Jul-Bet Enters. LLC v Town Bd. of the Town of Riverhead
Annotate this CaseDecided on July 27, 2006
Supreme Court, Suffolk County
Jul-Bet Enterprises LLC, Petitioner,
against
The Town Board of the Town of Riverhead and Richard W. Hanley, Respondents.
2071/06
PLTF'S/PET'S ATTY:
ROSENBERG FELDMAN SMITH, LLP
551 Fifth Avenue-24th Floor
New York, New York 10176
DEFT'S/RESP'S ATTY:
JASPAN SCHLESINGER HOFFMAN LLP
300 Garden City Plaza
Garden City, New York 11530-3324
Arthur G. Pitts, J.
ORDERED that the petition for a judgment, pursuant to CPLR Article 78, directing the respondents, The Town Board of the Town of Riverhead and Richard W. Hanley to accept the petitioner Jul-Bet Enterprises, LLC's Draft Environmental Impact Statement ("DEIS") and its application to develop the subject property in the manner depicted in the DEIS on the grounds that the respondents' rejection of same was untimely and arbitrary and capricious is denied under the circumstances presented herein and the petition is dismissed. It is further
ORDERED that the respondents' cross motion to dismiss is denied as being moot.
The petitioner is the owner of a forty-three acre parcel of land located in Jamesport, Riverhead, Suffolk County, New York and identified by Suffolk County Tax Map Number ("SCTM") 0600-68-1-35. On or about October 17, 2005 the petitioner filed a Draft Environmental Impact Statement ("DEIS") in lieu of an environmental assessment form ("EAF") in connection with the application to develop the subject property. Said proposed project was to "construct 13 commercial/retail buildings of various sizes organize as a campus-style configuration [with] [s]idewalks and small park areas.... to promote a walkable' environment." The DEIS provided that the subject property was created as part of a four lot subdivision which also included SCTM Numbers 0600-47-1-3.3, 0600-47-1-3.4 and 0600-47-1-3.5. One of the lots is developed and contains a single family residence and the remaining three parcels are undeveloped. At the time of the subdivision [*2]the developed parcel was zoned Business CR and the remaining parcels were zoned Agricultural A.
On October 21, 2004 the zoning of the property was amended from Business CR zone to a Rural Corridor zone. On December 21, 2005 the respondents rejected the submitted DEIS concluding that the environmental significance of the proposal could not be determined because the DEIS failed to address the current zoning of the parcel instead basing its plan on the prior zoning.
In support of the instant petition, the petitioner avers that the rejection of its application was untimely and as such, it must be deemed accepted by the respondents. In support thereof, the petitioner cites section 8-0109 (5) of the Environmental Conservation Law which provides as follows:
After the filing of a draft environmental impact
statement the agency shall determine whether or
not to conduct a public hearing on the environmental
impact of the proposed action. If the agency determines
to hold such a hearing, it shall commence the hearing
within sixty days...If no hearing is held, the agency
shall prepare and make available the environmental
impact statement within sixty days after the filing of
the draft, except as otherwise provided.
In further support, the petitioner proffers Part II, C. 108, Article XXVIA 108-( C ) (1) of the Code of the Town of Riverhead which mandates that the rejection must occur within 62 days of the filing of the DEIS.
However, notwithstanding the statutory time restrictions as set [*3]forth both in the Environmental Conservation Law and the Riverhead Town Code, it has consistently been held that "an agency's failure to make a timely declaration of environmental significance does not result in a de facto negative declaration ( see Matter of Seaboard Contr. & Material v. Department of Envtl. Conservation of the State of NY, 132 AD2d 105, 522 NYS2d 679) " and "reasonable delays will be countenanced where it appears that they were caused by the agency's acquisition or review of information necessary to an initial determination of environmental significance. ( see Matter of Tehan v. Scrivani, 97 AD2d 769, 468 NYS2d 402 )" ( Tinker Street Cinema v. Town of Woodstock Planning Board, 256 AD2d 970, 681 NYS2d 907,909 [3rd Dept 1998] ) Clearly in the matter at bar the delay of three days from the requirements of the Town Code is reasonable and as such, the petition to direct the respondents to accept the DEIS on such grounds is denied.
The petitioner further alleges that the respondent's failure to grandfather the prior zoning laws as to the subject property was arbitrary and capricious in light of the existing improvements. It is well settled that " the courts cannot interfere unless there is no rational basis for the exercise of discretion or the action complained of is arbitrary and capricious.' (Cohen and Karger, Powers of the New York Court of Appeals, pp. 460461; see, also, 8 Weinstein-Korn-Miller, N.Y.Civ.Prac., par. 7803.04 Et seq.; 1 N.Y.Jur., Administrative Law, ss 177, 184; Matter of Colton v. Berman, 21 NY2d 322, 329, 287 NYS2d 647, 650651, 234 NE2d 679, 681). The arbitrary or capricious test chiefly 'relates to whether a particular action should have been taken or is justified * * * and whether the administrative action is without foundation in fact.' (1 N.Y.Jur., Administrative Law, s 184, p. 609). Arbitrary action is without sound basis in reason and is generally taken without regard to the facts. " ( Pell v. Board of Education, 34 NY2d 222, 356 NYS2d 833, 839-840 [1974] ) [*4]
In the matter at bar, a rational basis exists to support the respondents finding that the prior zoning classification of the subject property is not applicable to the submitted DEIS. "When a zoning law has been amended following the submission of an application, but before a decision is rendered thereon by the reviewing agency, the courts are bound to apply the law as amended. ( Cleary v. Bibbo, 241 AD2d 887, 888, 660 NYS2d 230, 231 [3rd Dept 1997] ) Herein, the petitioner's application was filed on October 17, 2005 and the zoning on the subject property was changed one year prior to the DEIS filing, on or about October 21, 2004. As such, there is a rational basis to support the respondents' application of the zoning law as it applies to the subject property as of October 21, 2004 and not the zoning law prior thereto. Accordingly, the petition on such ground is also denied and the petition is dismissed.
Submit judgment.
Dated: Riverhead, New York
July 27, 2006J.S.C.
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