Riverkeeper, Inc. v. Planning Board of Town of Southeast

In three related proceedings pursuant to CPLR article 78 to review a determination of the Planning Board of the Town of Southeast, dated April 14, 2003, which, after a hearing, declined to require the preparation of a supplemental environmental impact statement in connection with the final conditional approval of a subdivision plat, the petitioner in proceeding No. 1, Riverkeeper, Inc., appeals from a judgment of the Supreme Court, Westchester County (Nicolai, J.), dated December 2, 2003, which denied its petition and dismissed proceeding No. 1, the petitioners in proceeding No. 2, Richard Feuerman, George Yourke, Gertrude Yourke, and Concerned Residents of Southeast, Inc., separately appeal from a judgment of the same court, also dated December 2, 2003, which denied their petition and — 432 — dismissed proceeding No. 2, and the petitioners in proceeding No. 3, Croton Watershed Clean Water Coalition, Inc., Putnam County Coalition to Preserve Open Space, Inc., and Cherie Ingraham, separately appeal from a decision of the same court dated October 31, 2003, and a judgment of the same court dated December 2, 2003, which, upon the decision, denied their petition and dismissed proceeding No. 3. Justice Mastro has been substituted for former Justice Cozier (see 22 NYCRR 670.1 [c]). Ordered that the appeal from the decision is dismissed, without costs or disbursements, as no appeal lies from a decision (see Schicchi v J.A. Green Constr. Corp., 100 AD2d 509 [1984]); and it is further, Ordered that the judgments are reversed, on the law, without costs or disbursements, the petitions are granted, the determinations are annulled, and the matters are remitted to the Planning Board of the Town of Southeast for the preparation and circulation of a supplemental environmental impact statement in accordance herewith. In connection with the 1988 application of Glickenhaus-Brewster Development, Inc. (hereinafter the developer), for approval of a residential subdivision in the Town of Southeast, the Planning Board of the Town of Southeast (hereinafter the Planning Board) declared itself lead agency in 1989 for the purpose of environmental review pursuant to the State Environmental Quality Review Act (ECL art 8, hereinafter SEQRA). In February 1991 the Planning Board approved a final environmental impact statement (hereinafter FEIS) and an initial supplemental environmental impact statement (hereinafter the initial SEIS), and issued a statement of SEQRA findings, pursuant to which it deferred the analysis of stormwater pollution and runoff impacts from the subdivision, as well as analysis of impacts to wetlands located on the project site, which is located in the watershed of the City of New York, and contains a stream that ultimately flows into the Muscoot Reservoir, one of New York City’s drinking water reservoirs. In 1997 the New York City Department of Environmental Protection (hereinafter NYCDEP) was granted authority over the approval of applications for stormwater pollution protection plans, sewage treatment plants, and subsurface sewage disposed systems for subdivisions located within the New York City watershed (see 15 RCNY 18-11 to 18-91). By September 1998 the Planning Board had approved four other subdivisions which either bordered the project site, or were located nearby, totaling 68 lots for single-family homes. On September 21,1998, the United States Army Corps of Engineers — 433 — (hereinafter ACOE) and the Conservation Commission of the Town of Southeast (hereinafter CC) determined that there were 79.59 acres of wetlands on the site, rather than the 71.8 acres reported in the FEIS and the initial SEIS. In June 2000, the New York State Department of Environmental Conservation (hereinafter NYSDEC) promulgated a regulation that tightened the restrictions on the discharge of phosphorus into surface and groundwaters within the New York City watershed, a regulation that was approved by the United States Environmental Protection Agency (hereinafter EPA) in October 2000 (see Natural Resources Defense Council, Inc. v Muszynski, 268 F3d 91, 95 n 1 [2001]). Also in 2000, NYSDEC designated the Muscoot Reservoir as a priority waterbody, and mandated reductions in all pollutant discharges into it. In April 2001, NYCDEP and NYSDEC promulgated a phosphorus discharge reduction plan that directed the Town of Southeast to be responsible for five percent of the entire reduction of phosphorus discharges into the Muscoot Reservoir. On December 5, 2001, Governor Pataki designated all watercourses and groundwater within watershed lands east of the Hudson River, which included the project site, as “Critical Resource Waters,” a designation approved by the ACOE on February 19, 2002. Among