Matter of Hopkins v Mills

[*1] Matter of Hopkins v Mills 2005 NY Slip Op 52298(U) Decided on May 23, 2005 Supreme Court, Albany County Clemente, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on May 23, 2005
Supreme Court, Albany County

In the Matter of the Application of John J. Hopkins and Mark Green, Petitioners, for a determination pursuant to Article 78 of the New York Civil Practice Law & Rules,

against

Richard P. Mills, as Commissioner of Education of the State of New York, New York State Education Department, Pittsford Central School District, the Board of Education of the Pittsford Central School District, Respondents.



6240-04



Harter Secrest & Emery, LLP

Attorneys for Pittsford Central

School District respondents

1600 Bausch & Lomb Place

Rochester, New York 14604-2711

By: Edward F. Premo, II, Esq.

Eliot Spitzer, Attorney General

McNamara, Lochner, Titus & Williams, P.C.

Attorney for State respondents

Attorney for petitioners Hopkins and Greene

The Capitol 75 State Street

Albany, New York 12224Albany,

By: Loretta Simon, Esq.

New York 12207-0459 By: William Hurst, Esq.

Nicholas A. Clemente, J.

This is a CPLR Article 78 proceeding to annul and vacate the building permits and other approvals and an accompanying Findings Statement issued by the State respondents [ "the State"]. The School District respondents [ "the School District"] move to renew and/or reargue their motion to dismiss; petitioners cross-move to strike new matters asserted in respondents' verified answers. The motion, cross-motion and petition have been joined for decision.

I. Motion to Renew/Reargue Respondents' Motion to Dismiss

The motion is addressed to Acting Supreme Court Justice Edward A. Sheridan's Decision and Order dated December 15, 2004 which denied motions to dismiss brought by all respondents.[FN1] The motion seeks reargument and/or renewal of the School District's motion to dismiss the first through fourth causes of action set forth in the petition.

A motion to reargue is addressed to the sound discretion of the Court. It does not rely on new proof; rather its purpose is to provide the movant with an opportunity to convince the Court that it was wrong in deciding a factual or legal issue (Pro Brokerage Inc. v. Home Ins. Co., 99 AD2d 971; Foley v. Riche, 68 AD2d 558). In addition to rearguing the facts, which were thoroughly argued before Judge Sheridan, the School District argues that Judge Sheridan misapprehended and misapplied the decisions in Stop-the-Barge v Cahill (1 NY3d 218) and Citizens for a Better School Plan v Pittsford Central School District (Sup Ct, Albany County, September 13, 2000, Index No. 1149-00) and the doctrines of laches and mootness. This Court has reviewed the facts herein, the decision of Judge Sheridan (including the cases cited) and the affidavits on this motion and finds no grounds to entertain reargument. The motion to reargue is denied.

On a motion to renew, a movant must establish pursuant to CPLR 2221(e)(2) a change in the law or material facts which were in existence at the time of the original motion but were unknown to the movant and, consequently, not placed before the court (Matter of Bieny, 132 AD2d 190, appeal dismissed 71 NY2d 994); or known to the movant and not used for good cause shown (Webb v. Knapp, Inc. v. United Cigar-Whelan Stores Corp., 276 AD 583). The School District has provided no new material except for updated construction costs and evidence of further alteration of the construction site, which the Court finds unpersuasive. Accordingly, the motion to renew is denied.

II. Cross-Motion to Strike Certain Affirmative Defenses

In its verified answer the School District pleads the expiration of the statute of limitations and the doctrines of laches and mootness in its first through fifth affirmative defenses. The State pleads the statute of limitations as its fourth affirmative defense. The defenses raised by both respondents rely on identical arguments raised in respondents' motions to dismiss and the School District's motion to reargue and renew its motion to dismiss. These defenses must be striken as the issues raised have been decided and are law of the case (see GG Managers, Inc. v Fidata [*2]Trust Company New York, et al., 215 AD2d 241, appeal dismissed 87 NY2d 896).

