Matter of Croton Watershed Clean Water Coalition Inc. v Planning Bd. of Town of Southeast

[*1] Matter of Croton Watershed Clean Water Coalition Inc. v Planning Bd. of Town of Southeast 2004 NY Slip Op 51312(U) Decided on September 15, 2004 Supreme Court, Westchester County 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 15, 2004
Supreme Court, Westchester County

In the Matter of the Application of CROTON WATERSHED CLEAN WATER COALITION INC., PUTNAM COUNTY COALITION TO PRESERVE OPEN SPACE, INC., JOEL SHORTLIDGE and BRUNO BRUGNATELLI, Petitioners,

against

PLANNING BOARD OF THE TOWN OF SOUTHEAST, COVINGTON MANAGEMENT, LTD., LAD FAMILY INVESTMENTS, LLC and TERRA 9 ASSOCIATES, , Respondents.



RIVER KEEPER, INC., Petitioner, -against-

against

PLANNING BOARD OF THE TOWN OF SOUTHEAST, COVINGTON MANAGEMENT CO., LTD., LAD FAMILY INVESTMENTS, LLC and TERRA 9 ASSOCIATES, Respondents.



19407/03



DELBELLO DONNELLAN WEINGARTEN

TARTAGLIA WISE & WIEDERKEHR, LLP

Attorneys for Respondents COVINGTON MANAGEMENT, LTD, LAD FAMILY INVESTMENTS, LLC and TERRA 9 ASSOCIATES, One North Lexington Avenue, White Plains, New York 10601

WILLIS H. STEPHENS JR., ESQ.

Attorney for Respondent

PLANNING BOARD OF THE

TOWN OF SOUTHEAST

1441 Route 22

Brewster, New York 10509

CHRISTOPHER M. WILDE, ESQ.

MARC A. YAGGI

Attorneys for Petitioner

RIVERKEEPER, INC.

E-HOUSE

178 North Broadway

White Plains, New York 10603

JAMES BACON, ESQ.

Attorney for Petitioners

169 Main Street

New Paltz, New York 12561

Francis A. Nicolai, J.

In these Article 78 proceedings, which are consolidated for the purposes of this decision, petitioners seek to annul the SEQRA Findings Statement dated October 27, 2003, of the Town of Southeast Planning Board (hereinafter "Planning Board") and its October 27, 2003, Resolution granting preliminary re-subdivision approval for the T-2 portion of the proposed Terravest Corporate Park - Phases II and III. Answers have been served and filed by all respondents in [*2]both proceedings.

The proposed Terravest project site is 139 acres, divided into three parts. "T-9" is approximately 5 acres on which office/warehouse space of approximately 36,000 square feet is to be built. "T-2" is approximately 46.6 acres on which four commercial office/warehouse/light manufacturing buildings totaling approximately 414,906 square feet are to be built. "T-3" is approximately 87.5 acres on which 60 units of detached individual senior citizen housing and a 15-acre town park are to be built. T-2 consists of 3 parcels and a road right-of- way for which subdivision was approved in 1980's, and the land has been disturbed in connection with construction of the roadway. The site is adjacent to I-84 and is zoned OP 1 (Office Park 1)(T-9) and OP 2 (T-2 and T-3).

The project site is located in the Town of Southeast which is in the Croton Watershed. The Watershed is a source of drinking water for New York City. The Town of Southeast is located in the East of Hudson Watershed, which has been designated by New York State and The Army Corps of Engineers as "Critical Resource Waters." The project site is also located within a "Commercial Focus Area" ("FA/C/S4"), which Putnam County has designated to identify areas of known or potential sources of water quality contamination from non-point sources (see Croton Plan). According to petitioner River keeper, the runoff from the particular Commercial Focus Area in which the site lies contributes, in its current undeveloped state, almost 25% of the total phosphorous load from all sources in the Town.

The Planning Board declared itself as lead agency on May 8, 2000, issued a positive declaration, and commenced SEQRA proceedings and hearings, and issued SEQRA Findings on March 24, 2003, finding that "the action to be approved is one that minimizes or avoids significant adverse environmental impacts to the maximum extent practicable." The proposed project as then approved included 72 units of senior housing, and 451,000 square feet of office/warehouse/light manufacturing, and a 15 acre Town Park, and required approximately 8.3 acres of disturbance to 100-foot wetland buffer areas.

Subsequently, on May 7, 2003, the New York City Department of Environmental Protection("NYCDEP"), an involved agency which is responsible for approval of the proposed Wastewater Treatment Plant ("WWTP") and Stormwater Pollution Prevention Plan ("SPPP"), issued a Findings Statement to Deny which stated that the Final Environmental Impact Statement ("FEIS") "lack[ed] necessary identification and analysis of impacts, mitigation measures and consideration of reasonable alternatives..." (p.2) and that "[n]either the DEIS nor the FEIS provide alternatives that entirely avoid disturbances within the site's wetland buffers" (p. 4) and suggested that a "supplemental EIS would present involved agencies an opportunity to consider additional alternative site designs that avoid wetland buffer disturbance" (p.2). Respondents then made several changes to the plans, including reduction of senior housing units from 72 to 60, and reduction of wetland buffer encroachment to approximately four acres.

Thereafter, the Board re-established itself as lead agency and directed the applicant to [*3]prepare a Supplemental Environmental Impact Statement ("SEIS"). The scoping document directed the presentation of additional alternatives.

After submission of a Draft SEIS ("DSEIS") and Final SEIS ("FSEIS"), further hearings and comment periods, the Board issued its Supplemental Findings Statement on October 27, 2003, which also incorporated the March 24, 2003 Findings Statement. The Board found that "the action to be approved is one that minimizes or avoids significant adverse environmental impacts to the maximum extent practicable," that "to the maximum extent practicable, significant adverse environmental impacts...will be minimized or avoided by incorporating as conditions...the mitigation measures identified in the environmental impact statement," and that the proposed action "balances potential beneficial impacts in the form of new jobs for residents...generation of tax revenues... provision of alternative senior housing opportunities...and provision of a 15-acre Town park with potential adverse impacts" (October 27, 2003 Findings Statement, pages 1-2). Preliminary plat approval was granted on October 27, 2003, for resubdivision of T-2 into four lots.

