In the Matter of Ranco Sand and Stone Corp., Appellant,v.Patrick Vecchio, et al., Respondents.

Brief

N.Y.February 18, 2016

APL-2015-00079 Suffolk County Clerk’s Index No. 45491/09 Appellate Division, Second Department Docket No. 2012-05135 Court of Appeals STATE OF NEW YORK In the Matter of RANCO SAND AND STONE CORP., Petitioner-Appellant, against PATRICK VECCHIO, THOMAS J. MCCARTHY, EDWARD WEHRHEIM, PATRICIA BIANCANEILLO, ROBERT J. CREIGHTON, constituting the Town Board of the Town of Smithtown, Suffolk County and the TOWN OF SMITHTOWN, Respondents-Respondents. For Relief Pursuant to Article 78 of the Civil Practice Law and Rules of the State of New York >> >> BRIEF FOR PETITIONER-APPELLANT LEONARD J. SHORE, ESQ. Attorney for Petitioner-Appellant 366 Veterans Memorial Highway Commack, New York 11725 631-543-5800 Date Completed: May 29, 2015 To Be Argued By: Leonard J. Shore Time Requested: 30 Minutes Corporate Disclosure Statement COURT OF APPEALS STATE OF NEW YORK -----------------------------------------------------------------------------}{ RANCO SAND AND STONE CORP., Petitioner/Appellant, -against- PATRICK VECCHIO, THOMAS 1. McCARTHY, EDWARD WEHRHEIM, PATRICIA BIANCANIELLO, ROBERT 1. CREIGHTON, constituting the Town Board of the Town of Smithtown, Suffolk County and the TOWN OF SMITHTOWN, Respondents/Respondents. -----------------------------------------------------------------------------}( Appeal # 2015-00079 I. Leonard J. Shore, Esq. attorney for the Petitioner/Appellant, Ranco Sand and Stone, Inc. (A) that no parent or subsidiaries e}{jst to the Petitioner/Appellant Corporation. (B) The following affiliates e}{jst: Sparrow Mining of Suffolk, LLC, 151 South Street, Manorville, NY. 11949 - affiliate with common ownership; and Peter J. Horan Trust, 151 South Street, Manorville, N.Y. 11949 - owner of the adjoining parcel Marilyn A. Horan, the majority owner ofRanco Sand and Stone, Inc. is the income beneficiary and a Trustee of the Trust Signed this 26th day of May 2015 Commack, New York 11725 =~ , LeonardJ:Sll();, sq: Attorney for Ranco Sand and Stone, Inc., Petitioner/Appellant 366 Veterans Memorial Highway - Suite 1 Commack, New York 11725 i TABLE OF CONTENTS Page Questions Presented on Appeal…………………………………. 1 Preliminary Statement and Statement of Jurisdiction…………… 3 Facts Parcel and History………………………………………… 5 Adjoining Parcel and Prior Proceedings………………….. 7 Town Inaction on Enforcement of Zoning Code………….. 11 Point I The Adoption of a Positive Declaration Pursuant to SEQRA is a Justiciable Controversy Under the Facts of this Special Proceeding……………………………….…. 12 Point II The Adoption of a Positive Declaration by the Respondents Is Unwarranted, Untimely and Improper Under the Facts and Should be Held as Arbitrary and Capricious……………. 19 A. The resolution is arbitrary and capricious.………………. 19 B. The seven year delay in adoption of the resolution is a denial of due process………………………………………. 24 Conclusion…………………………………………………………… 29 ii TABLE OF AUTHORITIES CASES Page # Matter of Center of Deposit, Inc. vs. Village of Deposit, 90 A.D.3d 1450, 936 N.Y.S.2d 709 (3 rd Dept., 2011)………………………………….. 15 Matter of Coca-Cola Bottling Co. v. Board of Estimate of the City of N.Y., 72 N.Y.2d 674, 536 N.Y.S.2d 33 (1988)…………………….. 22 Matter of Eadie v. Town of North Greenbush, 7 N.Y.3d 306, 821 N.Y.S.2d 142 (2006)……………………………………………….. 13 East End Property Co. v. Kessel, 46 A.D.3d 817, 851 N.Y.S.2d 565 (2 nd Dept. 2007)…………………………………………………….. 19 Matter of East Hampton Library v. Zoning Board of Appeals, 31 Misc.3d 1231, 932 N.Y.S.2d 760 (Suffolk Sup., 2011)……………. 14 Golden Triangle Associates v. Town Board of the Town of Amherst, 185 A.D.2d 617, 585 N.Y.S.2d 895 (4 th Dept. 1992)………………. 24 Gordon v. Rush, 100 N.Y.2d 236, 762 N.Y.S.2d 18 (2003)………………. 12 Horan v. Smithtown, 194 A.D.2d 714, 601 N.Y.S.2d 803 (2 nd Dept. 1993). 8 On Remand Sup. Ct, Suffolk, Index # 12853-89 (J. Oliver) Decision December, 1999, see Record on Appeal Pages 33-8……………… 8 282 A.D.2d 498, 722 N.Y.S.2d 885 (2 nd Dept. 2001)……………… 17 iii Matter of Jackson v. New York State Urban Dev. Corp., 67 N.Y.2d 400, 503 N.Y.S.2d 298 (1986)………………………………………….. 21 Matter of Jones v. Amicone, 27 A.D.3d 465, 812 N.Y.S.2d 111 (2d Dept. 2006)………………………………………………………. 13 Kirk-Astor Drive Neighborhood Association v. Town Board of Town of Pittsfield, 106 A.D.2d 868, 483 N.Y.S.2d 526 (4 th Dept. 1984)……… 24 Koontz v. St Johns River Water Management District, 570 U.S. ___, 133 S.Ct 2586 (2013)……………………………………………………… 27 Matter of Laurel Realty, LLC v. Planning Board of Town of Kent, 40 A.D.3d 857, 836 N.Y.S.2d 48 (2d Dept. 2007)…………………… 28 Matter of Lowe’s Home Centers, Inc. v. Venditto, 15 Misc.3d 1108, 836 N.Y.S.2d 500 (Nassau Sup. 2007)…………………………………… 25 Maurischat v. County of Nassau, 81 A.D.3d 793, 916 N.Y.S.2d 235 (2 nd Dept. 2011)……………………………………………………… 22 Merrick Auto Service, Inc. v. Grannis, 82 A.D.3d 895, 919 N.Y.S. 2d 173 (2 nd Dept. 2011)…………………………………………………. 19 Mitchell v. Kemp, 176 A.D.2d 859, 575 N.Y.S.2d 337 (2d Dept. 1991)…… 26 Matter of Nicklin-McKay v. Town of Marlborough Planning Board, 14 A.D.3d 858, 788 N.Y.S.2d 448 (3 rd Dept. 2005)…………………. 26 iv Matter of Oakleight Thorne v. Village of Millbrook Planning Board, 83 A.D.3d 723, 724–725, 920 N.Y.S.2d 369 (2d Dept. 2011)………. 21 Pawling Lake Property Owners Association, Inc. v. Greiner, 72 A.D.3d 665, 897 N.Y.S.2d 729 (2 nd Dept. 2010)……………………………… 22 Pittsford Canalside Properties, LLC v. Village of Pittsford, 45 Misc.3d 1217, WL 6389972 (Sup., Monroe, 2014)……………………………. 