Johnston v Town Bd. of Town of Brookhaven

[*1] Johnston v Town Bd. of Town of Brookhaven 2006 NY Slip Op 50828(U) [11 Misc 3d 1092(A)] Decided on March 22, 2006 Supreme Court, Suffolk County Costello, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 22, 2006
Supreme Court, Suffolk County

Maryann Johnston, Petitioner,

against

Town Board of the Town of Brookhaven, PLANNING BOARD OF THE TOWN OF BROOKHAVEN, CHARLES J. VOORHIS, managing partner of Nelson, Pope, Voorhis LLC, RICHARD ROSENBERG, ESQ. of THE BEECHWOOD ORGANIZATION, and MICHAEL DUBB and LESLIE A. LERNER, principals of Beechwood and d/b/a MILE DEVELOPMENT CORPORATION, Respondents.



05-13988

Ralph F. Costello, J.

ORDERED that the motions (#

007, #

008, #

010) for dismissal, summary judgment, and other relief are consolidated for the purposes of this determination and considered together with the cross motion (#

009) for a special preference, severance, and the imposition of sanctions; and it is further

ORDERED that the motion (#

007) by respondents Miles Development Corporation d/b/a The Beechwood Organization, Michael Dubb, Leslie A. Lerner, Richard Rosenberg, Esq., and Charles J. Voorhis, as Managing Partner of Nelson Pope & Voorhis LLC for an order pursuant to CPLR 3211 and CPLR 7804 (f) dismissing the petition in this hybrid Article 78 proceeding and for declaratory relief on the basis that the hybrid proceeding is untimely, on documentary evidence, and on the basis that the petition fails to state a cause of action; pursuant to CPLR 3001 for a declaratory judgment; and pursuant to CPLR 1003 dismissing the petition against the individual respondents is determined herein;

ORDERED that the motion (#

008) by respondents Town Board of the Town of Brookhaven and Planning Board of the Town of Brookhaven for an order pursuant to CPLR 409 (b) and CPLR 3212 granting summary judgment in their favor is determined herein;

ORDERED that the cross motion (#

009) by respondents Miles Development Corporation d/b/a The Beechwood Organization, Michael Dubb, Leslie A. Lerner, Richard Rosenberg, Esq., and Charles J. Voorhis, as Managing Partner of Nelson Pope & Voorhis LLC for an order for a special preference, severance from consideration with the subsequent motions, and for the imposition of sanctions pursuant to 22 NYCRR § 130-1.1 is denied;

ORDERED that the motion (#

010) by petitioner for relief pursuant to CPLR Article 78, CPLR Article 6, and CPLR Article 22 is granted solely with respect to the request for an adjournment to enable the Court to render the determination herein.

In this hybrid CPLR Article 78 proceeding and action for declaratory relief, petitioner-plaintiff pro se (petitioner) seeks, inter alia, a judgment pursuant to CPLR Article 78 reversing, annulling and setting aside (1) the October 1, 2002 resolution of the respondent Town Board of the Town of Brookhaven (Town Board) conditionally approving the application of respondent Miles Development Corporation d/b/a The Beechwood Organization (Beechwood) to rezone property; (2) the Town Board's negative declaration pursuant to the State Environmental Quality Review Act (SEQRA) regarding said rezoning; and (3) the May 2, 2005 conditional approval of the Planning Board of the Town of Brookhaven (Planning Board) of Beechwood's site plan. [*2]

Beechwood seeks to develop approximately 153 acres of land located between Moriches-Middle Island Road and the north service road of Sunrise Highway (Route 27) in Mastic, New York. The development, "Beechwood at Mastic," proposes construction of 466 residential units for persons 55 years of age or older, with facilities, drainage and recharge areas, and an on-site sewage treatment plant (STP). Petitioner resides at 8 Abbott Avenue in Mastic, New York, within 200 feet of the proposed project and at the end of a "dead end" street bordering on the woods located on the site.

At the inception of this proposal, the site for "Beechwood at Mastic" consisted of multiple parcels, none of which were then owned by Beechwood, and was zoned A-1 Residence, L-1 Industry and L-3 Industry. Beechwood, as contract vendee, sought to have the entire site rezoned as a Planned Retirement Community (PRC).

At the end of 2001, Beechwood submitted an EAF form-Change of Zone Application verified by Nelson & Pope, Engineers and Land Surveyor to the Town Board for approval. The EAF Form indicated that the site was located contiguous to a Critical Environmental Area designated pursuant to the New York State Environmental Quality Review Act ("SEQRA")(Environmental Conservation Law § 8-0101 et seq.) and its implementing regulations (6 NYCRR Part 617). In addition, the EAF Form indicated that the site was contiguous to Central Pine Barrens-Compatible Growth Area and Central Suffolk SGPA but that there were no lakes, ponds, streams, swamps, bogs, marshes or freshwater wetlands within or contiguous to the project area. The EAF Form also indicated that construction of a new, on-site STP for sanitary wastewater of approximately 71,250 gallons per day was required. The attachments to the EAF form indicated that the STP would be located on approximately 5.3 acres in the northeastern corner of the southern section of the site.