other things, that designation imposed a new obligation upon the developer to apply to the ACOE for approval of an individual wetlands permit in connection with the subdivision. On or about October 24, 2001, the developer applied for final subdivision approval, submitting a plat that reduced the number of building lots from 139 to 104, and slightly reduced the acreage of natural wetlands on the site that would be disturbed or destroyed during construction, but which reconfigured several interior and access roads serving the site so as to require at least one road to cross a newly-identified watercourse. The developer also proposed 11 additional stormwater detention basins. In April and June 2002, the Planning Board received and considered two engineering reports from its own consultant, both of which indicated that more information on stormwater drainage and final roadway layout was required. While the developer’s applications to the ACOE, NYSDEC, NYCDER and the CC for water supply, water quality, wastewater discharge, and wetlands permits and approvals were pending, the Planning Board granted final conditional subdivision approval on June 10, 2002. Thereafter, the petitioners in the instant proceedings brought two (previous) article 78 proceedings seeking to review the final conditional subdivision approval, and to compel the Planning — 434 — Board, to prepare and circulate a second supplemental environmental impact statement (hereinafter SEIS), which analyzed the impacts arising from the modifications to the project and the impact that the modified project would have on the environment in light of new development in the vicinity of the project site and the change in both the applicable regulations and the regulatory environment. The Supreme Court annulled the final conditional subdivision approval, and remitted the matter to the Planning Board, for the latter to take a “hard look” at eight recently-identified or recently-created areas of environmental concern, including the ACOE’s 1998 delineation expanding the extent of wetlands on the site, NYSDEC’s 2000 designation of the Muscoot Reservoir as “water quality limited,” NYSDEC and NYCDEP’s 2001 phosphorus discharge restrictions, the 2001-2002 placement of the site within a Critical Resource Water area, NYCDEP’s flagging of watercourses on the site that were not depicted on prior plans, the realignment of and changes to roadways which might affect or cross wetlands, buffer zones, or watercourses, the modification to the design of stormwater and sewage disposal systems, the impact of nearby developments on the availability of groundwater supply, and the designation, by the Town of Southeast, of the stream traversing the site as a special flood hazard area. Based on the advice of counsel, who concluded that the Planning Board had indeed taken a hard look at those issues, and suggested that the Planning Board’s error was in merely failing to make a written recitation to that effect, the Planning Board, by resolution dated April 14, 2003, decided that it did in fact take the requisite hard look, and that it was not required to prepare a second SEIS. The petitioners commenced the three instant proceedings against the Planning Board and the developer, seeking to review the resolution. The Supreme Court denied all three petitions, and dismissed the proceedings. We reverse and remit the matters to the Planning Board to prepare a SEIS that analyzes the areas of environmental concern identified above. The record reveals that potential environmental impacts, particularly regarding water use, water quality, the protection of wetlands, and the integrity of the New York City watershed, have changed in the more than 12 years since the FEIS and initial SEIS were submitted in connection with the original subdivision plat. Moreover, the changes to the regulatory environment, as described above, underscore the need to reevaluate the project to assure its harmony with the new regulatory scheme. Under these circumstances, the Planning Board — 435 — could not have met its obligation under SEQRA without requiring a SEIS to analyze the current subdivision plat in light of the change in circumstances since 1991 (see 6 NYCRR 617.9 [a] [7]; Matter of Doremus v Town of Oyster Bay, 274 AD2d 390, 393-394 [2000]; cf. Matter of Jackson v New York State Urban Dev. Corp., 67 NY2d 400, 429-430 [1986]). We further note that the FEIS and initial SEIS were inadequate, insofar as they simply deferred analysis of critical issues concerning wetlands, the integrity of the watershed, control of phosphorus pollution, stormwater runoff, and sewage disposal, to other involved agencies that were responsible for the issuance of numerous permits. While a lead agency may solicit technical information and