Matter of Falco Realty Inc. v Town of Poughkeepsie Planning Bd.

[*1] Matter of Falco Realty Inc. v Town of Poughkeepsie Planning Bd. 2006 NY Slip Op 50121(U) Decided on January 25, 2006 Supreme Court, Westchester County Lippman, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 25, 2006
Supreme Court, Westchester County

In the Matter of Falco Realty, Inc., Petitioner,

against

Town of Poughkeepsie Planning Board and Joseph Trocino, Respondents.



15456/05



Teahan & Constantino

Attorneys for Petitioner

2780 South Road - P.O. Box 1969

Poughkeepsie, New York 12601

Jacobowitz and Gubits, LLP

Attorneys for Respondent Joseph Trocino

540 Broadway

Monticello, New York 12701

Richard J. Olson, Esq.

Deputy Town Attorney

Town of Poughkeepsie Department of Law

Attorneys for Respondent Town of Poughkeepsie Planning Board

One Overocker Road

Poughkeepsie, New York 12603

Jonathan Lippman, J.

The instant proceeding is the second CPLR Article 78 proceeding arising from the Planning Board's site plan approval of a proposed Construction and Demolition Facility (the "C&D Facility" or the "facility") to be constructed on property owned by respondent Trocino. The first Article 78 proceeding arose from petitioner's contention that the Planning Board's first final site plan approval, which was embodied in a resolution dated October 21, 2004, was arbitrary, capricious and without basis in the law. By order and judgment dated April 26, 2005 (the "Order & Judgment"), the Honorable Francis A. Nicolai, A.J.S.C. granted the petition on the grounds that the record was devoid of findings from which the court could review whether there was a rational basis for the Planning Board's determination. Judge Nicolai remitted the matter to the Planning Commission for it to make the findings necessary for a court to engage in an intelligent review of the Planning Board's determination. Petitioner contends that thereafter, "the Planning Board, without undertaking any further evidentiary investigation, adopted, for the second time, a resolution of conditional final site plan approval" (Petitioner's Memorandum of Law at 3).[FN1] Petitioner's opposition to the facility, and to the Planning Board's site plan approval, is that the Planning Board's determination is arbitrary and capricious and not based on substantial evidence because the Planning Board, in making its determination, failed to recognize that the facility does not meet the site plan review requirements set forth in the Town of Poughkeepsie's Zoning Code. The primary objections petitioner has to the facility are that it will reduce property values in the area, that it will negatively impact the wetlands found on the property and the flora and fauna connected thereto, that it will cause soil and groundwater contamination based on the C&D debris [FN2] that will be maintained on the property, and that it will [*2]create noxious conditions (such as impacts to traffic, noise, odor, vibration and vector populations) to the surrounding properties and neighborhood.

The property, consisting of 8.7 acres, is located at 226-230 Van Wagner Road in the Town of Poughkeepsie ("Poughkeepsie" or "Town"), in an area zoned for heavy industrial uses (the "I-H District"). For the purposes of the instant proceeding, petitioner does not contest that the use proposed is a permitted use in the I-H District, although petitioner has separately appealed the Town's Zoning Administrator's determination that the proposed use fits within the meaning of a processing facility under the Town's Zoning Code to the Town's Zoning Board of Appeals. As described more fully herein, the properties surrounding the facility are, for the most part, commercial/heavy industrial-type properties. The property, however, is also located within approximately 600 feet of petitioner's property, on which a 138-unit residential apartment complex sits. Petitioner's property is located in a Residence, Multifamily Zoning District. There is also vacant property, consisting of approximately 9 acres, which is also owned by respondent Trocino, and which is located between petitioner's property and the property at issue in this proceeding. The vacant land is also located in the Residence, Multifamily Zoning District, so that presumably, any future use of this property would have to conform with the requirements set forth in that zoning district. The property also abuts property (an abandoned rail bed) owned by the Dutchess County Department of Public Works ("DCDPW") and on which the DCDPW intends to construct a public access recreation trail (the "rail trail").

The construction required for the facility's conversion from its prior use as a ready-mix concrete facility to a C&D Facility is quite minimal. Thus, respondent Trocino intends to re-use the structures currently found on the property, and only intends to alter (1) the existing 4,800 square foot metal building for re-use by raising the roof 35 feet and having the walls removed, and (2) the existing gravel driveway by paving it over. There will also be processing equipment brought onto the site (i.e., truck scale, rock crusher, loaders and excavator).

