Opinion
2850/06.
Decided March 5, 2007.
Alex Smith, Esq., Middletown, New York, Attorney for Petitioners.
Bonacic, LoBiondo Krahulik, LLP, Middletown, New York, Attorneys for the Planning Board of the Town of Mamakating.
Langdon C. Chapman, Esq., of Counsel Charles T. Bazydlo, Esq., Thompson Ridge, New York, Attorney for Yukiguni Maitake Manufacturing Corporation of America.
In this CPLR article 78 proceeding, petitioners Basha Kill Area Association [BKAA"] and Jodi Rubenstein ["Rubsenstein"] seek an order reversing, annulling and setting aside a resolution of the Town of Mamakating Planning Board dated August 22, 2006, which, after a hearing, granted the application of Yuiguni Maitake Manufacturing Corporation for site plan approval and a special use permit in connection with its proposal to build a mushroom production and processing plant in the Town of Mamakating.
Respondent the Planning Board of the Town of Mamakating ["Planning Board"] and respondent Yukiguni Maitake Manufacturing Corporation of America ["YMMA"] both seek to dismiss the petition on the ground that BKAA and Rubenstein lack standing to challenge the Planning Board's action. They also seek to dismiss the proceeding on its merits.
Respondent YMMA proposes to build a mushroom plant on an approximately 48-acre parcel, located in a light industrial/office zoning district. The buildings and paved areas will encompass 12.6 acres (presently used as a corn field) of the approximately 48-acre parcel. Initially, a pilot plant consisting of a two-story 44,563 square-foot building having a total floor space of 89,125 square feet will be constructed. The height of the pilot plant will be 33 feet with utility structures that extend an additional 15 feet. Additional support structures will be built in this first phase of construction, including a separate boiler building, a water purification building, a generator building and two sawdust storage sheds. If the business operation proves successful, the main plant will then be constructed in additional phases. Upon completion, the main plant will be four stories with a footprint of 206,344 square feet and have a total of 825,377 square feet of floor space. The height of the main production building will be 65 feet with utility structures that extend an additional 15 feet in height. It is undisputed that the proposed plant will be larger and higher than any other building in Town. At full build-out, the proposed plant will produce and process about 30 tons of mushroom per day and is expected to employ 210 persons, most of whom will work during daytime hours.
The Planning Board issued a State Environmental Quality Review Act ["SEQRA"] Findings Statement on May 24, 2005 which was unsuccessfully challenged by the BKAA in a CPLR article 78 proceeding by contending that the Planning Board failed to honor its obligations under SEQRA to take a "hard look" at the serious environmental threats posed by the mushroom plant to the Basher Kill Creek and Basha Kill Wetlands and Wildlife Management Area ( see Matter of Basha Kill Area Association, Patricia A. Moore, and Kevin M. Moore v The Planning Board of the Town of Mamakating and Yukiguni Maitake Manufacturing Corporation of America, Sullivan County Supreme Court [Index No.: 1628/05, February 28, 2006]).
YMMA sought and obtained from the ZBA four area variances which were granted to respondent on December 22, 2005. The determination granting the variances was upheld by this Court ( see Matter of Patricia Moore and Kevin Moore v Zoning Bd. of Appeals, Town of Mamakating, New York, et al., [Sullivan County Supreme Court [Index No.: 188/06, May 17, 2006]).
YMMA also sought site plan approval and special use permits from the Planning Board, which, on August 22, 2006, voted 4-2 in favor of approving same and issued its Resolution of Approval [the "Resolution"], which is the subject of the instant litigation.
Petitioners' challenge to the Planning Board's resolution approving YMMA's special use permit and site plan is multi-pronged, but the primary thrust of their argument is that the Planning Board evaded its obligation under the State Environmental Quality Review Act ["SEQRA"] to take a hard look at a number of environmental threats and to provide a reasoned elaboration for its conclusion that the mushroom plan would not significantly adversely impact the environment.
At the outset, counsel for petitioners request that this Court reject a sur-reply submitted by the Planning Board. As the sur-reply addresses a fact raised by petitioners for the first time in connection with standing, the Court has taken the sur-reply into consideration.