A public hearing was held on May 2, 2002 concerning Beechwood's rezoning application. Subsequently, on October 1, 2002, the Town Board passed a resolution at their meeting conditionally approving the rezoning application. One of the conditions, number (5), was that "[a]t the time of site plan review, the applicant/developer shall make application to the Town of Brookhaven Division of Environmental Protection to flag and identify the freshwater wetlands to the east and determine the appropriate setbacks to the satisfaction of the Town of Brookhaven Planning Board." Another condition of the October 1, 2002 resolution, listed in paragraph (j), provided that [t]he applicant/developer shall tie into the Brookhaven sewer district, when available, and provide the infrastructure for the capacity to flow through the site. The applicant/developer may build a sewage treatment plant and collection system on the subject property. When the Town-wide sewer district is formed, at the option of the sewer district, the applicant's/developer's sewer plant and collection system shall be deeded to the sewer district for One Dollar ($1.00) and the applicant/developer shall hook up to the Town sewer district.[*3]

Also during said meeting on October 1, 2002, the Town Board issued a Negative Declaration pursuant to SEQRA and determined that the proposed rezoning to change the zoning of the property from A-1 Residential and L-1 and L-3 Industrial to PRC was a Type I action and that said action would not have a "significant impact" on the environment such that an Environmental Impact Statement (EIS) was not necessary. The Town Board noted that there were no wetlands or surface waters on or within the proposed site and that the proposal included a dedication of 50 acres to the Town of Brookhaven to mitigate any possible impact to area wildlife and vegetation.

Then, in March 2003 Beechwood submitted its site plan application to the Town for the proposed construction of the PRC units. The application contained the consent of the owners of the parcels comprising the site. Those owners included then Town Clerk Stanley Allan and his family members. Public hearings were held on October 18, 2004 and April 4, 2005 on the site plan application. The Planning Board voted at a regular meeting on May 2, 2005 to approve Beechwood's site plan subject to 14 conditions. Condition (14) provided that Beechwood would seek Town Board and Department of Health approvals in establishing a temporary septic system on Town-owned property, as yet to be determined by the Town Board, at Calabro Airport in order to accommodate the 75,000 gallon capacity required by the PRC and to be paid for by Beechwood in an amount to be agreed upon by Beechwood and the Town and then placed in escrow after submission of a certified estimate from a licensed engineer. Said condition further provided that it was intended that this temporary septic system would be incorporated into the STP to be constructed at Calabro Airport, when the sewer district was eventually established.

Petitioner now seeks a return to "status quo" and challenges almost every phase that the project has undergone up to this point and practically every interaction and transaction involving it. She challenges the Town Board's conditional zone change approval resolution on the grounds that no public hearing on notice was held prior to the approval in violation of due process requirements, Town Law § 264, and the Open Meetings Law (Public Officers Law § 95 et seq.), and based on the alleged failure of Town officials to publicly disclose personal financial interests in the site and business relationships with the developer's counsel. In addition, petitioner seeks to nullify contracts of sale of property owned by the then Town Clerk of the Town of Brookhaven Stanley Allan, now deceased, and his family members and sold to the developer based on conflicts of interest pursuant to General Municipal Law Article 18 and Brookhaven Town Code Chapter 28.

In addition, petitioner challenges the Town Board's negative declaration pursuant to SEQRA with respect to the zoning change on the grounds that the Town Board relied on allegedly incorrect environmental information submitted by respondent Nelson Pope & Voorhis LLC without the Town Board performing its own independent research. Specifically, petitioner claims that the site maps and other documents submitted by respondent failed to depict the location of the environmentally sensitive freshwater wetlands in close proximity to the proposed on-site STP which appeared to be located on or at the headwaters of the Forge River and less than one mile north of the mouth of Moriches Bay. Petitioner characterizes the Town Board's [*4]actions as segmentation which is proscribed by SEQRA (Environmental Conservation Law § 8-0101 et seq.) and its implementing regulations (6 NYCRR Part 617).

Petitioner also challenges the Planning Board's conditional site plan approval of the proposed construction project as irrational, arbitrary and capricious, affected by error of law, and not supported by substantial evidence based on claims that the Planning Board exceeded its authority by changing the on-site STP condition of the Town Board rezoning resolution to a temporary septic system of unknown size, plant design and location at Calabro Airport without a public hearing on said matter or approval by the Town Board or further SEQRA review in violation of the requirements of SEQRA and its implementing regulations, 6 NYCRR Part 617, or re-submission of the substantially revised site plan to the Suffolk County Planning Commission as required by General Municipal Law §§ 239-l, 239-m, and 239-n.

Finally, petitioner seeks a preliminary injunction, incorrectly termed temporary restraining order, enjoining and prohibiting the Town from granting any permits to Beechwood for land clearing or any other construction of the PRC and the STP on-site or elsewhere as well and enjoining and prohibiting Beechwood from clearing land or proceeding with construction at the subject site. Petitioner also seeks a permanent injunction.