Standing

Respondents have asserted, in their respective Answers and in opposition to the petitions, that petitioners lack standing.

In order to demonstrate standing, a petitioner must show (1) "injury in fact" i.e., that petitioner would suffer direct harm, injury that is in some way different in kind or degree from that of the public at large and (2) that the interest or injury asserted falls within the zone of interests protected by the statute invoked (Society of Plastics Indus. v. County of Suffolk, 77 NY2D 761, 772-774 [1991]).

"The existence of an injury in factan actual legal stake in the matter being adjudicated ensures that the party seeking review has some concrete interest in prosecuting the action which casts the dispute 'in a form traditionally capable of judicial resolution' (cite omitted)" (Society of Plastics Indus. v. County of Suffolk, 77 NY2D at 772, supra).

"The zone of interests test, tying the in-fact injury asserted to the governmental act challenged, circumscribes the universe of persons who may challenge administrative action. Simply stated, a party must show that the in-fact injury of which it complains (its aggrievement, or the adverse effect upon it) falls within the 'zone of interests,' or concerns, sought to be promoted or protected by the statutory provision under which the agency has acted (cites omitted)" (Society of Plastics Indus. v. County of Suffolk, 77 NY2D at 773, supra).

"[T]he zone of interests, or concerns, of SEQRA encompasses the impact of agency action on the relationship between the citizens of this State and their environment. Only those who can demonstrate legally cognizable injury to that relationship can challenge administrative [*4]action under SEQRA" ( Society of Plastics Indus. v. County of Suffolk, 77 NY2D at 777, supra). In the case of associations dedicated to environmental preservation seeking to represent the interests of persons threatened with environmental harm, in-fact injury within the zone of interest of environmental statutes has been established by proof that agency action will directly harm association members in their use and enjoyment of the affected natural resources (Society of Plastics Indus. v. County of Suffolk, 77 NY2d at 776).

Parties whose property "lies in close proximity to the subject property are the beneficiaries of a presumption that they are adversely affected by the alleged SEQRA violation and, accordingly, need not allege a specific harm" ( Matter of Stephens v. Gordon, 202 AD2d 437 [2d Dept., 1994]; Matter of Long Island Pine Barrens Society, Inc., v. Planning Board of the Town of Brookhaven, 213 AD2d 484 [2d Dept., 1995]; Matter of Committee to Preserve Brighton Beach and Manhattan Beach, Inc. v. Planning Commission of the City of New York, 259 AD2d 26, 32 [lst Dept., 1999]).

In order to establish standing, an association or organization must satisfy three requirements. It must show that (1) one or more of its members would have standing to sue; (2) the interests it asserts are germane to its purposes so as to satisfy the court that it is an appropriate representative of those interests; and (3) neither the asserted claim nor the appropriate relief requires the participation of the individual members (Society of Plastics Indus. v. County of Suffolk, 77 NY2D at 775, supra). "These requirements ensure that the requisite injury is established and that the organization is the proper party to seek redress for that injury"(id.).

Respondents primarily contend that the petitioner organizations have not satisfied the requirement that one or more of petitioners' members would have standing to sue.

Petitioner River keeper Inc. (hereinafter "River keeper) has submitted affidavits from three of its members. Martha Shortlidge and Rebecca Rabinowitz are abutting property owners to the Terravest property who assert that additional runoff from impervious surfaces and clearing of trees on the Terravest property and, additionally as to Rabinowitz, discharge from a manufacturing plant on Terravest, could have a direct impact on the quality of the water in wells on their properties which are used for drinking water They have therefore alleged an injury in fact which is different from the harm or injury to the public at large, and which is within the zone of interests of SEQRA. (see e.g., Matter of Many v. Village of Sharon Springs Board of Trustees , 218 AD2d 845[3rd Dept., 1995] ). In addition, they are adjoining property owners and are entitled to a presumption that they are adversely affected by the alleged SEQRA violations without a showing of specific harm (see e.g., Matter of Stephens v. Gordon, 202 AD2d 437, supra; Matter of Long Island Pine Barrens Society, Inc., v. Planning Board of the Town of Brookhaven, 213 AD2d 484, supra; Matter of Committee to Preserve Brighton Beach and Manhattan Beach Inc. V. Planning Commissioners of the City of New York, 259 AD2d 26, supra). Daniel Estrin lives in an area in New York City which receives its drinking water directly from the Croton Reservoir. As Mr. Estrin receives his drinking water from the Croton [*5]Reservoir, he has also alleged an injury which is different from the harm to the public at large. Mr. Estrin, Ms. Shortlidge and Ms. Rabinowitz have alleged impacts to water quality which are within the zone of interest protected by SEQRA in its stated purposes of protection of natural resources and would have standing to bring this proceeding; and their standing is attributable to River keeper (See e.g. Coalition for Future of Stony Brook Vill. v. Reilly, 299 AD2d 481, 484[2d Dept., 2002]).

River keeper alleges in its petition that it is a not-for-profit environmental organization which is dedicated to protecting water quality in the Hudson River and the New York City drinking water supply watershed which serves unfiltered drinking water to residents of New York City and Westchester and Putnam Counties. It is a signatory to the 1997 New York City Watershed Memorandum of Agreement (MOA) and monitors and participates in the environmental review of development proposals which may impact water quality in the watershed. It does this by monitoring the impacts to the Hudson River and the New York City drinking water supply watersheds which are associated with development such as erosion, flooding, impervious surfaces, construction on steep slopes, private and public sewer systems, impacts to wetlands and wetland buffers, and its effects on the soil, wetlands, groundwater and surface waters (See Petitioner Riverkeeper's Reply Memorandum of Law at p. 24). The Court is satisfied that the interests asserted by Riverkeeper in this action are germane to its purposes of monitoring and protection of water quality so as to demonstrate that Riverkeeper is an appropriate representative of those interests, and that neither Riverkeeper's claims nor the appropriate relief requires the participation of its individual members.

