Adirondack Council, Inc. v Town of Clare

[*1] Adirondack Council, Inc. v Town of Clare 2021 NY Slip Op 50381(U) Decided on April 30, 2021 Supreme Court, St. Lawrence County Farley, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 30, 2021
Supreme Court, St. Lawrence County

Adirondack Council, Inc., Petitioner,

against

Town of Clare, Respondent.



EFCV-20-158776



Appearances: Conboy, McKay, Bachman & Kendall, LLP (Scott B. Goldie, Esq., of counsel), attorneys for Petitioner; Pease and Gustafson, LLP (Eric J. Gustafson, Esq., of counsel), attorneys for Respondent.
Mary M. Farley, J.

On July 8, 2020, Respondent Town of Clare ("Respondent" or "Town") enacted Local Law No 1, titled "Town Road ATV Use Law" ("ATV Use Law") (NYSCEF Doc. 23), designating Tooley Pond Road, a Town Road, open for all-terrain vehicle ("ATV") use. Petitioner Adirondack Council, Inc. ("Petitioner" or "Council") brings this hybrid NY C.P.L.R. Art. 78/Declaratory Judgment proceeding to nullify the ATV Use Law as not complying with New York Vehicle and Traffic Law ("VTL") § 2405; Article IX, § 2 of the New York State Constitution ("State Constitution"); and, the State Environmental Quality Review Act ("SEQRA") (Environmental Conservation Law ["ECL"] §§ 08-0101 to 8-0117). For the reasons which follow, the Court dismisses the Petition and declares the ATV Use Law to be valid.

SUMMARY OF FACTS

Petitioner is a New York not-for-profit corporation. In its Verified Petition ("Petition") (NYSCEF Doc. 1), the Council alleges many of its members are users of the New York State Forest Preserve in the Adirondack Park, and some members own property and regularly use New York State forest lands in the Town of Clare. Petition at

¶ 3. With over 35,000 members, the Council asserts it is the "largest Citizen Environmental Group working full-time on Adirondack issues." Affidavit of Council Executive Director William C. Janeway ("Janeway") (Doc. 4) dated November 3, 2020 ("Janeway aff."), at ¶ 5. Respondent is a New York municipal corporation, located within the Adirondack Park Preserve in St. Lawrence County, New York ("County").

The Council commenced this hybrid proceeding on November 5, 2020, alleging the Town's ATV Use Law, enacted July 8, 2020, is null and void because the Town did [*2]not comply with (1) NY VTL § 2405; (2) Article IX, § 2 of the State Constitution; and, (3) SEQRA. The Town contends this proceeding must be dismissed because the Council lacks standing. The Town further contends that, if standing is found, the ATV Use Law was properly enacted and satisfies SEQRA.

In 2012, the County completed a Generic Environmental Impact Statement ("GEIS") (Doc. 7) for a proposed County-wide multi-use recreational trail system ("Trail System"), which among other things, would provide trails for ATV use. The GEIS included as a proposed ATV trail segment the entire length of Tooley Pond Road within the Town. Tooley Pond Road runs through the Town for a distance of 10.75 miles from the Town of Clifton ("Clifton") Town Line to the Town of Russell ("Russell") Town Line. It is maintained by the Town and used by dump trucks, plows, skidders, logging trucks, cars, motorcycles, and pickup trucks. Affidavit of Town Supervisor Francis Sharpstene (Doc. 38) at ¶ 4. Snowmobile and ATV trails cross or abut it. Id.

The Town Board commenced a public hearing on the ATV Use Law on March 11, 2020, which was concluded July 8, 2020. Town Answer and Return ("Answer") (Doc. 17) at ¶¶ 28, 30. As now pertinent, the ATV Use Law divides Tooley Pond Road into two segments, separately designating each segment as open to ATV use. These segments are: (1) an approximately 4.1 mile segment from the Clifton Town Line to its intersection with the Allen Pond Connection Road and Trailhead ("Trailhead"); and, (2) an approximately 6.7 mile segment running from the Trailhead to the Russell Town Line. Id. at 25. An existing County ATV trail intersects Tooley Pond Road at the Trailhead. ATV use of Tooley Pond Road pursuant to the Town ATV Law also connects existing segments of the Trail System already open to ATV traffic. See Answer at ¶ 30.

The south branch of the Grasse [FN1] River runs parallel to Tooley Pond Road. The DEC had purchased land for Forest Preserve directly adjacent to the Grasse River, which lies between the Grasse River and Tooley Pond Road. In considering the proposed ATV Use Law, the Town Board relied upon the affidavit of County Senior Civil Engineer Andrew E. Willard ("Willard") dated March 11, 2020 (included in Doc. 25 at pp. 6-9) ("Willard aff."). Willard averred both the Grasse River and the Forest Preserve land between it and Tooley Pond Road prevented ATV access to the Trailhead and trailhead areas. Willard aff. at ¶¶ 19-20; see Answer at ¶¶ 23, 25. Willard further stated: "In evaluation of options to connect Allen Pond Outlet access road [and Trailhead] south to the Newton Falls area, the ONLY possible route identified [*3]required use of the Tooley Pond Road south to the Clare/Clifton Town Line. Similarly, in evaluation of options to connect Allen Pond Outlet access road [and Trailhead] north to the Russell area, the selected route required the use of the Tooley Pond Road north to the Clare/Russell Town Line."Id. at ¶ 21 (capitalization in original; emphases added).