The New York State Department of Environmental Conservation ("DEC") regulates the operations of C&D processing facilities and requires that all such operations obtain permits prior to commencing operations. The maximum daily throughput of C&D debris permitted for the facility would be 450 tons. The facility's operations are described in the Planning Board's [*3]August 18th resolution as: (1) the inspection of the truck loads to ensure that the materials conform with C&D permitting requirements and the immediate reloading of non-conforming materials onto the trucks for removal from the facility; (2) the storage of wood, masonry, asphalt, brick, soil and rock until such time as there are sufficient accumulations for the economical grinding and crushing of such materials (these materials will then be resold as mulch and roadbase materials); (3) the transmittal to recycling centers of the steel, copper, aluminum and white metal received; and (4) the transmittal to a C&D landfill of all other non-recyclable C&D debris.

Prior to the Planning Board's site plan approval, a negative declaration had been adopted by the DEC, which had served as the lead agency in the coordinated review under the State Environmental Conservation Law ("SEQRA") of this unlisted action.[FN3] During its SEQRA review, the DEC required respondent Trocino to undertake a noise study and a traffic safety study, and to document the operations of the facility in an Engineering Report and Operations and Maintenance Manual ("the O&M Manual"). In addition, the DEC undertook a site investigation at which time DEC personnel observed current traffic conditions in the surrounding areas, as well as reviewed the traffic routes that would be utilized by the trucks on their way to and from the facility.

The DEC found that with regard to the facility's wetlands disturbance, there would be less than a 0.01 acre of disturbance to the wetlands buffer area as the result of a stockade fence and one foot high curb that were being proposed to be constructed in order to preclude the facility's intrusion into the regulated wetlands area (and to prevent the endangered or threatened species [i.e., the Blandings turtle] from traversing into the facility). The DEC found that given the industrial properties abutting the facility, the fact that the site had already been historically used and developed for a heavy industrial use, and the fact that there would only be minimal additional disturbance of the site in connection with the facility's construction, the facility would not significantly impact land resources or plant or animal resources. With regard to groundwater runoff and the protection of surface water resources, the DEC found that respondent Trocino's Stormwater Pollution Prevention Plan ("STPP") complied with the requirements of the SPDES General Permit for Stormwater Discharges Associated with Industrial Activity (GP-98-03) and that "the proposed project would not impact surface water resources" (Record, Exhibit PP at 2). [*4]

The DEC found that respondent Trocino had satisfactorily addressed the potential for dust emissions generated by the grinding process since he had selected a grinder that was exempt from air permitting requirements. In addition, in finding no significant air quality impacts, the DEC relied on respondent Trocino's plans to closely monitor all activities for dust emissions, to use water sprayers to control dust, and to use tarpaulins to cover containers holding C&D debris.

In considering the potential traffic impacts, the DEC stated that the facility was located in the I-H District and that the routes the trucks would travel to and from the facility did not invade neighboring residential areas. In addition, the DEC found that the facility's driveway, which permitted the queuing of up to 12 trucks on site, would minimize the potential for traffic congestion on Van Wagner Road. With regard to a narrow one-lane overpass on Van Wagner Road, the DEC explained that during its onsite visit, DEC personnel observed that the truck and vehicle traffic approached cautiously and traversed the overpass safely. Accordingly, the DEC found that "incremental traffic impacts associated with the proposed facility are not considered to be significant" (Record, Exhibit PP at 2).

The DEC also found that the facility would not cause significant adverse noise impacts based on the noise assessment study that the DEC required respondent Trocino to undertake. Thus, while the portable tub grinder was found to minimally exceed the DEC noise standard by 2 decibels, respondent Trocino's proposal to build a concrete gabion wall was found by the DEC to be a sufficient mitigation measure. In addition, the DEC found that the topography of the property provided natural attenuation buffers.

In adopting its negative declaration, the DEC concluded that

"[t]he proposed project will not cause any significant adverse impacts to ... agricultural land, cultural/historical resources, visual/aesthetic resources, community character, open space or recreational resources, critical environmental areas (CEAs), and energy resources. Further, the project will result in a decrease in the amount of solid waste being directed to operating solid waste landfills by recycling a portion of the solid waste stream currently being generated in Dutchess County and nearby areas" (Record, Exhibit PP at 3).