28 Riverhead Business Improvement District Management Association, Inc. v. Stark, 253 A.D.2d 72, 677 N.Y.S.2d 383, (2nd Dept. 1998); appeal denied, 93 N.Y.2d 808, 691 N.Y.S.2d 382 (1999)……………. 23 Matter of Riverkeeper, Inc. v. Planning Board of the Town of Southeast, 9 N.Y. 3d 219, 851 N.Y.S.2d 76 (2007)……………………………… 19 Matter of Rochester Telephone Mobile Communications v. Ober, 251 A.D.2d 1053, 674 N.Y.S.2d 189 (4th Dept. 1998)……………………. 12 Matter of Seaport Contracting & Material, Inc. v. Department of Environmental Conservation, 132 A.D.2d 105, 522 N.Y.S.2d 679 (3 rd Dept. 1987)……………………………………………………….. 25 Sour Mountain Realty v. New York State Dept. of Environmental Conservation, 260 A.D.2d 920, 688 N.Y.S.2d 842 (3 rd Dept. 1999)… 27 v Southwest Ogden Neighborhood Association v. Town of Ogden Planning Board, 43 A.D.2d 1374, 844 N.Y.S.2d 530 (4 th Dept. 2007)……………………………………………………….. 13 STATUTES Civil Practice Laws and Rules §5602(a)(1)(i)……………………………….. 4 Civil Practice Laws and Rules §5611……….……………………………….. 4 Environmental Conservation Law, Article 8 (“SEQRA”)……………............ 1 Environmental Conservation Law §8-0109(2)………………………………. 2 Environmental Conservation Law §8-0109………………………………..... 22 Environmental Conservation Law §8-0109(4)………………………………. 25 6 NYCRR 617.6(b)(1)(ii)……………………………………………………. 25 1 QUESTIONS PRESENTED ON APPEAL 1. Did the Appellate Division correctly determine that the adoption of a resolution by the Respondent Smithtown Town Board, requiring Ranco Sand and Stone, Inc. (“Ranco” or “Appellant”) to prepare a Draft Environmental Impact Statement (“DEIS”) pursuant to the State Environmental Quality Review Act (NYS Environmental Conservation Law, Article 8 (“SEQRA”), is not a justiciable controversy and therefore affirm the dismissal of the Petition? ANSWER: The Court below erroneously affirmed and dismissed the petition. The Appellant urges this Court to reverse that holding, as the controlling case law from this Court holds that such an action, under the facts, must be considered a final action imposing actual injury on the Appellant which will not be ameliorated by further proceedings and is therefore ripe for judicial review. 2. Assuming arguendo that the Petition is properly before the Court, was the adoption of the SEQRA positive declaration resolution requiring the preparation of a draft environmental impact statement (DEIS) proper under all the facts and circumstances? ANSWER: The Court below did not reach this issue, but Appellant urges the Town Board resolution requiring a broad based DEIS is not supported by the facts - - including the Town’s prior consent to rezone the adjacent, commonly 2 owned and utilized property without the preparation of a DEIS; the controlling statutes (Environmental Conservation Law (“ECL”)) §8-0109(2); or the controlling caselaw - - and constitutes an arbitrary and capricious action by the Respondent. This Court should so declare. 3. Was the seven-year delay by the Town Board in adopting the positive declaration resolution in compliance with the statutory requirement of Environmental Conservation Law (“ECL”) §8-0109(4) that such resolution be adopted “as early as possible in the formation of a proposal for an action”? ANSWER: The Court below did not reach this issue; however, the Appellant urges this Court to determine that a seven-year period between the filing of a Change of Zone application and the adoption of the positive declaration resolution violates the directive contained in ECL §8-0109(4) and denied the Appellant equal protection and due process of law and should be deemed arbitrary and capricious. 3 PRELIMINARY STATEMENT AND STATEMENT OF JURISDICTION This appeal is from an Order of the Appellate Division of the Supreme Court, Second Department, dated November 26, 2014, Record ("R.") at Pages 73- 85, which affirmed an order of the Supreme Court, Suffolk County, dated November 29, 2011, (Daniel M. Martin, JSC). R. at Pages 4-8. Ranco is the owner of a 2.16 acre parcel of land located within the Town of Smithtown, Suffolk County, New York. The Respondents are the individual members of the Town Board of the Town of Smithtown (“Town Board” or “Respondents”) and the Town of Smithtown (collectively “Town”). An Article 78 proceeding was commenced in the Supreme Court, Suffolk County, challenging the Town Board’s adoption of a resolution requiring Ranco to prepare a DEIS (Notice of Petition and Petition R. 8-22; Exhibits R. 23-38). The Town, pre-answer, interposed a notice of motion to dismiss on objections in point of law (R. 39-40). Based on the papers, Justice Martin issued an order holding that Respondents’ resolution (R. 23-26) requiring the preparation of a DEIS was not ripe for judicial review, stating “the Town Board’s mere issuance of a positive SEQRA declaration and requirement that the Petitioner file a DEIS did not create a justiciable controversy….accordingly the motion is granted and the petition is dismissed” (R. 7). 4 The Petitioner-Appellant appealed that Order to the Appellate Division. By order, dated November 26, 2014 (R. 73-85) and served with notice of entry on December 10, 2014, the Appellate Division, in a thirteen page decision, reciting the undisputed facts, affirmed the decision of Judge Martin. Said Order is a final determination dismissing the proceeding. Appellant timely filed a direct application for leave to appeal, pursuant to CPLR §5602(a)(1)(i), which application was granted by the Court on March 31, 2015. (R. 72) and which is the basis for jurisdiction and consideration of this appeal. 