Opinion
I.A.S. PART 36 Index No. 02-13925 Mot. Seq. 001 - CDISPSUBJ
03-12-2003
In the Matter of the Application of PECONIC BAYKEEPER, INC., kevin McAllister and MATTHEW ATKINSON, Petitioners, For a Judgment pursuant to Article 78 of the Civil Practice Law and Rules, v. SUFFOLK COUNTY LEGISLATURE, SUFFOLK COUNTY COUNCIL ON ENVIRONMENTAL QUALITY, SUFFOLK COUNTY DEPARTMENT OF public WORKS, and DOMINICK NINTVAGGI, Superintendent of the Suffolk County Division of Vector Control, Respondents.
PACE ENVIRONMENTAL LITIGATION CLINIC Attorneys for the Petitioners Pro Se Intervenors from Nesconset c/o Frederick Gorman ROBERT J. CIMINO, ESQ. Suffolk County Attorney
MEMORANDUM
By: Baisley, J.S.C.
Return Date: 6-20-02
Adjourned: 8-18-02
PACE ENVIRONMENTAL LITIGATION CLINIC
Attorneys for the Petitioners
Pro Se Intervenors from Nesconset
c/o Frederick Gorman
ROBERT J. CIMINO, ESQ.
Suffolk County Attorney
In this hybrid Article 78 proceeding and action for declaratory and injunctive relief, petitioners seek ajudgment (1) annulling a determination by respondent Suffolk County Legislature to issue a negative declaration pursuant to the State Environmental Quality Review Act for the 2002 Annual Plan of Work proposed by the Division of Vector Control of respondent Suffolk County Department of Public Works, (2) declaring that a positive declaration should be issued for such plan, and (3) enjoining respondent Department of Works from commencing work under the plan. For the reasons set forth herein, this matter is dismissed.
On or about October 18, 2001, the Division of Vector Control (DVC) of respondent Suffolk County Department of Public Works (DPW) submitted to respondent Suffolk County Council of Environmental Quality (CEQ) its 2002 Annual Plan of Work for controlling the mosquito population and protecting the public fiommosquito-borne diseases, such as West Nile Virus and Eastern Equine Encephalitis. Briefly stated, the DVC's Plan of Work involves surveillance for diseases in the mosquito population and for mosquito habitats, and various preventative activities, including the application of pesticides and the maintenance of mosquito ditches in wetlands throughout Suffolk County. The DVC also submitted to the CEQ a full environmental assessment form (EAF) (see , 6NYCRR 617.2[m]; see also, 6NYCRR 617.20, Appendix) dated October 19,2001. Pursuant to Section 279-5 of the Suffolk County Code, when, as here, Suffolk County is designated as the lead agency (see generally, 6 NYCRR 617.2[u]) for a County-initiatedaction, the Division of Vector Control is required to seek the advice and assistance of the CEQ as part of its course of compliance with the State Environmental Quality Review Act (SEQRA). Assistance from the CEQ on SEQRA matters includes advice on preparation of environmental assessment forms (EAF) (see, 6 NYCRR 617.2[m]; see also, 6 NYCRR 620, Appendix A), the conduct of public meetings, and recommendations on the environmental significance of proposed actions (see, Suffolk County Code §279-5[C]).
In November and December 200 1,public meetings regarding the DVC's Plan of Work were held by the CEQ and the Health Committee of the Suffolk County Legislature. During these meetings, petitioners and other individuals and environmental organizations expressed their concems about the preventative components of the plan, particularly the use of pesticides and the re-opening of mosquito ditches in the wetlands, and challenged the accuracy of the full EAF prepared by respondent Dominick Ninivaggi, the Superintendent of the DVC. Written comments regarding the plan and background information also were submitted to the CEQ. Subsequently, a revised full EAF, dated January 2, 2002, was submitted by the DVC. The revised full EAF contains seven pages of detailed responses to concems about the plan's environmental impacts raised during the CEQ's November 21,2001 meeting. The DVC then submitted another revised full EAF, dated February 13,2002, and amodified Plan of Work to the CEQ. Further public hearings on the matter were held by the CEQ and the Health Committee in February and March 2002.