By their answer, the Town respondents generally deny petitioner's allegations but admit, among other things, that Beechwood sought approval in the past from the Suffolk County Planning Commission for a PRC in Mastic, New York; that former Town Clerk Stanley Allen owned property directly or indirectly within Suffolk County; that at some point in time Beechwood sought zone reclassification as a PRC; and refer the Court to documents submitted in the Town's voluminous return, submitted pursuant to CPLR 7804 (e), with respect to notice provided to homeowners concerning the application for proposed zoning change. Their answer also includes affirmative defenses/objections in point of law that the petition fails to state a cause of action; that petitioner's causes of action are barred by the statute of limitations; and that the actions of the Town respondents were in all respects lawful, reasonable and proper and in conformity with all applicable state and municipal laws and regulations.

The respondents Beechwood, Michael Dubb, Leslie A. Lerner, Richard Rosenberg, Esq., and Charles J. Voorhis, as Managing Partner of Nelson Pope & Voorhis, LLC (Beechwood respondents) now move (#

007) to dismiss the petition based on objections in point of law that the proceeding is barred as untimely; that petitioner lacks standing; and that the petition fails to state a cause of action.[FN1] In addition, they move for a declaratory judgment that the rezoning resolution and SEQRA determination and site plan approval were lawfully and properly made, and that no ethical violations occurred with respect thereto. The Beechwood respondents also move for dismissal of the above-named individual respondents on the grounds of misjoinder. The Beechwood respondents point out that a verification was not filed with the subject petition at the Suffolk [*5]County Clerk's Office rendering the subject petition a nullity.

The Town respondents now move (#

008) for summary judgment dismissing the petition on the grounds that petitioner's challenge of the Town Board's rezoning approval and SEQRA determination are untimely; that petitioner received proper and lawful notice of the hearings on the rezoning application and of the Town Board's approval and SEQRA determination; and that the EAF forms satisfactorily demonstrated that there are no freshwater wetlands within or contiguous to the subject site as verified by Nelson & Pope's findings on March 3, 2004 that all such wetlands were located at least 100 feet away from the property line and with the required soft buffer would be 150 feet from any on-site disturbance. Other grounds asserted by the Town respondents are that the former Town Clerk Stanley Allan properly disclosed his interest in certain property that was to be part of the subject PRC site and, in any event, had no authority to affect the outcome of any of the Town Board or Planning Board determinations; that the Planning Board's condition (14) on the site plan approval was merely a suggestion dependent on later determinations by the proper authorities including the Town Board and Suffolk County Department of Health Services and did not require any additional hearings nor contravene the Town Board's rezoning resolution; and that once the Suffolk County Planning Commission determined in 2002 that the subject development was of local concern, it did not require notice of any subsequent Town determinations.

Regarding the Beechwood respondents' requests to treat the petition as a nullity for lack of a filed verification, petitioner admits that she filed her petition without the verification but served verified petitions on the parties. The failure to file a verified petition, as required by CPLR 7804 (d), does not constitute a jurisdictional bar to an article 78 proceeding, but, rather, a technical defect which may be ignored in the absence of a timely objection and prejudice (see, Bergman v Horne, 100 AD2d 526, 473 NYS2d 212 [2d Dept 1984]; Sardino v Finch, 35 AD2d 686, 314 NYS2d 690 [4th Dept 1970]). The Beechwood respondents were served with a copy of petitioner's verified petition but sought to reject it as a nullity by letter dated June 16, 2005 on the grounds that the verification was not filed with the Suffolk County Clerk's Office. Having timely received the verified petition and having no objections to its form, respondents have not demonstrated any prejudice and the failure to file the verification merely constitutes a technical defect.

On a motion pursuant to CPLR 7804 (f) to dismiss a petition, only the petition is to be considered and all of its allegations are to be deemed true (Zaidins v Hashmall, 288 AD2d 316, 732 NYS2d 870 [2d Dept 2001]). The petitioner is to be accorded "the benefit of every possible inference" (10 East Realty, LLC v Incorporated Vil. of Valley Stream, 17 AD3d 472, 792 NYS2d 606 [2d Dept 2005], citing Matter of Hutt v Retirement Bd., 299 AD2d 679, 680, 749 NYS2d 597 [3d Dept 2002]).

With respect to standing, it is a threshold determination, resting in part on policy considerations, that a person should be allowed access to the courts to adjudicate the merits of a particular dispute that satisfies the other justiciability criteria (see, Society of Plastics Indus., Inc. v County of Suffolk, 77 NY2d 761, 570 NYS2d 778 [1991]). A party challenging an [*6]administrative action, for standing purposes, must show (1) that the party would suffer direct harm, injury that is in some way different from that of the public at large, and (2) that the in-fact injury of which the party complains (their aggrievement, or the adverse effect upon them) falls within the "zone of interests," or concerns, sought to be promoted or protected by the statutory provision under which the agency has acted (see, id.; see also, Gernatt Asphalt Products, Inc. v Town of Sardinia, 87 NY2d 668, 687, 642 NYS2d 164, 176 [1996]). In the context of a SEQRA challenge, the party must demonstrate that they will suffer an environmental injury in fact (see, Society of Plastics Industry, Inc. v County of Suffolk, supra ). If the challenging party is in close proximity to the premises that is the subject of the challenged zoning determination, they do not need to show actual injury or special damage to establish the first prong of the standing test (Cremosa Food Co., LLC v Petrone, 304 AD2d 606, 758 NYS2d 146 [2d Dept 2003]; Long Island Pine Barrens Soc., Inc. v Planning Bd. of Town of Brookhaven, 213 AD2d 484, 623 NYS2d 613 [2d Dept 1995]). However, the challenger must still satisfy the second prong of the standing test by demonstrating that their alleged concerns fall within the "zone of interests" covered by the zoning laws or SEQRA (Cremosa Food Co., LLC v Petrone, supra at 607; Matter of Sun-Brite Car Wash v Board of Zoning & Appeals, 69 NY2d 406, 410, 413-414, 515 NYS2d 418 [1987]).