As a threshold issue, the Court next turns to the issue of standing. With respect to the standing of BKAA, where an organization seeks standing to challenge an administrative action, it must demonstrate that at least one of its members would have standing to sue; that the interests advanced are sufficiently germane to the organization's purposes to satisfy the court that it is an appropriate representative of those interests; and that the case would not require the participation of individual members ( Society of Plastics Indus. v County of Suffolk, 77 NY2d 761, 775).
The Court addressed this issue in some detail in its prior decision, ( see Matter of Basha Kill Area Association v Moore, supra), wherein it found that BKAA had met the tripartite test for standing based, in part, on the fact that the petition alleged that the Moores, property owners in proximity to the proposed plant, were also BKAA members.
BKAA alleges that it has been designated by the New York State Department of Environmental Conservation ["DEC"] as a steward of the Basha Kill Wildlife Management Area ["Basha Kill"], a significant portion of which is located in the Town. The subject parcel borders the Basher Kill Creek which feeds into the Basha Kill and is approximately 2½ miles upstream of the wetlands.
While the Court concurs with respondents that it is unclear that the "steward" designation specifically authorizes the BKAA to engage in litigation or what this designation represents, it is certain that one of the association's purposes is to aid in the preservation, maintenance and enhancement of the natural resources of the subject area. Its members utilize the Basha Kill and the Shawangunk Ridge for hiking, fishing, and other recreational and educational purposes.
Petitioner Rubenstein, a resident of Wurtsboro, New York, lives approximately 941 feet from the site of the proposed plant and about 306 feet from the intended boundary line of the Yukiguni property.
Significantly, the petition fails to identify any individual association members nor does it allege that Rubenstein is a member of the BKAA, without such information it cannot be evaluated whether BKAA meets the first prong of the test for organizational standing. Petitioners' attempt to remedy this deficiency in its reply wherein an affidavit from Rubenstein is included alleging that she is both a BKAA member and a board director is inappropriate ( see Rose Dev. Corp. v Nagi, 2 Misc 3d 130A [App Term, 2nd Dept.]). Accordingly, in view of the fact that BKAA relies upon Rubenstein's membership as a predicate for its standing, the association fails to satisfy the first of the requirements delineated in the Society of Plastics Indus. v County of Suffolk, supra, at 775), i.e., that one or more of its members have standing to sue.
Now turning to Rubenstein, her claim of standing is based on the proximity of her property to the proposed plant contending that she would adversely affected by the environmental impacts of the proposed plant, including increased noise and air pollution, that she would be forced to see the plant every day, and that she would suffer a diminution in her property value. Rubenstein lives in a "close-knit" community which includes four other families at the end of McDonald Road. She additionally claims that the plant's expected consumptive water use poses a threat to her water supply, which consists of a 160-year-old, 15-foot hand dug well.
In land use matters, the courts of this State have long imposed the limitation that the petitioner, for standing purposes, must show that it "is close enough to suffer some harm other than that experienced by the public generally" ( Matter of Oates v Village of Watkins Glen, 290 AD2d 758, 761, see also Matter of Sun-Brite Car Wash v Bd. of Zoning Appeals of Town of N. Hempstead, 69 NY2d 406, 414), and that the harm is within the zone of interests to be protected by the statute under which the agency has acted ( see Society of Plastics Indus. v County of Suffolk, supra at 772-773). While a homeowner in proximity to the proposed plant is presumptively affected, thus falling into the zone of interests sought to be protected by SEQRA ( see Matter of Mobil Oil Corp. v Sracuse Indus. Dev. Agency, 76 NY2d 428, 433), she must show that she would suffer direct harm, an injury that is in some way different from that of the public at large. Rubenstein's claims that the project would affect noise levels and air quality is, in and of itself, insufficient to confer standing ( Society of Plastics Indus. v County of Suffolk, supra, at 775), as any adverse effects in these regions would be no different for Rubenstein than for the general public ( see Matter of Oates v Village of Watkins Glen, supra, at 760-761 ["Standing cannot be based on the claim that a project indirectly affects traffic patterns, noise levels, air quality and aesthetics through a wide area'"]). Nonetheless, her articulated claim that she would suffer specific harm to her water supply is a sufficient predicate to confer standing.