Thereafter, on February 20, 2002, the CEQ issued a resolution recommending that the modified 2002 Annual Plan of Work be classified as a Type I action (see, 6 NYCRR 6 17.4) and that the Suffolk County Legislature and Executive adopt the determination that the plan will not have a significant effect on the environment. The CEQ's resolution lists eleven reasons as support for its recommendation that a negative declaration (see, 6NYCRR 617.2[y]) be issued for the proposed plan. Among the reasons given by the CEQ for its recommendation are that the modified plan calls for maintenance, not construction, of existing mosquito control ditches, that the proposed goal of cleaning 750,000 feet of mosquito ditches was reduced to 400,000 feet, and that the DVC will consult with the New York State Department of Environmental Conservation (DEC) and the Suffolk County Health Services Office of Ecology to ensure consistency with other wetland management plans. Other reasons given by the CEQ for its recommendation include the DVC's decision to adhere to a minimum setback of 100 feet from the water, or a larger setback when required by labeling or to protect resources such as wetlands, when applyingadulticide; that the pesticides to be used are EPA and DEC registered, low dose, low residual products; that the DVC's proposed activities involvingpesticides must comply with federal and state laws and require permits from the DEC; and that the modified program will be implemented only for a 10-month period.
Pesticides directed at killing of adult mosquitoes.
On March 19, 2002, the Suffolk County Legislature, as the lead agency, determined that the Plan of Work was a Type I action and that implementation of the action would not have a significant impact on the environment. The Legislature's resolution approving the action states the same bases for the determination of no environmental significance as given by the CEQ. In addition, it also states that the "no action alternative has been ruled out on the grounds that Suffolk County has a long history of severe mosquito infestations that can impact outdoor activities," and that "[m]onitoring conducted by the Suffolk County Department of Health Services' Offices of Ecology and Water Resources has not detected any of the pesticides used by the Division in ground or surface waters."
In May 2002, petitioners commenced this hybrid Article 78 proceeding and action for declaratory and injunctive relief, alleging, among other things, that the Suffolk County Legislature's issuance of anegative declaration for the DVC's mosquito control plan was arbitrary, capricious and in violation of SEQRA and its implementing regulations. PetitionerPeconic Baykeeper, Inc., a not-for-profit organization,was formed to protect and enhance the ecosystems of the Peconic and South Shoreestuaries of Long Island. It has a local donor base of approximately one thousand families and businesses, and its members use the Peconic Bay for commercial and recreational fishing, boating, and swimming. Petitioner Kevin McAllister is the Executive Director of Peconic Bay keeper and, as such, regularly patrols the waters and shores of the Peconic Bay. He lives near the Peconic Bay and boats, fishes and swims in its waters. Petitioner Matthew Atkinson's home is immediately adjacent to the Peconic Bay and is situated, in part, on land designated as tidal wetlands.
Thepetition alleges that the County Legislature is attempting "to evade SEQRA's purposes and procedural mandates by taking only a cursory glance at the environmental harm that attends the Division of Vector Control's 2002 Plan ofWorks,'' and that the County prepared the EAF in such a way as to avoid preparing an environmental impact statement for the mosquito control plan. As support for these allegations, the petition alleges, inter alia, that respondents mischaracterized the impact on the environment of the proposed application of pesticides and of maintaining the existing mosquito control ditches. It alleges that, despite the examples given on the EAF form showing the plan would have a potentially large impact on critical environmental areas (CEAs) (see, 6 NYCRR 617.14[g]), the revised EAF misstates the impact of the plan as "small to moderate." The petition also alleges that the revised EAF fails to acknowledge that the proposed "maintenance" of mosquito ditches actually involves construction in tidal wetlands. Further, the petition alleges that the component of the DVC's plan involving there-opening of mosquito ditches materially conflicts with the Comprehensive Conservation and Management Plan of the Peconic Estuary Program.
The Peconic Estuary Program is a partnership of estuary stakeholders including Suffolk County, the State of New York and the Federal government that was formed under the National Estuary Program as part of the effort to devise comprehensive management programs for estuaries of national significance threatened by pollution, development or over-use.