Petitioner argues that the proposed development will clear-cut 92 acres of forest, noticeably affect the scenic views of the adjacent communities, impact freshwater wetlands, critical watersheds, estuaries and rivers, and construct dwellings in excess of 60 feet in height. Here, petitioner has demonstrated standing to challenge the SEQRA process undertaken by the Town inasmuch as she resides within 200 feet of the subject site, as evidenced by the Town's 200 feet radius map, and has alleged that her property will suffer environmental harm as a result of the project (see, King v County of Monroe, 255 AD2d 1003, 679 NYS2d 779 [4 Dept 1998], lv denied 93 NY2d 801, 687 NYS2d 625 [1999]; Campbell v Barraud, 58 AD2d 570, 394 NYS2d 909 [2d Dept 1977]). There is no narrow requirement, as asserted by the Beechwood respondents, that petitioner must reside in close proximity to that portion of the site where the challenged condition is located, ie. the northeast corner of the site where the proposed on-site STP is to be built, or the wetlands whose location is in question, or the currently unknown location within Calabro airport for the proposed off-site septic system. Thus, petitioner's standing to challenge the Town Board's rezoning and SEQRA determinations as well as the Planning Board's site plan approval is, therefore, sufficiently established (see, Campbell v Barraud, supra ).

However, petitioner's claims of denial of due process based on failure to receive notice of the zone change applications in December 2000 and 2001 and zone change hearing on May 2, 2002 lack merit. Petitioner bases her claims of lack of notice on the absence of the green certified mail, return receipt cards in the Town's return and that the notices mailed to her address were only in her ex-husband's name rather than in both names as listed in the Town's tax rolls. Affidavits in the Town's return indicate that notice of the proposed application for change in zoning, amended proposed application for change in zoning, and notice of hearing for change in zoning were mailed by certified mail, return receipt requested on December 27, 2000, December 21, 2001, and April 16, 2002, respectively, to Laurence Johnston, 8 Abbot [sic] Avenue, Mastic, [*7]New York, 11950, as well as to other residents on Abbott Avenue. Petitioner asserts that her ex-husband Laurence Johnston does not reside with her any more, that she has not seen him for several years, that she was not under any legal obligation to accept mail addressed solely in his name, that she had no way of knowing its contents, and that if she accepted delivery of legal notices on his behalf it would have violated the non-interference terms of their divorce agreement. Petitioner submitted property tax bills for the relevant years indicating that at the time of mailing of the notices her ex-husband was listed as co-owner of the residence in the Town's assessment rolls.

It is well settled that the requirements of due process are satisfied where "notice [is] reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections"(Harner v County of Tioga, 5 NY3d 136, 800 NYS2d 112 [2005], quoting Mullane v Central Hanover Bank & Trust Co., 339 US 306, 314, 70 SCt 652 [1950]). Due process is a flexible concept, requiring a case-by-case analysis that measures the reasonableness of a municipality's actions in seeking to provide adequate notice (see, Kennedy v Mossafa, 100 NY2d 1, 9, 759 NYS2d 429 [2003]; see also, Matter of Zaccaro v Cahill, 100 NY2d 884, 890, 768 NYS2d 730 [2003]). In striking such a balance, the courts may take "into account the status and conduct of the owner in determining whether notice was reasonable" (see, Kennedy v Mossafa, 100 NY2d at 11, citing Matter of ISCA Enters. v City of New York, 77 NY2d 688, 700, 569 NYS2d 927 [1991] ).

Considering all the relevant factors, the notice procedure employed in this matter satisfied due process and the Town was not required to do more (see, Harner v County of Tioga, supra ; Anthony v Town of Brookhaven, 190 AD2d 21, 596 NYS2d 459 [2d Dept 1993], appeal dismissed 82 NY2d 747, 602 NYS2d 805 [1993]). The notice requirements for rezoning application hearings under Brookhaven Town Code § 85-33D provide that notice be sent by either certified or registered mail, return receipt requested, "to every property owner immediately adjacent and directly opposite thereto for a distance of 500 feet from the perimeter of the property proposed to be changed in district classification" and that "[f]or the purposes of this section, the word owner' or property owner' means the owner as shown on the current Brookhaven Town assessment roll." Here, addressing the notice to only one of the named owners listed on the Town's assessment roll with the correct address, though perhaps archaic as petitioner argues, was sufficient notice reasonably calculated to apprise interested parties at said address of the pendency of the action. The divorce of petitioner and her ex-husband, absent the recording of an amended deed or other public filing relating to ownership of the property, did not apprise the Town that one of the listed owners was no longer at said address for tax collection purposes and that the other listed owner was not accepting mail in his name (see, Harner v County of Tioga, supra ). Petitioner submits no proof to support her assertions that she "officially notified the Town of a change in tax billing in 1987, and again after title officially changed." In addition, the Beechwood respondents submitted a copy of the transcript of the May 2, 2002 public hearing on the subject project with testimony from residents on Weeks Avenue and Cranford Boulevard, located near petitioner's address. Thus, there is no support for petitioner's claims that the Town Board adopted amendments after a closed session in which the public was not involved. Therefore, petitioner's claims of due process violations are dismissed. [*8]