suggestions from involved agencies that are more expert in particular scientific areas than it is, a lead agency must coordinate environmental review with those agencies, and may not decline to undertake review of environmental remediation measures simply because another involved agency will address it in its own permit application proceedings (see Matter of Penfield Panorama Area Community v Town of Penfield Planning Bd., 253 AD2d 342, 349-350 [1999]; Matter of Price v Common Council of City of Buffalo, 3 Misc 3d 625, 629 [2004]; Town of Red Hook v Dutchess County Resource Recovery Agency, 146 Misc 2d 723, 728 [1990]; see also Matter of Coca-Cola Bottling Co. of N.Y. v Board of Estimate of City of N.Y., 72 NY2d 674, 681 [1988]; Purchase Envtl. Protective Assn. v Strati, 163 AD2d 596, 597-598 [1990]). In this connection, we note, as an example, the following. By the time of the determination in these proceedings, the ACOE still had not yet approved a wetlands permit for the subject development. As of that date, there were significant objections to issuance of that permit pending before the ACOE. About one month before the Planning Board’s determination, by letter dated March 3, 2003, EPA wrote to the ACOE, concluding that the developer had not “adequately minimized wetland fill,” and objecting to issuance of the required wetlands permit. By letter dated March 18, 2003, the United States Department of the Interior, Fish and Wildlife Service (hereinafter FWS), sent an extensive letter to the ACOE, also objecting to the issuance of a wetlands permit. Among other things, the FWS was concerned about the impacts to wetlands due to the developer’s proposed location of a certain road. In addition, the FWS referred to the developer’s stated purpose of building a subdivision within convenient commuting distance of New York City; however, the FWS noted that the relevant distance was not defined, and the FWS presumed that other sites were available which would — 436 — “result in less impact to the aquatic environment.” The FWS stated that the developer “must conduct a reasonable alternatives analysis in order to identify the least damaging alternative. We suggest that the applicant re-examine the site design and eliminate wetland impacts or select a site which would result in fewer impacts to aquatic resources.” NYCDEP also had reservations, and communicated them to the Planning Board in a letter dated March 18, 2003. Among other things, NYCDEP urged the developer to reconsider the realignment of a certain crossing in order to avoid impacts on the affected wetlands, and to examine alternatives to other crossings. Further, NYCDEP recommended careful analysis of the developer’s proposed “on-site mitigation” measures, noting that impacts due to the construction of such measures could outweigh any potential benefits, and that construction of those measures would replace the area, rather than the function, of the impacted wetlands. We agree with the proposition that a lead agency frequently will lack the know-how necessary to make the often difficult and technically arcane assessments that SEQRA requires, and that it properly may defer to the expertise of private consultants, as well as other involved agencies, in fulfilling its responsibilities under SEQRA (see Matter of Coca-Cola Bottling Co. of N.Y. v Board of Estimate of City of N.Y., 72 NY2d 674, 682 [1988]; Matter of Ecumenical Task Force of Niagara Frontier v Love Canal Area Revitalization Agency, 179 AD2d 261, 268 [1992]). At bar, the Planning Board could properly defer to the ACOE and other involved agencies while they went through their particular permit application processes. But the Planning Board made an environmentally significant determination before those processes ran their course, and in the face of an appreciable probability, for example, that the ACOE would not issue a wetlands permit absent revisions to the subject project. By deferring to the ACOE, the Planning Board in this case failed to take the requisite “hard look” at the wetland issues presented (see Matter of Penfield Panorama Area Community v Town of Penfield Planning Bd., 253 AD2d 342 [1999]). The Planning Board, as lead agency in the instant dispute, did not solicit comments from the ACOE, NYSDEC, or NYCDEP in connection with its decision to forego preparation of a SEIS. Because the ACOE and NYCDEP only became “involved agencies” after 1991 (6 NYCRR 617.2 [s]), the Planning Board must, upon remittal, coordinate its ongoing environmental review with those agencies (see 6 NYCRR 617.2 [s]; 617.6 [b] [3]). In light of the foregoing, we do not reach the parties’ remain — 437 — ing contentions, which either have been rendered academic or are without merit. Miller, J.E, Ritter and Mastro, JJ., concur.