The primary purpose of SEQRA is to "inject environmental considerations directly into governmental decisionmaking" (Matter of Coca Cola Bottling Co. v Board of Estimate of City of New York , 72NY2d 674,679,536 NYS2d 33 [1988]; see, Matter of Merson v McNally, 90 NY2d 742,665 NYS2d 605[1997]; Akpan v Koch, 75 NY2d 561,555 NYS2d 16 [1990]). As explained by the Court of Appeals in Matter of Jackson v New York State Urban Dev. Corp., 67 NY2d 400, 414-415,503 NYS2d 298 (1986), the SEQRA process is intended to insure that "agency decisionmakers - enlightened by public comment where appropriate - will identify and focus attention on any environmental impact of proposed action, that they will balance those consequences against other relevant social and economic considerations,minimize adverse environmental effects to the maximum extent practicable, and then articulate the bases for the choices." To effectuate this policy, strict compliance with the procedural and substantive man dates set forth in the SEQRA statutes and regulations is required (Matter of Merson vMcNally, supra, at 750,665 NYS2d 605; see, Matter of Holmes v Brookhven Town Planning Bd, 137AD2d 601,524 NYS2d 492 [2dDept], lv denied 72 NY2d 807,533 NYS2d 56 [1988]).
Under the procedures establishedby the Department of Environmental Conservation (DEC), when a proposed project is identified as a Type I action (see, 6NYCRR 617.4), a full Environmental Assessment Form (EAF) must be prepared. The full EAF is comprised of three parts: Part 1 provides data and information about the project and the project site; Part 2 identifies the range of possible impacts that may occur from the project; and Part 3 evaluates the importance of impacts identified in Part 2 as potentially large (6 NYCRR 617.20, appendix A). The purpose of the EAF is to assist the lead agency "in determining the environmental significance or insignificance of actions" (6 NYCRR 617.2[m]; see, Matter of Merson v McNally, supra). When determining the environmental significance of Type I and unlisted actions, the lead agency must measure the proposed action against a list of criteria delineated as "indicators of significant adverse impacts on the environment" (6NYCRR617.7[c][1]). The list, which is illustrative only, identifies important environment impacts such as
(i) a substantial adverse change in existing air quality, ground or surface water quality or quantity a substantial increased potential for erosion, flooding, leaching or drainage problems;(6 NYCRR 617.7[c][l][i]-[iv].)
(ii) the removal or destruction of large quantities of vegetation or fauna impacts on a significant habitat area; substantial adverse impacts on a threatened or endangered species of animal or plant, or the habitat of such species; or other significant adverse impacts to natural resources;
(iii) the impairment of the environmental characteristics of a critical environmental area as designated pursuant to section 617.14(g) of this Part;
(iv) the creation of a material conflict with a community's current plans or goals as officially approved or adopted.
If the lead agency determines that a proposed project will not result in any adverse environmental impacts or that the identified environmental effects will not be significant, it must issue a "negative declaration" (6 NYCRR 617.7[a][2]) and the SEQRA process ends. Conversely, if the lead agency concludes based on the information in the EAF that the proposed project "may have a significant effect on the environment," it must issue a "positive declaration" (6 NYCRR 617.2[ac], 617.7[a][1]) and an environmental impact statement (EIS) (6 NYCRR 617.2[u]) must be prepared (see, ECL 8-0109[2]; see also, 6NYCRR 617.1[c]).
