Open Space Council, IN. v Town Bd. of the Town of Brookhaven

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Open Space Council, IN. v Town Bd. of the Town of Brookhaven 2012 NY Slip Op 32156(U) August 6, 2012 Supreme Court, Suffolk County Docket Number: 2011-34008 Judge: Jeffrey Arlen Spinner Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] SUPREME COURT OF THE STATE OF NEW YORK IAS PART XXI COUNTY OF SUFFOLK I RE S1 N T: , HON. JEFFREY ARLEN SPINNER Justice of the Supreme Court ...........~~.....~~~~....-...........~~......~.....~......~~.... OPEN SPACE COUNCIL, IN. and DIANE SCHNEIDER, for a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules [ND[,X NO 201 1-34008 -against- THE TOWN BOARD OF TIIE TOWN OF BROOKHAVEN and MARK LESKO, STEVE FIORE-ROSENFELD, JANE BONNER, KATHLEEN WALSH, CONSTANCT KEPERT,TIMOTHY MAZZEI, and DANIEL PANICO, Constituting and in their capacities as the Members of the Town Board of Brookhaven; THE MEADOWS AT YAPHANK LLC (aka AVR REALTY), ROSE BRESLIN ASSOCIATES LLC and DORADE INC MTN SEQ N O ORlG MTN DAI E 001 -CAStDISI 12/16/1 1 FINAL MTN DATE 0711 1/12 lJPON the following papers numbered 1 - 12 read on this petition: Petition (Papers 1-2); Respondents BROOKHAVENs Return and Opposition (Papers 3-6); 0 Respondents AVR, BRESLIN & DORADEs Answer & Opposition (Papers 7-1 0); J etitioners Reply (Papers 1 1-12); it is. ORIIIIRED. that the Petition is hereby denied in all respects. I etitioncrs move this Court for an Order, , pursuant to CPLR Article 78. annulling Ikspondents BROOK1 1AVEN.s (TOWN BOARD) Resolutions for rezoning and environmental findings statemc nt. I his matter concerns the development and zoning of a mixed-use planned dcvelopment district ( bPDD ) known as thc Meadows at Yaphank (h4eadows). The site consists o r 3 parcels, comprising of 335 acres, located at the northwest corner of the William 1:loycl Parkway and the 1,ong Island l!.;press\+aj . in the I-Iamlet of. Yaplianh, l own of Rrooltliaven, County of Sufl olk. Statc o1 Ncn YorA. Prior t o its rcmning to a PDD; Page 1 of 5 [* 2] 1 . Tlie \\restern 172.20 acre parcel was zoned L-1 Industrial, and was previously used a s the Suffolk Downs Race Track. and later operated as a flea marltet. 2 l h e eastern 150.17 acre parcel was zoned 5-2 Business. and is undeveloped.. however it was pre\*iously cleared, with partial foundations installed in connection with a 1997 site plan approval for Brookhaven Town Center, and later received site plan approval. in 2007, for an 850,000 square foot retail developnient known as Brookhaven Walk. 3. l lie third parcel is the site of the Dorade sewage treatment plant. which currentlj receives flow from the Whispering PinesiColonial Woods developnients and the Suffolk County S e m r District No. 8. The proposed project involves the construction of 850 residential mils and 1,032.500 square feet of commercial space, to be used for retail, office and private amenities. In addition, the site will also contain public open space and a wastewater treatment plant. The wastewater treatment plant is currently designed to process 140,000 gallons per day. and will ultimately process 450,000 gallons per day. Petitioner OPEN SPACE COUNCIL, INC. (COUNCIL) is an environmental advocacy group that is concerned with environmental protection, preservation of open space and educating the public in the Town of Brookhaven (BROOKHAVEN). A primary function of the COUNCIL is participation in decisions concerning land use in BROOKHAVEN. Co-Petitioner SCHNEIDER, a member of the COUNCIL, lives within a half-mile of the site of the proposed project. SCHNEIDER alleges that the use and enjoyment of her residence, neighborhood, highways and environment will be adversely impacted by Respondents proposal. Respondent TOWN BOARD is established, empowered and created pursuant to New York State Iaii, and applicable local law, and individual Respondents L ESKO. FIORE-ROSENFELD, 13ONNER. WALSW, KEPERT, MAZZEI and PANIC0 are members thereof, and nanied as Respondents herein in sucli capacity. Respondents AVR and BRESLIN are, respectively. the applicant and the owners of the proposed site, and have applied to the TOWN I3OARD seeking approval for development of the Meadows. On July 20. 