Petitioner's fifth cause of action for a preliminary injunction was dismissed by the Decision and Order of December 15, 2004 and neither party appealed the decision on that issue. Accordingly, the School District's sixth affirmative defense related to the fifth cause of action is striken as moot.

III. The Article 78 Petition

In this proceeding petitioners seek an order annulling and vacating building permits and other approvals and an accompanying Findings Statement issued by the State, authorizing the School District to commence construction of a new middle school as part of a district-wide Facilities Improvement Plan. The proposed new middle school will be located at the Calkins Road site at the intersection of Calkins Road and Clover Road and adjacent to the northeast corner of the Hopkins Farm. Petitioner Hopkins owns and resides in the Hopkins Homestead, located on Clover Street approximately 300 feet from the Calkins Road/Clover Road intersection, on the Hopkins Farm; petitioner Greene is Hopkins' nephew and operates and resides in another home located on Clover Street on the Hopkins Farm.

The Hopkins Farm is approximately 360 acres and encompasses three of the four corners of the intersection. The Hopkins Farm has been owned and operated by the Hopkins Family since 1812. In October, 2000, it was listed on both the National and State Registers of Historic Places due to its historic integrity as a working family farm. In the late 1990's the Hopkins Family conveyed the development rights and a conservation easement pursuant to ECL Article 49 to the Town of Pittsford as part of the Town's "Greenprint for Pittsford's Future" program to preserve the Town's agrarian community and neighborhood character and to preserve open space. The terms of the easement require the Hopkins Farm to continue agricultural production.

In reviewing SEQRA determinations, "* * * it is not the role of the courts to weigh the desirability of any action or choose among alternatives, but to assure that the agency itself has satisfied SEQRA, procedurally and substantively" (Matter of Jackson v New York State Urban Dev. Corp., 67 NY2d 400, 416). The agency's decision must be upheld if it is supported by a rational basis (Matter of Monroe County v Kaladjian, 83 NY2d 185, 189).

Judicial analysis of an agency's SEQRA determination 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" (Matter

of Gernatt Asphalt Prods. v Town of Sardinia, 87 NY2d 668, 688;

see Matter of Kahn v Pasnik, 90 NY2d 569, 574). The pertinent

inquiry 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 Jackson v New York State Urban Dev. Corp., 67 NY2d 400, 417;

see Matter of Gernatt Asphalt Prods. v Town of Sardinia, supra at 688).

"An agency's compliance with its substantive SEQRA obligations is

governed by a rule of reason and the 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 [citation omitted]). A court cannot substitute its [*3]

judgment for that of the agency (see Matter of Merson v McNally,

90 NY2d 742, 752). (Save the Pine Bush, Inc. v. Planning Bd.,

298 AD2d 806, 807).

In 1998 the School District formulated a proposal for a district-wide improvement of school facilities and began the process of implementing that plan. The plan included, among other facility improvements and additions, the construction of a new high school at the Calkins Road site. The State Education Department ["SED"] declared itself as SEQRA lead agency. A Draft Environmental Impact Statement ["DEIS"] was prepared and a Notice of Completion was issued on September 23, 1998. No comments were received from any involved or interested agency or the public and a negative declaration was issued on October 28, 1998. However, prior to acceptance of the Final Environmental Impact Statement ["FEIS"], the plan was rejected by the district voters in January, 1999.

A Second Proposal was formulated by the School District which also included construction of a new high school at the Calkins Road site. Without further SEQRA review, the Second Proposal was approved by the voters in December, 1999.