The EIS, described as "the heart of SEQRA" (Matter of Jackson v New York State Urban Dev. Corp., supra, at 415,5 03 NYS2d 298), is adetailedstatement setting forth, among other things, both the long-term and short-term environmental impacts of the proposed action, any adverse environmental effects which cannot be avoided if the proposed action is implemented, the alternatives to the proposed action, and mitigation measures proposed to minimize the environmental impact (ECL 8-0109[2]; see,Matter of Munash v Town Bd of Tom of East Hampton, 297 AD2d 345,748 NYS2d 160 [2d Dept 20021; Matter of Citizens Against Retail Sprawl v Giza, 280 AD2d 234,722 NYS2d 645 [4th Dept 20011). The purposes of an EIS include "inform[ing] the public and other public agencies as early as possible about proposed actions that may significantly affect the quality of the environment, and to solicit comments which will assist the agency in the decisionmaking process in determining the environmental consequences of the proposed action" (Matter of Rye Town/King Civic Assn. v Town of Rye, 82AD2d474,481-482, 442NYS2d 67 [2d Dept 1981], lv dismissed 56 NY2d 503,453 NYS2d 1027[1982]; see also, 6NYCRR 617.2[n]). It is well settled that, as the operative word for triggering the requirement of an EIS is "may,"there is are latively low threshold for the preparation of an EIS (Mutter of Munash v Town Bd. of Town of East Hampton, supra, at 346,748 NYS2d 160 ; Matter of S.P.A.C.R v Hurley, 291 AD2d 563,564,739 NYS2d 164[2d Dept], lv denied 98 NY2d 615,752NYS2d 1 [2002]; Matter of Silvercup Studios v Power Auth. of N.Y. , 285 AD2d 598,600,729NYS2d 47). Further, SEQRA regulations provide that Type I actions, such as the project at issue in this matter, carry the presumption that they are likely to have a significant adverse effect on the environment (see, Matter of S.P.A.C.E. v Hurley, supra; Matter of Silvercup Studios v Power Auth. of N.Y. , supra).
Judicial review of the SEQRA process is limited to whether the agency's determination was made in violation of proper procedures, was affected by an error of law, or was arbitrary and capricious or an abuse of discretion (see Akpan v Koch, supra; Matter of Stony Brook Vil v Reilly, 299 AD2d 48 l,750NYS2d 126[2d Dept 2002]; Matterd Vil of Tarrytown v Planning Bd of Vil of Sleepy Hollow, 292AD2d 617,741 NYS2d 44 [2d Dept], lv denied 98 NY2d 609,746 NYS2d 693 [2002]; Matter of UPROSE v Power Auth. of State of N.Y., 285 AD2d 603, 729 NYS2d 42 [2d Dept 2001]). Further, an agency's compliance with its substantive SEQRA obligations "is governed by a rule of reason and the extent to which particular environmental factors are to be considered varies in accordance with the circumstances and nature of particular proposals" (Akpan v Koch, 75 NY2d 561, 555 NYS2d 16 [1990]; Although judicial review in SEQRA matters must be meaningful, 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 Jackson v New York State Urban Dev. Corp., supra, at 416,503 NYS2d 298; see, Matter of Chem. Specialties Mfrs. Assn. v Jorling, 85 NY2d 382, 626 NYS2d 1, rearg denied 85NY2d1033,63lNYS2d 291 [1995]). The courts must review the administrative record to determine if the agency "identified the relevant areas of environmental concern,took a 'hardlook' at them, and made a 'reasoned elaboration' of the basis for its determination (citations omitted)" (Matter of Jackson v New York State Urban Dev. Corp., supra, at 417, 503 NYS2d 298; see, Matter of Merson v McNally, supra; Chinese Staff & Workers Assoc v City of New York, 68 NY2d 359,509NYS2d 499 [1986]).
However, "[i]t is a fundamental principle of our jurisprudence that the power of a court to declare the law only arises out of, and is limited to, determining the rights of persons which are actually controverted in a particular case before the tribunal" (Matter of Hearst Corp. v Clyne, 50 NY2d707,713,431 NYS2d 400 [1980]). Themootnessdoctnne,afacet of this principle,ordinarily precludes the courts from resolving disputes which, due to the passage of time or a change in circumstances, would not affect any substantial rights of the parties and would not have an immediate consequence for them (see, Matter of Dreikausen v Zoning Bd of Appeals of City of Long Beach, 98 NY2d 165,746NYS2d 429 [2002]; Matter of Johnson v Pataki, 91 NY2d 214, 668NYS2d 978 [19971; Gold-Greenberger v Human Resources Admin. of City of New York , 77NY2d 973,571 NYS2d 897 [1991]; Matter of Hearst Corp. v Clyne, supra). Thus, an Article 78 action must be dismissed as moot if the issue raised there in has become abstract because of a change in circumstances (see, e.g., Matter of Morrison v New York State Div. of Hous. & Community Renewal, 93 NY2d 834,687NYS2d 621 [1999]; Matter of DIP Pharmacy v Perales, 211 AD2d 790, 621 NYS2d 905 [2d Dept 1995]). Likewise, a cause of action for declaratory relief must involve a concrete, actual controversy, since the courts may not issue advisory opinions that can have no immediate effect ( Cuomo v Long Is. Lighting Co., 71 NY2d 349,354,525 NYS2d 828 [1988]; New York Pub. Interest Research Group v Carey, 42 NY2d 527, 531, 399 NYS2d 621 [1977]; Matter of United Water New Rochelle v City of New York, 275 AD2d 464,466,712 NYS2d 637 [2d Dept 2000]; see CPLR 3001; Village of Mount Kisco Police Benevolent Assn. v Village of Mount Kisco, 280 AD2d469,720 NYS2d 374 [2d Dept 20011; Fragoso v Romano, 268 AD2d 457, 702 NYS2d 333 [2d Dept 20001).
