Troy Sand & Gravel Co., Inc. v Town of Nassau

[*1] Troy Sand & Gravel Co., Inc. v Town of Nassau 2012 NY Slip Op 50182(U) Decided on January 26, 2012 Supreme Court, Rensselaer County Lynch, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 January 26, 2012
Supreme Court, Rensselaer County

Troy Sand & Gravel Co., Inc. and HENKEL REALTY ASSOCIATES, LLC, Plaintiffs,

against

Town of Nassau; TOWN BOARD OF THE TOWN OF NASSAU; DAVID FLEMING, JR., as Supervisor of The Town of Nassau; and RAYMOND SENEY, as Member of the Nassau Town Board, Defendants.



228529



APPEARANCES:

TUCZINSKI, CAVALIER, GILCHRIST & COLLURA, P.C.

(Andrew W. Gilchrist, Esq., of Counsel)

Attorneys for Plaintiff

54 State Street - Suite 803

Albany, New York 12207

JOSEPH M. CATALANO, ESQ.

Attorney for Defendants

P.O. Box 219

Rensselaerville, New York 12147

Michael C. Lynch, J.

By Order to Show Cause (Lynch, J.) dated December 9, 2011 and initially returnable January 6, 2012, plaintiffs seek a preliminary injunction enjoining the Town defendants from incurring expenses that would arise from a further review of environmental issues already determined in the SEQRA review process as part of the Town's review of plaintiffs' special use permit/site plan application for a quarry on [*2]Route 66 in the Town of Nassau.

This matter has an extensive litigation history pertaining to plaintiff's proposed operation of a hard rock quarry at the Route 66 site. In this new action, plaintiffs seek a declaratory judgment to the effect the Town is bound by the SEQRA determination already made in conjunction with DEC's issuance of a mining permit to plaintiffs. The corollary is that defendants would be precluded from revisiting environmental issues addressed in SEQRA as part of the special use permit/site plan application review.

Without recounting the entire history of this dispute, the most recent decision of moment is the Appellate Division's November 3, 2011 affirmance of this Court's Judgment dated September 2, 2010, requiring plaintiffs to obtain a special use permit/site plan approval from the Town, and directing the Town to promptly address the application (see Exhibits "J" and "K" annexed to complaint). This determination relates back to the Court's previous directive that the Town commence their review within twenty (20) days of the Court's February 22, 2010 Decision and Order (see Exhibit "H" annexed to complaint at p. 18). In due recognition of this directive, the Town Board met on November 16, 2011 to initiate the special use permit/site plan review process (see Exhibit "M" annexed to the Complaint at p. 3). The impetus for this new action is the Town Board's determination to retain an outside consultant as part of the review process, at plaintiff's expense (Id p. 30; 36-37). While not disputing the Town's authority to retain a consultant to assist in the review, plaintiff's contention is that the consultant is actually being retained to review environmental issues already resolved by the SEQRA determination issued by DEC, as lead agency. In opposition, the Town contends plaintiffs' complaint is premature and that a remedy is available to challenge the ultimate determination made on the application through a CPLR Article 78 proceeding (Town Law §274-b[9]). Oral argument was held on January 20, 2012.[FN1]

The general standard for the issuance of a preliminary injunction is a showing of irreparable harm if the provisional relief is not granted, a meritorious claim and a balancing of the equities in favor of the applicant (Cooperstown Capital LLC v. Patton, 60 AD3d 1251,1252 [2009]).

In this mining project process, which began in December 2003, there has been extensive litigation and attendant delay, in part, attributable to both sides. The [*3]threshold question here is whether the SEQRA issues are subject to renewed consideration as part of the Town's special use permit/site plan review. It would serve the interests of both sides to clarify this point now in order to avoid unnecessary expense and delay.

During the Town Board's November 16, 2011 meeting, the Town's counsel openly acknowledged that the Town is bound by the SEQRA determination already made on this project (see Exhibit "M" at pp. 27-28). The court concurs. As an involved agency, the Town is bound by DEC's SEQRA determination (Matter of Gordon v. Rush, 100 NY2d 236, 243-244; 6 NYCRR 617.6). This is particularly so given that the Town unsuccessfully challenged DEC's determination in a CPLR Article 78 proceeding (see Exhibit "G" annexed to the Complaint). Moreover, the Town's argument that it is authorized to issue its own SEQRA findings statement under 6 NYCRR 617.11[c] is in error. That provision provides that an involved agency may not make a final decision on an action that has been the subject of a final EIS "until the time period provided in subdivision 617.11[a]...has passed and the agency has made a written findings statement" (emphasis added). The underscored "the agency" refers to the lead agency, not the involved agency. This construction comports with 6 NYCRR 617.6[b][3][iii] which provides that where, as here, a lead agency has conducted a coordinated review with the involved agencies "then no involved agency may later require the preparation of an EAF, a negative declaration or an EIS in connection with the action. The determination of significance issued by the lead agency following coordinated review is binding on all other involved agencies".