The Court now turns to the merits of the petition. It is well settled that in reviewing zoning board actions, the court may not substitute its judgment for that of the Planning Board unless the determination is arbitrary and capricious, illegal, or an abuse of discretion ( see Matter of Fuhst v Foley, 45 NY2d 441). A local board's determination must be upheld if it is rational and supported bus substantial evidence ( Matter of Sasso v Osgood, 86 NY2d 374), even if the reviewing court would have reached a different result insofar as a contrary determination is itself supported in the record ( Matter of P.M.S.Assets, Ltd. v Zoning Bd. of Appeals of Village of Pleasantville, 98 NY2d 683).
Petitioner first argues that the Planning Board violated its SEQRA obligations to take a hard look at significant environmental concerns, especially the serious threats to the Basha Kill Wildlife Management Area and the Shawangunk Ridge from the Yukiguni plant and to provide a reasoned elaboration for its determination that the plant will have no significant adverse environmental impacts. In particular, petitioner takes exception to the fact that in its Findings Statement, the Planning Board deferred many environmental studies and plans to the special use permit/site plan process.
Without revisiting this argument in great length, this Court is satisfied that the Planning Board took a "hard look" at the areas of environmental concern and made a reasoned elaboration of the basis for its determination as required by Environmental Conservation Law Article 8, SEQRA ( 6 NYCRR Part 617). In reaching this conclusion, the Court considered the following. In reviewing the project, the Planning Board was assisted by its professional planner, Alan J. Sorensen, AICP; several independent consultants in the hydrology and engineering fields; Yukiguni's engineers; letters from Dr. Katherine J. Beinkafner, a geologist with the Mid-Hudson Geosciences, and numerous other letters submitted during the public comment period. The Planning Board also considered numerous submissions from other sources with respect to issues relating to flora, fauna and open space preservation. The FEIS was revised in order to respond to these concerns and to incorporate changes before it was finally accepted. In opposing the application, petitioner proffered numerous opinions and letters critical of the construction of the proposed plant but, as this Court stated in the Moore decision, "[a] consensus of experts is not required as long as the Planning Board's determination is based on reliable expert advice and is reasonable ( see Matter of Schodack Concerned Citizens v Town Bd. of Town of Schodack, 148 AD2d 130, 134, lv denied 75 NY2d 701). Thus, instead of abdicating its responsibility, as petitioner so vigorously argues, the Planning Board identified the relevant areas of environmental concern, took a hard look at them, and set forth a reasoned elaboration for its determination to issue the Findings Statement which is supported by substantial evidence in the record ( see Matter of Chemical Specialties Mfrs. Assn. v Jorling, 85 NY2d 382, 387).
For a more comprehensive discussion of this issue, see Matter of Basha Kill Area Association, Patricia A.. Moore, and Kevin M. Moore v The Planning Board of the Town of Mamakating, et al.
The petition further alleges that the Commissioner of the Sullivan County Division of Planning and Community Development ["SCDPCD"] made recommendations which were ignored by the Planning Board and, as such, a super-majority of the Planning Board was required to vote in favor of granting site plan approval and the special use permit ( see General Municipal Law ["GML"] § 239-m(5)]). Contrary to petitioner's allegations, the Resolution clearly indicates that the Planning Board imposed numerous conditions upon the granting of the site plan and special use permit to Yukiguni, including the modifications recommended by the SCDPCD. In fact, in his November 30, 2005 letter to Planning Board Chairman John Piazza ["Piazza"], the SCPCD Commissioner recommended modifications with respect to mitigating odor, visual impacts and water consumption and further recommended that the Planning Board require the applicant to set benchmarks for the second and third phases of the construction project to reassess these issues and that an inspection schedule be submitted in connection with monitoring odor levels. Consistent with the recommendations, approval for the special use permit/site plan, as indicated in the Resolution, was granted contingent upon the applicant meeting certain conditions. These include an odor monitoring plan which requires quarterly field monitoring during the first year of operation and then repeated quarterly field monitoring for another year following the completion of each expansion phase. The Resolution also gives the Town's Code Enforcement Officer the right to undertake periodic on-site inspections to ensure that the odor levels are not in excess of what is expected. Should odor levels exceed predicted levels, the Resolution provides that mitigation measures must be implemented.