As previously noted, it is petitioner's contention that the Planning Board's findings with regard to the requirements for site plan approval set forth in the Town's Zoning Code § 210-141 [FN4] [*5]

and § 210-84 [FN5] were not based on substantial evidence.

The Planning Board's resolution makes the following findings with regard to the facility's compliance with the Town's Zoning Code's standards for site plan approval. First, the Planning Board confirmed its agreement with the finding of the Zoning Administrator that the facility was a processing facility not a prohibited dump or landfill.

The Planning Board found that the facility satisfied the first and second requirements of Zoning Code § 210-141 since (1) the facility was in the I-H district and there had been a legislative determination that the facility would be consistent with the character of the neighborhood and indeed was consistent given the uses found on neighboring properties [FN6] ; (2) the facility was just a new iteration of a heavy industrial use since the prior use was a ready-mix concrete facility; and (3) the layout and topography of the property shielded the operations from most of the neighboring properties (except for the property on which the future rail trail was to be constructed). Therefore, the facility would have no adverse impact and was actually in keeping with the surrounding neighborhood.

With regard to the third requirement, the Planning Board found that the facility is properly related and appropriate under the current land use policies since the draft 2004 Comprehensive Plan did not have recommendations relating to this area with regard to the I-H District being an area of special interest, or possibly the subject of future zoning amendments. [*6]

The Planning Board found that the fourth and fifth requirements concerning traffic safety and congestion were satisfied for the same reasons cited by the DEC in its negative declaration and, therefore, the Planing Board agreed with "the NYSDEC's statements and determinations in its negative declaration and ... the members' familiarity with the Facility site and conditions in the neighborhood ...." (Record, Exhibit BBB at 7). Given that no real construction was necessary to convert the property to a C&D facility, the Planning Board found the sixth requirement inapplicable. In reviewing the facility's compliance with the seventh requirement, the Planning Board limited its review to the impact to scenic views by the future rail trail users. Relying on the report provided by respondent Trocino's environmental consultant, Environmental Compliance Services, Inc. ("ECS"), the Planning Board made its approval conditioned on respondent Trocino installing a security fence and planting dense landscaping (that will grow 30 feet high within 5 years) along the portion of the property that borders the future rail trial. In addition, respondent Trocino was already required to screen the storage areas with fencing and respondent Trocino's stockpiles of stored materials were regulated by the DEC with regard to their maximum height potential (e.g., 20 feet for the wood).[FN7] As a result of the mitigation measures, the Planning Board found that the scenic views from the rail trail would be preserved.

With regard to the eighth criteria (i.e., that the facility is the most appropriate use of the land insofar as conserving land values and fostering the health, safety and general welfare of the community), the Planning Board found that since the facility was a permitted use in the I-H District, the purpose of the zoning laws was furthered, property values were conserved, and the land was being put to its most appropriate use.

The Planning Board further analyzed the facility's operations as they related to the Town's performance standards set forth in the Zoning Code § 210-84. These performance standards are meant to prevent the approvals of projects that would adversely affect the health, safety and general welfare of the community. In this regard, the Planning Board found

—the facility "will not create a steady-state or impact vibration [FN8] on any lot line ... [and] the facility will not produce noise in excess of prevailing ambient levels in the surrounding heavy industrial zoning district because noise from the Facility will be mitigated by a gabion wall and the surrounding topography and vegetation" (Record, Exhibit BBB at 10);

—the facility "will not cause dissemination of toxic or noxious matter off the property on which the use is conducted"(Record, Exhibit BBB at 11) and that the facility was being [*7]operated in accordance with the New York State Solid Waste Permit [FN9];

—the facility would not pose a fire hazard and the Arlington Fire District was satisfied that all of its concerns and comments had been addressed;

— the facility would not cause unsatisfactory air emissions in the nature of dust or odor since the Engineering Report and the O&M Manual provided that odor would be controlled by fast and efficient throughput times associated with C&D debris processing combined with the "benign nature of C&D debris in regard to common putrescible wastes and odor generating conditions" (Record, Exhibit BBB at 12) and to the extent odors were to be detected, odor masking agents would be applied; and

— the lack of putrescible material in C&D debris reduced the possibility for the establishment of vector populations and, if a vector infestation should occur, the facility's personnel would contact a pest control agency which would be on call for the facility.