In addition to submitting his affidavit, Willard was also present and spoke at the Town's July 8, 2020, public hearing. See Hearing Transcript (Doc. 26), at pp. 2-7; Meeting Minutes (Doc. 24), at pg. 4.

In connection with the proposed ATV Use Law, the Town, acting as "Lead Agency" under SEQRA, retained the engineering firm of Barton & Loguidice — which also assisted in preparation of the GEIS — to assist it in completing the Town's Full Environmental Assessment ("Assessment"), with supporting documentation (Doc. 19). In pertinent part, the Assessment described the proposed Action as follows:

The Town of Clare is proposing to pass a local law that will allow [ATV] use on Tooley Pond Road within the Town, from the Town of Russell Town Line to an existing ATV Trail Head on Allen Pond Connection Road (approximately 4.1 miles), and from the Allen Pond Connection Road Trail Head to the Town of Clifton Town Line (approximately 6.7 miles). Id. at pp. 2, 29 (emphasis added).

The Assessment included a map showing the two segments of the Tooley Road as running from the Russell Town Line to an "[e]xisting St. Lawrence County ATV Trail Head at Allen Pond Connection Road", and from the Trailhead to the Clifton Town Line. Id. at pg. 40 (emphasis added).

The Assessment specifically addressed eighteen (18) separate, numbered subject areas for the proposed action, including: impacts on the natural setting (land, geological features, surface water, groundwater, flooding, air, plants, and animals) (id. at pp. 16-19, 30-32); impacts on aesthetic resources (id. at pp. 20, 33); impacts on open space and recreation (id. at pp. 21, 33); impacts on critical environmental areas (id.); impacts on noise, odor and light (id. at pp. 22-23, 34); impacts on human health (id. at pp. 23, 35); consistency with community plans (id. at pp. 24, 35); and, consistency with community character (id.). With respect to noise — a particular concern of the Council (see Affidavit of Tom Langen ["Langen"] [Doc. 33], dated February 11, 2021 ["Langen aff."] at ¶ 3; Affidavit of Peter O'Shea ["O'Shea"] [Doc. 32] dated February 11, 2021 ["O'Shea aff."] at ¶¶ 4-5) — the Assessment stated noise from ATV use will be similar to that of vehicles already using the Tooley Pond Road and that, although ATV would generate additional noise, that noise would be transient with each passing ATV. Assessment at pp. 22-23, 34. "In addition, ATVs would be required to utilize proper muffling and would only be allowed to travel on the existing developed roadway limits, at or below the designated speed limit." Id.

After reviewing all eighteen (18) subject areas, and considering the GEIS as a "supporting document", the Town determined that the ATV Use Law "will result in no significant environmental impacts to the environment, and, therefore, an environmental impact statement need not be prepared." Id. at pg. 26. As a result, on July 8, 2020, the Town Board, "based upon an examination of the [Assessment] and other available supporting information" and confirming that enactment of the ATV Use Law constituted [*4]an unlisted action, found and determined that proposed ATV Use Law "will not have a significant adverse environmental impact and will not require the preparation of a Draft Environmental Impact Statement." Id. Accordingly, "[a] negative declaration [was] issued." Id.; see 'Resolution of Town Board Determining that the Action to Execute the Town Road ATV Use Law is an Unlisted Action and Will Not Have a Significant Adverse Impact on the Environment' (Doc. 6) at pg. 50. That same day, the Town Board enacted the ATV Use Law, finding the route to and from the Trailhead on Tooley Pond Road to be the "shortest and only possible route" connecting existing segments of the Trail system already open to ATV traffic (Doc. 23 at pg. 5).

The Council then commenced this hybrid proceeding by filing its Petition (Doc. 1) and Notice of Petition (Doc. 2). The Town submitted its Answer (Doc. 17) on January 3, 2021. The Petition was returnable during the COVID-19 pandemic, and no party has requested oral argument. Accordingly, the Court resolves this proceeding on submission of papers alone.

DISCUSSION

Three issues are before the Court. First, does the Council have standing to bring this hybrid proceeding? Second, did the Town enact the ATV Use Law in compliance with NY VTL § 2405 and Article IX, § 2 of the New York State Constitution? Third, did the Town satisfy the requirements of SEQRA? For the reasons set forth below, the Court answers all of these questions in the affirmative.

1. Standing

Petitioner identifies itself as a New York not-for-profit corporation, many members of which "are users of the New York State Forest Preserve in the Adirondack Park and some [members] own property and regularly use the State Forest Lands in the Town of Clare." Petition at ¶ 3. In support, the Council submitted Janeway's affidavit, in which he averred he has been a member of the Council since 1992, is a long term resident of the Adirondack Park, and has hiked Tooley Pond Mountain, "including a section of the Tooley Pond Road in the Town of Clare", an area where he planned to hike in the future. Janeway aff. at ¶ 4. When the Town challenged the Council's standing to bring this hybrid proceeding, Petitioner submitted Langen's and O'Shea's affidavits, and argued they sufficiently showed organizational standing for this proceeding to go forward. The Court agrees with the Council.