2010, after reviewing and considering the application, the TOWN BOARD, as lead agetic! acting under SLQRA regulations. adopted a Positive Declaration for thc change of zone application tor the Meadows pro-ject. I n its declaration, the TOWN 13OARII also deterniined that a Draft Generic Environmental Impact Statement (DGLIS) was necessary, due to the prqject s natiirc and likelihood that the development would have an adverse impact on thc cn\~ironment. I n issuing the I ositivc Declaration. the TOWN BOARD also req ired a formal scoping process. in addition to a public scoping meeting held on September 2. 201 0. On Januarj 20, 201 1 , the DGEIS was submitted to the TOWN BOARD. and \vas accepted as complete on April 12, 20 1 1 Noticc of the DGEIS was published i n the Environmental Notice 13ulletin (1;NU) on April 20, 201 I . I he TOWN ROAIUI held a public hearing on the remnc q q 7 l i c C i t i o i i and IIGEIS on May 10. 201 1. and continued to accept \witten public and agcnc) coiiiiiiciits tliro~igh.lune 25, 201 1 The coninieiits receix ed i n this period \\eie addiesscd i n thc 1 inal ( i e n c l ic Environnicntal Impact Statement (FGEIS). which was adopted on 4ugl1st 16. 20 1 1 hoticc of its adoption w a s published in the EN13 and distritiutcd among interc\tecl pai tic\ Page 2 o f 5 [* 3] An additional hearing was held on October 4. 201 1 . at \vhicli time the resolutions for adopting the FGEIS findings and the rezoning were finalized. On this same day. Petitioners submitted tiieiiioraiidutii outlining their objections to tlie FGEIS findings. ;I On November 3. 201 1, Petitioners filed an Article 78 proceeding to annul the TOWN BOARD Resolutions on the basis that they were hastily issued , recjiiesting further consideration in accordance with SEQRA. Petitioners allege tlie TOWN BOARD f i l e d to consider tlie pending Prcserbation and Management Plan for tlie Carmans IC11 er Watershed, for which a comniittce \\as formed in October 20, 2010. Petitioners also alleged a failure to consider 26 other prqjects close to the Carniaiis River. The law in the State of New York states that a Court may not substitute its own judgment for that of the reviewing board (see: Jaiiiak v Planning Board o the Planizing Board of the Toivn uf f Gveeiiville. 150 AD2d 574 [2 Dept], cppeul denied, 76 NY2d 707 [1990]: Mascony Trcrnsport arid Fevvj? Service v Riclzmonrl. 71 AD2d 896 [2 Dept 19791, uff d, 49 NY2d 969 [1980]). l lierefore. if tlie decision rendered by the reviewing board is within the scope of the authority delegated to it, the Court may not interfere and aniiul it, unless said decision is arbitrary. capricious. or uiilawful (see: Castle Properties Co v Ackevsori, 163 AD2d 785 [ 3 Dept 19901). It is, therefore, indisputable that the standard of review for determination of Respondent TOWN BOARD is whether the decision rendered is arbitrary. capricious. ,and/or unlawful. Petitioner SCHNEIDER asserts standing to bring tlie underlyini, litigation as a resident of tlie nearby condominium comniunity known as Whispering Pines/Co onial Woods, which shares the Dorade \bastewater treatment plant with the parcels of land i n this action. The Appellate l>i\ ision lias recognized SCHNEIDER s standing to bring litigalion regarding this plot of land previously. in Open Space Coiiizcil v Planning Board, 245 AD2d 378 (2 Dept 1997). The Court stated that SCHNEIDER s status as a member of the Petitioner Open Space Council also confers associational standing upon that organization. Therefore, the issue of whether Petitioners SC HNEIDER and the COUNCIL have standing to bring the underlying litigation is already determined by the Appellate Division, and recognized by this Court as settled. Petitioners allege that tlie TOWN BOARD did not comply