5 FACTS Parcel and History In 1992, Appellant Ranco acquired a 2.16-acre parcel of land located in the Town of Smithtown, commonly known as 154 Old Northport Road, Kings Park (“Parcel” or “Subject Premises”). In 2002, Ranco filed a change of zone of application for the Subject Premises with the Town, to amend the Town’s Zoning Map from the current zoning of R-43 (one-acre residential) to HI (heavy industrial). At the time of the filing of the application (and for several years prior) and at all times since the Subject Premises has been leased by Ranco to a third party, a privately owned school bus company. At all times relevant hereto, the Town Code of the Town of Smithtown permits outdoor parking of buses only in a heavy industrial zone. Appellant does not occupy any portion of the Subject Premises. Pursuant to the procedures set forth in the Smithtown Town Code for a change of zone petition, Ranco appeared before the Town of Smithtown Planning Board for a public hearing on the application on November 6, 2002. The Planning Board voted on the request and recommended approval of the zone change application, subject to certain conditions. In contemplation of a public hearing before the Town Board, the Planning Department issued a report, dated May 20, 2004 (R. 53-58). The hearing was held 6 before the Respondent Town Board on May 20, 2004. (The transcript of the hearing is R. 59-67). No further action on the application was taken by the Town Board for over five years, until August 11, 2009. On that date, the Respondent members of the Town Board adopted a Resolution, declaring a “SEQRA positive declaration” for the change of zone petition (R. 23-26). The Resolution states that the proposed action, the rezoning of the parcel, “may have a significant effect on the environment and that preparation of a draft Environmental Impact Statement [“DEIS”] will be required” (R. 23). The Resolution contains a panoply of potential environmental impacts which needed to be addressed in the DEIS (R. 24-25). Although Appellant has no specific proposal to develop the parcel and the lease with the bus company remains in effect to this day, the Resolution, after acknowledging the current heavy industrial use of the property, requires the preparation of a DEIS. As part of the DEIS, the Appellant is required to fully explore the potential re-development of the subject parcel with more intensive heavy industrial uses, including increased potential noise, mechanical vibration, odors, fugitive dust, visual impacts, fugitive light, increased visibility of structures and on-site activities, increased traffic and increased use, storage and handling of toxic and hazardous materials. (R. 24) The DEIS must also include a habitat analysis, groundwater study, traffic study of both current and future conditions, 7 economic impacts and a historical/cultural resources in the vicinity of the subject parcel. (R. 29-32). The resolution further requires the DEIS to address: G. Alternatives to the proposed action, including the following, must be identified, considered and subjected to public review: 1. Development of the subject parcel and all R-43 zoned lands in the vicinity of the subject parcel in full compliance with the existing zoning; 2. Development of the subject parcel in full conformance with all requirements of the requested HI (Heavy Industry) zoning; 3. Provision of buffers, landscaping and other development features sufficient to mitigate potential adverse impacts of the proposal upon neighboring residentially- developed properties and upon the Sunken Meadow Parkway corridor. (R. 25, italics added for emphasis). Adjoining Parcel and Prior Proceedings Marilyn A. Horan is the principal owner of Ranco. In 1982, her husband, Peter J. Horan (now deceased) purchased an adjoining parcel of land known as 152 Old Northport Road in his own name (“Horan Parcel”). The premises at 152 Old Northport Road consist of approximately 3.36 acres. A map of the Subject Premises and Horan Parcel are included in the Record at Page 68. In 1987 (prior to his purchase of the Subject Premises), Mr. Horan applied to the Town Board for a change of zone for the 152 Old Northport Road parcel from R-21 (residence – half acre) and R-43 (residence – one acre) to HI (heavy 8 industrial). After public hearings before the Planning Board and the Town Board, the application for change of zone was denied by the Town Board on May 3, 1988. No environmental impact statement was required at that time. Mr. Horan commenced a declaratory judgment action against the Town challenging the denial of the rezoning petition (Horan v. Smithtown, Sup. Ct, Suffolk, Index # 12853-89). The Town made a motion for summary judgment, which was denied by the Supreme Court (Justice Floyd) and the denial was affirmed by the Appellate Division. (194 A.D.2d 714, 601 N.Y.S.2d 803 (2 nd Dept. 1993) After Mr. Horan’s death in 1998, a motion was made to both amend the Complaint to authorize the Plaintiff to plead new facts as to the current condition of the property, to add additional causes of action and amend the caption to substitute Marilyn A. Horan, as the Executrix of the Estate of Peter J. Horan, as the Plaintiff. The Town, while not