Accordingly, Riverkeeper has standing to bring this proceeding.

Petitioners Croton Watershed Clean Water Coalition, Inc. ("CWCWC") and Putnam County Coalition to Preserve Open Space Inc. ("PCCPOS"), together with Joel Shortlidge and Bruno Brugnatelli have brought a separate petition. In their petition it is alleged that CWCWC "is a not-for profit open-membership corporation constituting an alliance of organizations and individuals dedicated to maintaining, protecting and improving the quality of the waters in the New York City Croton watershed..." whose membership " includes 50 affiliated groups which represent over 120,000 individuals" and that its individual members are directly affected by "projects...that replace wetland buffers, forests and meadows with impervious surfaces discharging stormwater into the Croton [Watershed], including, as here, tributaries and wetland headwaters of the Middle Branch and Diverting Reservoirs and possibly Ice Pond, the Great Swamp and East Branch Reservoir" (petition at ¶3 and ¶4). It is alleged that PCCPOS "is a not-for profit open-membership organization composed of residents of the towns of Putnam County, including the Town of Southeast, united to ensure the protection in perpetuity of environmentally sensitive, ecologically endangered and historically, educationally, and culturally significant lands and structures" (petition at ¶. 5). Joel Shortlidge and Bruno Brugnatelli are members of PCCPOS and are also named as individual petitioners. Bruno Brugnatelli and PCCPOS are members of CWCWC. [*6]

Petitioners submit the affidavits of Joel Shortlidge and Bruno Brugnatelli. Mr. Brugnatelli's' property borders the project site and portions of his property are directly downgradient from the site and from the site of the senior citizen housing project. In Mr. Brugnatelli's affidavit, he asserts a number of impacts to his property. Relevant to a determination of standing in this proceeding are his contentions that the disturbance of forests and slopes adjacent to his property will cause sediment to erode to downstream waters and onto his property, and that sewage and stormwater may impact the quality of well water on his property. This is sufficient to establish injury in fact within the zone of interests protected by SEQRA (see e.g. Matter of Many v. Village of Sharon Springs Board of Trustees , 218 AD2d 845, supra] ). Further, he is entitled to a presumption of injury as an adjoining landowner (see e.g.,Matter of Stephens v. Gordon, 202 AD2d 437, supra; Matter of Long Island Pine Barrens Society, Inc., v. Planning Board of the Town of Brookhaven, 213 AD2d 484, supra; Matter of Committee to Preserve Brighton Beach and Manhattan Beach Inc. V. Planning Commissioners of the City of New York, 259 AD2d 26, supra). His standing is attributable to PCCPOS and CWCWC of which he is a member (See e.g. Coalition for Future of Stony Brook Vill. v. Reilly, 299 AD2d at 484). Joel Shortlidge's affidavit however does not allege any direct impacts to his mother's property, where he resides, but alleges only impacts such as increased traffic, construction noise and odors, and noise from the ballfield which are not injuries which are different from those suffered by the public at large. He therefore lacks standing.

The Court is satisfied that PCCPOS and CWCWC have each met the remaining requirements for organizational standing, i.e., that the interests they assert are germane to their respective purposes so as to satisfy the court that it is an appropriate representative of those interests, and that neither the asserted claim nor the appropriate relief requires the participation of the individual members.

SEQRA Violations Alleged by Petitioners

Petitioners allege that the Board failed to comply with SEQRA requirements with respect to the issues of water quality, wildlife and endangered species, consideration of alternatives, and consideration of growth inducing impacts.

"Judicial review of a lead agency's SEQRA determination is limited to whether the determination was made in accordance with lawful procedure and whether, substantively, the determination 'was affected by an error of law or was arbitrary and capricious or an abuse of discretion' (cites omitted). In assessing an agency's compliance with the substantive mandates of the statute, the courts must '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 elaboration' of the basis for its determination' (cites omitted). An agency's compliance with its substantive SEQRA obligations is governed by a rule of [*7]reason and the extent to which particular environmental factors are to be considered varies in accordance with the circumstances and nature of particular proposals (cite omitted). Similarly, agencies have considerable latitude evaluating environmental effects and choosing between alternative measures (cite omitted). While judicial review must be meaningful, the courts may not substitute their judgment for that of the agency for it is not their role to 'weigh the desirability of any action or [to] choose among alternatives' (cite omitted)" (Akpan v. Koch, 75 NY2d 561, 570-571 [1990]).

(See also Neville v. Koch, 79 NY2d 416, 425 [1992]).

As set forth more specifically below, this Court concludes that the Board did identify the relevant areas of environmental concern, took the requisite "hard look," and made a reasoned elaboration of the basis for its determination with respect to the issues raised by petitioners.

Water Quality Issues

The Town of Southeast is a signatory to the New York City Watershed "Memorandum of Agreement" ( "MOA") to protect and rehabilitate reservoirs within the Croton Watershed which were in violation of the Federal Clean Water Act ( "CWA") (§ 303[d][1][A]) and State Water Quality Standards ( "WQS") (6 NYCRR Part 700). The Town agreed to participate in the development of a Comprehensive Croton System Water Quality Protection Plan (the"Croton Plan") and to comply with the Clean Water Act by following EPA's Total Maximum Daily Load ("TMDL") program. This program requires reductions in the phosphorus pollutant loadings of the Middle Branch and Diverting Reservoirs, which have phosphorus- restricted drainage basins. The Town is required to reduce annual phosphorous loadings to the Middle Branch and Diverting Reservoirs by 900 pounds and 2,401 pounds respectively. In June of 2002, therefore, the Town of Southeast adopted the "Croton Plan" which stated that "[n]ew development cannot cause water quality to decline further." It identified the Diverting Reservoir as "use impaired as a water supply...threatened by high levels of nutrients resulting from urban runoff..and would require non-point phosphorous load reductions of 2,401 lbs/yr" (Pages 2-5).

