Matter of Anderson v Lenz

[*1] Matter of Anderson v Lenz 2005 NY Slip Op 52359(U) [18 Misc 3d 1146(A)] Decided on May 18, 2005 Supreme Court, Saratoga County Nolan, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 18, 2005
Supreme Court, Saratoga County

In the Matter of the Petition of Gail G. Anderson, Petitioner,

against

Hon. Michael Lenz, Mayor of the City of Saratoga Springs, New York, and Chairperson of the Saratoga Springs City Council and The City Council of the City of Saratoga Springs, New York, Respondents.



45-1-2005-0282



Lynch & Lynch, Esqs.

Attorneys for Petitioner

48 Columbia Street

Albany, New York 12207

Miller, Mannix, Schachner & Hafner, LLC

Attorneys for Respondents

451 Glen Street

P.O. Box 765

Glens Falls, New York 12801

Thomas D. Nolan, J.

In this proceeding under Article 78 of the CPLR, petitioner seeks vacatur of an ordinance which rezoned the lands within the Southern Wiebel Avenue District (SWAD) to Rural Residential-1 (RR-1) on the ground that the environmental review conducted prior to the adoption of the ordinance did not satisfy the State Environmental Quality Review Act (SEQRA).

In 1999, after a generic environmental impact statement, the City created a SWAD district for approximately 126 acres in the easterly part of the City, generally located south of Lake Avenue also known as NYS Route 29, west of Gilbert Road, East of Interstate 87 also known as the Adirondack Northway, and northerly of Union Avenue. Permitted uses in the SWAD district include commercial, office, retail, office parks and high density residential projects, such as condominiums, townhouses and apartments with associated recreational facilities. Permitted uses in an RR-1 district are limited to single-family residences on two acre [*2]minimum lots, and under some limited circumstances, two-family houses.

An earlier effort at a similar, if not identical rezoning, was set aside by this court's decision dated May 10, 2004, on the petitioner's challenge, on the ground that the City did not articulate on the record the reasons why it had made a negative declaration prior to enacting that legislation, and thus the procedural prerequisites of SEQRA had not been met. As a result of this court's earlier decision, the 123 acres remained zoned SWAD.

In November 2004 and by later amendment in December 2004, the petitioner made an application for a special use permit to construct upon her 44 acres within the SWAD zone a project known as Spring Run Village, with a proposed community center building, 36 condominium residences and 264 apartments of which 60 were to be affordable housing units. Following a SEQRA negative declaration based on a long Environmental Assessment Form (EAF), the City on February 1, 2005 enacted another ordinance rezoning the SWAD district to a RR-1 district. As a result, the petitioner's application for its housing project came to an end.

In this proceeding commenced March 3, 2005, petitioner contends that the removal of her 44 acres from those lands within the City on which "affordable housing units" or "workforce housing" could be built constituted a significant negative impact which should have required a full environmental impact statement, not simply an EAF, and that the City in its SEQRA deliberations did not give the required hard look at the consequences of a loss of 60 moderately priced rental units from potential housing stock and that such hard look, petitioner contends, would have required the City to take some action to make up for this loss elsewhere within the City.[FN1]

On the other hand, the City contends that it did consider and did take a hard look at the impact that the rezoning would have on the environment, including the removal of petitioner's parcel and the rest of the lands in the SWAD district, from the inventory of lands which are zoned for high density residential housing projects.

SEQRA, ECL Article 8, must be strictly followed and requires that "[S]ocial, economic and environmental factors [***] be considered together in reaching decisions on proposed activities". ECL 8-0103 (7); Matter of City Council of City of Watervliet v Town Bd. of Town of Colonie, 3 NY3d 508, 515 (2004). In reviewing SEQRA determinations, the court's role is not to "weigh the desirability of any action or choose among alternates, but to assure that the agency itself has satisfied SEQRA, procedurally and substantively" meaning that the lead 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". Jackson v New York State Urban Development Corp., 67 NY2d 400, 416-417 (1986); Matter of Spitzer v Farrell, 100 NY2d 186, 190 (2003). The court's role is not to "substitute its own judgment [on substantive matters] for that of the agency". Akpan v Koch, 75 NY2d 561, 571 (1990); Matter of Save the Pine Bush, Inc. v Planning Bd. of City of Albany, 298 AD2d 806, 807 (3rd Dept 2002). In the SEQRA analysis, a balance must be achieved between "social and economic goals and concerns about the environment". Jackson, supra, at 414. In this case, SEQRA required the City to consider and [*3]determine the significance of the environmental impacts of the proposed rezoning, first by identifying all the relevant areas of environmental concern and then by subjecting each such area to an adequate analysis. Yet, "not every conceivable environmental impact, mitigating measure, or alternative, must be identified and addressed before a FEIS will satisfy the substantive requirements of SEQRA [citation omitted]***" since "[t]he Legislature in SEQRA has left the agencies with considerable latitude in evaluating environmental effects in choosing among alternatives [citation omitted]*** [and] ***[N]othing in the law requires an agency to reach a particular result on an issue or permit the court to second guess the agency's choice which can be annulled only if arbitrary, capricious or unsupported by substantial evidence [citation omitted]" Chinese Staff and Workers Assn. v City of New York, 68 NY2d 359, 370-371 (concurring and dissenting op) (1986).