disputing the area had become more industrialized over the prior ten years, argued against allowing an amendment to plead the current condition as it “would allow the plaintiff to bypass the SEQRA process or shift the cost of prepare an EIS from the plaintiff to the Town (R. 36). By 1999, the case had been transferred to Justice Robert Oliver. Prior to issuing his decision, Justice Oliver, with the consent of both sides and accompanied by both counsel, visited the premises in May 1999 (R. 37). By 9 decision dated December 23, 1999 (R. 33-38), Justice Oliver granted the Plaintiff’s application in full. In his decision, Justice Oliver wrote, …the ineluctable conclusion seems to be that the Town of Smithtown has been inexcusably lax in the enforcement of its zoning ordinance over the past ten years, or has permitted a de facto change in the nature of the area without enacting the necessary legislation to make the on-going activities legal. Assuming no evidence to be forthcoming will alter the observations that the subject premises is wholly inappropriate as a residentially zoned area….On the face of what the undersigned has observed to date, the Town of Smithtown should have taken some remedial action long ago. …the major environmental effects that have resulted from the heavy industrial and light industrial uses and mining operations in the area in the residentially zoned area have been permitted to go on and increase under the watch of the Town of Smithtown, apparently without any formal environmental assessment of the impact. To allow the situation to continue merely to allow the Town of Smithtown to pass on the cost of environmental review to another party is not a persuasive reason to deny relief to the plaintiff that may be warranted by the current facts and circumstances. (R. 37). After Justice Oliver’s decision, the parties entered into a stipulation of settlement of that action, pursuant to which the zoning on the adjoining Horan Parcel was amended to HI. No formal environmental impact statement was prepared by either party as either part of either the original zone change application or as part of the settlement of the action. The stipulation changed the zone to HI 10 and allowed the property to be used for HI permitted uses and certain light industrial (“LI”) type uses as may be permitted as per Town Code. As Ranco had acquired the Subject Premises at the time of the settlement, an oral request was made to the Town to include, within the terms of the stipulation settling the prior action, the Subject Premises in this proceeding. That request was denied by the Town Attorney, and the resulting change of zone application was filed. Since the acquisition by Ranco of 154 Old Northport Road in 1992, the two parcels (152 and 154 Old Northport Road) have been utilized as if they were a single parcel. (The Planning Department Report of May 2004 recognized this merged use. R. – 54 - last full paragraph). There was no change of use of the parcels from 1999 to August of 2009 when the “positive declaration” resolution was adopted. The primary tenant, which has continuously occupied both parcels since 1997, is a school bus company that occupies the premises for outdoor parking and indoor repair of school buses, as well as administrative offices and employee parking. The bus company was occupying the parcels at the time of Justice Oliver’s site visit in 1999 and at the time of the stipulation of settlement of the prior action. The monthly rent in 2009 received from the bus company for renting both 152 and 154 Old Northport Road is $8,000 per month (R. 17, Para. 51). 11 Town Inaction on Enforcement of Zoning Code. The Town has never issued, at any time, any summons, tickets or notices of violations of the Town Zoning Code for any of the ongoing activities at the Subject Premises or the adjoining Horan parcel. Rather, as of 2004, it appears the Town had unilaterally adjourned the rezoning application of this parcel and several nearby parcels indefinitely (See Planning Department Report, dated May 2004 – R. 54 at second paragraph). 12 POINT I THE ADOPTION OF A POSITIVE DECLARATION PURSUANT TO SEQRA IS A JUSTICIABLE CONTROVERSY UNDER THE FACTS OF THIS SPECIAL PROCEEDING Justice Martin, and as affirmed by the Second Department, determined that Appellant’s challenge to the SEQRA resolution was premature and not yet ripe for judicial consideration. Over the years, the area of ripeness of SEQRA determinations has evolved. Older case law uniformly held such an action to be an intermediary action and not final. See: Matter of Rochester Telephone Mobile Communications v. Ober, 251 A.D.2d 1053, 674 N.Y.S.2d 189 (4th Dept. 1998). Although the Courts below cited to this Court’s decision in the case of Gordon v. Rush, 100 N.Y.2d 236, 762 N.Y.S.2d 18 (2003), both Courts held that Gordon was distinguishable from the facts of this proceeding. Appellant respectfully disagrees and believes the holding in Gordon and subsequent cases concerning whether an adoption of a positive declaration is justiciable are applicable herein. The general rule is that municipal actions are considered to be final when the action represents a definitive position on an issue which “imposes an obligation, denies a right or fixes some legal relationship resulting in actual concrete injury.” Gordon, Id. at 242. The harm suffered must not be amenable to further 13 administrative review and corrective action. Matter