Both the Diverting Reservoir and Middle Branch Reservoir have been designated by the New York State Department of Environmental Conservation ("NYSDEC") as "water quality limited based on current conditions" including excess phosphorous loading (DEC, Phase II Phosphorous Total Maximum Daily Loads for Reservoirs In the New York City Water Supply Watershed(June 2000), approved by the United States Environmental Protection Agency ("EPA") on October 17, 2000 (the "Phase II Report").

Two watercourses in T-3 travel to the Diverting Reservoir. Another watercourse travels to the Middle Branch Reservoir. [*8]

The CWCWC Petitioners assert that the Board failed to adequately address stormwater impacts. Petitioners assert that the Board (1) failed to comply with the MOA and failed to "take all necessary and appropriate actions" as required by the Environmental Protection Agency ("EPA") to ensure that the project was in conformance with the applicable Watershed Protection programs and Regulations, the Clean Water Act § 303(d) and the Croton Plan as neither the DEIS, the FEIS, SEIS, FSEIS, nor Findings Statements specifically identified how the project would conform to these regulatory efforts to protect and rehabilitate the Middle Branch and Diverting Reservoirs; (2) failed to require the applicant to utilize "the most conservative measures" as required by the EPA in developing its stormwater modeling and assessment of impacts, in that the applicant failed to use the State's stormwater modeling standards contained in DEC's 2001 Design Manual and SPDES permit GP-02-01, (3) determined that "water supply" issues were not within the scope of the SEQRA and engineering review , and failed to address the comments of petitioners' experts.

The Watershed Regulations require that the Stormwater Pollution Prevention Plan ("SPPP") shall include an analysis of phosphorous runoff, before and after the activity (WR&R §18-39[c][1]).

Petitioners assert that during the SEQRA review process, the New York State Department of Environmental Conservation ("NYSDEC") enacted new regulations replacing its 1993 "Stormwater Design Guidelines" (set forth in "Reducing the Impacts of Stormwater Runoff from New Developments) with a new "2001 Stormwater Management Design Manual"(October 2001) (hereinafter "2001 Design Manual")and that on March 10, 2003, NYSDEC implemented new Phase II stormwater regulations entitled "State Pollution Discharge Elimination System ("SPDES") General Permit for Stormwater Discharges from Construction Activity (No. GP-02-01) requiring that stormwater management designs conform with or exceed the standards and practice of the 2001 Design Manual.

Petitioners contend that the applicant relied on outdated stormwater methodology for determining phosphorous discharge and removal rates found in NYSDEC's "Reducing the Impacts of Stormwater Runoff from New Development (April 1993) rather than the more up-to-date methodologies and reference tables from the DEC's 2001 Design Manual and that the applicant had therefore overestimated the amount of pre-development phosphorous discharged from the site, underestimating the increase in the amount of post-development phosphorous loading into stormwater, and overestimating the pollutant removal in stormwater flows by the proposed detention ponds, as also set forth in correspondence from the Watershed Inspector (Petitioners Exhibit "J"), and assert that in fact post-development pollutant discharge could exceed pre-development phosphorous discharge from the site.

Petitioners also contend that the Board improperly delegated its responsibilities as lead agency and deferred to the New York City Department of Environmental Protection as these issues were not addressed by the Town's consulting Engineer who stated that his review did not include sanitary sewer and water supply as these aspects of the project are within the scope of [*9]other agencies, including the Putnam County Health Department and New York City Department of Environmental Protection, and that a cursory review had been made of the SPPP and that the matter was under NYCDEP review.

A summary of the applicant's proposed stormwater management plans with respect to water quantity and quality was submitted as part of the FEIS and SFEIS. These submissions recognize that the proposed project is in a phosphorous-redistricted basin, and is subject to applicable regulations which require reduction in post-development pollutant loadings, and that the SPPP was submitted to and was subject to approval by NYCDEP in accordance with such regulations.

The Board found that the proposed Stormwater Pollution Prevention Plan (SPPP) would "ensure that post-development stormwater flow volumes and rates will not exceed pre-development flow volumes and rates and that post-development pollutant loading (phosphorous, nitrogen and biological oxygen demand) will not exceed pre-development levels to the maximum extent practicable." (October 27, 2003 Findings, p. 6) (emphasis added). The Board noted that NYCDEP used a more stringent standard than the recently prepared NYSDEC Stormwater Design Manual and that the project will require NYCDEP approval of the SPPP and coverage under NYSDEC General Permit GP-02-01 (October 27, 2003 Findings, p. 6).

The Board found that the series of stormwater best management practices ("BMPs") to be utilized would "detain and treat stormwater from the 2-year 24 hour storm event as per NYCDEP Watershed Rules and Regulations" and that the SPPP exceeds the New York State standards for detention and treatment. The Board further found that the stormwater management practices (SMPs) that will be utilized will meet the NYSDEC design guideline, that "NYSDEC has different design guidelines than those employed by the NYCDEP; but... in complying with the more stringent NYCDEP standards, it will also comply with NYSDEC standards." The Board noted that the "NYCDEP standards reference an older version of the State's design guidelines" but "the project will adhere to both standards in the design of the stormwater management system." (October 27, 2003 Findings, p.6).

