Elias v. Town of Brookhaven

—In an action, inter alia, for a judgment declaring that the defendants must consider the plaintiffs site plan application pursuant to a commercial zoning classification, (1) the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Suffolk County (Costello, J.), dated August 5, 1999, as amended by order of the same court dated August 26, 1999, as directed them to vote on the proposed rezoning of the plaintiffs property “at the earliest possible date permitted by procedural law relating to the scheduling of meetings”, and (2) the proposed intervenors separately appeal, as limited by their brief, from stated portions of the order dated August 5, 1999, as amended by the order dated August 26, 1999, as, inter alia, denied their motion for leave to intervene. Ordered that the order dated August 26, 1999, is modified by deleting the provision thereof directing the defendants to vote on the proposed rezoning “at the earliest possible date permitted by procedural law relating to the scheduling of meetings”, and substituting therefor a provision directing the defendants to vote on the proposed rezoning at the earliest possible date permitted by law, including the procedural law relating to the scheduling of meetings and compliance with the provisions of the State Environmental Quality Review Act; as so modified, the order is affirmed insofar as appealed from, without costs and disbursements; and it is further, Ordered that the order dated August 5, 1999, is modified accordingly. In an effort to resolve this lawsuit, the plaintiff and the defendants, the Town of Brookhaven and the Planning Board of the Town of Brookhaven (hereinafter collectively the Town), executed a stipulation of settlement which was so-ordered by [496] the Supreme Court on March 5, 1999. Among other provisions, the stipulation required the Town to conduct a hearing and vote on the proposed rezoning of the plaintiffs property from residential to commercial use “at the earliest possible date permitted by law”. Contrary to the Supreme Court’s interpretation, paragraph 4 of the stipulation, which was incorporated by reference in paragraph 2, also required the Town to comply with the State Environmental Quality Review Act (hereinafter SEQRA) before it rezoned the property. Moreover, the proposed zoning amendment, which would allow a single tenant to occupy a building of not more than 145,000 square feet, was only the first step in a process that would lead to the construction of a large Home Depot facility on the plaintiffs property. It is fundamental that the primary objective of SEQRA is to incorporate environmental concerns into the decision-making process at the earliest possible opportunity (see, ECL 8-0109 [4]; Matter of Neville v Koch, 79 NY2d 416, 426). Under the circumstances of this case, the Town was obligated to satisfy SEQRA requirements prior to authorizing the rezoning (see, Matter of Scenic Hudson v Town of Fishkill Town Bd., 258 AD2d 654; Vitiello v City of Yonkers, 255 AD2d 506; Riverhead Bus. Improvement Dist. Mgt. Assn. v Stark, 253 AD2d 752; Brew v Hess, 124 AD2d 962; Kirk-Astor Dr. Neighborhood Assn. v Town Bd., 106 AD2d 868). Notwithstanding the foregoing, the Supreme Court properly denied the untimely motion made by six environmental groups for permission to intervene at this late stage in the litigation (see, CPLR 1013; Osman v Sternberg, 168 AD2d 490). Joy, J. P., Altman and Goldstein, JJ., concur.