The determination of mootness may be fact-driven, and chief among the factors to be considered by a court is the failure to seek preliminary injunctive relief or to otherwise preserve the status quo during the pendency of the litigation (Matter f Dreikausen v Zoning Bd of Appeals of City of Long Beach, supra, at 173,746NYS2d 429; see, Matter of Imperial Improvements v Town of Wappinger Zoning Bd of Appeals, 290 AD2d 507,736 NYS2d 409 [2d Dept 2002]; Matter of Gorman v Town Bd of Town of East Hampton, 273 AD2d 235,709 NYS2d 433 [2d Dept 2000], lv denied 96 NY2d . 703,723 NYS2d 130[2001]; Vitiello v City of Yonkers ,255 AD2d 506,680 NYS2d 607 [2d Dept 19981; Matter of Watch Hill Homeowners Assn. v Town Bd. of Town of Greenburgh ,226 AD2d 1031,64 lNYS2d443 [3dDept], Iv denied 88NY2d 811,649NYS2d 378 [19961). Moreover, the issue of mootness may be raised at any time, since when a matter becomes moot a court is deprived of an actual controversy,"an essential wherewithal of a court's jurisdiction" (Matter of Cerniglia v Ambach, 145AD2d 893,894,536NYS2d227 [3dDept 1988], lv denied 74NY2d 603,543 NYS2d 396 [1989]; see,Dunham v Wing, 295 AD2d 309,743NYS2d 877 [2d Dept 2002]; Matter of Wellman v Surles, 185 AD2d 464,586 NYS2d 341 [3d Dept 1992]).
A case that is otherwise moot, however, may be considered by a court if it falls within the exception to the mootness doctrine, which permits judicial review of "important and recurring issues which, by virtue of their relatively brief existence, would be rendered otherwise nonreviewable" (Matter of Hearst Corp. v Clyne ,supra, at 714,431 NYS2d 400; see, e.g., Community Bd 7 of Borough of Manhattan v Schaffer, 84 NY2d 148,615 NYS2d 644 [1994]; Matter of Seltzer v New York State Democratic Comm., 293 AD2d 172,743NYS2d 565 [2d Dept 20021; Matter of Eichner [Fox], 73 AD2d 431,426 NYS2d 517 [2d Dept 1980], modified on other grounds 52 NY2d 363,438 NYS2d 266, cert denied 454 US 858, 102 S Ct 309 [1981]). This exception applies only if the controversyor issue involved is likely tobe repeated,typically evades review, and presents questions that are substantial and novel (Wisholek v Douglas, 97 NY2d 740,742,743 NYS2d 51 [2002]; Matter of Hearst Corp. v Clyne, supra, at 714-715, 43 1 NYS2d 400; Cellular Telephone Co. v Village of Tarrytown, 209 AD2d 57, 63, 624 NYS2d 170 [2d Dept], lv denied 86 NY2d 701, 63 1 NYS2d 605 [1995]).
As relevant to the instant action, the DVC's modified plan for 2002 states that the water management component, which involves the maintenance of mosquito ditches and other structures that drain off surfacewater and allow predatory fish access to mosquito breeding sites, is performed approximately from January 1stto April 30th and from October 1st to December 3 1st. According to the modified Plan of Work, the water management component accounts for 70% of the DVC's operations. It further states that the larval control component, which involves the application of pesticides by helicopter, is performed during the active mosquito breeding season, approximately May 1st to September 30th, and that the adult mosquito control component is performed approximately from June 1st to September 15th. The modified plan indicates that the larval and adult mosquito components account for approximately 30% of the DVC's operations.