Involvement of the State Historic Preservation Office ["SHPO"] began in April, 2000 when it found no adverse impact on the Hopkins Farm, at that time eligible for historic register listing, conditioned upon development being in conformance with the submitted site plan dated December 23, 1998, and other landscaping proposals. In September, 2000 the SHPO communicated its concerns that impacts to the Hopkins Farm property under the Second Proposal would be greater than first anticipated, partly due to the fact that the anticipated boundaries of the historic Farm were larger than originally contemplated. Particularly of concern was the traffic impact and proposed traffic improvements at the Calkins Road/Clover Road intersection. By letter dated December 20, 2000, the SHPO suggested other alternatives which the School District might consider and stated that if none of the suggestions were feasible, the SHPO would welcome discussing mitigation efforts. The State thereafter concluded that further consideration of the environmental impacts of the Calkins Road project was required. Consequently, in June, 2001 the State rescinded its previous negative declaration and the Second Proposal was discontinued.

A Third Proposal was thereafter formulated by the School District. In June, 2002 the School District declared itself to be the SEQRA lead agency for the Third Proposal and accepted a new DEIS on July 15, 2002. Following a public comment period, an FEIS for the Third Proposal was accepted on September 30, 2002. The Third Proposal included building a new middle school (as an alternative to a high school) at the Calkins Road site. The School District issued its Findings Statement approving the Facilities Plan with a new middle school to be built at the Calkins Road site on October 15, 2002. In December, 2002 the district voters approved the construction of the new middle school.

Consultations with the SHPO continued; and in 2003 the State delegated its duty to consult with SHPO to the School District. SHPO repeatedly complained to respondents that the School District was not satisfactorily consulting with it regarding the project's impact on the Hopkins Farm historic site. Respondents also continued to consult with the Army Corps of Engineers under Section 106 of the National Historic Preservation Act. Finally, the State replied by letter dated January 19, 2004 that its obligations to consult with the SHPO were satisfied and a building permit would issue (see 9 NYCRR 428.10[d]). The State issued the Approvals and [*4]Findings Statement on June 25, 2004.

There are four remaining causes of action. The first cause of action alleges that the State's issuance of the Approvals and Findings Statement was arbitrary and capricious and contrary to lawful procedure because the State did not adequately consult with the SHPO and failed to adequately explore alternatives that would mitigate or avoid harmful impacts on the Hopkins Farm in violation of PRHPL §14.09. Hopkins maintains that the planned enlargement of the intersection to include new turning lanes on Clover Road will alter the viewshed of the Hopkins Homestead, in which Hopkins lives, and threaten the agricultural character of the farm. Greene is concerned that there will be adverse effects on the Farm operation. He claims that drainage patterns will be irreparably harmed by the changed topography, the paving and building; that there will be increased traffic, noise and visual effects caused by placing a school next to a working farm; and that there is the potential for complaints from staff and families of students over the noise, dust, odors and pesticide use of the farm.

The State responds that it and/or the School District communicated on a regular basis with the SHPO during the four years of the planning stage of the project. The original plans were significantly altered and include several mitigation measures after consultation with the SHPO. The original plans for a 250,000 square foot high school were changed to a 203,000 square foot middle school [FN2]. The school building has been situated further away from the Hopkins Farm than originally proposed. There will be fewer employees and no student drivers; therefore, the parking lots will be smaller with reduced transportation, visual and stormwater runoff impacts. The design of the building has been modified to reduce its height and visibility from surrounding properties: mechanical equipment will be located in the basement, instead of on the roof; and the facades and layout of the building have been configured to resemble a cluster of agricultural buildings. These refinements were the result of consultation with the SHPO and avoid or mitigate some of the adverse impacts of the school site on the farm and surrounding neighborhood (which also includes a housing development).

The claim that respondents did not adequately consult with the SHPO is belied by a careful reading of the record which demonstrates that the SHPO made extensive critical comments on the plan and was regularly consulted with and copied on letters to other interested and involved agencies for more than four years. The December 20, 2000 letter from SHPO to SED anticipates that construction of a middle school at the site may be the "only prudent and feasible location;" in that event the SHPO stated that it was available to work with the agency on mitigation measures.