of Eadie v. Town of North Greenbush, 7 N.Y.3d 306, 821 N.Y.S.2d 142 (2006). In Gordon, this Court refused to establish a “bright line” rule declaring that positive declarations are never justiciable controversies. Rather, the rule of Gordon is that each case must be determined upon the surrounding facts as to whether further proceedings from the issuance of a positive declaration resolution would improve the situation or lessen the injury to the Petitioner. The Gordon holding recognized that if, under such circumstances, a land owner would have no remedy for the unnecessary, unauthorized expenditures to prepare a DEIS, the matter is ripe for judicial review. In his decision, determining that the matter was not a final action which should be reviewed, Justice Martin cited to cases such as the matter of Southwest Ogden Neighborhood Association v. Town of Ogden Planning Board, 43 A.D.2d 1374, 844 N.Y.S.2d 530 (4 th Dept. 2007) and Matter of Jones v. Amicone, 27 A.D.3d 465, 812 N.Y.S.2d 111 (2d Dept. 2006). These cases, and the other cases cited by Justice Martin, involve litigation commenced by adjoining property owners or local associations challenging the determination of the agency. Under those circumstances, a challenge by parties “within the zone of interest” must await the agency’s final action, as those parties are not injured by the cost, delay and expense of preparing an EIS (or by the interim effect of a Negative Declaration). 14 However, as was held in Gordon, the Applicant itself can be harmed by being required to make such expenditure if there is no legal requirement or limited potential benefit from the ultimate result. Once an applicant has prepared and completed the EIS process, there is no procedure or mechanism to reimburse that applicant for the expense (and time) spent in completing an environmental review which may be subsequently judicially found to be improperly imposed by the municipality (See Point II, infra). A favorable court ruling that a SEQRA resolution was erroneously adopted, after final completion of the administrative process (i.e., change of zone, building permit or variance application vote), is a pyrrhic victory for the property owner. The damage caused is complete. There is no remedy to a property owner or any penalty against a municipal corporation’s imprudently or arbitrarily adopted SEQRA resolution. Appellant urges that the facts herein align with the holding and spirit of Gordon and is progeny. See: Matter of East Hampton Library v. Zoning Board of Appeals, 31 Misc.3d 1231, 932 N.Y.S.2d 760 (Suffolk Sup., 2011). In Gordon, this Court affirmed decisions by both the Hon. Peter Fox Cohalan and the Second Department, holding: “…the obligation to prepare a DEIS imposes an actual injury on petitioners as the process may require considerable time and expense…Rather, the harm was the issuance of the positive 15 declaration direction petitioners to prepare a DEIS, involving the expenditure of time and resources, after petitioners had already been through the coordinated review process and a negative declaration had been issued by the DEC as lead agency.” [citations omitted] Id at 23. In affirming Gordon, this Court conducted a pragmatic evaluation of the facts and circumstances. In Gordon, the Town Planning Board voluntarily failed to participate in a prior coordinated SEQRA review and the Court held the Town was barred from requiring a subsequent DEIS. Thus, the Court determined that the prior conduct of the permitting agency and the cost to the Applicant made the issue ripe for review. In Matter of Center of Deposit, Inc. vs. Village of Deposit, 90 A.D.3d 1450, 936 N.Y.S.2d 709 (3 rd Dept. 2011), the Appellate Division was faced with an issue similar to facts in this proceeding. The Applicant was seeking to subdivide a single parcel, each containing a building, into two separate parcels. The Village Board adopted a positive declaration requiring the preparation of a DEIS. The Third Department, utilizing the analysis required by Gordon, held the matter to be ripe for review. In Center of Deposit, similar to the facts here, the Village Board’s positive declaration required the DEIS to address a multitude of potential environmental impacts -- water quality, air quality and public health, given the fact that it was probable that there was asbestos in at least one of the buildings, as well as explore 16 the potential change to the existing neighborhood from future development. The broad scope of review appears to be based upon the multiple possible future uses of the property, presumably because no actual future intended use was proposed. The DEIS requirements which the Town has adopted requires such a comprehensive environmental report. The Court in Center of Deposit held the case ripe for review, stating “even if Petitioner’s request to subdivide the property is ultimately granted, Petitioner would have already expended considerable time and money to prepare the draft EIS, which it would have no available avenue to recoup.” Id. at 712. The Court, however, found there to be a question of fact as to whether, due to the particular nature of the Petitioner’s application, it is a proper subject for a DEIS in the first instance, noting that the Petitioner’s application did not include any development plans and merely requested to subdivide one parcel of land into two. The resolution of the Respondents requiring Ranco to prepare