The problem here is that the Town nonetheless maintains that a further review of environmental concerns, such as the impact on community character is authorized under the special use permit/site plan process (see Exhibit "M" at pp. 28-30). It is this review that prompted counsel's recommendation to retain a consultant (Id).

By Decision and Order (Lynch, J.) dated February 11, 2008, the Court determined that the Town's special use permit/site plan review requirements set forth in Local Law No. 2 for 1986 were not preempted by the Mined Land Reclamation Law, with certain exceptions (see 18 Misc 3d 1130A). The Court specifically determined that the "Additional Specific Standards" applicable to special use permits for commercial mining set forth in Article VI(B)(3) were preempted. On the other hand, the Court found that the "General Standards", applicable to all special use permit applications, set forth in Article VI[A] remained valid. During his presentation to the Town Board on November 16, 2011, the Town's counsel cited Article VI[A] as authority for further environmental review. In his supplemental letter [*4]dated January 25, 2012, the Town's counsel cites to Article VI[A][2] as authority for the Town to now review whether "the proposed mining use impairs the value of adjacent properties". This reliance is misplaced.

The Court recognizes that Article VI[A] applies to all projects and requires the Town to consider the environmental impact of a project. Under Town Law §274-b[8] the Town Board is required to confirm a project is compliant with SEQRA prior to approving a special use permit. That authority, however, must be considered in the context of this project. SEQRA review has already been completed by DEC and is binding upon the the Town. Moreover, with a mining project, there are limits to the conditions placed on special use permits under a local zoning ordinance (ECL §23-2703[2]). Most notably, any special use permit must include the conditions placed on the project under the mining permit issued by DEC (Id at [2][b][iii]).

The point made is that Article VI[A] of the Town's local ordinance does not authorize the Town to reassess the environmental impact of this project in processing plaintiffs' special use permit/site plan application. That review has already been completed by DEC and the conditions imposed by DEC must be included in any special use permit issued by the Town. The Town's attempt to distinguish between the SEQRA determination and a consideration under Article VI[A][2] of the potential impact on the value of adjacent properties is not convincing. In its Findings Statement, DEC found that the immediate area adjacent the project site was "rural, wooded and sparsely populated with residences" (see Exhibit "D" Findings Statement at p. 10). The DEC found that there were less than ten (10) residents within 2,000 feet of the site, with the nearest residence over 1,600 feet away (Id.). Most importantly, the Findings were based on a consideration of environmental, social and economic considerations.

In this Court's view, there is considerable merit to the plaintiffs' claim. Moreover, the Court is not persuaded by defendants' contention the claim is premature.That thesis ignores the prospect of considerable delay and expense that could result from a renewed assessment of the environmental impacts of this project.

Accordingly, the Court hereby grants plaintiffs' application for a preliminary injunction to the extent of enjoining defendants from reassessing the environmental impact of this project already determined by the DEC SEQRA determination. While the Town may certainly retain a consultant to assist in reviewing the subject application at plaintiffs' expense, that review does not include a reconsideration of DEC's SEQRA determination.

This represents the Decision and Order of this Court. This original Decision and Order is being mailed to the Attorneys for plaintiff. The below referenced [*5]original papers are being mailed to the Rensselaer County Clerk. The signing of this Decision/Order/Judgment shall not constitute entry or filing under CPLR

2220. Counsel is not relieved from the provisions of that rule regarding filing, entry, or notice of entry.

DATED:January, 2012

Albany, New York

________________________________________

Hon. Michael C. Lynch

Justice of the Supreme Court

Papers Considered:

1.Order to Show Cause (Lynch, J.) dated December 9, 2011, initially returnable

January 6, 2012, with affidavit of Andrew Gilchrist, Esq. dated December 8,

2011; Memorandum of Law dated December 8, 2011; and

Summons and Complaint dated December 8, 2011 with Exhibits "A" - "Q"; and

Memorandum of Law dated January 20, 2012; and

2.Affirmation in Opposition of Joseph Catalano, Esq. dated January 4, 2012, with

Exhibits "A" - "C"; Verified Answer dated January 11, 2012. Footnotes

Footnote 1:At the January 20, 2012 appearance, the Court rescheduled the conflict of interest issue raised in the Order to Show Cause for a hearing on February 23, 2012, with an interim briefing schedule to allow further submissions.