It is well-established that standing is required to challenge any governmental action. As stated by the Court of Appeals:

Standing is a threshold determination, resting in part on policy considerations, that a person should be allowed access to the courts to adjudicate the merits of a particular dispute that satisfies the other justiciability criteria.

Ass'n for a Better Long Is., Inc. v. New York State Dep't of Env't. Conservation, 23 NY3d 1, 6 (2014) (cleaned up [FN2] ).

Standing requires that a plaintiff or petitioner show "injury in fact", meaning it will actually be harmed by the action at issue. New York State Assn. of Nurse Anesthetists v. Novello, 2 NY.3d 207, 211 (2004). In a land use matter, "petitioner must demonstrate, among other things, that he would suffer direct harm, injury that is in some way different from that of the public at large." Standing to challenge an alleged SEQRA violation "requires a petitioner to demonstrate 'that it would suffer direct harm, injury that is in some way different from that of the public at large.'" Matter of Hohman v. Town of Poestenkill, 179 AD3d 1172, 1173 (3d Dep't 2020) (citation omitted).

In Society of Plastics Indus., Inc. v. Cty. of Suffolk, 77 NY2d 761 (1991), the Court of Appeals elucidated the three requirements for organizational standing:

First, if an association or organization is the petitioner, the key determination to be made is whether one or more of its members would have standing to sue; standing cannot be achieved merely by multiplying the persons a group purports to represent. Second, an association must demonstrate that the interests it asserts are germane to its purposes so as to satisfy the court that it is an appropriate representative of those interests. Third, it must be evident that neither the asserted claim nor the appropriate relief requires the participation of the individual members. These requirements ensure that the requisite injury is established and that the organization is the proper party to seek redress for that injury.77 NY2d at 775 (italics in original; emphasis added).

"'[S]tanding should be liberally constructed so that land use disputes are settled on their own merits rather than by preclusive, restrictive standing rules. To that end, the allegations contained in a petition are deemed to be true and are construed in the light most favorable to the petitioner." Matter of Troy Sand & Gravel Co. v. Town of Sand Lake, 185 AD3d 1306, 1308 (3d Dep't 2020) (cleaned up), appeal dismissed sub nom. Hoffay v. Town of Sand Lake, 36 NY3d 943 (2020); accord: Matter of Town of Coeymans v. City of Albany, 284 AD2d 830, 833 (3d Dep't 2001) (SEQRA standing found), lv denied, 97 NY2d 602 (2001). Nonetheless, where the issue of standing is disputed, each element thereof "must be supported in the same way as any other matter on which the plaintiff bears the burden of proof." Matter of Save the Pine Bush, Inc v. Common Council of City of Albany, 13 NY3d 297, 306 (2009).

In Matter of Save the Pine Bush and Matter of Sierra Club v. Village of Painted Post, 26 NY3d 301 (2015), the Court of Appeals elucidated the proof required to show standing in an environmental case. Petitioner organization in Matter of Save the Pine Bush was devoted to protecting endangered butterflies, and several members thereof (who were also co-petitioners) alleged that they made "repeated, not rare and isolated use" (13 NY3d at 305) of the property sought to be rezoned, which was near a butterfly preserve. In finding both organizational and individual standing, the court expressly held that "a person who can prove that he or she uses and enjoys a natural resource more than most other members of the public has standing under the State [*5]Environmental Quality—Review Act (SEQRA) to challenge government actions that threaten that resource." Id. at 301 (emphasis added). As a result, "injury to a particular plaintiff's aesthetic and environmental well-being [is] enough." Id. Matter of Sierra Club concluded the claimed harm must be specific to the individuals alleging it and different in kind or degree from the public at large, but "need not be unique." 26 NY3d at 311

(cleaned up). "That more than one person may be harmed does not defeat standing [ ]." Id. at 310.

The Third Department's decision in Matter of Town of Waterford v. New York State Dept. of Envtl. Conservation, 187 AD3d 1437 (3d Dep't 2020), is also instructive. There, petitioner Town sought to expand a landfill, an action which the DEC had determined would not have a significant environmental impact. Although residing "some distance away" from the landfill on the opposite side of the Mohawk River, several individuals objecting to the proposed expansion had a "generally unobstructed" view of the landfill, and alleged that the resulting sights, sounds, smell and dust from the expansion "will impair the use and enjoyment of Halfmoon's public park, trails and boat launches across the river." 187 AD3d at 1440. One such individual "described how she was intimately involved in the development of a trail system and boat launch along the river and was similarly concerned by those impacts." Id. Reversing Supreme Court, the Third Department found this proof "sufficient to establish that at least some of the petitioners [ ] will suffer environmental impacts different from those experienced by the general public so as to afford standing to sue." Id. (citations omitted). In so ruling, the Third Department reasoned that "standing rules are not to be applied in a manner so restrictive that agency actions are insulated from judicial review [ ]." Id.

