Long Is. Pine Barrens Socy., Inc. v Town of Brookhaven Town Bd.

[*1] Long Is. Pine Barrens Socy., Inc. v Town of Brookhaven Town Bd. 2011 NY Slip Op 50661(U) Decided on April 6, 2011 Supreme Court, Suffolk County Whelan, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 6, 2011
Supreme Court, Suffolk County

Long Island Pine Barrens Society, Inc., Richard Amper as Executive Director, Open Space Council, Inc., Marilyn England, as President, Mary Ann Johnston, Paul Mccoy, Edward Kacherski, Lorenz and Brenda Vogel, as citizens, residents, taxpayers and property owners, , Petitioners,

against

Town of Brookhaven Town Board and Sandy Hills, LLC, Respondents.



18932/09

 

Regina Seltzer, Esq.

Atty. For Petitioners

30 Brewster Ln.

Bellport, NY 11713

Certilman, Balin, Adler & Hyman Attys. For Resp. Sandy Hills, LLC

1393 Veterans Memorial Hwy.

Hauppauge, NY 11788

Avrutine & Assoc.

Attys. For Resp. T/O Brookhaven Town Bd.

575 Underhill Blvd.

Syosset, NY 11791

Thomas F. Whelan, J.

ORDERED that the petitioners' consolidated petitions (#013 and #019) for reversal and annulment of resolutions adopted by the Town Board of the Town of Brookhaven on April 16, 2009 and August 17, 2010, concerning applications by respondent, Sandy Hills, LLC, for the re-zoning of a 39 acre parcel of land in Middle Island, New York are granted to the extent set forth below; and its is further

ORDERED that the separate motion by the petitioners (#020) for injunctive relief restraining the respondent, Town Board of the Town of Brookhaven, from adopting a Declaration of Covenants and Restrictions relative to the proposed development of the subject premises is considered under CPLR 6311 and 7805 and is granted to the extent set forth below; and it is further

ORDERED that the matter is remitted back to the Town Board for its referral, within 90 days of the date hereof, of the rezoning application by Sandy Hills which was the subject of the August 17, 2010 resolution to the Suffolk County Planning Commission for its review and recommendations.

In May of 2009, the petitioners commenced this Article 78 proceeding against the Town Board of the Town of Brookhaven (hereinafter Town Board) and Sandy Hills, LLC (hereinafter Sandy Hills) for a judgment annulling and reversing an April 16, 2009 resolution of the respondent, Town Board, which granted portions of an application by respondent, Sandy Hills, to re-zone a 39 acre parcel of real property situated in Middle Island, New York from A Residence 1 and J Business 2 to MF Residence and J Business 6. The petitioners are neighboring landowners and environmentalists who oppose the multifamily residence and mixed use development of the subject premises proposed by Sandy Hills.

This proceeding languished without judicial attention due to delays engendered by [*2]repeated administrative re-assignments of this proceeding for five months after its inception that ended in its last assignment to the undersigned in November of 2009. Prior motion practice, the commencement of a separate suit by respondent, Sandy Hills against the Town of Brookhaven and its Town Board in February of 2010, the settlement thereof and the adoption of two "clarifying" resolutions by the Town Board on August 17, 2010 aimed at each of the three resolutions of April 16, 2009 relative to the Sandy Hills Condominium Development, resulted in further delays of the submission of the petition to this court for determination. The actions of the Town respondents on August 17, 2010 in adopting the "clarifying" resolution also led to the petitioners' commencement of a separate proceeding in September of 2010, in which the petitioners sought annulment of the two "clarifying" resolutions.

By order dated January 13, 2011, this court consolidated the petitions separately filed by the petitioners and calendared them for submission on January 21, 2011. After adjournments of that date by the parties, the consolidated petitions were marked submitted to this court on February 4, 2011 along with a separate motion by the petitioners for injunctive relief. In light of this highly unusual and somewhat contorted procedural context, a brief history of the actions of the parties relative to the subject premises and the claims propounded herein is appropriate.

In May of 2003, respondent, Sandy Hills, became the owner of an undeveloped tract of land comprised of nearly 39 acres in Middle Island, New York. At the time of this acquisition, small portion of the southeast portion of the tract were zoned J Business 2. The remaining acreage was zoned A Residence 1. Shortly thereafter, Sandy Hills submitted an application for approval of a 34 lot subdivision so as to develop the property in accordance with it's A Residence 1 zoning classification by the construction of single family homes. The processing of this application was delayed by the Town's imposition of successive moratoriums against the processing of land development proposals pending, among other things, the completion of the Town's Middle Island Country Road Land Use Plan for Coram, Middle Island and Ridge (MCRLUP). The MCRLUP, which was adopted on April 4, 2006, called for the area in and around the Sandy Hills' site to be developed with multifamily housing and accessory use development.