The DVC's modified mosquito control plan for 2002 was already substantially completed when this application was submitted to the Court in August 2002 and is now fully completed. Petitioners did not obtain or even seek a preliminary injunction in this action. A determination and judgment by the Court on the issues presented in the petition will not substantially affect the rights of the parties and willnot have an immediate consequence for the interests representedby petitioners (see, Matter cf Dreikausen v Zoning Bd. of Appeals of City of Long Beach, supra; Matter of Imperial Improvements v Town of Wappinger Zoning Bd of Appeals, supra; Matter of Many v Village of Sharon Springs Bd. of Trustees, 234 AD2d 643,650 NYS2d 486 [3d Dept 1996], lv denied 89NY2d 811,657NYS2d 403 [1997]; Matter of Bush Terminal Roofing& Contr. v Board of Educ. of City of New York, 91 AD2d 662,457 NYS2d 114 [2d Dept 1982]; cf., Vitiello v City of Yonkers, supra; Matter of Watch Hill Homeowners Assn. v Town Bd. of Town of Greenburgh, supra). Accordingly,the issues presented by the proceeding are moot. Further, the exception to the mootness doctrine is not applicable here. Although the potential environmental impacts of the DVC's mosquito control activities are a matter of substantial public importance,this action does not involve a novel issue which is likely to recur without an adequate time for judicial review (see, Matter of Bath Petroleum Storage v New York State Dept. of Envtl. Conservation, 272 AD2d 746, 709 NYS2d 636 [3d Dept], lv denied 95 NY2d 768,721 NYS2d 605 [2000]; Matter of Many v Village of Sharon Springs Bd. of Trustees, supra; cf., Cellular Tel. Co. v Village of Tarry town, supra; Matter of Friends of Pine Bush v Planning Bd. of City of Albany, 86 AD2d 246, 450 NYS2d 966 [3d Dept 1982], aff'd 59 NY2d 849,465 NYS2d 924 [1983]). Accordingly, the Court, sua sponte, dismisses this hybrid Article 78 proceeding and action.
Even if the Court were to consider the merits of this application, it would be constrained to conclude that the Legislature fully satisfied its obligations under SEQRA and that there is no merit to petitioners' allegation that the Legislature's issuance of a negative declaration for the DVC's 2002 Plan of Work was arbitrary, capricious and in violation of SEQRA. Contrary to petitioners' assertions,the record -- particularly the revised EAF and the minutes of the hearings conducted by the CEQ, the Health Committee and the full Legislature -- shows that the Legislature was aware of the environmental concerns raised by petitioners, took the requisite "hard look" at them, and made "a reasoned elaboration" of the basis for its determination that the DVC's 2002 plan would not have a significant adverse effect upon the environment ( see Akpan v Koch, supra; Village of Tarrytown v Planning Bd. of Vil of Sleepy Hollow, supra; Matter of Cathedral Church of St. John the Divine v Dormitory Auth. of State of NY., 224 AD2d 95,645 NYS2d 637 [3d Dept], lv denied 89NY2d 802, 653 NYS2d 279 [19961]; Matter of Save the Pine Bush v Planning Bd. of Town of Guilderland, 217 AD2d 767,629NYS2d 124 [3dDept], lv denied 87NY2d 803,639NYS2d 310 [1995]; cf., Silvercup Studios v Power Auth. of State of N.Y., supra; New York Archaeological Council v Town Bd. of Coxsackie, 177 AD2d 923,576 NYS2d 680 [3d Dept 1991]). The Court notes that the fact that the DVC's initial plan for controlling the mosquito population was revised to mitigate potential adverse environmental impacts following the initial public hearings on the matter does not necessarily mean that a negative declaration was inappropriate (see, Matter of Merson v McNally, supra; village of Tarrytown v Planning Bd. of Vil. of Sleepy Hollow, supra).
Submit judgment.
PAUL J. BAISLEY, JR
J.S.C.