In his affidavit, Langen avers he has been a Council member for approximately ten years. Langen aff. at ¶ 1. He has hiked and explored the Grasse River Wild Forest and areas along the Tooley Pond Road "between 26-37 times", and has also "led many waterfall walks" promoted by the St. Lawrence Land Trust to waterfalls located along the Tooley Pond Road. Id. at ¶¶ 2, 5. He asserts the proposed ATV Use Law would "damage my future use of the area and my opportunities to teach and promote environmental issues in this unique setting." Id. at ¶ 8. O'Shea avers he has authored two books regarding the natural history of the wild lands of Southern St. Lawrence County; serves on the New York Regional Open Space Advisory Committee for DEC Region 6 (which includes St. Lawrence County); has led weekly nature walks for several summers in the area along the Tooley Pond Road; and, assisted Langen for the past seven years in conducting waterfall nature walks. O'Shea aff. at

¶¶ 2-4. He avers that ATV use under the ATV Use Law would drown out the "general quietness of the area mak[ing it] a special place to teach" and impair his ability to "hear the sounds of nature." Id. at ¶ 5.

The Court concludes that Petitioner satisfies the Society of Plastics Indus., Inc. test for organizational standing. Although presenting a close question, in light of the direction that standing rules are to be "liberally constructed" (Troy Sand & Gravel Co.) and not "applied in a manner so restrictive that agency actions are insulated from judicial review" (Matter of Town of Waterford), the Court finds the Langen and O'Shea affidavits establish their "repeated, not rare and isolated use" of the area at issue, and that they used the natural resources "more than most other members of the public." [*6]The first element of the Save the Pine Bush test — their individual standing to sue — is thereby met. The Town does not challenge the second and third elements for organizational standing — that the Council demonstrate that the interests it asserts were germane to its purposes and that the claims for relief required the participation of the individual members. The Court finds those elements met as well.

The Third Department cases relied upon by the Town do not alter the Court's conclusion. In Matter of Clean Water Advocates of NY, Inc. v. New York State Dept. of Envtl. Conservation, 103 AD3d 1006 (3d Dep't 2013), lv denied, 21 NY3d 862 (2013), the Third Department found petitioner not-for-profit corporation lacked standing, noting petitioner "d[id] not allege, much less submit evidence", that any of its members used the area more frequently than any other person with physical access thereto. 103 AD3d at 1008. The court concluded that the "generalized allegations [regarding the individual member of petitioner organization upon which it sought to show standing] do not demonstrate an injury distinct from the general public in the area [and] are insufficient to confer standing." Id. at 1009. In Matter of Hohman, upon which the Town also relies, the Third Department found no standing to challenge a SEQRA determination when petitioners' alleged injuries were "speculative and conjectural and fail[ed] to demonstrate direct or specific injury different from that suffered by the general public in the vicinity of the nature preserve" at issue. 179 AD3d at 1175.

2. Compliance with NY VTL § 2405 and State Constitution

Having found standing, the Court next addresses the Council's principal argument: the ATV Use Law is null and void because it does not comply with NY VTL § 2405, and therefore violates Article IX, § 2 of the State Constitution. By way of background, Article 48-C of the VTL (§§ 2400-2413) titled "Rules for Operation for All Terrain Vehicles", governs ATV use and operation in New York. Section 2400 sets forth Article 48-C's legislative purpose:

"It is the purpose of this article to promote the safe and proper use of ATVs for recreation and commerce in this state, to ensure the safety and well-being of all persons concerning the use of ATVs, to minimize detrimental effects of such use upon the environment, and to provide a method whereby municipalities shall consider the designation of appropriate public lands for ATV use and regulation thereof."Id. (emphases added).

Section 2403 (b) states ATVs "may be operated on any highway which has been designated as open for travel by ATVs in accordance with [VTL § 2405]." Section 2404 sets forth "operating rules" for ATVs.

Titled "Designation of highways and public lands for travel by ATVs", NY VTL § 2405 (1) provides, in pertinent part:

Highways. [A]ny [ ] governmental agency with respect to highways [ ] under its jurisdiction may designate and post any such public highway or portion thereof as open for travel by ATVs when in the determination of the governmental agency concerned, it is otherwise impossible for ATVs to gain access to areas or trails adjacent to the highway. Id. (emphases added).

This section further provides that, with respect to a town road, designation of a highway (or portion thereof) as open for ATV use "shall be made by local law or ordinance." Id.

To designate a public road as open for ATV use, the governmental agency — here, the Town — must determine that two elements have been met: (1) ATV access to "areas or trails adjacent" to the highway at issue; and, (2) such access is "otherwise impossible" absent designation of the highway for ATV use. In addressing these elements, the Court emphasizes the limited question before it. In particular, although the Council takes issue with the entire Trail System (see Janeway aff. at ¶ 14; Council Memorandum of Law [Doc. 14] at pp. 6-7), whether the Trail System as a whole complies with NY VTL § 2405 is not now before the Court, and the County (or towns or villages therein other than Respondent) are not parties to this special proceeding. Likewise, whether Russell and/or Clifton — into which the Tooley Pond Road runs — have enacted laws permitting ATV operations therein, or if so, the validity of such local laws, is not before this Court. For this reason, the Council's assertion that Willard's affidavit "does not point to any 'off road' trails or areas immediately adjacent to the Tooley Pond Road at either end" (see id. at pp. 6-7) is immaterial to the present proceeding.