In 2006, Sandy Hills brought suit against the Town claiming that the moratorium imposed constituted an unconstitutional taking of its land. The action was settled in accordance with two "so-ordered" stipulations. Pursuant thereto, Sandy Hills agreed to alter their plans for development of the site from single family homes to a multifamily development as envisioned by the MCRLUP. In return, the Town agreed to fast track Sandy Hills' applications for zone changes and the other relief required to develop the premises with the newly proposed multifamily housing (see Exhibit J to the Affid. of Charles J. Voorhis, dated June 25, 2010 submitted by Sandy Hills in opposition to petition).

In December of 2006, Sandy Hills first filed a proposal to develop the subject parcel with mixed residential and commercial uses housing 134 residential units and 13,000 square feet of commercial outlets. The development would also include a clubhouse, a sewage treatment plant, [*3]a recharge basin a village green and plazas as well as 13. 46 acres of open space. To accomplish this development, Sandy Hills was required to obtain changes of zone from the respondent Town Board as the parcel's then existing zoning classifications were A Residential 1 and J Business 2. According to this proposal, the .46 acre portion of the property that was then zoned J Business 2 was to be rezoned J Business 6 so as to provide the development with a commercial component. The remaining portions of the premises (some 36+ acres) were intended to be rezoned for multifamily uses so as to accommodate the housing and accessory use component of the project.

In connection with this application to change the zoning classifications to MF Residence and J Business 6, Sandy Hills asserted that its proposed development of the site was consistent with the Middle Island Country Road Land Use Plan for Coram, Middle Island and Ridge (MCRLUP) and the several other land use plans governing the premises. An amended petition dated December 22, 2006 was submitted in February of 2007 and a second amended petition dated February 16, 2007 was filed with the Town Board in February of 2007. A third amended petition was submitted to the Town Board on March 31, 2007.

On June 19, 2007, the Town Board, by resolution numbered 632-07, issued a Positive Declaration with respect to the proposed changes in zones and mandated that a Supplemental Environmental Impact Statement (SEIS) be prepared by Sandy Hills pursuant to the State Environmental Quality Review Act (ECL Article 8) and its regulatory framework at 6 NYCRR 617.10(d)(4). The SEIS required by the Board was intended to supplement the Final Generic Environmental Impact Statement (FGEIS) of March 21, 2006 and the Finding Statements of April 4, 2006, both of which were adopted in connection with the Middle Country Road Land Use Plan for Coram, Middle Island and Ridge (MCRLUP). This supplementation was aimed at addressing site specific impacts associated with the proposed changes in zone and the cumulative traffic impacts resulting from this and other nearby projects not previously discussed in the MCRLUP.

On July 11, 2007, the Suffolk County Planning Commission issued a response to the proposed legislative and administrative actions pending before the Town Board. Although the Commission ultimately issued an approval to the project, such approval was conditioned upon the satisfaction of several items. The first condition imposed an obligation on the part of Sandy Hills to retire a significant number of Pine Barrens Credits in order to achieve the 135 unit density level proposed. The second condition imposed was the requirement that 20% of the proposed units be dedicated to workforce housing units. Admittedly, the failure to comply with these conditions imposed by the Suffolk County Planning Commission would require a super-majority vote on the part of the Town Board to approve a non-conforming resolution (see FSEIS; see also Exhibit A to Affid. of Charles J. Voorhis, entitled "Response To Suffolk County Planning Commission Approval Letter).

In November of 2007, Sandy Hills submitted its Draft Supplemental Environmental Impact Statement (DSEIS) for the project known as "Condominiums at Sandy Hills". The DSEIS described the proposal as a development of a 38.56 acre parcel with a multiple family project with 135 units (10% dedicated to affordable housing) and 1300 square feet of office space [*4](see Town's Certified Return, Vol. 1, p. 178). The A Residence 1 zone classification was stated as covering 38.10 acres, while a mere .46 acres of the parcel was described as bearing the J Business 2 zone classification. The development site was further described as the subject of some nine different Land Use Plans, including the Central Pine Barrens Comprehensive Land Use Plan (see ECL Article 57). Sandy Hills claimed, however, that because the premises are located, not within the Core Preservation Area of the Central Pine Barrens, but instead, within its Compatible Growth Area (CGA), project review was available at the Town level in accordance with the provisions of Town Code Chapter 85. Sandy Hills nevertheless acknowledged that in the event the Town's review revealed that the project failed to meet the standards and guidelines set forth in the Central Pine Barrens Comprehensive Land Use Plan, a hardship waiver from the Central Pine Barrens Joint Policy and Planning Commission would be necessary.