LEGAL DISCUSSION

Petitioner Has Standing To Institute This Proceeding

In this proceeding, the petitioner alleges standing based on the fact that it "owns real property (the Falco property) which is in close proximity to the Trocino property" and that "[b]y reason of the location of the Falco property and the Trocino property, Petitioner will be impacted by the challenged determination including but not limited to noise impacts, air quality impacts and odor impacts" (Petition at ¶¶ 8, 12). Both respondents, however, have asserted in their answers the affirmative defense that petitioner does not have standing to institute this proceeding (Respondent Planning Board's answer at ¶ 3; Respondent Trocino Answer at ¶ 6). In the prior proceeding before Judge Nicolai, the issue of standing was raised and decided in the Order & Judgment wherein Judge Nicolai found that petitioner's proof and allegations relating to its apartment complex's proximity to the proposed facility (600 to 700 feet), as well as petitioner's claims that the facility would negatively affect its property with regard to noise, air quality and odor, established that petitioner had standing. Thus, Judge Nicolai held that the proximity of petitioner's property creates a presumption that petitioner will be adversely affected in a way different from the public at large and further, that "the anticipated impacts are within the zone of interest intended to be protected" (Order & Judgment at 3). Because the issue of petitioner's standing has already been litigated in this case by a court of coordinate jurisdiction, this Court is bound by that prior ruling as law of the case in this proceeding (see Quinn v Hillside Dev. Corp., 21 AD3d 406 [2005]; Matter of Defreestville Area Neighborhood Assoc., Inc. v Planning Bd. of the Town of North Greenbush, 16 AD3d 715 [2005]; Degliuomini v Degliuomini, 12 AD3d 634 [2004]).

[*8]The Planning Board's Determination to Grant Final Site Plan

Approval has a Rational Basis and is Supported by Substantial Evidence

The law is well settled that a reviewing court in an Article 78 proceeding may not substitute its judgment for that of the Planning Board unless the determination is arbitrary and capricious, illegal, or an abuse of discretion (Matter of Fuhst v Foley, 45 NY2d 441 [1978]; Matter of Pagnozzi v Planning Bd. of the Village of Piermont, 292 AD2d 613 [2002]; Matter of Buckley v Amityville Village Clerk, 264 AD2d 732 [1999]). A local board's determination must be upheld if it is rational and supported by substantial evidence [FN10], even if the reviewing court would have reached a different result insofar as a contrary determination is itself supported in the record (Matter of P.M.S. Assets, Ltd. v Zoning Bd. of Appeals of Village of Pleasantville, 98 NY2d 683 [2002]; Matter of Ifrah v Utschig, 98 NY2d 304 [2002]; Matter of Retail Property Trust v Board of Zoning Appeals of the Town of Hempstead, 98 NY2d 190 [2002]; Matter of Savetsky v Board of Zoning Appeals of Town of Southampton, 5 AD3d 779, 780 [2004], lv. denied 3 NY3d 604 [2004]). The New York Court of Appeals has defined substantial evidence as being "such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact'" or " the kind of evidence on which reasonable persons are accustomed to rely in serious affairs'" (Matter of WEOK Broadcasting Corp. v Planning Bd. of the Town of Lloyd , 79 NY2d 373, 383 [1992], quoting 300 Gramatan Ave. Assocs. v State Div. of Human Rights, 45 NY2d 176, 180 [1978] and People ex rel. Vega v Smith, 66 NY2d 130, 139 [1985]). In reaching their determination, members of a board are entitled to "rely on their own personal knowledge of the community in deciding a zoning matter" as long as the basis for that knowledge is revealed in the determination (Matter of Leon Petroleum, LLC v Board of Trustees of Village of Mineola, 309 AD2d 804, 806 [2003]; see also Matter of North Shore F.C.P., Inc. v Mammina, 22 AD3d 759 [2005]; Matter of Il Classico Restaurant, Inc. v Colin, 254 AD2d 418 [1998]; see also Matter of Stein v Board of Appeals of the Town of Islip, 100 AD2d 590 [1984]; Calloway v Liberman, 206 NYS2d 724 [1960]). Thus, this Court's review is limited to discerning whether the Planning Board's findings that the site plan complied with the site plan review requirements and performance standards set forth in the Town's Zoning Code were supported by substantial evidence.

