Matter of Delvecchio v City of Cortland Planning Commn.

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[*1] Matter of Delvecchio v City of Cortland Planning Commn. 2007 NY Slip Op 52520(U) [18 Misc 3d 1120(A)] Decided on December 28, 2007 Supreme Court, Cortland County Rumsey, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law ยง 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 28, 2007
Supreme Court, Cortland County

In the Matter of the Application of John Delvecchio and Delvecchio Family, LLC, Petitioners,

against

City of Cortland Planning Commission, Respondents.



40913



Scott F. Chatfield, Esq.

3100 Brewer Road

P.O. Box 70

Marietta, New York 13110

City of Cortland

By:Lawrence J. Knickerbocker, Esq.

Corporation Counsel

Law Department

City Hall

25 Court Street

Cortland, New York 13045

Phillip R. Rumsey, J.

Petitioner owns a parcel of real property in the City of Cortland, which is improved with a building that was originally constructed, in the early twentieth century, as an imposing single-family residence for a local industrial icon, George Brockway. More recently, the structure was used as a sorority house and an insurance office, prior to being converted to a multi-family residence containing three apartments and an office. Petitioner now proposes to change the interior configuration of that structure so that it will comprise four apartments, and to add another building on the same lot, which would contain four additional apartments ("the project").

Although the project is a permitted use in the "R-4" zoning district where the property is located, and apparently meets all applicable area and setback requirements, the zoning ordinance also requires site plan approval for all multi-family uses in an R-4 zone. Petitioner applied for such approval, and attended several meetings of respondent City Planning Commission at which various site configurations were discussed. A public hearing was held on April 23, 2007, and additional Commission meetings, and further modification of the plan, ensued. On July 23, 2007, the Commission - having designated itself "lead agency" under the State Environmental Quality Review Act (SEQRA) - completed a "long form" Environmental Assessment Form, as a result of which it determined that the project "may result in one or more large and important impacts * * * on the environment," and voted to issue a positive declaration, requiring the petitioner to prepare an Environmental Impact Statement.

Petitioner challenges that determination, arguing that it was arbitrary and capricious because the Commission had previously issued negative declarations (finding no significant environmental impact would result) in connection with several similar projects in the same neighborhood. Moreover, petitioner contends that the Commission's findings, as to ways in which the project might have a potentially large impact on the environment, are entirely without basis in the record.

At the outset, the court is not convinced that this proceeding is premature, as respondent argues. In Gordon v Rush, the Court of Appeals rejected the respondent's contention that issuance of a positive declaration did not constitute a "final" agency action subject to judicial review, finding that "the obligation to prepare a DEIS [Draft Environmental Impact Statement [FN1]] imposes an actual injury * * * as the process may require considerable time and expense" (Gordon v Rush, 100 NY2d 236, 242 [2003]). The issuance of a positive declaration was therefore found to "clearly impose[] an obligation on petitioners because [it] requires them to prepare and submit a DEIS" (id.). The court further noted that "[e]ven if the Board ultimately granted the variances, petitioners would have already spent the time and money to prepare the DEIS and would have no available remedy for the unnecessary and unauthorized expenditures" (id.). Because it found both the imposition of an actual, concrete injury, and no opportunity to prevent or ameliorate the harm administratively, the Court held that the action was sufficiently final to permit judicial review.

Although at least one appellate court has apparently interpreted the Gordon holding as limited to its somewhat unusual facts, or at least to situations where the respondent is charged with acting entirely beyond its jurisdiction (see, Matter of Modern Landfill v New York State DEC, 21 AD3d 1381, 1382 [2005]), the rationale underlying the holding does not seem to admit [*2]of so narrow an application. If, as the Court of Appeals found, a decision which requires the preparation of a DEIS "clearly imposes an obligation" upon the applicant, due to the time and expense of complying with that requirement, and that harm cannot be ameliorated by any other administrative action or remedy (as is usually the case when a positive declaration is made), then it would seem that the criteria for ripeness would be satisfied whenever a positive declaration is allegedly wrongfully issued, regardless of the reason why it was improper. The harm inflicted is no less, nor the opportunity to remedy it greater, merely because an agency has acted arbitrarily and capriciously, rather than entirely beyond its jurisdiction.