In March of 2008, the Town's Planning Director advised, among other things, that primary and secondary zones had been established within the parcel under the MCRLUP and that they would yield some 139 residential units under Town Code §85-87. He further advised that 15.7 acres of the northerly portion of the premises were within the Compatible Growth Area of Central Pine Barrens. The director cautioned counsel for Sandy Hills that unless this portion of the parcel was designated as a tertiary zone, upon application of the developer and a favorable vote of super-majority (three fourths) of the Town Board, this area would yield no housing units (see Town's Certified Return, Vol. 4, p. 3162). The director advised that the total yield of the premises without the use of a transfer of development rights (TDR) would total only 129 units. To achieve the proposed yield of 135 units, Sandy Hills would have to "provide a list TDR parcels being offered for dedication to the Town for the increase in density above the allowable yield, in accordance with Town Code 85-408.4" (see Town's Certified Return, Vol. 4, p. 3164). The director also noted that under Town Code §85.87.2, a minimum of 10% of all units must be maintained as workforce or affordable units. Accordingly, 14 units must be so dedicated. The planning director further noted that the J Business 6 portion of the premises would yield a maximum of 12 units but only 8 were depicted in the plan and that the unused 4 units could not be transferred to the other MF portion of the premises. Unless the yield in the J Business 6 district was increased to its maximum of 12, the total unit density yield of the project must be reduced in an amount commensurate with the unused J Business 6 units.

On July 1, 2008, the Town Board met and resolved to accept the DSEIS submitted by Sandy Hills and scheduled a public hearing for August 5, 2008 for purposes of soliciting pubic and agency comments with respect to the DSEIS. By separate resolution dated July 1, 2008, the Board scheduled a public hearing on the same date of August 5, 2008 on the application by Sandy Hills for the zone changes at issue herein. At the conclusion of this joint hearing, the Board resolved to close it with respect to the SEQRA aspects, subject to a further comment period on the DSEIS. It further resolved to keep the hearing open with respect to the zone change application.

On September 17, 2008, Sandy Hills submitted its Final Supplemental Environmental Impact Statement (FSEIS) to the Town of Brookhaven. The project is therein described as the [*5]development of a 39.375 acre parcel of real property with 135 residential units and 13,000 square foot of commercial space. The FSEIS goes on to describe the site as one requiring changes in the current zoning classifications to MF and J Business 6 (see Town's Certified Return Vol. 4, p. 2866). The new total acreage of the parcel of 39.375 set forth in the FSEIS represented an increase of .81 of an acre than the total acreage of 38.56 that was set forth in the DSEIS.

The return of the record submitted by the respondent Town with respect to the second petition filed (now motion sequence # 019) indicates that the Town Board conducted, after due advertisement, a hearing on September 25, 2008 with respect to an application by Sandy Hills for a designation of a portion of the subject premises as a "tertiary zone" within contemplation of the Town Code Section §85-80(C)(1)(a). However, the return of the record does not include such application or evidence of any advertisement of a public hearing thereon for the date of September 25, 2008. Nor does the Town's Certified Return include a transcription of the proceedings conducted at the September 25, 2008 public hearing.[FN1]

By correspondence dated October 8, 2008, Town agents identified six insufficiencies in the FSEIS and called upon Sandy Hills to make revisions to address the Town's concerns. On December 31, 2008 Sandy Hills submitted a revised FSEIS to the Town. On February 26, 2009, the Town Board adopted a resolution accepting the FSEIS. On March 30, 2009, Sandy Hills renewed its third amended application to rezone the subject premises. The Board adopted a SEQRA Findings Statement at its April 16, 2009 meeting. This statement included eighteen express environmental findings, a declaration of the satisfaction of the SEQRA regulations at 6 NYCRR 617 and a finding that the project may avoid or minimize adverse impacts if mitigative measures outlined therein were incorporated into the decision. At Finding number F-2, the Board noted that the total density yield of the premises without the redemption and/or purchase of any Pine Barrens Credits was 129. At Finding number F-3, the Board found that only three (3) Pine Barrens Credits were required for the project.

A related but separate proposed resolution failed to gain adoption by the Town Board on April 16, 2009. The record reflects that at its April 16, 2009 meeting, the Town Board failed to adopt a resolution designating the northern 15.76 acre portion of the premises as a tertiary zone under Article 85 of the Town Code. An application for such designation was allegedly submitted by Sandy Hills in September of 2008 and heard at a publicly advertised Town Board meeting on September 25, 2008 (see Vol. 4, p.3197 of the Town's Certified Return; Decision No. 5; Meeting: April 16, 2009). As indicated above, however, neither the filing of any such application nor evidence of the scheduling of any public hearing thereon appears in the return of [*6]the record originally submitted by the Town in this proceeding.[FN2] The apparent reason for the Board's failure to grant the tertiary zone designation request was an inability to gain the required super majority vote in favor of the proposed tertiary zone resolution that was mandated by Town Law 85-80(C)(1)(a) and the Central Pine Barrens Comprehensive Land Use Plan set forth in ECL Article 57.