With respect to pollutant loading, the Board found that the proposed SPPP would "achieve NYCDEP requirements with respect to pollutant loadings for phosphorous (the pollutant of concern in the two phosphorous-restricted reservoir basins to which the project drains), nitrogen, biological oxygen demand (BOD), and total suspended soils (TSS)," that "[i]n all but three locations within the stormwater system, post-development pollutant loads will be lower than pre-development pollutant loads, representing a new improvement on water quality," that it was

"not possible to achieve pre-development BOD levels at three locations without significant additional disturbance and that the "net increase of 61 pounds of BOD represents a four(4) percent increase over existing levels and does not constitute a significant adverse environmental impact. All post-development phosphorous and nitrogen levels are below pre-development levels. Thus the proposed SPPP will not result in any significant adverse environmental impacts [*10]to water quality." ((October 27, 2003 Findings, p.6- 7)(emphasis added).

Although the Board's Findings Statements do not recite specific regulations applicable to protection and rehabilitation of the Middle Branch and Diverting Reservoirs, the record demonstrates that impacts on water quality from stormwater which would eventually enter these Reservoirs from the project site were considered and that the proposed SPPP was intended to conform with all applicable regulations and requirements regarding post-construction water quality. The Findings are sufficient in that they set forth the nature and extent of the effect of the proposed SPPP on post-development pollutant loading, and generally states that it conforms to both NYCDEP and NYSDEC requirements.

As lead agency, the Planning Board cannot defer or delegate its obligations to other agencies. (See e.g. Coca-Cola Bottling Co. Of NY v. Board of Estimate of New York City, 72 NY2d 680, 682-683 [1988]; Matter of Penfield Panorama Area Community Inc v.. Town of Penfield Planning Board, 253 AD2d 342, 350 [4th Dept., 1999]).

"Where two or more agencies are involved in the environmental review process, it is the 'lead' agency which must assess the environmental impact of a proposed action (cites omitted)" Akpan v. Koch, 75 NY2d 561, 570 [1990]. "Although a lead agency may not delegate consideration of an issue relevant to the preparation of an EIS to another agency in such a way that it abandons its role as ultimate decisionmaker on matters of environmental significance, the lead agency is encouraged to consult those agencies that are more expert in a particular area (cites omitted)" Matter of Ecumenical Task Force of the Niagara Frontier, Inc. v. Love Canal Area Revitalization Agency, 179 AD2d 261 (4th Dept., 1992), appeal den. 80 NY2d 758 Such a "consultative approach" does not contravene the procedural requirements of SEQRA" ( id; see also 6 NYCRR 617.4[c][3] and 617.3[e]).

"To be sure, the lead agency under SEQRA is likely to be nonexpert in environmental matters, and will often need to draw on others. The statute and regulations not only provide for this, but strongly encourage it (cites omitted). Nevertheless, the final determination on this issue must remain with the lead agency principally responsible for approving the project" (Coca-Cola Bottling Co. Of NY v. Board of Estimate of New York City, 72 NY2d at 682-683, supra; see also Matter of Penfield Panorama Area Community Inc v.. Town of Penfield Planning Board, 253 AD2d at 350, supra).

The Court does not agree with petitioners' contention that there was an improper deferral or delegation to NYCDEP in such a way that the Board abandoned "its role as ultimate decisionmaker on matters of environmental significance" (Matter of Ecumenical Task Force of the Niagara Frontier, Inc. v.. Love Canal Area Revitalization Agency, 179 AD2d 261, supra).

NYCDEP is an involved agency which also has an independent duty to review the WWTP and SPPP and to evaluate whether they meet applicable regulatory requirements, [*11]including the Watershed Regulations, with regard to water quantity and water quality . The record includes numerous comment letters submitted by NYCDEP since 2000 detailing the standards applicable to its review of the proposed WWTP and SPPP. It issued Findings to Deny approval in May 2003, because neither the DEIS nor the FEIS provided alternatives that entirely avoided disturbances within the site's wetland buffers (p. 4). After supplemental impact statements were submitted, NYCDEP stated in its October 16, 2003, letter that the "FSEIS has demonstrated that proposed stormwater management practices and site improvements have been located and conceived to the extent practicable, to minimize the impacts to the T-3 central wetland corridor and further, to preserve and possibly enhance existing buffer functions" and "the FSEIS and the water budget analysis in particular, demonstrate that existing wetland conditions will be maintained in spite of proposed site improvements and activities; that the minimal water level increases and extended flow period noted during the low-flow and bankfull conditions will not adversely affect the T-3 watercourse and that any adverse surface water impacts associated with subsurface effluent loading have been avoided or mitigated to the extent practicable in accordance with SEQR" (Certified Record at p. 1060). "[I]t is entirely proper for an agency to place reasonable reliance upon advice and information provided by an 'involved' agency"(Matter of David Morse v. Town of Gardiner Planning Board, 164 AD2d 336 [3rd Dept., 1990]); and the Board could reasonably consider and rely on NYCDEP's comments relating to the WWTP and SPPP.

Finally, SEQRA does not alter the jurisdiction between or among state agencies (Environmental Conservation Law §8-0103[6]). Petitioners contend that the Board should have required the applicant to use the methodology in the 2001 NYSDEC manual. However, review and approval of the adequacy of the SPPP and WWTP with respect to Watershed Regulations governing the quality of water entering its reservoirs lies solely within the jurisdiction of NYSDEC.

The record in this case demonstrates that the Board identified the relevant issues of environmental concern, received extensive comments from NYCDEP and other agencies, from the public and from parties involved in this action with respect to water quality issues, including the applicant's SPPP and WWTP and Subsurface Disposal System ("SSDA') and wetlands impacts, conducted supplemental proceedings relevant to these issues, and found that post-development pollutant loadings would be reduced to below pre-construction levels, except as set forth in the Findings as to BOD levels, thus demonstrating that the requisite "hard look" was taken, and that a reasoned elaboration of the reasons for its determination was made. As in the Akpan case, supra, merely relying on the expertise of other agencies which are involved in the SEQRA process, while fully retaining and exercising its role as lead agency in assessing environmental impacts, did not result in a delegation or deferral of responsibility to NYCDEP.