a DEIS will cause actual and real injury to the Appellant. The expense will be significant, consisting of both a payment of a “$9,500 review fee” to the Town of Smithtown, as well as the cost of preparation of the DEIS and FEIS (addressing the broad spectrum of potential impacts as specified by the Town’s resolution (R. 23-26) and general standards of the Town for preparation of a DEIS (R. 27-32)). This cost is estimated to be between $75,000.00 and $150,000.00. The annual rent received 17 jointly by the Appellant and the Horan Parcel for both parcels is a gross amount of $80,000.00, from which the owners must pay the real property taxes and other expenses of ownership. Unique to this case is the findings and determination of Justice Oliver. Appellant vigorously argues that his ruling is res judicata upon the Town of Smithtown for both the Horan Parcel and the Subject Premises. In 1999 he held, that the cost of an environmental review of the property and area can not be forced upon an individual property owner, but must be borne by the Town. The Town did not appeal that portion of Justice Oliver’s decision and is now bound by its terms 1 . The application before the Town to change the zone is not, in itself, an authorization for any new use of the property. Rather, it would legalize a long- standing use which the Town has not only accepted without issue (R. 54-55), but affirmatively agreed was proper (by virtue of the settlement in the Horan case). As set forth in the Planning Department Memorandum, a change of zone will merely legalize the long standing use of the Subject Premises. If the zone change were adopted, any proposed change of use of the properties by the owners would require an application to the Town and the Town must then take the mandated “hard look” at an actual proposed activities and 1 The Town did appeal from so much of the decision as granted leave to the Plaintiff to amend the Complaint. The Appellate Division affirmed. 282 A.D.2d 498, 722 N.Y.S.2d 885 (2 nd Dept. 2001) 18 determine whether an EIS is required to mitigate any potential adverse environmental effects. To require such a study now, at tremendous expense to the Appellant, merely so that the Appellant’s long-standing and long-tolerated use is in accord with the proper zoning category is of no benefit to the Town and a great expense and injury to the Appellant. Under these circumstances, this Court should declare the issue of whether an EIS should be prepared as ripe for judicial review. 19 POINT II THE ADOPTION OF A POSITIVE DECLARATION BY THE RESPONDENTS IS UNWARRANTED, UNTIMELY AND IMPROPER UNDER THE FACTS AND SHOULD BE HELD AS ARBITRARY AND CAPRICIOUS The law is well settled that judicial review of SEQRA determinations is limited to whether the determination at issue was arbitrary, capricious, an abuse of discretion, an error of law or a violation of procedure. Matter of Riverkeeper, Inc. v. Planning Board of the Town of Southeast, 9 N.Y.3d 219, 851 N.Y.S.2d 76 (2007). East End Property Co. v. Kessel, 46 A.D.3d 817, 851 N.Y.S.2d 565 (2 nd Dept. 2007). A determination is arbitrary if it is made without a sound basis in law and without regard to the facts. Merrick Auto Service, Inc. v. Grannis, 82 A.D.3d 895, 919 N.Y.S. 2d 173 (2 nd Dept. 2011). The Appellant urges the Court, in applying the law, to determine that the factual context, including the seven year delay for adoption of the positive declaration resolution, renders the resolution void as arbitrary and capricious on both substantive and procedural due process grounds. (A) The resolution is arbitrary and capricious. This Court here should utilize the Gordon balancing test, weighing both the injury (cost) to the Appellant and with the possibility that the preparation of the DEIS will have the desired beneficial effects as set forth in SEQRA of protecting 20 and minimizing the adverse environmental effects of the requested action. ECL § 8-0103. Without a single objection, notice of violation or complaint from the Respondents, the Subject Premises has been utilized for over twenty years for a use (outdoor storage of vehicles and repair) only consistent with HI zoning in the Town of Smithtown. As Appellant was seeking to rezone the Subject Premises to be consistent with its longstanding use, the value to the decision maker of a preparation of a broad-based DEIS is negligible absent a reasoned elaboration for its determination. Center of Deposit, Id. at 713. The SEQRA positive declaration admits that “[T]he subject parcel is currently used for certain heavy industrial purposes”. (R. 24, Paragraph D). It is duplicitous for the Town, after ignoring the heavy industrial uses in the area (R. 54-55) for decades to adopt such a broad based SEQRA resolution. There is no evidence of the Town taking a “hard look” at potential adverse impacts in the crafting of the resolution for a zoning change on a 2.16 acre parcel. As set forth in Point I, supra, even if the zone change is adopted, any other potential use, consistent with the HI zone, would require the Town to approve a change of use certificate and/or a new site plan and/or issue new building permits. An application to the Town for any of these would be subject to its own SEQRA determination, and amenable to a much more targeted review. It is well-settled 21 that “[j]udicial review of an agency determination under SEQRA is limited to whether the agency procedures were lawful and 