Notwithstanding the failure of the tertiary zone designation resolution, the third proposed resolution, conditionally approving the changes in the zoning classifications of the premises was adopted by the Town Board on April 16, 2009 (see Vol. 4, p.3199 of the Town's Certified Return). This resolution changed the zones from the existing A Residence 1 and J Business 2 to Mf Residence and J Business 6. The J Business 6 zone was described as covering the 2.6 acre on the south east corner of the site, while the MF zone was described as covering 37.3 acres. Only 12 residential units were permitted in the J Business 6 zone, while 123 Multifamily dwelling units were permitted in the Mf zone. The resolution recited that its adoption would allow for the construction of a 135 unit residence development with a commercial component provided that three (3) Pine Barrens Credits were used to satisfy the density increase from the permitted 129 residential units to the 135 units proposed. The Board went on to require as a condition for the erection of the 135 units, proof ownership of two additional lots, the granting of corresponding changes in the zoning classifications thereof and the approval of tertiary zoning for said parcels. Alternatively, the Board found that Sandy Hills could proceed under the conditionally approved zone changes by reducing the number of residential units to 132 and the number of affordable units to 12. Other conditions were imposed, including the redemption of three (3) Pine Barrens Credits, the granting of easements and the filing of Declarations of Covenants and Restrictions and metes and bounds descriptions of each rezoned parcel.

On May 14, 2009, the petitioners commenced this hybrid proceeding by the filing of a notice of petition and petition in which they demand a reversal of the April 16, 2009 resolution wherein the Town Board conditionally granted the change in the zoning of classification of the subject premises from the then existing A Residence 1 and J Business 2 to Mf Residence and J Business 6. Due to certain procedural infirmities in the submissions of the petitioners and other factors outlined above, the petition, originally returnable on June 30, 2009, was repeatedly adjourned. Motion practice initiated by the petitioners for injunctive and other relief against the Planning Board of the Town of Brookhaven caused further adjournments of the petition. In May of 2010, the petitioners interposed a motion for "summary judgment" which further delayed the submission of the petition (see SFO dated August 20, 2010).

Numerous grounds for reversal of the challenged April 16, 2009 zone change resolution are advanced by the petitioners in their May 13, 2009 pleading. Chief among them are allegations that the failure of the Town Board to approve the application by Sandy Hills to designate the northern portion of the property as a tertiary zone as required by Town Code Section 85-80(C)(1)(a) and the Central Pine Barrens Comprehensive Land Use Plan (see ECL [*7]Article 57), rendered the Board's resolution to grant the requested changes in zone a nullity because such designation was a condition precedent to the adoption of the MF zoning classification. The changes in zone effected by the subject resolution are also alleged to be violative of various environmental and procedural statutes, some of which are alleged to implicate the absence of notice and a fair opportunity to be heard.

The petitioners were not alone in their dismay over the Town Board's actions on April 16, 2009. In February of 2010, Sandy Hills commenced its own suit against the Town Board of the Town of Brookhaven for damages, injunctive and declaratory relief (see Index No. 4020/2010). It was therein claimed that the failure of the Town to approve the tertiary zone designation allegedly requested by Sandy Hills left 15.74 acres of the northern portion of premises unchanged with respect to it's a Residence 1 classification. Since Town planners advised Sandy Hills that the project could not go forward under this factual scenario, Sandy Hills claimed that its right to develop the premises were impermissibly stymied by Town action or inaction. This action was settled on June 16, 2010 pursuant to a stipulation that was so-ordered by this court. Under the terms of the settlement stipulation, the parties agreed that the Town would adopt one or more new resolutions aimed at modifying or "clarifying" both the resolution containing the SEQRA Finding Statement of April 16, 2009 and the resolution of the same date which effected a rezoning of portions the subject property. In fact, both the stipulation of settlement and the public notice scheduling the public hearing describe the proposed resolution as one that "amends or corrects the rezoning resolution" of April 16, 2009 (see p. 9 and p. 40 of the Town's second Certified Return submitted in response to the second petition filed under Index No. 33842/2010 that is now designated as motion sequence # 019).

On August 17, 2010, the Town Board conducted an advertised public hearing with respect to the "clarifying" resolutions that were envisioned by the authors of the June 16, 2010 stipulation of settlement between Sandy Hills and the Town. The hearing was scheduled without any filed application therefor, as it was originated by a member of the Town Board at its meeting of July 20, 2010 (see pp. 26-35 of the Certified Return for motion sequence #019). On July 22, 2010, the Director of the Town's Department of Environmental Protection deemed the proposed clarifying resolutions to be Type II Actions under SEQRA and he implored the Town Board to so find in any resolution adopted by it on August 17, 2010. After hearing counsel for the parties to this action and several members of the public, the Town Board adopted the two resolutions contemplated in the form prepared by the counsel for the Town and Sandy Hills that was attached to their stipulation settling the separate 2010 action between them. Neither of said resolutions contained a finding that the action under review was a Type II action as the Director of the Department Environmental Protection advised in his July 22, 2010 memo.