The Court has not considered the arguments of respondents based on NYCDEP's Findings of March 24, 2004, issued subsequent to commencement of this proceeding, wherein NYCDEP has found that the proposed Stormwater Pollution Prevention Plan ("SPPP), and the [*12]proposed the Wastewater Treatment Plant ("WWTP") and wastewater collection system complies with SEQRA and are to be approved.



Alternatives

There are four designated wetlands in the project site. After issuance of the March 24, 2003 Findings, the Town Wetlands Ordinance was amended to define "controlled area" to include wetland adjacent areas and watercourse adjacent contributory surfaces, the width varying from 100 to 200 feet (Town of Southeast Local Law No. 9 of 2003). The prior wetlands protection ordinance defined "controlled areas" as all wetlands and "a distance of 100 feet from the perimeter of such wetland" and all watercourses and "contributory surfaces within 50 feet of each side."

The T-2 portion of the site contains approximately 7.1 acres of wetlands. T-3, on which the senior housing and park are to be built, contains approximately 6.3 acres of wetlands in four areas which have streams running through them and watercourses which travel to the Middle Branch and Diverting Reservoirs. The project as proposed in the FSEIS includes approximately 3.7 acres of 100-foot buffer disturbance and 5.49 acres of "additional wetland buffer" (as defined by Local Law 9 of 2003) disturbance. This was a reduction of buffer disturbance presented under the proposal set forth in the FEIS, which would have required 8.6 acres of 100-foot wetland disturbance and 10.22 acres of "additional wetland buffer" disturbance.

The scoping document for the SEIS requested the applicant to "[e]valuate an alternative site layout that avoids all disturbance to regulated wetland buffers." The "no buffer disturbance" alternative would have precluded access to the eastern portion of the T-3 parcel so that the senior housing and WWTP could not be built and would have limited the Town Park. According to respondents, variations of the "no buffer disturbance" alternative were then included in the FSEIS at the request of the Planning Board's consultant Mr. Trelstad who requested preparation of an alternative plan and assessment of impacts assuming that access to the eastern portion of the T-3 site was possible at that location. Each of the two additional alternatives proposed in the FSEIS contemplated .5 acres of 100-foot wetland buffer disturbance. Both alternatives would also result in "additional buffer disturbance".

Upon consideration of the alternatives presented in the DSEIS and FSEIS, the Board found that the proposed project as modified for the FSEIS "is the project that minimizes adverse environmental impacts to the maximum extent practicable while balancing benefits to the community" (October 27, 2003 Findings, p. 8).

With respect to the alternatives presented in the DSEIS and FSEIS, the October 27, 2003 Findings state as follows: (1) the "No Buffer Disturbance" alternative analyzed in the DSEIS [*13]"would limit the Town Park to a single little league field with access from Zimmer Road. Neither the senior housing component nor the wastewater treatment plant could be constructed because access to the eastern portion of the T-3 parcel requires wetland buffer disturbance merely for access. This alternative would not provide any of the project benefits identified in the DEIS."

"Two variations of the "No Buffer Disturbance" alternative were evaluated in the FSEIS. FSEIS Alternative No.1 .... would permit wetland disturbance to allow access to the eastern portion of the T-3 property and installation of project utilities. This alternative would result in approximately 0.5 acres of 100-foot buffer disturbance and approximately 0.74 acres of additional buffer disturbance. Under this alternative two small ballfields would be constructed in the Town Park and only 33 units of senior housing would be constructed. A water quality analysis was performed for this alternative and it was determined that the potential increase in phosphorous removal approximated four (4) percent above the phosphorous removal efficiency of the proposed project. This increase is not considered significant especially since it has been demonstrated that the proposed project will result in a net decrease in phosphorous export from the site due to the extensive stormwater management systems proposed for the project."

"FSEIS Alternative #2 seeks to minimize disturbance of the 100-foot wetland buffer area. This layout would result in approximately 0.5 acres of 100-foot buffer disturbance and approximately 3 acres of additional wetland buffer disturbance. The Town Park would include a larger softball field than could be built under the FSEIS Alternative #1 and up to 40 senior housing units. Because this alternative would result in greater wetland buffer disturbance than FSEIS Alternative #1, the water quality benefits would be less than what could be expected from FSEIS Alternative #1."

The Board found that "There will be no disturbance of designated wetlands as a result of the project. The proposed project design has been modified to minimize disturbance to the wetland buffer areas to the maximum extent practicable." The 100-foot disturbance is limited to graded slopes, the emergency access road, portions of stormwater basins, and utility lines. Mitigation includes extensive planting of disturbed areas and minimization of soil compaction during construction, and replacement of large areas of impervious asphalt with pavers that will promote infiltration of stormwater - approximately 2.1 acres of pavers will be installed in the Town park parking area and driveway area in the senior housing (October 27, 2003 Findings, p. 5).

With respect to buffer disturbance because of stormwater basins, the Board found that the stormwater basins within the T-2 wetland buffer were pre-existing and would be expanded to handle stormwater runoff and that relocation of these stormwater basins would entail grater disturbance elsewhere on the project site; and that stormwater basins located within the T-3 wetland buffer area would not adversely affect wetland hydrology or wetland buffer function as supported by the water budget analysis and buffer analysis set forth in the DSEIS and FSEIS. The Board then concluded that there would be no significant adverse impact associated with location of the stormwater basins within the wetland buffer areas (October 27, 2003 Findings, p. [*14]7).

The CWCWC petitioners allege that the Board failed to present an adequate range of alternatives and failed to to choose among reasonable alternatives to the proposed 26 acres of impervious surfaces. They contend that the Board did not require consideration of meaningful "reduced scale alternatives" that would impact the environment to a lesser degree, that there has been no showing by the applicant that a reduced scale and reduced density use of the project site would not result in a reasonable return on the property, and that the applicant further failed to identify the minimal functional size of the project.