Regarding the timeliness of the instant petition, petitioner is challenging the rezoning of the area that Beechwood seeks to develop, the SEQRA determination of the Town Board relating to the rezoning, the involvement of the former Town Clerk and his family members in this project through their sales of property to Beechwood, and the Planning Board's conditional site plan approval. Petitioner's claims encompass a broad spectrum of events, challenges on multiple levels, and a substantial period of time. To determine the applicable limitation period, we look to the underlying claim and the nature of the relief sought (McCarthy v Zoning Bd. of Appeals of Town of Niskayuna, 283 AD2d 857, 724 NYS2d 798 [3d Dept 2001]). In order to determine the statute of limitations applicable to a particular action, the court must "examine the substance of that action to identify the relationship out of which the claim arises and the relief sought" (Solnick v Whalen, 49 NY2d 224, 229, 425 NYS2d 68 [1980]). The general rule is that an article 78 proceeding is unavailable to challenge the validity of a legislative act such as a zoning ordinance or the adoption of a zoning classification (Save Pine Bush, Inc. v City of Albany, 70 NY2d 193, 518 NYS2d 943 [1987]; Lincoln Ave. Assocs. v Town of Islip, 96 AD2d 946, 466 NYS2d 399 [2d Dept 1983]). Under those circumstances, a declaratory judgment action is appropriate (see, Lincoln Ave. Assocs. v Town of Islip, supra ). However, when the challenge is directed not at the substance of the ordinance but at the procedures followed in its enactment, it is maintainable in an article 78 proceeding (Save Pine Bush, Inc. v City of Albany, supra ). It is to be noted that SEQRA does not have its own statute of limitations (see, 2 Gerrard, Russo, Weinberg, Environmental Impact Review in New York § 7.02 [4][b], at 7-24).

Petitioner commenced the instant combined CPLR article 78 proceeding and action for declaratory judgment when she filed the petition with the Suffolk County Clerk on June 8, 2005 (see, CPLR 304; CPLR 7804 [a]). Petitioner's challenges to the Town Board's resolution conditionally approving the PRC zone change and the Town Board's negative declaration pursuant to SEQRA concerning the zoning change primarily involve the Town Board's failure to follow hearing procedures and failure to follow SEQRA procedures by improperly segmenting the SEQRA review process both of which required commencement within four (4) months (see, CPLR 217 [1]; Long Island Contractors' Assoc. v Town of Riverhead, 17 AD3d 590, 793 NYS2d 494 [2d Dept 2005]). The Town Board's approval of the rezoning application and its concomitant environmental assessment under SEQRA were the culmination of the allegedly illegal procedures that petitioner seeks to review and were, for all intents and purposes, final and binding on October 1, 2002 (see, J.B. Realty Enterprise Corp. v City of Saratoga Springs, 270 AD2d 771, 704 NYS2d 742 [3d Dept 2000], lv denied 95 NY2d 758, 713 NYS2d 522 [2000]). Said challenges are thus time-barred (see, McNeill v Town Bd. of Town of Ithaca, 260 AD2d 829, 688 NYS2d 747 [3d Dept 1999], lv denied 93 NY2d 812, 695 NYS2d 540 [1999]).