In the August 17, 2010 resolution that was aimed at "clarifying" the April 16, 2009 rezoning resolution, the Town Board resolved as follows: 1) that the aforesaid change of zone resolution is hereby modified to clarify that the portion of the property comprising 2.1 acres, that was changed to J Business 6 zoning classification is particularly described in the Schedule A attachment; 2) that the aforesaid change of zone resolution is hereby modified to clarify that the [*8]portion of the subject property, comprising 21.534 acres, that was changed to an MF Residence zoning classification by such resolution is particularly described in Schedule B to this resolution; and 3) that the Town Board hereby confirms that the A Residence 1 zoning classification of the northerly portion of the subject premises, comprised of 15.740 acres, which portion is particularly described in Schedule C to this petition, was not affected by the said resolution. The August 17, 2010 resolution went on to provide that the conditions imposed by the April 16, 2009 rezoning resolution were superseded by the new conditions contained therein. These new conditions read as follows:

1. The changes of zone shall not become effective until such time as the applicant/owner agrees to a cross access easement among all lands of the applicant/owner, as shown on Schedules A, B and C, in such form and substance acceptable to the Town Attorney's office. The three sites shall be designed to work as a common development with adjacent lands directly to the east, including shared site access, subject to the applicant's ability to obtain the consent of the owner(s) of the adjacent lands to the east.

2. The applicant shall file with the Town of Brookhaven and Suffolk County Clerk's Office the required declaration of covenants and restrictions along with metes and bounds description for each rezoning parcel at one time and the covenants shall be filed and recorded so as to apply to all parcels.

3. The applicant/owner shall submit a land division application to separate the J Business 6-zoned parcel, the MF Residence District (Multi-Family)-zoned parcel, and the A Resident 1-zoned parcel. Planning Board land division approval must be obtained before site plan approval.

4. The redemption of three (3) Pine Barren Credits is required.

5. The applicant/owner/developer shall complete all required Traffic Improvement Studies, revisions and recommendations for review and acceptance by agencies having jurisdiction for implementation of off-site transportation-related project mitigation.

The second "clarifying" resolution adopted on August 17, 2010 included the Town Board's adoption of a seventeen (17) page SEQRA Amended Findings Statement. While some of the express Findings set forth in the Amended Findings Statement of August 17, 2010 merely re-iterated the April 16, 2009 findings, others made substantive changes to those set forth in the prior Findings Statement.

Shortly after the adoption of the August 17, 2010 resolutions, the petitioners challenged both resolutions as improper, erroneous, illegal, ultra vires and the like by, among other things, the commencement of the second proceeding under Index No. 33842/2010. As indicated above, the pleadings served in that proceeding were consolidated into this proceeding and renumbered herein as motion sequence 019. Among the claims asserted by the petitioners are: 1) lack of due notice due to the insufficient nature of the Public notice of the August 17, 2010 hearing; 2) [*9]violations of provisions § 265 of the Town Law; 3) a failure to comply with the referral and other provisions of GML §239-m and the Suffolk County Administrative Code; and 4) the project's failure to comport itself with the MCRLUP (which the petitioners also claim is invalid), the conditions specified by the Suffolk County Planning Commission in its 2007 conditional approval of the project, the Pine Barrens Protection Act and SEQRA (ECL Articles 57 and 8).

The parties dispute the nature and effect of the August 17, 2010 resolutions. Although the respondents claim that the resolutions adopted on August 17, 2010 were merely "clarifying" resolutions and that neither constituted legislative or administrative action on the part of the Town Board, the petitioners claim that both resolutions were substantive in nature and thus constituted new legislative and administrative action by the Town Board. Since the nature and effect of such resolutions affects the standard of review to be applied by this court in its consideration of the petition now numbered as motion sequence 019, it is necessary for the court to determine the true nature and effect of such resolutions. For the reasons stated below, the court finds that the resolutions adopted by the Town Board on August 17, 2010 constituted new legislative and administrative action by such board.

The first resolution adopted on August 17, 2010, aimed at correcting, enhancing or modifying the rezoning resolution of April 19, 2009, was indeed legislative in nature. It specified, by metes and bounds descriptions, the areas of the subject parcel that were rezoned as MF, J Business 6 and those that remained A Residence 1. It reduced the area rezoned as MF on April 16, 2009 from 37.3 acres to 21.534 acres. It thus constituted a new and different rezoning of the subject parcel with respect to zoning classifications than that adopted on April 16, 2009. Indeed, at the public hearing conducted on August 5, 2010, counsel for the Town characterized the proposal before the Town Board as "an amendment to both of the adopted resolutions" of April 16, 2009 (see p. 104 of the Town's Certified Return for motion sequence number 019).

In addition, the conditions imposed by the first of the August 17, 2010 resolutions differ significantly from the conditions imposed in the zone change resolution of April 16, 2009. The first listed condition in the April 16 2009 zone change resolution which required Sandy Hills to submit an application for a change of zone and approval of tertiary zoning or, in the alternative, to decrease the maximum unit yield density from 135 to 132 and to reduce the number of affordable units to 12, was completely eliminated as a condition of the zone change conferred by the August 17, 2010 resolution. The condition concerning cross easements with regard to property to the east of the subject parcels was not imposed by the April 16 2009 rezoning resolution. The covenants and restrictions required by the April 16, 2009 resolution also differ materially from those imposed by the August 17, 2010 resolution. Under the April 16, 2009 resolution, 25 out of the 123 residential units in the MF zone of 37.3 acres were required to be dedicated as work force units. Under the August 17, 2010 resolution, a total of 27 units were required to be so designated but this total was not restricted to the MF zone and thus could be permissibly culled from any of three different zones. It is thus apparent that the rezoning resolution of August 17, 2010 was a new legislative act that amended prior zoning enactments. [*10]