In its petition, Riverkeeper alleges that the Planning Board's October 27, 2003, Findings violate SEQRA in that the Planning Board failed to choose alternatives which minimize or avoid adverse environmental effects to the maximum extent practicable in that the Board (1) failed to require the applicant to provide assessment of a "no buffer impact alternative" which was specifically requested in the SEIS scoping document; (2) failed to require an adequately detailed assessment of alternatives including the"no action" alternative ; and (3) failed to require assessment of a "no action" alternative beyond the "as of right" alternative.

Riverkeeper contends that the "no buffer disturbance" analysis does not comply with the scoping document for the SEIS which required evaluation of "an alternative site layout that avoids all disturbance to regulated wetland buffers, that the analysis in the DSEIS sets forth no detailed support for the contention that buffers could only be avoided "at extreme cost to the applicant," and that the developer has made no showing that the low buffer impact alternatives would not result in a reasonable return on the property.

As to the two additional alternatives presented in the FSEIS, Riverkeeper asserts that these are not true "no buffer impact" alternatives but rather "reduced buffer impact" options. Riverkeeper contends that the developer essentially ignored the request to prepare a "no buffer disturbance" analysis. Riverkeeper further contends that the description and evaluation of the "lower impact alternatives" were not "at a level of detail sufficient to permit a comparative assessment of alternatives discussed" (6 NYCRR §617.9[b][5][v] and that the applicant's FSEIS discussion neither fully accounts for the benefits of avoiding wetland buffers including reducing phosphorous loading nor provides any support for the alleged economic infeasibility of doing so, and that a 4% increase in phosphorous removal would be significant. Finally Riverkeeper contends that the analysis provided lacks sufficient detail considering the nature and location of the project.

There is no requirement that the developer must prove that the lower impact alternatives presented would deprive the developer of a reasonable rate of return. As to Covington's statement in the DSEIS that the "no buffer alternative" would result in "extreme cost to the applicant," the Board found that this alternative would limit the Town Park to a single little league field, and that neither the senior housing component nor the wastewater treatment plant could be constructed because access to the eastern portion of the T-3 parcel requires wetland [*15]buffer disturbance merely for access. The applicant's statement that the "no buffer impact" alternative would present an "extreme cost to the applicant" demonstrates that under the "no buffer alternative" there would be no economic return to Covington from the senior housing as it could not be constructed, and Covington would still be required to give the Town park to the Town.

The August 14, 2000, scoping document for the DEIS required that the DEIS treat the "no action" (or" future without the project") alternative as "based on improvements approved as part of the 1985 subdivision approval." In the DEIS, the applicant identified that, given the already existing approvals, a large single use building could be constructed on T-2, an 80,000 square foot building could be constructed on the site of the proposed town park, and commercial uses could occur on the property intended for senior housing. Therefore, in the FEIS, the applicant had set forth a "no action" alternative which included construction which would occur on the site because of pre-existing approvals (i.e., extension of International Boulevard, construction of office/warehouse/light manufacturing buildings on the current layout of T-2, but no construction of the town Park or senior housing). Riverkeeper contends that this was improper and that the applicant must discuss a "no action" i.e. "no build" alternative. Riverkeeper asserts that although such a "no action" option would not be feasible for a private developer, it would be important in comparing the environmental effects of competing alternatives, but that the developer has refused to analyze anything but an "as of right" option as a "no action" alternative.

A private developer is not required to submit a "no build" alternative although it is suggested that a "no build" alternative should be included (see e.g. 2 Gerrard, Ruzow, Weinberg, Environmental Impact Review In New York [Matthew Bender 1996] §5.14[2][b]. Further, the NYSDEC regulations permit private developers to describe only those alternatives for which no discretionary approvals are needed (6 NYCRR §617.9[b][5][v], and "the use of the 'as of right' development as the baseline for the 'no-build' scenario instead of existing conditions is sanctioned." Id. at §8 A. 04; see also . Committee to Preserve Brighton Beach & Manhattan Beach v. Council of New York, 214 AD2d 335 [lst Dept., 1995]), mot for lv to app den, 87 NY2d 802. Accordingly, the applicant was not required to submit a "no build" alternative beyond the "as of right" alternative presented and requested in the scoping document.

SEQRA requires that an Environmental Impact Statement include alternatives to the proposed action (see Environmental Conservation Law §8-0109[2][d]. An EIS is to be "comprehensible, not overly, or overwhelmingly, technical. The regulations direct that an EIS is to be analytical, not encyclopedic, that it should not contain more detail than is appropriate to the proposed action, and that highly technical material should be summarized (Matter of Jackson v. New York State Urban Div. Corp., 67 NY2d at 421, supra).

Agencies must "choose alternatives which, consistent with social, economic and other essential considerations to the maximum extent practicable, minimize or avoid adverse [*16]environmental effects..." (ECL §8-0109[1].). To satisfy the "hard look" test, the discussion of alternatives must be "at a level of detail sufficient to permit a comparative assessment of the alternatives discussed (cite omitted)" (Aldrich v. Pattison, 107 AD2d 258 [2d Dept., 1985]; 6 NYCRR §617.9(b)(5)(v)). "Reasonable consideration" of alternatives must be given by the Board (Matter of Jackson v. New York State Urban Div. Corp., 67 NY2d at 422, supra; Matter of Coalition for Responsible Development in Goldens Bridge v. Planning Bd. Of Town of Lewisboro, 221 AD2d 626 [2d Dept., 1995].

The purpose of requiring inclusion of reasonable alternatives to a proposed project is to aid the public and governmental bodies in assessing the relative costs and benefits of the proposal. Webster Assoc. V. Town of Webster, 59 NY2d 220, 228 (1983).