Both the Council and Town agree that the Trail System provides context for the Town's ATV Use Law. Janeway's affidavit gives an extensive account of its history and development. Janeway aff. at ¶¶ 7-14. Likewise, the ATV Use Law's "Purpose and Findings" include the statement that the Town wishes to adopt a trail system through it "in connection with the proposed [ ] Trail System." However, the undisputed fact that the Trail System forms part of the context for the ATV Use Law does not thereby define the scope of this Court's review thereof. Here, the scope of that review is sharpy limited: whether the ATV Use Law, which concerns two specific segments of Tooley Pond Road located entirely within the Town, meets the two specific, statutory elements of NY VTL § 2405 (1). The Court answers this question in the affirmative.

The first element under NY VTL § 2405 requires the Court consider the Town's determination that the Trailhead constitutes "areas or trails" adjacent to Tooley Pond Road, to which the ATV Use Law provides access for ATVs. The record before the Town Board indicates that Tooley Pond Road intersects with an existing ATV trail at the Trailhead. Thus, the Assessment stated the proposed ATV Use Law connected the Tooley Pond Road with "an existing ATV Trail Head." Assessment at pp. 1, 29. A map included in the Assessment (id. at pg. 40) — and not questioned by the Council — depicts the two segments of the Tooley Pond Road covered by the ATV Use Law meeting at and connecting to an "existing County ATV Trail Head." The Council's Memorandum of Law (Doc. 14 at pg. 4) acknowledges "there are off road trails leading from the [T]railhead."

The Council advances two arguments that the ATV Use Law nonetheless did not satisfy this element. Its first argument — that Tooley Pond Road did not provide access to an existing ATV trail within the Town — has already been resolved by the Court. Second, the Council asserts that because the record does not indicate that existence of ATV trails outside the Town of Clare to which the Tooley Pond Road connects (see Janeway aff. at ¶¶ 11-12), this element of NY VTL § 2405 cannot be met. The Court has already addressed this argument as well by making clear the limited nature of the issue before it.

Third, the Council asserts that the overall length (approximately 10.75 miles) of [*7]the Tooley Pond Road covered by the ATV Use Law is "too long" to comply with NY VTL § 2405 (1). According to the Council, the ATV Use Law is invalid because it allows use of the entire length of the Tooley Pond Road, rather than only a part thereof. See Council Memorandum of Law at pp. 6-7. This argument runs afoul of the express language of the statute itself. By its terms, NY VTL § 2405 allows the Town to designate "any [ ] public highway or portion thereof" for ATV use. Id. (emphases added). By allowing designation of both "any highway" and "portion(s)" thereof, the Legislature necessarily permitted designation of complete highways — and not just portions thereof — for ATV use. Further, NY VTL § 2405 on its face lacks any maximum road length limitation, and the Court will not usurp the legislative function by grafting such a requirement onto the statute. Accordingly, the Court finds that the Town Board's determination that the ATV Use Law provided ATV access to "trails or areas" adjacent to Tooley Pond road to be supported in the record.

The second element requires that ATV access to trails or areas be "otherwise impossible" absent access over the highway at issue. Here, the Town points to two obstacles making such access "otherwise impossible": (1) the Grasse River itself, over which the only known crossing points for ATVs were bridges located in Russell and Clifton; and (2) Wild Forest land between the Grasse River and Tooley Pond Road, upon which ATV operation was not allowed. See Willard aff. at ¶¶ 19-21; Answer at ¶¶ 23, 26. In enacting the ATV Use Law, the Town concluded that these obstacles — one physical (the Grasse River itself); and one legal (designation of Wild Forest land) — preventing ATV access to the Trailhead rendered access impossible without permitting ATV access on the Tooley Pond Road in the Town pursuant to the ATV Use Law. The Court concludes that the Town's determination to this effect is likewise supported by the record.

Both the Council and the Town point to a single Appellate Division decision, as well as unpublished trial court decisions, which address NY VTL § 2405. See Council Memorandum of Law at pg. 7; Town Memorandum of Law (Doc. 29) at

pg. 7. In the sole Appellate Division decision, State of New York v. Town of Horicon, 46 AD3d 1287 (3d Dep't 2007), respondent Town of Horicon ("Horicon") enacted a local law opening eight routes traversing state forest lands for ATV use, which were challenged on SEQRA and NY VTL § 2405 grounds. In granting summary judgment against Horicon, the Third Department concluded there was "absolutely nothing in the record to substantiate the Town Board's findings" under NY VTL § 2405, and held that the local law was enacted in violation of the statute. 46 AD3d at 1290. As set forth above, unlike Horicon's complete absence of the necessary findings, the record here contains sufficient proof to support Clare's conclusion that the elements of NY VTL

§ 2405 have been met.

Three prior decisions by this Court are also instructive. In Brown v. Town of Pitcairn, Sup Ct, St. Lawrence County, March 13, 2003, Index No. 113023 ("Pitcairn I"), Justice Demarest invalidated a 1996 local law enacted by the Town of Pitcairn ("Pitcairn") which "open[ed] all Town Highways" to ATV use. Id. at 2 (boldface in original). In so ruling, Justice Demarest relied on the fact that the record lacked "any underlying documentation or evidence to substantiate the propriety of [the Town's] determination" that NY VTL § 2405 had been satisfied. Id. at 4.