The court further finds that the second resolution of August 17, 2010, which superseded the April 16, 2009 Findings Statement and set forth several new and different SEQRA Findings, clearly constituted new and substantive administrative action on the part of the Town Board. Among the substantive changes the new Findings Statement made to the original SEQRA Findings Statement adopted on April 16, 2009 was a re-calculation of the density yield of the subject premises under Town Law § 85-87 of the Town Code without the redemption of Pine Barrens development credits. It also contradicted earlier representations by Town officials that the requirement that 20% of the units be dedicated as work force or lower income units were required to be met from only the portion of the premises zoned MF and not from other zones.

The invalidity of the August 17, 2010 Rezoning Resolution.

Having found that the resolutions of August 17, 2010 constituted new legislative and administrative action, the standard of review applicable thereto is the same as that applicable to zoning amendments and the environmental processes contemplated by SEQRA and other applicable procedural statutes. The adoption of zoning classifications is a legislative act which, when challenged as its to its substance or constitutionality, is subject to review in an action for declaratory relief and not in an Article 78 proceeding (see P & N Tiffany Prop., Inc. v Village of Tuckahoe, 33 AD3d 61, 817 NYS2d 345 [2d Dept 2006]). Where the wisdom or merit of the challenged zoning enactment is questioned, the determination of its enactors is entitled to great deference as it is afforded a presumption of validity and constitutionality (see Robert E. Kurzius, Inc. v Incorporated Vil. of Upper Brookville, 51 NY2d 338, 434 NYS2d 180 [1980]; Town of Huntington v Park Shore Country Day Camp of Dix Hills, Inc., 47 NY2d 61, 416 NYS2d 774 [1979]).

In contrast, challenges to zoning acts that are procedural in nature, rather than substantive, are properly reviewable in Article 78 proceedings (see Matter of Save the Pine Bush v City of Albany, 70 NY2d 193, 203, 518 NYS2d 943[1987]; P & N Tiffany Prop., Inc. v Village of Tuckahoe, 33 AD3d 61, supra). The standard applicable to this court's review is limited to whether the challenged resolution was made in violation of lawful procedure, affected by an error of law, arbitrary and capricious, an abuse of discretion, or irrational (see CPLR 7803[3]; Matter of Young v Board of Trustees of Vil. of Blasdell, 89 NY2d 846, 848, 652 NYS2d 729 [1996]; Matter of Save the Pine Bush v City of Albany, 70 NY2d 193, 203, supra; East Moriches Prop. Owners' Assn., Inc. v Planning Bd. of Town of Brookhaven, 6 AD3d 895, 887 NYS2d 638 [2d Dept 2009]). Claims that a lack of public notice or insufficiencies in any such notice are procedural in nature and do not implicate the wisdom, merit or constitutionality of the zoning amendment at issue (see P & N Tiffany Prop., Inc. v Village of Tuckahoe, 33 AD3d 61, supra).

Town Law § 264(1) and § 265(1) require a Town Board to give the public at least 10 days' notice of the time and place of the public hearing at which proposed amendments to a local zoning ordinance will be discussed so that those interested in the amendments may attend and participate in the hearing. "The notice must fairly apprise the public the public of the fundamental character of the proposed change [and] not mislead interested parties into foregoing [*11]attendance at the public hearing" (Gernatt Asphalt Prods., Inc. v Town of Sardinia, 87 NY2d 668, 642 NYS2d 164 [1996]; Benson Point Realty Corp. v Town of East Hampton, 62AD3d 989, 880 NYS2d 144 [2d Dept 2009]). Review of the notice of the public hearing the Town published prior to the August 17, 2010 hearing reveals that the same was sufficient under this standard. The petitioners' claims that the notice was insufficient and that such insufficiency warrants a nullification of the August 17, 2010 rezoning resolution are thus rejected as unmeritorious.

Also rejected as unmeritorious are the petitioners' claims that the rezoning resolution was invalid under protest petition provisions of Town Law § 265. The respondents demonstrated that the petitioners' protest petition was properly rejected by the Board. Equally unavailing are the petitioners' belated attacks on the validity of the procedures employed in adopting the April 4, 2006 MCRLUP and the petitioners' claims that the resolutions violated the Town Law, including Sections 264 and 265, Chapter 85 of the Town Code, various provisions of the Environmental Conservation Law, including the Pine Barrens Act and the prohibitions against segmented review under SEQRA regulations and the doctrine of legislative equivalency.