The petitioner objects to the facility on the grounds that it will detrimentally impact the neighborhood by reducing property values, creating traffic congestion/hazards, negatively impacting wetlands and the flora and fauna contained therein, and possibly creating noxious conditions for the property and neighboring properties with regard to soil and groundwater contamination, odors, vermin, noise, vibration and the loss of scenic views from the future rail train. (It is undisputed that the facility's operations are sufficiently shielded from the view of the residents of petitioner's apartment complex and from the other surrounding properties). However, these concerns were addressed and resolved through the comments and findings that [*9]the Planning Board received from the various interested agencies (i.e., the DEC [FN11], the Dutchess County Resource Recovery Agency, the DCDPW [FN12], the Dutchess County Planning Department, the Town's Zoning Administrator, the Town's Water Pollution Control Department, the Town's Water Department, the Arlington Fire District, and the Town's Engineering Department), and from the comments received from the environmental consultant ECS.

Rather than providing its own expert/empirical evidence controverting the evidence found in the record, all of petitioner's objections are best characterized as generalized objections based on petitioner's speculation that the facility would cause the above-listed detrimental impacts to the neighborhood. Petitioner seems to believe that it was incumbent on the Planning Board to order appraisals so that it could substantiate its finding that the facility would not detrimentally impact property values. However, because the area is zoned for heavy industrial use and respondent Trocino's use was determined to be a permitted use by the Town's Zoning Administrator, it was entirely appropriate for the Planning Board to rely on the fact that there had been a legislative finding that the use would conserve the property values in the neighborhood.[FN13] As to the evidence provided by the interested related agencies as well as the [*10]opinions of ECS, petitioner needed to do more than just voice concerns. Instead, petitioner should have hired its own experts such as a traffic consultant (to show that the 90 trucks a day were too great of an increase in the intensity of the use of this property for the surrounding streets to safely accommodate the facility), a real estate appraiser (to show that the property values of the surrounding properties and neighborhoods would be negatively impacted by the proposed facility), and an environmental consultant (to provide empirical evidence that the mitigation measures proposed to protect the scenic views from the rail trail would be ineffective and that the operations on the property failed to meet the other performance standards of the Town's Zoning Code with regard to air emissions, toxic runoff, noise, vibration, odor and vermin/insects).[FN14] The law is clear that community opposition in the form of generalized concerns is not sufficient to serve as the basis for denial, especially where the application meets all zoning requirements and there has been a finding that there will be no significant environmental impact on the surrounding area (Matter of Burke v Denison, 203 AD2d 642, 644 [1994]; Matter of Brucia v Planning Bd. of the Town of Huntington, 157 AD2d 657 [1990]; Bongiorno v Planning Bd. of the Incorporated Village of Bellport, 143 AD2d 967 [1988]). Here, petitioner did no more than raise generalized community opposition based on unsubstantiated environmental concerns that were, therefore, "insufficient to counter the ... evidence submitted by ... [respondent Trocino's expert] ... in support of site-plan approval" (Matter of Ernalex Constr. Corp. v Bellissimo, 256 AD2d 338, 340; see also Matter of Dodson v Planning Bd. of the Town of Highlands, 163 AD2d 804, 806 [1990] [citizens' "complaints amounted to nothing more than unsubstantiated fears, providing an impermissible basis for respondent's determination"]).

Accordingly, the Planning Board's resolution granting site plan approval addressed each and every criteria set forth in the Town's Zoning Ordinance for site plan approval and the Planning Board's determination that these requirements were satisfied was rational and supported by substantial evidence.

Wherefore, it is

ORDERED and ADJUDGED that the petition is hereby dismissed.

Dated: White Plains, New York______________________________ [*11]

January 25, 2006 Honorable Jonathan Lippman, J.S.C. Footnotes

Footnote 1:In its petition, petitioner contended that the findings set forth in the Planning Board's resolution were drafted by respondent Trocino's attorney and that they were not read by the members of the Planning Board before their adoption. Petitioner also contended that the members of the Planning Board did not review the record of the proceedings to determine if there was evidence to support the findings drafted by counsel. However, after reviewing the individual affidavits of the Planning Board members submitted in connection with the Planning Board's answer/opposition, petitioner has dropped this argument in its reply (see Reply Affirmation of Richard I. Cantor, Esq. at ¶ 4).