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 Oakleight Thorne v. Village of Millbrook Planning Board, 83 A.D.3d 723, 724–725, 920 N.Y.S.2d 369 (2d Dept. 2011), quoting, Matter of Jackson v. New York State Urban Dev. Corp., 67 N.Y.2d 400, 503 N.Y.S.2d 298 417 (1986). The Town’s SEQRA resolution evidencing no such considerations. The Town resolution makes it appear that the use of the Subject Premises is inconsistent with the immediately surrounding property. As more fully set forth in the facts, the property immediately adjoining is either vacant municipal land; a parkway owned by the State of New York; and the property owned in common ownership with Horan. Each and every parcel shown on the map (R. 68) to the west of the Sunken Meadow Parkway to the railroad tracks shown to the north (MTA property) and to the Huntington/Smithtown town line to the west are all used for industrial and predominantly heavy industrial purposes, even though the parcels are generally zoned residential. The nearest actual residences are about a tenth of a mile away to the east and on the other side of a four lane state highway. The resolution also ignores the settlement of the Horan action and Justice Oliver’s decision. 22 Appellant contends that in the same way that the Town of Southampton was bound by the prior D.E.C. Declaration in the Gordon case, the Town of Smithtown must be held similarly bound by the determination in Horan v. Smithtown. Pawling Lake Property Owners Association, Inc. v. Greiner, 72 A.D.3d 665, 897 N.Y.S.2d 729 (2 nd Dept. 2010); See generally: Maurischat v. County of Nassau, 81 A.D.3d 793, 916 N.Y.S.2d 235 (2 nd Dept. 2011). ECL §8-0109 concerns the preparation of Environmental Impact Statements and subsection 1 states that the purpose of the Impact Statement shall be to allow an agency to: “…act and choose alternatives which, consistent with social, economic and other essential considerations to the maximum extent practicable, minimize or avoid adverse environmental effects, including effects revealed in the Environmental Impact Statement process.” SEQRA is meant to be a forward looking document to anticipate and incorporate environmental considerations as early as possible in the process in order to mitigate adverse environmental effects. Matter of Coca-Cola Bottling Co. v Board of Estimate of the City of N.Y., 72 N.Y.2d 674, 536 N.Y.S.2d 33 (1988). SEQRA requires an agency to review the proposed action. In the case at bar, the rezoning to heavy industrial is not truly a proposed action, but a recognition of, as Justice Oliver declared it: “…the de facto chain in the nature of the area without 23 enacting the necessary legislation to make the ongoing activities legal." In Center of Deposit, the Third Department determined that on the record before it, the Village failed to provide a reasoned elaboration for its determination to require a DEIS. Finding that the only action which Petitioner sought from the Board was a subdivision of land, there was no evidence in the record that the property owner had any solidified plans to develop either parcel. The Court held the Village Board failed to articulate how the proposed approval of a subdivision map could potentially affect drainage flow patterns, water surface runoff, air quality, public health safety, diminution of open space or affect the character of the existing neighborhood. Based upon the actual terms of the resolution, the Court found the resolution to be arbitrary and capricious and reversed and granted the Petition. In review of a zoning change petition, a Town Board is obligated to consider environmental concerns that were “reasonably likely to result from the zoning amendment at the time of its enactment”. Riverhead Business Improvement District Management Association, Inc. v. Stark, 253 A.D.2d 72, 677 N.Y.S.2d 383, (2nd Dept. 1998); appeal denied, 93 N.Y.2d 808, 691 N.Y.S.2d 382 (1999). It would be improper to require the Appellant to prepare a statement which analyzes potential uses that, while theoretically possible, were not before the Town Board. 24 Golden Triangle Associates v. Town Board of the Town of Amherst, 185 A.D.2d 617, 585 N.Y.S.2d 895 (4 th Dept. 1992). The purpose of the Impact Statement is to assess the impacts associated with the actual change from current use to proposed use. Kirk-Astor Drive Neighborhood Association v. Town Board of Town of Pittsfield, 106 A.D.2d 868, 483 N.Y.S.2d 526 (4 th Dept. 1984). Appellant urges that the only proper determination of the Town Board would have been a finding, as it did when it considered a zone change application on the Horan Parcel, that the proposed zone change would not, of itself, have a significant detrimental effect on the environment (ECL § 8-0109(4)), but only brought the zoning code map in conformance with the actual use of the Subject Premises and should have adopted such a “negative declaration” resolution. This Court should so find. (B) The seven year delay in adoption of the resolution is a denial of due process. The Town failed to adopt the SEQRA resolution “as early as possible in the formulation of the proposal”. The Town Board adopted the SEQRA resolution seven years after the Appellant filed the initial rezoning Petition and over five years after the Respondents held the public hearing. While ECL §8-0109(4) establishes the rule that a determination should be made as early as practicable, 25 there is no sanction