Matter of Association for Protection of Adirondacks Inc. v Town Bd. of Town of Tupper Lake

[*1] Matter of Association for Protection of Adirondacks Inc. v Town Bd. of Town of Tupper Lake 2007 NY Slip Op 52119(U) [17 Misc 3d 1122(A)] Decided on November 2, 2007 Supreme Court, Franklin County Demarest, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 2, 2007
Supreme Court, Franklin County

In the Matter of the Application of The Association for Protection of the Adirondacks, Inc., Residents' Committee to Protect the Adirondacks, Inc., John David Delehanty, Susan Maria Delehanty, Paul Vidich, Phyllis B. Thompson, Peter A. Curtis, Rhoda A. Curtis, Martha C. Blanchard, Jerrier A. Haddad, Carol Haddad, Alex Haddad, Catherine Haddad, John Haddad, Mary De Garmo, Helen Abushaheen, Suzanne Haddad Baktash, Haddad Family Realty, LLC, Paul Maurer, June Maurer, Vincent E. Jay, Betty J. Jay, Carol I. Richer, Richard S. Abell, Susan H. Potterton, Virginia Snyder, Edward Cobden, Joel W. Bartlett, Rachel L. Bartlett, Scott Chartier, Mary Chartier, W. Robert Ringrose, William Crouse, Bruce Greik, Kathleen Greik, Peter D. Littlefield, Elaine M. Yabroudy, Madeline T. Rockcastle and Verne N. Rockcastle, Petitioners-, Plaintiffs, for a Judgment Pursuant to CPLR Article 78

against

Town Board of the Town of Tupper Lake, Town of Tupper Lake, Preserve Associates, LLC, Big Tupper, LLC, Tupper Lake Boat Club, LLC, Oval Wood Dish Liquidating Trust and Nancy Hull Godshall, as Trustee of Oval Wood Dish Liquidating Trust, Respondents-, Defendants.



2007-45



Caffry & Flower (John W. Caffry, Esq., of counsel), attorneys for Petitioners-Plaintiffs; David W. Johnson, Esq., attorney for Respondents-Defendants Town Board of the Town of Tupper Lake and Town of Tupper Lake; Whiteman, Osterman & Hanna, LLP (John J. Henry, Esq., and Robert L. Sweeney, Esq., of counsel), attorneys for Respondents-Defendants Preserve Associates, LLC, Big Tupper, LLC, Tupper Lake Boat Club, LLC, Oval Wood Dish Liquidating Trust, and Nancy Hull Godshall

David Demarest, J.

This litigation once again highlights the ongoing struggle within the Adirondack Park between those who seek to maintain and enhance the unique natural beauty of the largely wild forested lands within the Park and those who support development in an attempt to provide financial security for, primarily, year-round residents. The Town of Tupper Lake is trying to evolve from an economy highly dependent on the lumbering industry to one which exploits opportunities for tourism and second home development. Plans for a significant development within the Town upon lands now largely used for timbering and leased to local sportsmen's clubs have sparked much debate and now this attack on a preliminary action taken to further the project.

IDENTIFICATION OF THE PARTIES

The Respondents-Defendants, Preserve Associates, LLC, Big Tupper, LLC, and Tupper Lake Boat Club, LLC, are potential developers of a more than 6,000 acres of land which they are purchasing from the Respondent-Defendant, Nancy Hull Godshall, as Trustee of Oval Wood Dish Liquidating Trust. Collectively, these parties will be referred to as the "Developer-Respondents." This development, known as the Adirondack Club and Resort, is potentially the largest single integrated development in the history of the Adirondack Park. It will include the revitalization of the Big Tupper Ski Area, which has been dormant for several years, the construction of 675 single and multi-family dwelling units, 23 large "Great Camp" residential lots, a marina, shooting school and equestrian center. The Respondents-Defendants, Town Board of Tupper Lake and the Town of Tupper Lake will be referred to as the "Town-Respondents."

Thirty-six individuals and one LLC, all of whom own real estate contiguous or in close proximity to the project comprise the majority of the Petitioners-Plaintiffs and will be referred to as the "Individual-Petitioners." The Association for the Protection of the Adirondacks, Inc., and the Residents' Committee to Protect the Adirondacks, Inc., are both "environmental protection organizations" whose members include many of the Individual Petitioners. They will be referred to as the "Association-Petitioners."

DESCRIPTION OF THE MATTERS UNDER CONSIDERATION

This is a combined Article 78 proceeding and declaratory judgment action seeking to challenge the actions taken by the Town Respondents in re-zoning the project's lands into a "Planned Development District." The first four causes of action [*2]challenge the manner in which the State Environmental Quality Review Act, Article 8 of the New York State Environmental Conservation Law ("SEQR") was applied, and the fifth and sixth causes of action seek a declaration that the Town-Respondents failed to comply with its own Land Use Code.