Because the issuance of a positive declaration by respondent will require petitioner to expend substantial time and money participating in a scoping session, preparing a DEIS, and completing the remainder of the SEQRA review process, and those expenditures cannot be recouped even if the petitioner ultimately obtains the right to complete the project, the court finds that the matter is ripe for review.

Turning to the merits,[FN2] the threshold for issuing a positive declaration, requiring the preparation of an environmental impact statement (EIS), is low (see, e.g., Oak Beach Inn Corp. v Harris, 108 AD2d 796, 797 [1985]). If there is a possibility that an action may have a significant environmental impact, it is appropriate for the reviewing agency to issue a positive declaration (id.).

Guidance in determining whether that threshold has been met is provided by the instructions set forth on the Environmental Assessment Form (EAF) itself. That form identifies 20 possible areas of impact, including not only changes to land, air, water, and other natural resources, but also impacts on aesthetic, historical and neighborhood characteristics. For each area, the agency completing the form is directed to determine first whether there will be any impact; if so, whether the impact will be "small to moderate" or "potentially large"; and if "large," whether it can be mitigated. To aid in determining whether an impact should be deemed "small to moderate" or "potentially large," several examples of "potentially large" impacts are given. For example, if an action involves "construction of a paved parking area for 1,000 or more vehicles," the reviewer is instructed that this would constitute a "potentially large" impact. If the same type of change is proposed, but is of lesser size (e.g., paved parking for only 500 cars), the reviewer is instructed that this would be characterized as a "small to moderate impact".

If any "potentially large" impact is identified, in any of the 20 areas, the reviewer is then instructed to move to part III of the form, which is intended to provide a framework for determining whether the "potentially large" impact is also "important" (i.e., significant). In making that determination, the reviewer is instructed to "discuss" the impact, by describing it, describing any possible mitigation or reduction that might be effected, and then determining whether the impact is "important," by considering the likelihood of the impact occurring, its duration, its irreversibility, whether it can be controlled, any regional consequences, potential divergence from local needs and goals, and whether there are known objections to the project relating to the impact.

With respect to the 20 general areas of potential impact, respondent found that the project will involve a physical change to the project site (question 1), affect groundwater quality or [*3]quantity and drainage patterns (questions 5 and 6), affect aesthetic and historic resources (questions 11 and 12), have an impact on the character of the existing community (question19), and engender public controversy (question 20). In many, but not all of these areas, respondent made notes of "yes" or "no" next to one or more of the "threshold" examples, apparently indicating whether that particular type of effect would occur. Under "aesthetic resources," for example, respondent's two "yes" notations indicate that it found the proposed use to be "obviously different from or in sharp contrast to current surrounding land use patterns," and that the proposed use would "eliminate or significantly reduce" the enjoyment of an aesthetic resource. Nevertheless, for most of the examples marked "yes," respondent checked the "small to moderate impact" box, rather than the box indicating a "potential large impact".

The general area in which the most impacts were identified is that of "impact on growth and character of community or neighborhood." In that area, "yes" notations were made for the following examples: proposed action will conflict with officially adopted plans or goals; proposed action will cause a change in the density of land use; proposed action will replace or eliminate existing facilities, structures or areas of historic importance; and proposed action will set an important precedent for future projects. Each of these, except for the last, was identified as creating a "small to moderate impact". With respect to the possibility of setting a precedent for future action, respondent found that to be a potentially "large" impact.[FN3]

Having identified this one "potentially large" impact, respondent proceeded to part III of the EAF, wherein it proceeded to "briefly describe the impact" by noting simply "loss of character of the neighborhood" and "loss of architectural integrity of the property." No attempt was made to "describe (if applicable) how the impact could be mitigated or reduced * * * by project change," although for every impact noted in part II, respondent had indicated that such mitigation was possible. Respondent made two other notes on that part of the form, apparently reflective of its effort to consider the seven listed criteria for determining "importance": that "there are known objections: press, letters," and that the project is "divergent from the master plan". These four notations - two describing the impact, and two addressing two of the seven criteria for importance - together with the "yes" and "no" markings and check boxes in part II of the form, constitute the entirety of respondent's explanation for its finding that the project may cause a significant environmental impact, and thus that an EIS is required.