with SEQRA regulations that rcqiiirc 21 lex1 agenc>r to . identify all areas of environmental concerti, talc? ii complete and hard look at such ;ircas. and thereaftcr. following tlie identification, analysis. and rcvieu~ f such areas. make o a detcrmination which minimizes and avoids adverse environmental efkcts. As a basis for this allcgation, Petitioners allege that the TOWN BOARD failed to coiisidcr a pending environmental plan for the Carmatis River watershed. Article 8 of Environnitntal Conservation L a w (IX I,) espressl>, states that. the policies. statutes, regulations and ordinances 01 tlie state aiid its political subdivisions should be interpreted and administered i n accordance \\ ith thc policies set forth in this article ( N Y C I S ECIL 5 S-0103(6)). l he Carmans River Plan cited in tlie petition has not !.et been adopted as a town policy, statute, regulation or ordinance, and therefore is not a hindiiig proposition for which tlie TOWN I30ARIl must aclliere to in its detcrmination. llicrcforc. this Court lias determined that the TOWN 13OAK1) has complied with Sl QIbl regiilatio~is this basis. 011 Page 3 o f 5 [* 4] Petitioners name 26 prqjects which the TOWN BOARD has failed to consider in its Cumulative Impact Analysis in the FGEIS. TOWN BOARD named 8 prqjects pending and concluded, in the of ~icinity the proposed area of the PPD in its Cumulative Impact Analysis. Compliance with SEQICA demands the potential cumulative impact of other proposed or pending projects must be considered pursuant to SEQRA before the action ma) be approved. Save the Pirie Birsli I I ~ C v AIbariy. 70 N.Y.2d 193 (2 Dept 1987). The T O W BOARD provides eLidence, through an expert affidavit. clarifying that tlie 26 projects named by Petitioners are not appropriate I b r consideration under SEQRA regulations, as they are either finished. have been approved \\ ith Negatii e Jleclarations. or do not exist on file as a pending apylication (Voorhis Aff . Ex E) Therefore, this Court has determined that the TOWN BOARD has not failed to comply with SFQRA regulations. Petitioners allege tlie TOWN BOARD failed to take a hard look at the Meadous prqject and its cn\ ironmental impacts. SEQRA regulations require a lead #igency to prepare a findings statement that addresses environmental impact concerns. The FGEIS in this instance addresses the f I lo \VI ng: o 1 . A description of the proposed action and its environment; 2. The potential environmental impact of the project: 3. Any adverse effects that cannot be avoided; 4. Mitigation measures in order to minimize these adverse impacts; 5 . Use and conservation of energy sources; 6. Effects on solid waste management; and 7. A management plan for groundwater conservation. The FGEIS also addresses concerns such as traffic. effects on culture, and effects on tlie community of the surrounding area. The TOWN BOARD held a formal scoping period that extended ucll beyond what is required by SEQRA. where public comment \vas invited and addressed in the formation of the FGEIS. Therefore, this Court has determined that the determination of TOWN BOARD was not arbitrary, capricious, or unlawful. For all tlie reasons stated herein abo1.e and in the totality of the papers submitted lierein, it is, the re lo re. ORI)EREl), that thc above rcfercnced pctition is hercby denicd in all respects, tlie Petition disniisscd and this case is hereby disposed; and it is fiirther ORDEREI), that Counsel for Respondents herein are hereby directed to serve a copy of t h i order. with Notice of Entry, upon Counsel for all and the Sul i olk County Clerk within twenty (20) s 11ffo 1I\ c o Ll11t y c 1erl\ Ihtcd r h erhcad. Ne\+ Yorl, Ztrgust 6, 201 2 X X - Page 4 o f 5 N~N-FINAL DISPOSITION - FINAL DlSPOSlTlON SCAN d3 NOT SCAN [* 5] 1'0: Idam Ol'iices of Mark A. Cuthbertson 434 New York Ave Huntington, N Y 1 1743 Certiliiian Balin Adler & Hyman LLP 100 M o t o r Parkway, Suite 156 1 Iaup~xiug'e. NY 1 1788

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