Here, the record establishes that the City, prior to enacting this rezoning ordinance, took a hard look at the environmental impacts of this proposed rezoning and adequately articulated the factual basis for its negative SEQRA declaration. The City recognized that the proposed rezoning of more than 25 acres constituted of Type I action, retained Behan Planning Associates, LLC as a consultant to assist it in its SEQRA deliberations, and caused a long form EAF to be prepared. The answers to Part I of the EAF did not raise any red flags, and even though none of the areas posed a potentially large impact [perhaps erroneously, in part, given the continuing public controversy] the consultants nonetheless considered each and every impact area outlined in Part II and analyzed in depth each of the traditional areas of potential impact on the physical environment. Included in the Part III analysis of the EAF were the zoning history of this part of the City and the various comprehensive plans developed by the City, in general and specifically for this particular area, and their conclusion that a rezoning to a low density residential classification was consistent with the City's most recent comprehensive plan which called for a creation of a conservation district with residential densities ranging from 0.0 to 0.5 units per acre. Overall, the environmental assessment recognized that the goal of the City, articulated in various studies and plans, is to minimize the density of development in the outlying areas of the City and to concentrate density within the downtown area. In addition, included in the Part III evaluation and in the negative declaration was an analysis of the zoning impact on what is described as "affordable housing". In its negative declaration, the City noted that a need to provide "affordable" homes within the City is being pursued "through its Affordable Housing Task Force and partner organizations***. While this proposed action [rezoning to RR-1] potentially may limit future options to create additional affordable housing within this subject area in comparison to the potential under SWAD zoning (although there is no guarantee that SWAD zoning would generate affordable housing, if any), this potential impact is limited and is not a significant adverse impact. Other opportunities remain in the city for locating new, infill affordable housing and for renovating existing housing stock for future affordable housing. Further parties interested in limiting their profit on a housing development could still propose affordable housing in this subject area working within the lower density proposed under RR-1."[FN2] It is thus clear that the City gave a hard look at the removal of these lands from those upon which high density residential development could be built and made a determination that such removal [*4]did not create a significant adverse impact.

The petitioner argues the City's duty under SEQRA extends to mitigating this impact by making provision for an equivalent number of high density affordable housing units somewhere else in the City, presumably by some legislative act. The petitioner premises this argument on the provisions of ECL § 8-0103 (7) which inject "social and economic" concerns into the analysis whether an activity will affect the environment and of ECL § 8-0105 (6) which, in pertinent part, add population concentration and growth into the SEQRA mix. Once again, the City, as it made clear in its negative declaration, balanced this loss of potential "affordable" rental units against what it considered an overriding preference to preserve open space in the outer districts of the City and to encourage intensive development in its "core" or inner districts.

Chinese Staff and Workers Association v City of New York, supra, does not require a different result. This case stands for the proposition that SEQRA review extends beyond the traditional impacts on the physical environment. "[t]he impact that a project may have on population patterns or existing community character, with or without a separate impact on the physical environment, is a relevant concern and an environmental analysis since the statute includes those concerns as elements of the environment***. In sum, population patterns and neighborhood character are physical conditions of the environment under SEQRA. regardless of whether there is any impact on the physical environment [citations omitted]". supra, at 366. In this case, the City evaluated the effects of returning this land to low density residential uses when it found, although without specificity, that there were sufficient lands within the inner core of the city suitable for high density residential development. It is likewise clear that the City Council in its SEQRA review, unlike the City of New York in the case above, did consider the impact of the removal of these lands from the inventory of those on which high density residential units could be constructed and reasonably determined that such removal would not have a significant negative impact on the environment. see Matter of Jackson v New York State Urban Development Corp., supra. In sum, notwithstanding petitioner's contention, SEQRA simply does not require the City here, as part of the SEQRA process, to rezone other lands to allow high density residential units or in some other way to make up for "lost" high density residential units.In conclusion, the SEQRA process was duly and properly completed. Petitioner's SEQRA challenge fails.

The petition is dismissed, without costs.

This memorandum shall constitute both the decision and the order of the court. All papers, including this decision and order, are being returned to respondents' counsel. The signing of this decision and order shall not constitute entry or filing under CPLR 2220. Counsel is not relieved from the applicable provisions of that section relating to filing, entry and notice of entry.

So Ordered.

Dated: May 18, 2005

Ballston Spa, New York

Hon. Thomas D. Nolan, Jr.

Supreme Court Justice

7Footnotes

Footnote 1:Real estate prices have increased significantly in Saratoga Springs. Some workers commute into the City from communities with less expensive housing costs. The City created a task force to analyze and make recommendations regarding this issue. see Exhibit 16 to notice of petition.

Footnote 2:Respondents' record, page 117.