As is also indicated in the Resolution, similar requirements for monitoring potential noise levels and water usage rates are included as a binding condition of the site plan approval.
Significantly, the approval was further predicated upon YKKA's having its executive office located on-site to ensure that "managerial staff are fully aware during regular work days of site conditions". Finally, the Resolution requires YKKA to post a bond to cover inspection and/or professional fees associated with the continuing review of the facility operation.
Accordingly, as all of the requested modifications of the Sullivan County Division of Planning and Community Development were addressed in the Resolution, no such majority vote was required to override the decision of SCDPCD Commissioner.
Nor is the Court persuaded that the Planning Board improperly delegated to its chairman final approval of the project. As is indicated in the record herein, the Planning Board requested and reviewed substantive information in connection with all aspects of the proposed project. The Resolution unequivocally states that the chairman, acting in a ministerial capacity, is authorized to sign the site plan, "upon satisfaction of those conditions noted below to be conditions precedent to such signing". Thus, the chairman of the Planning Board is to sign the site plan when, and only when, the Planning Board is satisfied that all of the required steps have been met. In fact, Chairman Piazza alleges that it is not his "right to modify decisions of the Planning Board nor sign plans which are at variance from the Planning Board's resolution nor diminish in any way the responsibility the Board has placed on the applicant" (Planning Board's Reply, Piazza Affidavit, ¶ 15).
Most concerned with the proposed facility's consumptive usage of water and its alleged threat to the Shawangunk Ridge viewshed, petitioner argues that approval of these measures has been improperly delegated to the Planning Board Chairman, with little review guidance or criteria. However, before the plans are signed by the Planning Board Chairman, YKKA must provide a water conservation plan for local approval, prepared in accordance with the requirements of the Delaware River Basin Commission ["DRBC"] which would require its submittal to the entire Planning Board for review and approval. Indeed, the special use permit is conditioned upon the development of a water conservation plan (which the Planning Board acknowledges will most likely be required by the DRBC) and well monitoring which would be approved by the Planning Board. Thus, in fact, even if the DRBC does not require such a plan, the Planning Board still required one. In addition, Alan Sorensen, the Planning Board's planning consultant, requested for his review, information regarding building elevations, line drawings, a landscape plan, and a visual mitigation plan, all of which was included in the final Planning Board approval (Planning Board Reply, Sorensen Affidavit, ¶ 6). As this Court observed in its Moore decision, a viewshed analysis was performed and the impact of the proposed facility was specifically addressed in the Town's Comprehensive Plan which provided for development in this light industrial office district in order to limit changes in the character of the viewshed from the trails.
It therefore bears repeating that based on the voluminous record generated in this proceeding, the Court is satisfied that the Planning Board carefully considered the concerns of the community for a project of this magnitude and location.
Next, petitioner argues that the Planning Board's failure to provide the Sullivan County Division of Planning and Community Development with all of the materials required for GML § 239-m review renders the Resolution void. Specifically, according to the petitioner, the Planning Board failed to provide information, including water conservation plans, stormwater runoff plans, and odor and noise mitigation plans to the SCDPCD for its review pursuant to the aforesaid section of the General Municipal Law because the Planning Board failed to require timely submissions of same for YKKA. In this respect, the Court concurs with respondent YKKA that had it been the intention of the commissioner of the SCDPCD to require the Planning Board to submit for review the methods and means by which the Planning Board would comply with the SCDPCD modifications, he would have included such mandate in the report to the Planning Board.