However, the petitioners' claims that the failure of the Town Board to refer the rezoning resolution adopted on August 17, 2010 to the Suffolk County Planning Commission are meritorious. To facilitate regional review of amendments to a local zoning ordinance, General Municipal Law § 239-m requires the local municipality to refer its proposed amendments to the county planning board. In addition, the Suffolk County Administrative Code and the Town Code of the Town of Brookhaven require referral of proposed zoning amendments to the Suffolk County Planning Commission.

The court finds that the Town's failure to refer the August 17, 2010 proposed zone change amendments to the County Planning Commission constituted a violation of the provisions of GML § 239-m and the Suffolk County Administrative Code at §A-14-14 and that such violations rendered the Town Board without jurisdiction to approve the changes to the zoning ordinance made by the first adopted resolution of August 17, 2010 (see Matter of Eastport Alliance v Lofaro, 13 AD3d 527, 528, 787 NYS2d 346 [2d Dept 2004]; Matter of Zelnick v Small, 268 AD2d 527, 529, 702 NYS2d 105 [2d Dept 2000]). Having treated the proposed rezoning resolution as one to which the notice provisions of Town Law § 264(1) and § 265(1) applied, the Board nevertheless failed to comply with the referral provisions of GML § 239. The court concludes that such a failure was erroneous and warrants a reversal of the first of the resolutions adopted on August 17, 2010 (see EMB Enter., LLC v Town of Riverhead, 70 AD3d 689, 893 NYS2d 621 [2d Dept 2010]).

Additionally, the court agrees that the Board's adoption of the amended SEQRA findings statement of August 17, 2010 was inconsistent with its own SEQRA review of the project, the MCLRUP and the provisions of Article 85 of the Town Code. This court's authority to examine a SEQRA review conducted by an entity required undertake such review is limited to whether the determination was made in violation of lawful procedure, was affected by an error of law or was [*12]arbitrary and capricious or an abuse of discretion. The relevant question before the court 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" (Gernatt Asphalt Prods., Inc. v Town of Sardinia, 87 NY2d 668, supra).

As indicated above, the "amended" SEQRA Findings Statement of August 17, 2010 made substantive changes to the original SEQRA Findings Statement adopted on April 16, 2009. One such change was a re-calculation of the density yield of the subject premises under Town Law § 85-87 of the Town Code without the redemption of Pine Barrens development credits. The respondents maintain that this re-calculation was necessary to clarify the effect of the failure of the tertiary zone designation resolution of April 16, 2009. Under this re-calculation, the density yield set forth in the April 16, 2009 Findings Statement at F-2 was increased from 129 residential units to 140. The increase is not attributable to a recognition that the "tertiary" zone designation failed and that its 15.74 acreage remained zoned as A Residence 1. Rather, the increase is attributable to the following new acreage designations of the zones and sub-zones within the 39.74 acre parcel that were described in the April16, 2009 Finding Statement: 1) the Hamlet Center-MF Primary Center Zone was increased from 6.04 acres to 8.22 acres which increased its yield from 54 units of 74 units; 2) the J Business 6 District remained constant at 2.10 acres but its density yield was increased by one unit from 12 to 13; 3) the MF primary zone was reduced from 7.44 acres to 5.73 acres and its density yield reduced from 44 units to 34 units; 4) the MF secondary zone acreage was increased from 7.24 acres to 7.58 acres which minimal increase left the density yield at 6 units, although it was attributed to the as-of-right yield of the underlying A-1 Residence zoning; 5) a new A Residence 1 zone acreage replaced the "tertiary zone" set forth in the April 16, 2009 Findings Statement but its 15.76 acres and its yield density of 13 remained the same (see Amended Findings Statement of April 17, 2010 p 242 of the Town's second Certified Return at Finding F-2 on page 244). Since both the acreage and the density yield of the proposed tertiary zone that failed to pass on April 16, 2009 remained constant at 15.74 acres with a yield of 13 units under both the original and Amended Findings Statements, the substantive increase of 11 units in the parcel's yield (without the redemption of any Pine Barrens Credits) set forth in the August 17, 2010 Amended Findings Statement at F-2 cannot rationally be attributed to the Board's failure to adopt the tertiary zone designation resolution of April 16, 2009.

In addition, the amended Findings Statement of August 17, 2010 contains a representation at Finding F-2 that the increase in the unit yield density of the parcel from 129 to 140 units was due to an understatement in the overall acreage of the premises as 38.56 rather than 39.374 acres (see Town's second Certified Return p.245 and Sandy Hills' Memorandum of Law in opposition to petition now designated as motion sequence # 019). However, the FSEIS, unlike the DSEIS, correctly described the total acreage of the subject parcel as 39.375 (see Town's Certified Return Vol. 4, p. 2866). Nothing in the record suggests, let alone establishes, that the increase in the yield density from 129 units to 140 units contained in the August 17, 2010 Findings Statement at F-2 is attributable to a correction of an understatement in the total acreage of the subject premises that was contained in the FSEIS, the April 16, 2009 Findings Statement or the April 16, 2009 rezoning resolution. The respondents' claim and the Board's finding at F-3 [*13]of the August 17, 2010 amended Findings Statement that the redemption or purchase of three (3) Pine Barrens Credits was unnecessary because "none" were required under these new density calculations, is thus unsupported. Moreover, the continued classification of 15.74 acres as A Residence 1 appears inconsistent with the MF family housing concept contained in the MCRLUP and certain of the provisions of Chapter 85 of the Town Code (see Memo of Planning Director dated March 20, 2008 set forth in the Town's original Certified Return, Vol 4, p. 3164). There is no evidence in the record that maintenance of the 15.74 acre portion of the premises under the A Residence 1 classification could properly yield the same result as its rezoning to MF and its designation as a "tertiary"zone by the Town Board, which designation was eviscerated by the failure of the second resolution to pass by a super-majority on April 16, 2009. For these reasons, Findings F-2 and F-3 set forth in the August 17, 2010 "amended" SEQRA findings are hereby found to be arbitrary and capricious, since support therefor is not provided by the record. While such support may exist, it is not currently before the court.