Having reviewed the entire record that was before respondent, the court cannot agree with petitioner's contention that there is absolutely no evidence therein that could support a positive declaration. The Commission apparently found - as indicated by its "yes" notations on the EAF - that the project meets some of the criteria expressly listed thereon as "examples" of potentially large impacts, and the record supports those findings, e.g., that the project location is contiguous to a historic preservation district, that the project will cause a change in the actual density of land use, that the project will replace an existing structure (the garage) of historic significance, and that the project may set a precedent for future actions of a similar type.

Nor was it necessarily wrong for the Commission to issue a positive declaration for this [*4]project, but not for others in the vicinity involving similar uses. This particular project - unlike the others identified by petitioner, in which negative declarations were issued - involves not only an expansion of use of the existing structure, but also the addition of a second large, residential structure on the same parcel, a more than doubling of the number of individuals residing there, and a change to both the use and configuration of improvements on a lot of recognized historic value. Petitioner has not shown that any of the other, allegedly "similar" projects included all of those elements (cf., Matter of Callanan Indus. v Rourke, 187 AD2d 781, 782-783 [1992] [improper to treat differently two projects that are "virtually indistinguishable" in all relevant respects]).

On the basis of the present record, however, the court cannot say that respondent made the requisite "reasoned elaboration of the basis for its determination" or, for that matter, that it took a "hard look" at the impacts it identified in part II of the EAF (see, Onondaga Landfill Sys., Inc. v Flacke, 81 AD2d 1022, 1023 [1981]). Despite having found that the project met some of the criteria listed as examples of potentially large impacts, the Commission nevertheless concluded that those impacts would only be "small to moderate," but furnished no explanation for this apparent deviation from the explicit instructions accompanying the form.[FN4] Moreover, even with respect to the one impact it did identify as potentially large - the possibility of setting a precedent - the Commission failed to conduct a complete analysis of the "importance" of that impact (see, 6 NYCRR 617.7 [c]). It did not describe how the impact could be mitigated, despite having indicated, in part II, that mitigation was possible. It did not "briefly describe the impact," as, for example, by explaining what precedent would be set, or how it might be applied to other properties in the area.[FN5] Nor did it make any findings at all with respect to five of the seven factors listed as relevant in determining importance, including several that are clearly applicable to the identified impact. For example, no consideration seems to have been given to "the probability of the impact occurring," which is plainly relevant to a determination of importance, given that most of the properties in the area are substantially smaller than petitioner's, such that the likelihood of a proposal to construct a second residential structure thereon (if, in fact, that is the precedent that is of concern) would seem to be small.

Accordingly, the court (while retaining jurisdiction of this application) shall exercise its discretion to remand the matter to the City Planning Commission (see, Matter of 50 Plaza Co. v New York City Conciliation and Appeals Bd., 104 AD2d 886, 889 [1984]; Matter of Seeler v Planning Bd. of Town of E. Hampton, 53 AD2d 632, 633 [1976]), so that it may make additional factual findings, if necessary, and provide a complete, detailed explanation of the basis for its [*5]determination, as required by SEQRA. The matter may be placed back on the court's calendar by letter request of either party, at which time an expedited timetable for any further submissions shall be established.

This decision shall constitute the decision and order of the court.

Dated: December 28, 2007

Cortland, New York_______________________________

Hon. Phillip R. Rumsey

Supreme Court Justice

ENTER Footnotes

Footnote 1: Such a statement must be prepared when a positive declaration is made.

Footnote 2:Respondent's contention that the proceeding (if not premature) is untimely, is also meritless.

Footnote 3:Interestingly, with respect to the final question on this part of the form, relating to the likelihood of public controversy arising from the potential environmental impacts, there are no examples given in the form's instructions, nor any place to indicate the magnitude of such controversy.

Footnote 4: For example, the instructions expressly direct the reviewer to find a "small to moderate impact" if the impact will occur, but to a lesser extent than the example. Without any guidance from respondent, the court can only speculate as to how or why it made such a finding with respect to the project being "contiguous to a historic preservation district".

Footnote 5: While there are two notations on the form that could, arguably, have been intended as a description of the impact ("loss of character of the neighborhood" and "loss of architectural integrity of the property"), the court fails to see how those statements relate to the setting of a precedent for future actions.



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