This Court's second decision involved a different Town of Pitcairn local law, enacted in 2003. In Brown v. Town of Pitcairn, Sup Ct, St. Lawrence County, August 19, 2003, Index No. 114295 ("Pitcairn II"), Pitcairn enacted a local law which allowed ATV and snowmobile access over 24 of the 26 Town highways. Id. at 2. In challenging the "all-encompassing nature of the [Pitcairn] law", petitioners relied upon the fact that each of the two Pitcairn roads not included in the ATV law was less than one-quarter mile in length. Id. In upholding the local law allowing ATV use with respect to 12 designated highways, and invalidating it as to the remaining 12 roads, Justice Demarest reviewed Pitcairn's findings with respect to each Pitcairn highway as to whether it satisfied the statutory requirements of impossibility and that the area or trail at issue "lies adjacent to the highway." Id. at 5-6.

This Court's third decision involves a local ATV law enacted by the Town of Colton. In Hutchins v. Town of Colton, 8 Misc 3d 1020(a) (Sup Ct, St Lawrence County 2004), Justice Demarest invalidated two Town of Colton local laws allowing ATV operation on 24 of 47 Town roads — "totaling 50 of 55 miles (or 90.9%) of [Colton] road surface for ATV travel." Id. at * 2. In so ruling, Hutchins relied on the complete absence of proof of "impossibility" and that the area or trail lies "adjacent to the [Town] highway." Id. at * 5. See also Matter of O'Brien-Dailey v. Town of Lyonsdale, 26 Misc 3d 1228(A) at * 6 (Sup Ct, Lewis County 2009) (invalidating local ATV law; record before respondent Town contained "no discussion, or even mention, of the required finding of impossibility for ATV riders to access [ ] designated ATV trails or areas or adjacent [thereto]").

Here, and unlike the record in Pitcairn I which lacked any supporting evidence or documentation, the record before the Clare Town Board included sufficient evidence upon which to rationally conclude the elements of NY VTL § 2405 had been met. Unlike the record in Hutchins, for which the Court found the complete absence of proof supporting either NY VTL § 2405 element, the record here supports both such elements. Matter of O'Brien-Dailey, in which the court found "no discussion, or even mention, of the required finding of impossibility", is distinguishable because the proof before the Town Board with respect to the ATV Use Law showed the combined obstacles of the Grasse River and Forest Preserve land, thereby meeting the "impossibility" element. As with the 12 (of 24) specific roads for which ATV access was upheld in Pitcairn II, careful consideration of the record here shows that the specific road (Tooley Pond Road) and segments thereof met the NY VTL § 2405 test.

3. Compliance with SEQRA

The Council next argues that the ATV Use Law must be invalidated because the Town did not comply with SEQRA. Here, the Council does not take issue with the eighteen specific (18) areas which the Town reviewed in connection with the Assessment, and, other than noise (discussed above), does not assert the Town failed to take a "hard look" at any (or all) of these specific areas. Rather, Petitioner argues that the Town's SEQRA determination was improper because the Assessment did not sufficiently address the "potential impact on human health and safety [from] allowing vehicles that are not designed for use on paved and public roads to share that road with automobiles for 10.75 miles within the Town." Council Memorandum of Law at pg. 11. As asserted by counsel for the Council, "[n]owhere does the Town [ ] address the [*8]obvious fact that ATVs are not designed for use on paved or public roads which present a significant safety concern to both ATV riders as well as automobiles." Affidavit of Scott B. Goldie, Esq. (Doc. 5) dated November 4, 2020 ("Goldie aff."), at ¶ 20. To support this argument, the Council relies upon materials from ATV manufacturers, the ATV Safety Institute, and the US Consumer Products Safety Commission (Doc. 8), which, according to the Council, "all warn against ATV use on paved and public roads." See Council Memorandum of Law at pp. 11-12 & Goldie aff. at ¶ 21.

In response, the Town argues that it complied with SEQRA in all respects, and that its negative declaration was proper. Town Memorandum of Law at pp. 10-18. The Town further argues the Council's generalized health and safety concerns — which take issue with the overall operation of ATVs on all public roads, and not specifically with operation on the Tooley Pond Road — were beyond the scope of the Town's decision-making authority under SEQRA. According to the Town, "ATV use on roads had already been considered by the NY State Legislature [which] authorized their use on the roads of municipalities as long as the roads were so designated for ATV travel." Id. at pg. 14.

It is well established that the primary purpose of SEQRA is "to inject environmental considerations directly into governmental decision making." Akpan v. Koch, 75 NY2d 561, 569 (1988) (cleaned up). As now pertinent, SEQRA requires governmental agencies — including the Town — to consider the potential environmental impacts of their actions prior to rendering certain defined discretionary decisions, called "actions." See generally DEC SEQR Handbook (4th Ed 2020), at 11 (available at https://www.dec.ny.gov/docs/permits_ej_operations_pdf/seqrhandbook.pdf) [prior editions cited in Incorporated Vil. of Atl. Beach v. Gavalas, 81 NY2d 322, 326 [1993] and Matter of Troy Sand & Gravel Co., Inc. v. Fleming, 156 AD3d 1295, 1300 [3d Dep't 2017], lv denied, 31 NY3d 913 [2018]). The adoption of a local law that may affect the environment constitutes such an "action." See ECL § 8-0105 (4); 6 NYCRR 617.2 (b); Town of Horicon, 48 AD3d at 1289.