Issue has been joined and the Respondents are moving for dismissal and/or summary judgment. Petitioners are cross-moving for summary judgment on the declaratory judgment causes of action.

Land use within the Adirondack Park is primarily regulated by the Adirondack Park Agency ("APA"), and in April 2005 the Developer-Respondents submitted an application to that Agency for approval of construction of the Adirondack Club project. The APA deemed the project to be a Class A project, subject to its most demanding review. Initially, the APA deemed the application to be incomplete, and, among other conditions, determined that it would not review the project until the property was re-zoned by the Town-Respondents into a Planned Development District. Upon request of the Developer-Respondents, the Town Board first enacted Local Law No. 1 of 2006 which amended the Land Use Code of the Town to create a Planned Development District ("PDD") as an additional zoning district, and established a procedure for implementing specific PDDs.

On September 11, 2006, the Town Board passed Local Law No. 2 of 2006, re-zoning the project's lands as PDD. In doing so, the Board resolved that the project was a Type II action under SEQR because it was "subject to" an ongoing Class A review by the APA, and therefore exempt from SEQR under 6 N.Y.C.R.R. §617.5(e)(36). The Petitioners allege this determination was in violation of lawful procedure, arbitrary and capricious and in excess of the Board's authority and should be annulled.

Petitioners also allege that Local Law No. 2 of 2006 was adopted in violation of the Town's Land Use Code since the Board failed to make adequate necessary findings and the Joint Town and Village Planning Board, which reviewed the law, was never properly constituted.

The project's application before the APA has now been deemed "complete" and is currently undergoing the stringent environmental review that a Class A project must endure before final APA approval may be granted.

In rendering this Decision and Order, consideration has been given to the submissions as enumerated in Appendix A.

PETITIONER'S STANDING TO ASSERT THE CLAIMS ALLEGED

Standing to initiate the type of claims asserted here must be based upon some specific environmental injury which is in some way different from the public at large. Sun-Brite Car Wash, Inc. v. Board of Zoning Appeals, 69 NY2d 406 (1987); In re Gallahan v. Planning Board of City of Ithaca, 307 AD2d 684 (3d Dep't 2003). In response to the motion to dismiss, the Individual-Petitioners have submitted affidavits describing the location of their properties and its proximity to the proposed project. In addition, they have alleged how their current use and enjoyment of their properties will be adversely affected by the development and, in particular, the increase in traffic and noise. All of the Individual-Petitioners own land either contiguous to, or in close proximity to, the re-zoned parcel. A presumption of harm arises from a showing of [*3]close proximity to the subject property. In re Center Square Association, Inc. v. City of Albany Board of Zoning Appeals, 9 AD3d 651 (3d Dep't 2004). Nevertheless, Individual-Petitioners must also show that the harm they may suffer is within the zone of interests to be protected by the statute. Ziemba v. City of Troy, 37 AD3d 68 (3d Dep't 2006).

Here, each of the Individual-Petitioners have alleged sufficient potential harm to afford standing. They start with the presumption of proximity and add to that the potential for increased traffic, noise, and building density such that their complaints should be heard on the merits.

Similarly, the Association-Petitioners have demonstrated that they have members who are Individual-Petitioners, with standing, and that the interests to be protected herein are germane to the purposes of the Associations. Organizational standing has been sufficiently established. Society of Plastics Industry, Inc. v. County of Suffolk, 77 NY2d 761 (1991); Ziemba v. City of Troy, 37 AD3d 68 (3d Dep't 2006).

VALIDITY OF PLANNING BOARD REVIEW

Petitioners allege that the Town Board did not properly refer these matters to the Town Planning Board. Although the Town Planning Board was created by Local Law in 1960, both the Village and Town of Tupper Lake subsequently agreed to the establishment of a Joint Planning Board, which was the body that actually provided review. There is apparently no Local Law establishing this Joint Planning Board. Because the Joint Planning Board was never officially established, it is argued, the Town Board did not follow the procedures of its own ordinance which required review by the Town Planning Board.

This argument must fail under the de facto officer doctrine which provides that the acts of a body which carries out the functions of a public office under color of authority are generally valid as to third persons and the general public, and thus immune from collateral attack, whether or not there were irregularities in the manner in which the members of the body were appointed. In re County of Ontario v. Western Finger Lakes Solid Waste Management Authority, 167 AD2d 848 (4th Dep't 1990).

