “official acts of a ministerial nature, involving no exercise of discretion” (ECL $8OlO5[5][ii]), SEQRA rleview is not required (see, Matter of Dujmich v New York State Freshwater
WetlandsAppealsBd., 240 AD2d 743,659 NYS2d 3 10 [2d Dept 19971). However, a building permit may
constitute agency “action” subject to SEQRA depending upon the regulatory scheme underlying the action
(see Matter of Pius v Bletsch, 70 NY2d 920,524 NYS2d 395 [19871). Here, the role of the Planning Board
added a large element of discretionary action into the decision-making process. As note, the building permit
was subject to Planning Board review of the site plan. Therefore, it was not simply ministerial in nature.
As for that branch of petitioners’ amended petition seeking an injunction restraining and enjoining
the Hospital fiom conducting business affairs and services at the relocated emergency room, the request is
granted but stayed until March 21,2003, to afford the Town an opportunity to comply with SEQRA (see
Matter of Uprose v Power Auth. of State of New York, 285 AD2d 603, 729 NYS2d 42 [2d Dept 20011;
Matter of Silvercup Studios, Inc. v Power Arrth. of State of New York, 284 AD2d 598,729 NYS2d 47 [2d
Dept 20011). Under the circumstances, that being the denial of the initial temporary restraining order
request, and since the emergency room is currently open and operating, the cited Second Department
holdings dictate the issuance of a stay order.
Finally, the Court, by short form order dated July 16,2001, determined that this proceeding w s not
a
rendered moot or academic by virtue of the completion of the construction. It was noted that the petitioners
sought immediate injunctive relief as soon as they became aware that the opening was imminent. Under the
circumstances,petitioners did all they could do to timely safeguard their interests, and the Hospital was put
on notice that if it proceeded, it would do so at its own risk (see Vitiello v City o Yonkers, 255 AD2d 506,
f
680 NYS2d 607 [2d Dept 19981;Matter of Save Our Forest Action Coalition Inc. v City ofKingston, 246
AD2d 217,675 NYS2d 451 [3d Dept 19981; Matter of Watch Hill Homeowners Assoc. Inc. v Town Bd.
of Town of Greenburgh, 226 AD2d 1031,641 NYS2d 443 [3d Dept 19961; c j Mattemf Gorman v Town
Bd of Town of East Hiimpton, 273 AD2d 235,709 NYS2d 433 [2d Dept 20001; Matter o Save the Pine
f
Bush Inc. v City ofAlbNany, 281 AD2d 832,722 NYS2d 310 [3d Dept 20011).
The recent decision from the Court of Appeals in Matter of Dreikausen v Zoning Bd. of Appeals
ofthe CiQ o Long Beach, 98 NY2d 165,746 NYS2d 429 (2002) does not alter that result. Therein, the
f
Court emphasized that the petitioners failed to seek a temporary restraining order at any time during which
the matter was pending before the Supreme Court. In fact, the Court recognized that notwithstanding
substantial completion, “public interests such as environmental concerns warrant continuing review
(citations omitted)” (Matter of Dreikausen, 98 NY2d at 173).
Since it is clear that any interlocutory appeal from this remand Order will require permission (see
, NYS2d- [2d Dept 20021; Matter of
CPLR 5701[b][ 11; see u s o Matter of Rrmo v Black, -AD2d
Luebbe v Town o Brookhaven Zonitig Bd. of Appeals, 120 AD2d 73 1,502 NYS2d 5 16 [2d Dept 19861;
f
Coor Dev. Corp. v Webier,41 AD2d 689,342 NYS2d 635 [4th Dept 19731; People ex ref.Afrika v Russi,
204 AD12d 1062,613 NYS2d 99 [4th Dept 19941; Cirasole vSimins, 48 AD2d 795,369 NYS2d 423 [lst
Dept 1975]), this Court declines to entertain such an application (see CPLR 5701[c]). However, as noted,
the Court has partially stayed enforcement of this Order.
It is this Court’s firm belief that if the challenged governmental review process had been open to the
public for comment and imput, the relocation of the emergency room still could have been accomplished,
and genuine concerns olf nearby residents could have been addressed. While the Planning Board’s review
[* 10]
,
.
Coppola v Good Samaritan Hospital
IndexNo. 01-10881
Page 10
may have been slowed, e:arly answers to potential traffic, noise, and safety concerns could have dispelled
any unfounded fears and eliminated the need for endless judicial intervention.
According, the amended petition is granted to the extent indicated and the matter is remanded to the
Planning Board. This shlall constitute the decision and order of the Court.