Petitioner may not circumvent the applicable four month limitations period by framing her challenge to the October 1, 2002 determinations in the form of an action for declaratory relief when her claims could have properly been resolved in a proceeding pursuant to CPLR article 78 (see, Fairris v Town of Washington Planning Bd., 167 AD2d 368, 561 NYS2d 598 [2d Dept1990], appeal denied 77 NY2d 805, 568 NYS2d 912 [1991]; Clempner v Town of Southold, 154 AD2d 421, 546 NYS2d 101 [2d Dept 1989]). Nor can it be argued that the statute of limitations should be deemed tolled until September 7, 2004 when petitioner allegedly [*9]received her first notice from the Town regarding the subject project on the grounds that petitioner's ignorance of the project until that time resulted from being deprived of her right to notice and the opportunity to be heard in the SEQRA process. Although lead agencies are required to make "every reasonable effort to involve project sponsors, other agencies and the public in the SEQR process" (6 NYCRR § 617.3 [d]), "no public hearings are required in the case of a negative declaration"(see, Mule v Hawthorne Cedar Knolls Union Free School Dist., 290 AD2d 698, 736 NYS2d 464, 466-467 [3d Dept 2002] quoting Matter of Jackson v New York State Urban Dev. Corp., 67 NY2d 400, 430, 503 NYS2d 298 [1986 ]; see also, 6 NYCRR § 617.12). Since petitioner does not claim that the Town respondents neglected to file the negative declaration as a public record, we find no basis to measure the statute of limitations from when petitioner first learned of the project (see, Mule v Hawthorne Cedar Knolls Union Free School Dist., supra at 467; 6 NYCRR § 617.12). Moreover, petitioner's claim that the Town Board's failure to file work session minutes tolled the statute of limitations is inapplicable to the instant circumstances where the rezoning resolution and SEQRA determination were actually filed (see, Town Law 264; cf. Town Law § 267-a (1); Cuyle v Town Board of the Town of Oxford, 301 AD2d 838, 753 NYS2d 613 [3d Dept 2003]). Therefore, petitioner's claims seeking to invalidate the Town Board's zoning resolution for failing to follow hearing procedures and its associated negative SEQRA declaration for failing to follow SEQRA procedures are dismissed as untimely (see, Town of Orangetown v Gorsuch, 718 F2d 29 [2d Cir 1983], cert denied 465 US 1099 [1984]).

However, petitioner's claim that the Town Board failed to comply with the referral provisions of the statute, General Municipal Law § 239-m, in failing to refer to the County its approval of Beechwood's rezoning application is not a mere procedural irregularity but is rather a jurisdictional defect involving the validity of a legislative act which is reviewable in a declaratory judgment action (see, Ernalex Constr. Realty Corp. v City of Glen Cove, 256 AD2d 336, 681 NYS2d 296 [2d Dept 1998]). Thus, the six-year statute of limitations set forth in CPLR 213 applies instead of CPLR 217 to said claim (see, Janiak v Town of Greenville, 203 AD2d 329, 610 NYS2d 286 [2d Dept 1994]). Nevertheless, petitioner's claim must be dismissed for failure to state a cause of action inasmuch as the record reveals that the Town properly referred the zoning change application to the Suffolk County Department of Planning pursuant to General Municipal Law § 239-m and the Suffolk County Department of Planning determined in its report dated January 4, 2002 that "[p]ursuant to the requirements of sections A14-14 to 23 of the Suffolk County Administrative Code, the above referenced application which has been submitted to the Suffolk County Planning Commission is considered to be a matter for local determination as there is no apparent significant county-wide or inter-community impact(s)." The Court notes that Article XIV, section A14-16, subsection A, of the Suffolk County Administrative Code entitled, "Effect of Planning Commission report on municipal zoning action" provides that "[i]f the Planning Commission renders a report indicating that the proposed action has no significant countywide or intercommunity impact or renders a report approving a proposed action without a change, the town or village that referred the proposal may adopt it in the ordinary course of municipal business." Therefore, there was no jurisdictional defect involved and there is no need to apply the six-year Statute of Limitations and said claim is dismissed for failure to state a cause of action. [*10]

Petitioner's declaratory judgment claims that contracts were made by then Town Clerk Stanley Allen and his family members in violation of article 18 of the General Municipal Law were timely commenced within the three-year statute of limitations governing statutory causes of action (see, CPLR 214 [ 2]; Stettine v Suffolk County, 105 AD2d 109, 482 NYS2d 818 [2d Dept 1984], affd 66 NY2d 354, 497 NYS2d 329 [1985]). As for petitioner's conflict of interest claims under General Municipal Law Article 18 and the Brookhaven Town Code Chapter 28 relating to then Town Clerk Stanley Allan, the Town's return and the submissions of the Beechwood respondents in support of their motion reveal that Stanley Allan disclosed his interest in the subject property by financial disclosure statements dated December 18, 2000, December 17, 2001, December 19, 2002 as well as by a Transactional Disclosure Form that he submitted to the Town's Board of Ethics Committee by letter dated January 14, 2002 (see, General Municipal Law § 803; Brookhaven Town Code §§ 28-11, 28-14). In any event, a review of the Brookhaven Town Code and Town Law § 30 indicates that Stanley Allan did not have the power or duty to negotiate, prepare, authorize or approve contracts of sale of property owned by him and family members with Beechwood or to authorize or approve payment thereunder or do any other acts as proscribed under General Municipal Law § 801 (see, General Municipal Law § 801; Town Law § 30; and Brookhaven Town Code Chapter 28). In light of the above, petitioner's assertions that the zoning change must be nullified because it was approved without the disclosure by Stanley Allen that he was represented by Beechwood's counsel, David M. Sloane, is unpersuasive. In addition, petitioner's claims that Stanley Allen may have influenced the Town's conduct of business with Beechwood in violation of Brookhaven Town Code § 28-5 (4), without more, constitute mere speculation (see generally, Leskow v Office of Ct. Admin., State of NY, Unified Ct. Sys., 248 AD2d 1004, 670 NYS2d 148 [4th Dept 1998]). Therefore, petitioner's conflict of interest claims with respect to then Town Clerk Stanley Allan are dismissed.