PROPRIETY OF TOWN'S DETERMINATION UNDER THE STATE

ENVIRONMENTAL QUALITY REVIEW ACT

At issue are two actions of the Town Board - the first to amend the zoning law to create a Planned Development District ("PDD") (Local Law #1, 2006), and the second to re-zone the property to be included in the Adirondack Club Project to fall within the PDD (Local Law #2, 2006). The Town determined that these actions were Type II actions as defined in SEQR and, thus, they had no further responsibilities under that statute. Petitioners argue this determination was arbitrary, capricious and an abuse of discretion and should be annulled.

Petitioners do not dispute that the Adirondack Club Resort proposal is subject to Class A regional project jurisdiction of the Adirondack Park Agency. As such, it must undergo a comprehensive environmental review to insure that the entire project is planned and built within the strict requirements of that Agency. This review is exhaustive and can exceed that required under SEQR, for the Agency is charged with protecting the unique environmental qualities of the Adirondack Park, qualities not commonly found in other parts of the state. [*4]

SEQR was passed to insure that political subdivisions and agencies consider environmental factors in every pertinent decision at the earliest possible time. All agencies must determine whether the actions they directly undertake, fund or approve may have a significant impact on the environment. 6 N.Y.C.R.R. 617.1(c). No agency involved in an action may undertake, fund, or approve the action until it has complied with the provisions of SEQR. 6 N.Y.C.R.R. 617.3(a).

There is no question that the actions of the Town here in providing for a re-zoning for the project lands is an "action" as defined in the regulations. 6 N.Y.C.R.R. 617.2(b)(1), (3). Therefore, the first step required of the Town was to determine whether this "action" was a Type I, Type II, or Unlisted as those terms are defined. 6 N.Y.C.R.R. 217.2 (ai), aj). Type I actions are more likely to require the preparation of an Environmental Impact Statement (""EIS""). 6 N.Y.C.R.R. 617.4(a)

It is also undisputed that the action here meets the criteria for a Type I designation in several ways, including the adoption of changes in the allowable uses within any zoning district affecting 25 or more acres; the granting of a zoning change, at the request of an applicant, for an action that meets or exceeds on or more of the thresholds given in the regulations, including a project or action that involves the physical alteration of 10 acres. 6 N.Y.C.R.R. 617.4(b).

Type II actions are those which ". . . have been determined not to have a significant impact on the environment or are otherwise precluded from review under Environmental Conservation Law, article 8." 6 N.Y.C.R.R. 617.5(a) [emphasis added]. Section 8-0113 directs the Commissioner of the Department of Environmental Conservation to adopt rules and regulations implementing the provisions of the article. In doing so, 6 N.Y.C.R.R. 617.5(c) (36) was adopted as follows:

"(c) The following actions are not subject to review under this Part:

(36) actions subject to the class A or class B regional project jurisdiction of the Adirondack Park Agency . . . ."

No SEQR determination of significance, "EIS" or findings statement is required for actions which are Type II. 6 N.Y.C.R.R. 617.3(f).

Since the project here was unquestionably a Class A action subject to the regional project jurisdiction of the APA, the Town Board deemed its actions Type II, and therefore not requiring further implementation of SEQR. It is this determination which Petitioners argue was arbitrary, capricious and an abuse of discretion.

Petitioners argue that any time a project has aspects of both a Type I and Type II action, it must be treated as Type I and thus subject to full environmental review. In making this argument they rely heavily on Houser v. Finneran, 99 AD2d 926 (3d Dep't 1984). In Houser, a cable television company was granted a franchise to install cable facilities in a town. In confirming the franchise, the State Commission on Cable Television declared the action to be Type II under the former version of 6 N.Y.C.R.R. part 617. The court overturned this determination because the regulation went on further to provide that any action that was in, or contiguous to, a historic site was a Type I action. Because the installation of cable facilities would affect an historic site in the town, it must be deemed a Type I action. The regulations were subsequently amended so that only "unlisted" actions in historic districts would be subject to full environmental [*5]review. In re Anderberg v. NYS Department of Environmental Conservation, 141 Misc 2d 594 (Sup. Ct., Albany Co., 1988).

Petitioners' reliance upon Houser is misplaced. Whether or not an action should be classified Type I or II is based upon the potential for environmental harm - the higher that potential, the more likely an action will be deemed Type I. Therefore, the simple statement that whenever a project has aspects of both Type I and Type II, it should be classified Type I, is correct. The underlying purpose of SEQR is to protect the environment and therefore the stricter scrutiny standards should apply in such a case.

Here, the section of the regulations relied upon by the Town does not concern itself with whether a project has aspects of both Type I and Type II, indeed it assumes it is a Type I. Nevertheless, it is "otherwise precluded from review" because it is subject to a similar environmental review by the APA, making SEQR review redundant and unnecessary.