SEQRA regulations group "actions" into three categories: Type I, Type II, and unlisted. See 6 NYCRR 617.4 & 617.5; see also Matter of Citizens for Responsible Zoning v. Common Council of City of Albany, 56 AD3d 1060, 1061 (3d Dep't 2008). Unlisted actions are all actions that are not excluded, exempt, or listed as Type I or Type II actions. See 6 NYCRR 617.22 (al). Before undertaking an unlisted action — as the Town did here as "lead agency" with respect to the ATV Use Law — the agency must determine whether the proposed action may have one or more significant environmental impacts, called a "determination of significance." All parties agree that the Town was the "lead agency" for the ATV Use Law, and the Council does not question the Town's conclusion that adoption of the ATV Use Law comprised an unlisted action.

Where, as here, the lead agency determines either that there will be no adverse environmental impacts or that the impacts will not be significant, an environmental impact statement ("EIS") is not required, and the agency may issue a "negative declaration" that the proposed action will not significantly affect the environment. E.g., Matter of Coca-Cola Bottling Co. of NY v. Board of Estimate of City of NY, 72 NY2d 674, 680 (1988) (citing 6 NYCRR 617.6 [g]). "A negative declaration may be issued, [*9]obviating the need for an EIS if the lead agency [ ] determines that no adverse environmental impacts [will result] or that the identified adverse environmental impacts will not be significant." Matter of Village of Ballston Spa v. City of Saratoga Springs, 163 AD3d 1220, 1225 (3d Dep't 2018) (cleaned up); accord: Matter of Gabrielli v. Town of New Paltz, 116 AD3d 1315, 1316 (3d Dep't 2014).

The standard of judicial review under SEQRA is narrowly circumscribed. "Judicial review of an agency determination under SEQRA is limited to 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." Matter of Heights of Lansing, LLC v. Village of Lansing, 160 AD3d 1165, 1166 (3d Dep't 2018) (cleaned up). No more than a "reasoned explanation" for an agency's negative declaration is required. Matter of Troy Sand & Gravel Co., Inc. v. Town of Nassau, 82 AD3d 1377, 1379 (3d Dep't 2011). "The court's function is to assure that the agency has satisfied SEQRA, procedurally and substantively, not to evaluate data de novo, weigh the desirability of any particular action, choose among alternatives or otherwise substitute its judgment for that of the agency." Matter of Town of Amsterdam v. Amsterdam Indus. Dev. Agency, 95 AD3d 1539, 1543 (3d Dep't 2012). "[Judicial] review is deferential for it is not the role of the courts to weigh the desirability of any action or choose among alternatives, but to assure that the agency itself has satisfied SEQRA, procedurally and substantively." Friends of P.S. 163, Inc. v. Jewish Home Lifecare Manhattan, 30 NY3d 416, 430 (2017) (cleaned up). "Nothing in [SEQRA] requires an agency to reach a particular result on any issue, or permits the courts to second-guess the agency's choice, which can be annulled only if arbitrary, capricious or unsupported by substantial evidence." Matter of Jackson v. New York State Urb. Dev. Corp., 67 NY2d 400, 417 (1986).

Recent Third Department law is clear:

In reviewing an agency's SEQRA findings, courts accord a lead agency considerable deference, as it is not the role of the courts to weigh the desirability of any action or choose among alternatives, but to assure that the agency itself has satisfied SEQRA, procedurally and substantively. Matter of Keil v. Greenway Heritage Conservancy for the Hudson Riv. Val., Inc., 184 AD3d 1048, 1051 (3d Dep't 2020) (cleaned up).

The Court's review of a SEQRA determination is limited to whether the governmental body at issue "identified the relevant areas of environmental concern, and then made a reasoned elaboration of the basis for its determination." E.g., Matter of Van Dyk v. Town of Greenfield Planning Bd., 190 AD3d 1048, 1049 (3d Dep't 2021) (citation omitted). A court may annul a lead agency's determination to issue a negative declaration "only where [the determination] is determined to be arbitrary, capricious or unsupported by the evidence." Matter of Hohman,179 AD3d at 1174 (cleaned up); accord: Matter of Keil, 184 AD3d at 1052.

The Court of Appeals makes plain that "some common sense is essential to determine whether public agencies comply with SEQRA." Matter of Save the Pine Bush, Inc., 13 NY3d at 307-08. Thus, "an agency's obligation under SEQRA must be viewed in light of a rule of reason, realizing that not every conceivable environmental impact, mitigating measure or alternative must be identified and addressed before the substantive dictates of SEQRA are satisfied." Matter of Gabrielli v. Town of New Paltz, [*10]116 AD3d 1315, 1318 (3d Dep't 2014) (cleaned up).

The Court concludes that the Town satisfied its obligations under SEQRA. It identified relevant areas of potential environmental concern; conducted a sufficient review of the ATV Use Law and its impacts; took the requisite "hard look" at these concerns; and, made a reasoned and detailed elaboration of the basis for its determination. Matter of Keil; Matter of Van Dyk. Significantly, the Council does not dispute that the Assessment considered eighteen (18) separate factors, and it does not argue that the consideration of any of these factors was superficial, inadequate, or unsupported by the evidence. The sole Appellate Division decision addressing the issue of SEQRA compliance with respect to a local law allowing ATV operation pursuant to NY VTL § 2405 is clearly distinguishable. In Town of Horicon, the Third Department stated the Town's SEQRA review process "charitably could be described as perfunctory [and] was devoid of any studies or analyses", and concluded the Town's review process "falls far short of both the letter and the spirit of SEQRA." 48 AD3d at 1290. Far from "perfunctory", the Court finds the Town of Clare's review of the ATV Use Law was detailed, specific, and supported by evidence in the record.