"To be meaningful, any choice among alternatives must be based on an awareness of all reasonable options, but the degree of detail required in assessing those alternatives will vary with the circumstances and nature of each proposal (cite omitted). A rule of reason applies: the agency must consider a reasonable range of alternatives to the specific project (cite omitted)" (Matter of Town of Dryden v. Tompkins County Bd. Of Representatives, 78 NY2d 331, 333-334 [1991]). "It is not the role of the courts to weigh the desirability of any action or to choose among alternatives" Matter of Jackson v. New York State Urban Div. Corp., 67 NY2d at 416, supra. Where it appears that there has been a reasonable consideration of alternatives, the judicial inquiry is at an end (Matter of Jackson v. New York State Urban Div. Corp., 67 NY2d at 416, supra.

The description and evaluation of alternatives presented in the DSEIS and FSEIS was reasonable and sufficiently detailed to permit comparative assessment. (6 NYCRR §617.9(b)(5)(v). The "no buffer disturbance" alternative would preclude construction of the senior housing and WWTP because access would require buffer disturbance. The FSEIS presented two additional alternatives with minimal buffer disturbance (.5 acre for each alternative) and more limited "additional buffer disturbance" than presented by the project as proposed and adopted by the Board. However, the Board found that both alternatives presented more limited senior housing and more limited park facilities than the proposed project, while not significantly increasing water quality benefits. The Court may not weigh the desirability of any action or choose among alternatives (see Matter of Jackson v. New York State Urban Div. Corp., 67 NY2d at 416, supra.) The record demonstrates that the Planning Board was fully informed of the relevant environmental issues, including those relating to water quality and wetlands. A reasonable range of alternatives was presented in the EIS and FSEIS and included sufficient detail for the Board to make a reasoned determination. Where there has been a reasonable consideration of alternatives, the judicial inquiry is at an end (see Matter of Jackson v. New York State Urban Div. Corp., 67 NY2d at 416, supra).

Wildlife & Endangered Species

The CWCWC petitioners allege that the Board failed to complete an adequate and qualified wildlife assessment of the site contrary to recommendations of their expert Mr. Kiviat.

The October 27, 2003 Findings state that based on documentary and field surveys on T-3 for any known rare or endangered species, including specific site investigations for the presence of bog turtles or bog turtle habitat and woodland agrimony, no individuals of this species were found; and that both T-2 and T-3 were evaluated for the presence of bog turtles or bog turtle habitats, and Dr. Michael Klemens found after a Phase 1 survey that the site is not considered a suitable habitat for the bog turtle, and therefore no impacts would result to this species. The Court concludes that the Board took a hard look at this issue and made a reasoned elaboration for its determination.

The FEIS did not address wildlife as an environmental element. The DEIS had stated that "[n]o endangered or threatened species has been found at the site" (p. 275). There were no issues presented prior to the FEIS regarding the presence of endangered or threatened species on the site.

The SEIS was required by the Planning Board in response to NYSDEC's negative findings relating to water quality and wetlands issues and did not direct re-evaluation or examination of wildlife issues. Nevertheless, petitioner contended during the DSEIS process that the project site was in a bog turtle "area" and the issue was therefore reopened for updated inquiries to be made as to whether there were any State or federally listed threatened or endangered species or habitats in the project area. A response was received from NYSDEC dated August 20, 2003, which stated that a threatened plant (woodland agrimonia) was present on the site. The U.S. Department of Interior, Fish and Wildlife Service, responded on September 3, 2003, that bog turtles were "known to occur in the vicinity of the project" and recommended evaluation of any existing habitat that would be disturbed by the project and its potential to support the bog turtle.

Respondents then requested Michael W. Klemens, a bog turtle expert who had been previously cited by petitioners' counsel, to conduct a Phase One Bog Turtle Assessment. He reported that there was no suitable bog turtle habitat present on the project site, and no further assessment was therefore required for bog turtles (Letter dated September 13, 2003) .

Respondents also requested a biological survey by a landscape architect (Robert Torgersen) and a biologist ( Charles Keene). A field survey was conducted on August 27, 2004, and the September 8, 2004 report states that no woodland agrimonia, which would have been in bloom at this time, was found at the site. No endangered plant or threatened plant or animal species was found.

Petitioners contend that respondents failed to perform a complete biological assessment of the site and that Mr. Torgersen and Mr. Keene are not "certified" wildlife biologists, and that [*17]further evaluation should be done for endangered species as surveys conducted in a limited time period was insufficient. Petitioners submit the reports, dated August 18, 2003, and October 17, 2003, of their expert Dr. Kiviat, in support of these contentions.

Despite petitioners contentions regarding the qualifications of Mr. Torgersen and Mr. Keene, only the possibility of the presence of the bog turtle is specifically identified by Dr. Kiviat. His October 17, 2003 report is not part of the certified record, but in any event, does not specify any plant or animal (other than the bog turtle) at the site that is potentially endangered or threatened.

Growth Inducing Impacts

Petitioners contend that growth-inducing impacts were not properly considered. Growth inducing impacts were adequately addressed in the DEIS and FEIS and addressed in sufficient detail in the March 24, 2003 Findings, in which the Board found that "The proposed project is expected to generate approximately 400 full time jobs at full build-out and approximately 144 residents. Any demand for commercial services generated by these people is expected to be satisfied by existing retail businesses...New retail businesses currently under construction..would also serve any future demand. Thus existing businesses or businesses that are likely to be located in the intermediate area in the near future would satisfy any growth-inducing impacts..."

The petitioners' remaining contentions with respect to the procedural aspects of the proceedings on the SEIS are without merit.

Accordingly, both petitions are denied. Settle judgment on notice (22 NYCRR202.48).

Dated: White Plains, New York September 15, 2004____________________________

FRANCIS A. NICOLAI, J.S.C.