The Court also finds no merit to petitioner's argument that because site plan materials reviewed by the Planning Board were revised on June 12, 2006, that the public was precluded from commenting upon the materials reviewed by the Planning Board in reaching its decision. After the public hearing, the applicant was required to supply additional information in response to further comments and site review requirements made by the Town's planner and the Town's engineering consultant. Accordingly, YKKA redated its documents to reflect these revisions which reflected input from the public's comments.
Petitioner next argues that the Planning Board's deferral of crucial environmental studies first from the SEQRA process and second from the special use permit/site plan process, and its waiving of its statutory and regulatory requirements renders its final determination unsupportable.Having already addressed the SEQRA allegations and finding them to be without merit, the Court similarly finds the deferral argument untenable. In particular, petitioner refers this Court to plans for stormwater runoff, the McDonald Road Improvement plan, elevation and floor plan drawings, potable water drainage, sanitary wastewater system drainage and process wastewater system drainage, Town design guidelines, and wetland disturbance permits. Petitioner complains that the Planning Board deferred to the State Department of Environmental Conservation and the Department of Health, various permit approvals, such as the wetland disturbance permit. However, as is argued by respondent Planning Board, there is no such statutory authority for the Planning Board to issue a wetland disturbance permit. In any event, the Resolution unequivocally states that the approval is conditioned upon the applicant providing proof that all State and Federal permits and approvals required for the construction and operation of the facility have been acquired.
Based on its review of the extensive record herein, this Court finds that the Planning Board considered, among other things, a wide array of noise, traffic patterns, environmental, air quality and aesthetic reports, prior to reaching its determination and that there is no evidence that the Planning Board improperly deferred review of these matters to other agencies. With respect to odor, as discussed, supra, the plan is conditioned upon the premise that there will be no discernable odor and the plant will be regularly monitored by the Town's Code Enforcement Officer so that if such odors occur, a mitigation measure will be implemented. Likewise, the Planning Board found that it had sufficient detail as to the subject building size and appearance to assess its proposed appearance. Furthermore, the level of detail provided by YKKA met all of the applicable laws, including the Town's Design Guideline Law (Sorensen Affidavit, ¶¶ 10-12). Moreover, the Resolution provides that prior to the plans being signed by the Planning Board Chairman, all architectural renderings must be drawn to scale. All architectural drawings necessary for construction, signed and stamped by a licensed architect, must be approved by the Town's Building Department prior to the issuance of a building permit.
The Resolution also provides that YKKA post a bond to be used by the Town in the event that YKKA, inter alia, fails to make the improvements to McDonald Road in the matter detailed in the June 13, 2006 letter from Chazen Engineering Land Surveying Co., P.C. to the Planning Board Chairman within the specified time frame. With respect to stormwater runoff, while it is conceivable, as petitioner suggests, that future review and modification of its design as a result of the Department of Conservation comments may cause a substantial change to the site plans, such an event is speculative. In any event, the Town Code provides for amendment of site plans if necessary.
The record in the instant litigation, which includes minutes from the Planning Board meetings, SEQRA findings, and numerous affidavits and documents, is sufficient for this Court to determine that the Planning Board's approval of the site plan and special use permit had a rational basis and is supported by substantial evidence. Accordingly, the petition is dismissed in its entirety.
This constitutes the Decision and Judgment of this Court. All papers, including a copy of this Decision and Judgment, are being filed with the Sullivan County Clerk's Office. Counsel are not relieved from the provisions of CPLR 2220 with respect to entry and notice of entry.
Papers considered:
Notice of petition and verified petition, dated September 18, 2006, with exhibits, and memorandum of law; opposing affirmation of Langdon C. Chapman, Esq., dated November 7, 2006, respondent Planning Board's verified answer, affidavit of Alan J. Sorensen, dated November 6, 2006, affidavit of John Piazza, dated November 6, 2006, affidavit of David Higgins, dated November 6, 2006, memorandum of law, and exhibits; respondent YKKA's verified anser, and memorandum of law, dated November 9, 2006; reply affirmation of Alex Smith, dated November 25, 2006, affidavit of Jodi Rubenstein, dated November 24, 2006, with exhibits, Planning Board's sur-reply, dated December 6, 2006, with exhibits.