However, petitioner's arguments concerning the lack of SEQRA review and the unauthorized inclusion of condition (14) by the Planning Board during its site plan approval process are both compelling and timely. The applicable statute of limitations for review of the Planning Board's conditional site plan approval is thirty (30) days (see, Town Law §§ 274-a [11], 282; McNeill v Town Bd. of Town of Ithaca, supra ). In addition, petitioner's procedural challenge that the Planning Board violated the Open Meetings Law (Public Officers Law article 7) in imposing condition (14) on its site plan approval without a public hearing on the proposed off-site STP, was timely commenced within thirty (30) days after the Planning Board's decision was filed with the Town Clerk (see, id.).

SEQRA contains no provision regarding judicial review, which must be guided by standards applicable to administrative proceedings generally: "whether a 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" (CPLR 7803[3]; Matter of City of Schenectady v Flacke, 100 AD2d 349, 353, 475 NYS2d 506 [3d Dept 1984], lv denied 63 NY2d 603, 480 NYS2d 1025 [1984]; see also, Jackson v New York State Urban Dev. Corp., 67 NY2d 400, 435, 503 NYS2d 298, 304 [1986]). Courts may, first, review the agency procedures to determine whether they were lawful. Second, courts may review the record to determine whether the agency identified the relevant areas of environmental concern, took a "hard look" at them, and made a "reasoned [*11]elaboration" of the basis for its determination(see, Jackson v New York State Urban Dev. Corp.,67 NY2d 400, 436, 503 NYS2d 298 [1986][citations omitted]). It has been held that strict, not substantial, compliance with the procedural requirements of SEQRA is mandated (King v Saratoga Bd of Supervisors, 89 NY2d 341, 653 NYS2d 233 [1996]).

Beechwood's site plan dated May 7, 2003 indicates the total area of the site to be 153.75 acres and that 92.98 acres are to be developed. In addition, the construction of 466 residential units consisting of 149 single family, 255 condominiums, and 62 flats are proposed. The site plan also indicates that an on-site sewage treatment plant will be located on 5.73 acres in the northeast corner of the site and that the total sanitary flow to the plant is estimated to be 80,000 gallons per day. Beechwood's wetlands offset plan dated August 6, 2004 shows wetlands located less than 200 feet from the sewage treatment plant's location. Town Law § 274-a (10) required the Planning Board to comply with SEQRA during its site plan review. The Planning Board did not make any SEQRA determination in conjunction with its consideration of Beechwood's site plan application. By failing to do so, the Planning Board violated the requirements of ECL article 8 during its site plan review pursuant to Town Law § 274-a (see, Fleck v Town of Colden, 16 AD3d 1052, 792 NYS2d 281 [4th Dept 2005]).

The SEQRA review conducted by the Town Board with respect to the zoning change application resulting in a conditional negative declaration did not, as respondents assert, end all SEQRA review on anything relating to this matter nor did it obviate the need for a separate subsequent SEQRA review by the Planning Board at the time of site plan review. A zoning change and a site plan approval involve two different "actions" as defined in 6 NYCRR 617.2 (b) that could affect the environment and thus require separate independent SEQRA review (see, 6 NYCRR 617.2 [b]). Both actions constitute Type I actions pursuant to 6 NYCRR 617.4 (b). The action of granting of a zoning change is listed under 6 NYCRR 617.4 (b)(3) while the action of construction of new residential units that meet or exceed the threshold of 50 units not to be connected to existing community or public water and sewerage systems, including sewage treatment works, is listed under 6 NYCRR 617.4 (b)(5)(ii). The legislative act of zoning has been characterized as a classic planning activity that commits an agency to a future course of action whereas permit or approval actions are viewed as possibly the most readily recognizable (see, 2 Gerrard, Russo, Weinberg, Environmental Impact Review in New York § 2.03 [1][b], at 2-74, §2.03 [3][a], at 2-86).

Shortly after the Planning Board's receipt of Beechwood's site plan application, it should have rendered a determination as to whether the action of site plan approval was subject to SEQRA (see, 6 NYCRR 617.6 [a]). In addition, a lead agency should have been established for the purposes of SEQRA review and an EAF should have been prepared, separate from the EAF prepared in conjunction with the zoning change application (see, 6 NYCRR 617.2 [c], [m], [t], [v]; 6 NYCRR 617.6 [b]; ECL 8-0111 [6]; Town Code § 80-2 [c]; Town Law § 274-a [2]; Steele v Town of Salem Planning Bd., 200 AD2d 870, 606 NYS2d 810 [3d Dept 1994], lv denied 83 NY2d 757, 615 NYS2d 874 [1994]). The designated lead agency was required to make a determination of significance based upon its review of the nature of the proposed project from Beechwood to develop the 466 PRC units with an on-site STP, which as a Type I action could [*12]have a significant effect on the environment, particularly the wetlands located nearby (see, Fleck v Town of Colden, supra ). Inasmuch as SEQRA requires strict adherence to its procedural requirements, the Planning Board's failure to comply with those procedural requirements cannot be deemed harmless (see, Matter of King v Saratoga County Bd. of Supervisors, supra at 347-349). In each of the areas of environmental impact addressed herein, the Planning Board failed to take the necessary hard look at the environmental issues (see, Pyramid Co. of Watertown and Salmon Run Shopping Center, LLC v Planning Bd. of Town of Watertown, ___ NYS2d ___, 2005 WL 3516633, 2005 NY Slip Op 09997 [NYAD 4 Dept Dec 22, 2005]).