Based upon its review of the record, this court finds that the resolutions adopted by the Town Board on August 17, 2010 were in violation of lawful procedures effected by errors of law and were arbitrary and capricious. Both are thus annulled. However, the court directs Town Board to submit, within 90 days of the date hereof, the August 2010 application by Sandy Hills to rezone the subject premises to the Suffolk County Planning Commission as required by GML §239-m and §A-14-14 of the Suffolk County Administrative Code for such Commission's review and recommendations.

The invalidity of the April 16, 2009 rezoning resolution.

Among the challenges to the validity of the April 16, 2009 rezoning resolution are the petitioners' claims that a super-majority vote of the Town Board was necessary for the adoption of the rezoning resolution of April 16, 2009 under GML 249-m and Suffolk County Code §A14-16, because the one or more of the several conditions imposed by the Suffolk County Planning Commission in its July 11, 2007 conditional approval of the proposed April 16, 2009 zone changes were not met. The first of the unsatisfied conditions at issue is the failure to mandate the purchase of a significant amount of Pine Barrens Credits by the Town Board in its April 16, 2009 resolution.

It is the contention of the respondents that all conditions imposed by the Suffolk County Planning Commission (SCPC) were satisfied by the requirements imposed upon Sandy Hills in the resolutions adopted by the Board on both August 17, 2010 and April 16, 2009. They thus conclude that a super majority vote by the Town Board was unnecessary under GML 249-m and the Suffolk County Code §A14-16 in order for the zone change resolution to have validly been adopted.

However, this issue need not be addressed as the court finds that the resolution was invalid due to its reliance upon and connectivity to the passage of the separate tertiary zone change resolution of April 16, 2009, which failed to pass. In this regard, the court notes that the [*14]rezoning resolution of April 16, 2009 rezoned 37.3 acres of the parcel as MF. Included in this MF acreage was the northern 15.74 acres portion of the parcel which was the subject of the separate MF tertiary zone designation resolution that failed to pass by the required super-majority vote of the Town Board. Since the density yield calculations of the MF zone were based upon this improper inclusion of the 15.74 acres that were the subject of the failed MF tertiary zone designation resolution, the Board's determination that a yield of 123 Multi Family Units from the MF zone which is set forth in the Covenants an Restrictions for the MF zone portion of the April 16, 2009 rezoning resolution is erroneous. In essence, the Board failed to rezone all 37.3 acres as MF, despite the resolution's terms.

The court thus finds that the rezoning resolution of April 16, 2009 is invalid. However, the petitioners' remaining challenges to the April 16, 2009 rezoning resolution have not been established as required by CPLR 7803 and 409. The claims resting thereon are thus rejected as lacking in merit.

The petitioners' separate motion (#020) for injunctive relief enjoining the Town Board from considering further approvals is considered as one pursuant to CPLR 7805 and is granted to the extent that the Town Board is hereby restrained from granting permits, approvals or the acceptance of declarations and covenants under the rezoning resolutions of August 17, 2010 and April 16, 2009 which have been declared invalid herein. All such approvals or filings issued or submitted pursuant to the rezoning resolutions are hereby declared null and void and shall be duly noted as such in the public record.

In view of the foregoing, the court grants the petition numbered 013 herein and the second petition numbered 019 to the extent set forth above. It remits the matter back to the Town Board for its referral, within 90 days of the date hereof, of the rezoning application by Sandy Hills which was the subject of the August 17, 2010 resolution to the Suffolk County Planning Commission for its review and recommendations.

DATED: ________________________________________________

THOMAS F. WHELAN, J.S.C. Footnotes

Footnote 1: The Town attempted to remedy these omissions from the Town's Certified Return by the submission of, among other things, an uncertified transcription of the proceedings conducted by the Town Board on September "23" 2008. This transcript is attached to an affirmation of the Town's counsel dated July 21, 2010. As indicated above, the Certified Return of the Town contains a reference to a September 25, 2008 meeting of the Town Board but no transcript of any proceedings allegedly conducted on either September 23, 2008 or September 25, 2008.

Footnote 2: See foot note 1 above.