The Town's decision to classify this action as a Type II has support in several resources that were available to the Town at the time it made its decision. The SEQR Handbook promulgated by the DEC, whether in draft form or not, is a basic source material for agencies to use in interpreting SEQR. It anticipated the very situation the Town was faced with by posturing this frequently asked question and answer: "Does the fact that Class A and B Regional Projects . . . are classified as Type II actions mean that local governments in the Adirondack Park do not have to apply SEQRA when conducting land use reviews of a project subject to the Adirondack Park Agency's Class A or B Regional Project review jurisdiction?

"The answer is yes . . . . The theory of the Type II exemption or exclusion for Class A and B regional projects in the Adirondack Park is that the Adirondack Park Agency's . . . review is the equivalent of SEQRA review."

State Environmental Quality Review (SEQR) Handbook,http://www.dos.state.ny.us/lgss/seqr.htm, see also,

Salkin, New York Zoning Law and Practice, § 9A:17

(4th ed. 2006).

Petitioners cite instances when an agency or municipality, despite the clear language of the regulations, have nevertheless undertaken a SEQR review of projects within the Adirondack Park that could have been classified as Type II. Matter of Thomas J. Farone and Sons, Inc., 1986 WL 26310 (July 10, 1986); Matter of Essex County, 1996 WL 172674 (Mar. 20, 1996). These cases have little precedential value. By the very nature of SEQR and the regulations implementing it, a great deal of elasticity is built in so that coordinate agencies may work together to accomplish the aims of the statute, that being environmental harmony. An agency may make a determination to conduct its own SEQR review whether it is technically required to or not. It may conduct a review under a memorandum of understanding with another agency. Here, the Town relied upon the clear language of SEQR regulations in [*6]classifying the project and it cannot be said that its decision lacked a reasoned and non-arbitrary basis.

Petitioners further argue that the re-zoning is an independent action apart from the overall development project, not subject to review by the APA as a Class A or B regional project and therefore subject to an independent SEQR review. To apply such an interpretation would condone "segmentation" which the law and regulations scrupulously attempt to avoid. "Actions commonly consist of a set of activities or steps. The entire set of activities or steps must be considered the action, whether the agency decision making relates to the action as a whole or to only a part of it."Considering only a part or segment of an action is contrary to the intent of SEQR. . . ."6 N.Y.C.R.R. §6 17.3(g).

This is particularly evident in that the Adirondack Park Agency would not consider the application complete until the Town had re-zoned the land to be utilized. The Town recognized that the APA review might cause modifications to the proposals and provided a clear statement of the reasons for its actions, and further conditioned the final approval of the re-zoning with timely APA approval.

Petitioners' argument that the SEQR exemption for Class A or Class B projects applies only to the Adirondack Park Agency itself defies logic and a clear reading of the statute and regulations provides no basis for this argument. The regulations speak of actions "subject to" the jurisdiction of the APA, not actions "taken by" the APA. 6 N.Y.C.R.R. 617.5(b)36). Since SEQR applies to all agencies and political subdivisions of the state, such a reading of the regulation would be unreasonably restrictive.

In light of the determination that the Town did not improperly designate the project as a Type II action, thereby relieving it of the obligation to conduct an independent environmental review, the remaining Article 78 claims of the Petitioners are moot.

DECLARATORY JUDGMENT RELIEF

Petitioners allege the Town failed to comply with its own Land Use Code in granting the Developer Respondents' application to re-zone the property as a Planned Development within the newly enacted Planned Development District. The record belies this allegation.

The Planning Board, as well as the Town Board, had before it the entire application being made to the APA. The Planning Board made a lengthy set of findings which were considered by the Town Board. All of the factors outlined in Article 10 of the Town's Land Use Code were addressed.

Recognizing the probability that the project would be fine-tuned during the APA review process, the application was conditionally granted subject to APA approval within 48 months. Actual construction of the project must still await appropriate building, health and other permits. [*7]

There is no reason to overturn the legislative decision of the Town Board in enacting Local Law #2 of 2006. Summary judgment is granted dismissing Petitioners-Plaintiffs' fifth cause of action.

Having determined that the Joint Town and Village Planning Board validly reviewed the proposed Local Law # 2, Petitioners-Plaintiffs sixth cause of action must fail and summary judgment dismissing that claim is granted.

It is therefore, the Decision of this Court, and it is hereby

ORDERED:

Respondents-Defendants' motion to dismiss the Petition and Complaint, in its entirety, is granted. Petitioners-Plaintiffs' motion for summary judgment on the fifth and sixth causes of action is denied.

SO ORDERED

DATED: November 2, 2007,

at Chambers, Canton, New York.

David Demarest, J.S.C.