In addition, there is no authority for the imposition of condition (14) since it is outside the proposed site (see, Peckham Industries, Inc. v Ross, 61 Misc 2d 616, 306 NYS2d 1006 [Sup Ct, Orange Co, Jan 12, 1970], judgment affd 34 AD2d 826, 312 NYS2d 627 [2d Dept 1970], appeal denied 27 NY2d 486, 315 NYS2d 1027 [1970]). Beechwood's argument that the condition does not constitute a final determination and is therefore unripe for review is unconvincing (see e.g., McNeill v Town Bd. of Town of Ithaca, supra ). Moreover, said condition is vague and indefinite concerning the actual location of the off-site of the STP at Calabro Airport, its impact on the surrounding community, and whether it will be subsequently approved by the Town Board and the Suffolk County Department of Health (see, Holmes v Planning Bd. of Town of New Castle, 78 AD2d 1, 433 NYS2d 587 [2d Dept 1980]). Thus, the allegations raised in the petition concerning the lack of SEQRA review and the unauthorized inclusion of condition (14) by the Planning Board during its site plan approval process demonstrate the existence of a bona fide justiciable controversy which should be addressed and respondents' motions for dismissal and for summary judgment with respect to those allegations are denied (see, 10 East Realty, LLC v. Incorporated Village of Valley Stream, 17 AD3d 472, 792 NYS2d 606 [2d Dept 2005]).

Therefore, that portion of the petition seeking to annul the Planning Board's determination conditionally granting Beechwood's application for site plan approval for the construction of 466 PRC units is granted, the conditional approval of Beechwood's site plan application is vacated and the matter is remitted to the Planning Board for further proceedings on the site plan application in compliance with the decision herein (see, Fleck v Town of Colden, supra ).

The Court notes that the record is devoid of any indication as to whether any construction has commenced at the proposed site and, if so, at what stage it is. Ordinarily, injunctive relief will not lie where there is an adequate remedy at law in a proceeding under article 78 (Nassau Roofing & Sheet Metal Co., Inc. v. Facilities Dev. Corp., 70 AD2d 1021, 418 NYS2d 216 [3d Dept 1979]), appeal dismissed 48 NY2d 654 [1979]). However, where a party seeks to preserve the status quo during the pendency of an article 78 proceeding and the remedy at law does not provide a "full measure of relief", a preliminary injunction is appropriate supplemental relief (id.). A party seeking preliminary injunctive relief must demonstrate (1) a likelihood of success on the merits, (2) irreparable injury absent the granting of a preliminary injunction, and (3) that the balancing of the equities favors the movant's position (see, State v Sour Mountain Realty, Inc., 276 AD2d 8, 714 NYS2d 78 [2d Dept 2000]). Here, petitioner failed to address or [*13]demonstrate a clear right to relief under this standard (see, First Franklin Square Associates, LLC v. Franklin Square Property Account, 15 AD3d 529, 790 NYS2d 527 [2d Dept 2005]). It so follows that petitioner's requests for a preliminary injunction enjoining and prohibiting the Town from granting any permits to Beechwood for land clearing or any other construction of the PRC at the subject site and the STP on-site or elsewhere and enjoining and prohibiting Beechwood from clearing land or proceeding with construction at the subject site so as to preserve the status quo is denied.

The request of the Beechwood respondents pursuant to CPLR 1003 dismissing all claims against Michael Dubb, Leslie A. Lerner, Richard Rosenberg, Esq., and Charles J. Voorhis, and Nelson Pope & Voorhis LLC on the grounds of misjoinder is granted. Petitioner's remaining contentions are without merit.

Accordingly, the petition is granted to the extent that the Planning Board's determination conditionally granting Beechwood's application for site plan approval for the construction of 466 PRC units is annulled and vacated. As indicated herein, the motion for summary judgment by the Town respondents is granted in part in their favor and is denied with respect to petitioner's standing and timeliness in challenging the Planning Board's site plan approval as well as the propriety of that approval, which have all been determined in petitioner's favor. In light of the foregoing and the remittal of this matter to the Planning Board for further proceedings consistent with this order, that portion of the motion of the Beechwood respondents for dismissal of petitioner's claims for untimeliness, lack of standing and failure to state a cause of action has been rendered academic.

The Court declines to make a declaration concerning the propriety of the Town Board's zoning change resolution and SEQRA determination inasmuch as they were not reviewed on the merits. In addition, the Court declines to make the requested all-encompassing declaration concerning the absence of ethical violations as improperly beyond the scope of this Court's review. However, the Court declares that the Planning Board's site plan approval was not lawfully or properly rendered, was arbitrary and capricious, and is therefore null and void inasmuch as there was no concomitant SEQRA review and condition (14) of the approval was unauthorized.

Dated: March 22, 2006 ____________________

J.S.C. Footnotes

Footnote 1:The Beechwood respondents have not filed an answer.