Seen for what it is, the Council's sole SEQRA argument takes issue with the Town's negative declaration because of what the Town's Assessment allegedly did not consider. Here, the Council argues that the Town did not satisfy SEQRA because it did not address the "obvious fact" that ATVs are not designated for use on paved or public roads (Goldie aff. at ¶ 20), and points to ATV Operator's Guides, "Golden Rules of ATV Safety" promulgated by the ATV Safety Institute; and a 2018 announcement from the US Consumer Product Safety Commission. See Doc. 8. From these, the Council asserts the Town's "environmental assessment was inadequate [because] it failed to address these serious health and safety concerns." Goldie aff. at ¶ 21; see Langen aff. at ¶ 4.

For two reasons, the Court rejects the Council's assertion. First, the Legislature expressly addressed this issue in enacting NY VTL Article 48-C. In this regard, the "statement of purpose" in NY VTL § 2400 states, in pertinent part, the Article was enacted "to ensure the safety and well-being of all persons concerning the use of ATVs [and] provide a method whereby municipalities shall consider the designation of appropriate public lands for ATV use." Section 2403 provides that ATVs "may be operated on any highway which has been designated as open for [their] travel in accordance with VTL § 2405." Id. (emphasis added). As a result, so long as the proposed law at issue — here, Clare's ATV Use Law — satisfies the strictures of NY VTL § 2405, the Town need not further consider the general health and safety concerns relied upon by the Council. Simply stated, the Legislature has already addressed and resolved this question.

Second, and as noted above, an agency's determination of the factors to be considered in making its determinations under SEQRA must be upheld so long as it is not "arbitrary, capricious or unsupported by the evidence." Matter of Hohman. In light of the Legislature's determination in enacting NY VTL § 2405 that ATVs may be operated upon public highways so long as the requirements of that statute are satisfied, the Town's conclusion not to reconsider these questions, by definition, is not "arbitrary, capricious or unsupported by the evidence." If the Council wishes to assert, based [*11]upon published materials that allegedly "warn against ATV use on paved and public roads" (see Doc. 8; Council Memorandum of Law at pp. 11-12 & Goldie aff. at ¶ 21), the proper forum for such arguments is the New York State Legislature, not the Town of Clare.

In conclusion, it cannot be said that the Town's negative declaration was arbitrary, capricious or unsupported by substantial evidence. Matter of Jackson; Matter of Hohman; Matter of Keil. Accordingly, the Court finds that the Town fulfilled its obligations under SEQRA.

CONCLUSION

The Court finds Petitioner has standing to challenge the Town's ATV Use Law. The Court declares the ATV Use Law was validly enacted pursuant to NY VTL

§ 2405 and Article IX of the State Constitution. The Court holds the Town fulfilled its obligations under SEQRA. The Petition is dismissed.

SO ORDERED.

DATED: April 30, 2021, at Chambers, Canton, New York.

Mary M. Farley, J.S.C.

ENTER:

{Decision & Order, and moving papers filed} Footnotes

Footnote 1:Some confusion exists whether the correct name is "Grasse River" or "Grass River." See https://www.adirondackalmanack.com/2017/05/the-name-game-grass-or-grasse-river.html; compare Matter of LaVigne, 76 AD2d 975, 975 (3d Dep't 1980) ("Grass River"), aff'd, 52 NY2d 1008 (1981) and Environmental Conservation Law § 11-0103 ("Grass River") with Perras Excavating Inc. v. Transportation Ins. Co., 291 AD2d 643, 643 (3d Dep't 2002) ("Grasse River") and Navigation Law § 125 ("Grasse River"). The record before this Court contains both spellings. Compare, e.g., Answer at ¶¶ 23, 24 ("Grasse River") and GEIS at pg. 54 ("Grasse River") with New York State Department of Environmental Conservation ("DEC") Unit Management Plans (Docs. 20-22) ("Grass River") and Conservation Easement (Doc. 28) ("Grass River"). This Decision and Order uses "Grasse River", which is the common, local usage.

Footnote 2:In Brownback v. King, 141 S. Ct. 740, 748 (2021), U.S. Supreme Court Justice Clarence Thomas departed from 'Bluebook' form by using a single parenthetical — "cleaned up" — to signal extraneous material was removed from a quotation without changing the underlining text, and, thereby, convey what the court being quoted actually said. See Debra Cassens Weiss, Justice Thomas Goes Rogue on the Bluebook with 'Cleaned Up' Citation—to the Delight of Appellate Lawyers, ABAJ (March 15, 2021) [note: online edition]. The Second Circuit has employed this usage. E.g. Pharoahs CL, Inc. v. United States Small Business Administration, 990 F.3d 217, 227 (2d Cir. 2021). This Court adopts Justice Thomas' innovation.