established within the State law if the agency fails to promptly adopt such resolution. While the timeframe established under the regulations for SEQRA findings after completion of a FEIS (6 NYCRR 617.6(b)(1)(ii)) sets forth a period of 20 days, case law has held that this period is not a mandatory timeframe, but merely a guideline for the agency to utilize. Failure to act in the specified time does not nullify a subsequent action by the agency. Matter of Seaport Contracting & Material, Inc. v. Department of Environmental Conservation, 132 A.D.2d 105, 522 N.Y.S.2d 679 (3 rd Dept. 1987). In Seaport, the Court held that the time prescription was directory, rather than mandatory, in nature and did not work as a limitation on the actual authority of a lead agency. However, under Seaport, it appears that the timeframe between the last submission made by the applicant and the demand for action was 22 days. In its holding, the Court stated: This is not to suggest that a lead agency enjoys unbridled authority to delay SEQRA review, but the short delay here was clearly not excessive as a matter of law. Id. at 106. When a lead agency is actively and diligently pursuing a final SEQRA determination, the Courts have excused such delay as part of the lead agency’s requirement to fully explore the potential environmental impacts. See: Matter of Lowe’s Home Centers, Inc. v. Venditto, 15 Misc.3d 1108, 836 N.Y.S.2d 500 26 (Nassau Sup. 2007). In the extreme is the case of Matter of Nicklin-McKay v. Town of Marlborough Planning Board, 14 A.D.3d 858, 788 N.Y.S.2d 448 (3 rd Dept. 2005). The question before the Court was whether the respondent planning board had timely issued a declaration under 6 NYCRR §617.6. The planning board had issued a negative declaration, but the time period involved was over two years. The Third Department held that this delay was justified in that the planning board, as lead agency, painstakingly undertook to gather substantial data regarding the application, holding public meetings and hearings and considering six potentially large impacts on the environment, which were identified. Here, it appears that the Respondents took no action whatsoever to investigate potential environmental impacts, but rather, adopted a broad-based positive declaration, requiring the preparation of a DEIS on virtually a boilerplate-style of resolution. Appellant argues that this situation is analogous to the situation where a Town adopts a land use moratorium. Land use moratoriums have been held to be proper, provided they are not extended indefinitely. In Mitchell v. Kemp, 176 A.D.2d 859, 575 N.Y.S.2d 337 (2d Dept. 1991), the Court struck down the actions of the Town of Pine Plains, which had been sequentially enacting moratorium laws for nearly five years. While recognizing that moratorium legislation is permissible in order to maintain the status quo pending preparation of enactment of a comprehensive 27 zoning ordinance, the Mitchell Court struck down the Town’s moratorium, stating that, “The Town here has failed to offer any satisfactory reasons for the nearly five-year delay in enacting a zoning ordinance.” Under the facts of the case at bar, however, the failure of the Respondent to act for nearly seven years from submission of the application and over five years from the Respondents’ public hearing, (especially in light of the Town’s admitted practice to indefinitely adjourn zoning petition applications in this area of the Town (R.54)), must be considered so egregious as to amount to a denial of due process by the Town. Sour Mountain Realty v. New York State Dept. of Environmental Conservation, 260 A.D.2d 920, 688 N.Y.S.2d 842 (3 rd Dept. 1999). See generally: Koontz v. St Johns River Water Management District, 570 U.S. ___, 133 S.Ct 2586 (2013). By its extraordinary and unexplained delay, the Town has frustrated the intent of both the SEQRA mandate and the Town Law concerning zone changes. The Town’s inaction is tantamount to a denial of the Appellant’s application without the Town Board having to take a vote. Arguably, that is the true motive for the adoption of the SEQRA positive declaration. It is obvious the Town, for whatever its motives or reasons, does not wish to address the residential zoning in an area used for heavy industrial purposes. The Court should not condone the mis-use of SEQRA to allow the Town to avoid such 28 a vote. See: Pittsford Canalside Properties, LLC v. Village of Pittsford, 45 Misc.3d 1217, WL 6389972 (Sup., Monroe, 2014). The Appellant urges that this Court adopt a similar result to Mitchell and Pittsford and nullify the resolution as arbitrary and capricious, based upon the Town’s unjustifiable conduct (See: Matter of Laurel Realty, LLC v. Planning Board of Town of Kent, 40 A.D.3d 857, 836 N.Y.S.2d 48 (2d Dept. 2007). 29 CONCLUSION For the reasons set forth herein, this Court should reverse the decision of the Court below and find that the adoption of a positive declaration pursuant to SEQRA is a justiciable controversy under the facts as alleged and that the adoption of a positive declaration by the Respondents is unwarranted, untimely and improper and should be held as arbitrary and capricious. Dated: May 28, 2015 Commack, New York ______________________________ Leonard J. Shore, Esq. Attorney for Petitioner-Appellant 366 Veterans Memorial Highway Commack, New York 11725 To: Devitt Spellman Barrett, LLP 50 Route 111 Smithtown, N.Y. 11787