Correspondence reveals an ongoing difference of opinion between the SHPO and respondents as to whether alternative sites were appropriately explored. SHPO maintained that there had not been satisfactory exploration of alternative sites and chose not to attend all meetings on the project. However, the record discloses that from the inception of the district-wide plan in 1998 to the adoption of the Third Proposal, respondents thoroughly reviewed eight different options, conducted a search for feasible alternative sites, investigated the feasibility of [*5]purchasing and developing alternative sites (including the "Monroe Avenue site" and the "Mile Square site" [located in the southern part of the district]), and found no better alternative than siting a middle school at Calkins Road (see Matter of Concerned Citizens Against Crossgates v Flacke, 89 AD2d 759, 761, affd 58 NY2d 919).

An alternative site for a project is only one of many factors which may be considered in the effort to avoid or mitigate adverse impacts on a registered property (6 NYCRR §428.8). Respondents are not required to follow all SHPO advice (6 NYCRR §§428.8; 428.10). "PRHPL 14.09 is written in terms of feasible and prudent' plans and alternatives (PRHPL 14.09[1]), and a State agency must avoid or mitigate adverse impacts only [to] the fullest extent practicable' (PRHPL 14.09[2])" (Matter of Ebert v New York State Office of Parks, Recreation & Historic Preservation, et al., 119 AD2d 62, 66). In formulating alternatives primary consideration must be given to the State's historic preservation policy (9 NYCRR §428.8[d]). However, respondents are not required to adopt a plan with the least environmental impact; rather, a combination of factors such as costs, program needs, safety and efficiency, as were considered by respondents herein, will satisfy statutory compliance (9 NYCRR §428.8). To that end, the SHPO criticisms were considered and resulted in several significant alternatives and mitigation measures in the numerous revisions of the middle school plans. The new middle school, a less intensive use of the site, is itself an alternative to constructing a new high school, with its more pervasive impacts. Respondents also consulted extensively with the Army Corps of Engineers in the National Historic Preservation Act, Section 106 review. The record establishes that respondents fully explored feasible and prudent alternatives and gave due consideration to feasible and prudent plans that would avoid or mitigate adverse impacts (see RPHPL 14.09[1]; Matter of Ebert v New York State Office of Parks, Recreation & Historic Preservation, et al., supra).The second cause of action alleges that during the SEQRA process respondents failed to take a "hard look" at environmental impacts on the Hopkins Farm. The review process in this district-wide improvement plan commenced in1998 and resulted in the preparation of two DEIS's and one FEIS and consultations for more than four years with the SHPO pursuant to PRHPL §14.09 and the Army Corps of Engineers pursuant to Section 106. The middle school project at the Calkins Road site, which was addressed in the second DEIS and the FEIS, resulted from satisfying the mitigation requirements for adverse environmental impacts on the historic Hopkins Farm. The construction of the middle school was chosen as a less intrusive alternative to the higher intensity use of the property as a new high school.

During the SEQRA review, respondents thoroughly investigated, analyzed and designed mitigation measures or alternatives for the agricultural, visual, traffic and drainage impacts of the middle school building, parking lots and athletic fields on the Hopkins Farm. Numerous public meetings were held and the public and other interested agencies were provided with the opportunity for comment during the formulation of the Third Proposal and the SEQRA review. The School District was assisted by several independent consulting firms including The Thomas Group, Sear-Brown, Clough, Harbour & Associates, SRF & Associates, F.A. Dente Engineering, P.C. and Santec Consulting, Inc., who evaluated the impact of development of the site on the Hopkins Farm. Specifically, on-site water resources, drainage, adjacent historic land uses, noise levels and visual resources were evaluated; mitigation measures, such as stormwater management, erosion control, maintenance and supplementation of existing hedgerows and addition of berms to minimize the impact of the school on the farm were developed; site [*6]topography, building orientation, landscaping, architectural design and color scheme were implemented in a design to lessen the visual effects and complement the existing surroundings; a memorandum of understanding between the School District and petitioners was developed in an effort to allay petitioners' fears about potential lawsuits which might arise from farm uses adjacent to a school.[FN3] These design measures were undertaken in consultation with the Army Corps of Engineers, NYSDEC, NYSDOT and the Town of Pittsford. The record amply demonstrates that respondents took a "hard look" before they determined to accept this project.