Footnote 2:In its regulations, the DEC defines construction and demolition debris as "uncontaminated solid waste resulting from the construction, remodeling, repair and demolition of utilities, structures and roads; and uncontaminated solid waste resulting from land clearing. Such waste includes, but is not limited to bricks, concrete and other masonry materials, soil, rock, wood (including painted, treated and coated wood and wood products), land clearing debris, wall coverings, plaster, drywall, plumbing fixtures, nonasbestos insulation, roofing shingles and other roof coverings, asphaltic pavement, glass, plastics that are not sealed in a manner that conceals other wastes, empty buckets 10 gallons in size or less and having no more than one inch of residue remaining on the bottom, electrical wiring and components containing no hazardous liquids, and pipe and metals that are incidental to any of the above. Solid waste that is not C&D debris ... includes but is not limited asbestos waste, garbage, corrugated container board, electrical fixtures containing hazardous liquids such as fluorescent light ballasts or transformers, fluorescent lights, carpeting, furniture, appliances, tires, drums, containers greater than 10 gallons in size, any containers having more than one inch of residue remaining on the bottom and fuel tanks. Specifically excluded from the definition of construction and demolition debris is solid waste (including what otherwise would be construction and demolition debris) resulting from any processing technique, other than that employed at a department-approved C&D debris processing, that renders individual waste components unrecognizable, such as pulverizing or shredding" (6 N.Y.C.R.R. § 360-1.2(b)(38)).

Footnote 3:The Town of Poughkeepsie Department of Planning, back at the time of the preliminary site plan approval in 2002, had recommended that the "action be declared as non-significant based on the criteria found in Section 617.7 and the reasons noted on page 3 of the Negative Declaration prepared by the Planning Department dated July 18, 2002, item 9" (Record, Exhibit M). Thereafter, on July 18, 2002, the Planning Board, acting as lead agency during the preliminary site plan application process, found that the "action does not meet any of the criteria set forth in 6 N.Y.C.R.R. § 617.7( c ) for a significant adverse impact on the environment" (Record, Exhibit Q). In making the finding, the Planning Board specifically found that "[t]he effects on existing air quality, surface & groundwater, noise levels, traffic, solid waste, and erosion is non-significant ... The impact on the visual aesthetic & cultural is non-significant ... The change of intensity of use of land is non-significant and does not exceed zoning regulations" (Record, Exhibit Q).

Footnote 4:Section 210-141 requires that in any site plan approval, the Planning Board "consider the nature, arrangement and appearance of all buildings and uses of the lot, including their potential impact on adjacent properties, architectural features and land uses, so that: (1) They will have a harmonious relationship with the existing and planned development of contiguous lands and adjacent neighborhoods. (2) They will have no material adverse effect upon the desirability of such neighborhoods for the uses contemplated by this chapter. (3) They will be properly related to the proposals of the town development plan. (4) Pedestrian and vehicular access, traffic circulation and the general layout of the site are properly planned with regard to the safety of cars and pedestrians using the site, as well as those on neighboring properties and streets. (5) In areas of heavy traffic congestion or on major arterials, the potential for congestion is reduced through the use of alternative access designs, such as common driveways, feeder roads and interconnected parking facilities. (6) They will be sited and located to take advantage of solar access insofar as feasible, including the orientation of the proposed buildings with respect to sun angles, the shading and windscreen potential of existing and proposed vegetation both on and off the site and the impact on solar access to adjacent uses and properties. (7) Where properties abut the Hudson River or may be used to provide access to it, public access is ensured, whenever feasible, and significant aesthetic qualities or scenic views are preserved for public enjoyment where public access is not available. (8) The purpose and intent of this chapter will otherwise be met, to the end that property values will be conserved, the most appropriate use of the land will be encouraged and the health, safety and general welfare of the community will be furthered."