The third cause of action alleges that respondents failed to consider the effects of increased population that will be attracted to the school district by the new facilities and thus failed to consider the cumulative impact of the plan in violation of SEQRA. Projected school population growth was addressed in the DEIS and FEIS and determined to have no adverse impact on the area. Respondents have demonstrated that the project was motivated by current increased school population and increased program requirements. In any event, the fact that the new middle school and traffic improvements may attract new residents to the school district is entirely speculative and without merit.

The fourth cause of action alleges that neither the School District nor the State had final traffic plans before them when they issued their Findings Statements; therefore, they violated 6 NYCRR 617.3(g)(1) by conducting an improperly segmented SEQRA review. This claim is inaccurate in that traffic improvements were identified and described in the DEIS, FEIS and the School District's Findings Statement. The plan notes that there will be an increase in traffic on the roads and states that a westbound left turn lane will be required for Calkins Road at the proposed school driveway and turning lanes will be added to the Calkins Road/Clover Road intersection; the road work will be contained within the established DOT right-of-way; and signs indicating slow moving farm machinery will be posted. The DEIS states that NYSDOT gave concept approval to the plans. Respondents determined that the resulting wider roadway was not visually out of character with the pre-improvement road. Photographs in the FEIS, which show an intersection with an existing traffic light and shoulders on both sides of the roads, support this determination.

The traffic improvement refinements which arose during the NYSDOT and Army Corps of Engineers Section 106 evaluation conducted in the permitting process were to further mitigate adverse impacts and maintain safety; there were no substantial deviations from the descriptions in the DEIS, FEIS and Findings Statements. Where the application of a statute involves an evaluation of factual data and inferences to be drawn therefrom, the courts defer to the agency charged with the responsibility for administration of the statute (Kurcsics v Merchant Mutual Insurance Co., 49 NY2d 451). The post-Findings Statement changes were part of the normal permitting process and not improper segmentation.

The record discloses a sound rational basis for the determination to construct the middle school at the Calkins Road site; the SEQRA review was thorough; subsequent permitting actions were appropriate and in accordance with well-considered mitigation efforts. Accordingly, respondents actions cannot be said to be irrational, arbitrary or capricious or contrary to law.

Therefore, it is [*7]

ORDERED that the School District respondents' motion for leave to reargue and/or renew the motion to dismiss is denied in all respects, without costs; and it is further

ORDERED that petitioner's cross-motion to strike the first through sixth affirmative defenses of the School District respondents and the fourth affirmative defense of the State respondents is granted, without costs; and it is further

ORDERED & ADJUDGED that the petition is dismissed.

This shall constitute the decision, order and judgment of the Court. All papers are being filed with the office of the Clerk of Albany County. The signing of this decision shall not constitute entry or filing under CPLR 2220. Counsel are not relieved from the provisions of that rule regarding filing, entry and notice of entry.

Dated: Monticello, New York

May , 2005

ENTER

________________________________________

NICHOLAS A. CLEMENTE, JSC Footnotes

Footnote 1:After the December 15, 2004 Decision and Order, Judge Sheridan retired and the proceeding was reassigned to this Court.

Footnote 2: Originally the proposed middle school was designed with 170,000 square feet; design changes to mitigate the visual impact required adding another 33,000 square feet, primarily in interior basement space to contain the mechanical equipment.

Footnote 3: To date, petitioners have declined to enter into a memorandum of understanding.