Footnote 5:Section 210-84 sets forth performance standards which "prohibit any activity or use in any district which is "obnoxious, offensive or hazardous by reason of vibration, airborne matter, odor, toxic waste, radiation, electromagnetic interference, fire, explosion, heat, liquid wastes and vehicular traffic."

Footnote 6:In this regard, the Planning Board described the site as being bounded by a 20' elevated railroad embankment to the south, a trucking company and propane distribution center to the north and a heating equipment wholesaler and Van Wagner Road to the east. The closed Poughkeepsie dump was farther up Van Wagner Road to the north, and to the south on Van Wagner Road are a mini-storage center, asphalt paving contractor yard and a Verizon telephone company fleet garage.

Footnote 7:ECS stated that "[g]iven that the rail bed has a steep side slope and is situated at an elevation greater than of the side, it is highly unlikely that on-site stockpiles will be visible from the route once fence screening is provided. As such, the potential visual impacts to the individuals traveling the ... [rail trail] are expected to be minimal" (Record, Exhibit CCC at 2).

Footnote 8:In its report, ECS stated that the equipment used at the facility is not characteristic of high vibration potentials.

Footnote 9:In its report, ECS stated that "at no time will precipitation and runoff come in contact with regulated waste materials" since (1) the leachate was going to be contained in a double walled 1,000 gallon underground storage tank, and (2) the regulated waste at the site will be sheltered in accordance with DEC permit requirements.

Footnote 10: As explained by the New York Court of Appeals, courts, in their review of such quasi-legislative (as opposed to quasi-judicial) proceedings, "consider 'substantial evidence' only to determine whether the record contains sufficient evidence to support the rationality of the Board's determination" (Matter of Sasso v Osgood, 86 NY2d 374, 385 n2 [1995]).

Footnote 11:Petitioner argues that "a Negative Declaration under SEQRA ... with respect to a proposed project ... is not dispositive of the impacts and standards that the approval issuing agency must consider" and therefore, the negative declaration adopted by the DEC regarding the facility is "'in no way binding' on Respondent Planning Board and the SEQRA requirements do not change the existing jurisdiction between or among state or local agencies ...." (Memorandum of Law at 17-18). To begin with, in this argument petitioner neglects to address the fact that the Planning Board had also issued a negative declaration regarding the site plan in 2002, which it is arguably bound to with regard to its later site plan analysis in 2005. Furthermore, the Planning Board was bound by the DEC's subsequent negative declaration to the extent it was not permitted to undertake its own separate SEQRA review and then issue a positive declaration with regard to the facility (see Matter of Gordon v Rush, 100 NY2d 236 [2003]). Here, many of the issues raised by petitioner were addressed by the DEC in its SEQRA analysis. As such, the Planning Board, as an involved agency under SEQRA, properly relied upon the findings set forth in the DEC's negative declaration (see Matter of Turkewitz v Planning Bd. of City of New Rochelle, 2005 NY Slip Op. 10142 at 2 [2005]).

Footnote 12:The DCDPW voiced similar concerns to those voiced by petitioner. However, unlike petitioner, the DCDPW recognized that its concerns could be addressed through appropriate mitigation measures such as the screening of the storage areas, and the relocation of certain containers and machinery to other areas on the property.

Footnote 13:In this regard, respondents are correct that "the inclusion of a permitted use in a local zoning ordinance is tantamount to a legislative finding that the permitted use is in harmony with the general zoning plan and will not adversely affect the local community" (Matter of WEOK Broadcasting Corp., 79 NY2d at 383). Furthermore, given that the zoning district in which the facility would be constructed is a heavy industrial district, noise, truck traffic and odors are necessarily inherent in such industries and, therefore, increases in noise, odors and traffic as a result of such businesses should not provide sufficient bases for denial unless it was determined that the project would interfere with the health, safety and general welfare of the community (see Syracuse Bros., Inc. v Darcy, 127 AD2d 588, 589 [1987] ["increased traffic and noise levels which would normally be associated with the establishment of a marina provide no basis for withholding approval of the site plan since the area is commercially zoned and a marina is a use permitted therein as a matter of right"]; see also Matter of Ronsvalle v Blumenthal, 144 AD2d 766 [1988]).

Footnote 14:For example, petitioner did nothing to contradict that the concrete wall to be installed would alleviate the possibility that the noise generated from the portable tub grinder would exceed the Town's noise ordinance.