Citizens Against Retail Sprawl v. Giza

Decision Date21 March 2001
Docket NumberV,PETITIONERS-APPELLANT,RESPONDENTS-RESPONDENTS
Citation280 AD2d 234,722 N.Y.S.2d 645
Parties(A.D. 4 Dept. 2001) MATTER OF CITIZENS AGAINST RETAIL SPRAWL, BY GEORGE CIANCIO, PRESIDENT, ET AL.,ROBERT GIZA, AS SUPERVISOR OF TOWN OF LANCASTER, MARK MONTOUR, AS COUNCILPERSON OF TOWN OF LANCASTER, WILLIAM MARYNIEWSKI, AS COUNCILPERSON OF TOWN OF LANCASTER, NEIL CONNELLY, AS COUNCILPERSON OF TOWN OF LANCASTER, TOWN BOARD OF TOWN OF LANCASTER, PLANNING BOARD OF TOWN OF LANCASTER, BELLA VISTA GROUP, INC., NEC TRANSIT WILLIAM, LLC, OPCO, INC., JOHN A. MARTZOLF AND CAROLYN M. MARTZOLF, CA 00-02115. (Erie Co.) : FOURTH JUDICIAL DEPARTMENT
CourtNew York Supreme Court — Appellate Division

[Copyrighted Material Omitted] David J. Seeger, Buffalo for Petitioner-appellants.

Richard J. Sherwood, Lancaster, for respondents-respondents, Robert Giza, as Supervisor of Town of Lancaster, Marl Montour, as Councilperson of Town of Lancaster, Neil Connelly, as Councilperson of Town of Lancaster, Town Board of Town of Lancaster, and Plaining Board of Town of Lancaster,

Charles C. Martorana, Buffalo, for respondents-respondents Bella Vista Group, Inc., NEC Transit William, LLC, and Opco, Inc.

PRESENT: PIGOTT, JR., P. J., PINE, HURLBUTT, KEHOE AND LAWTON, JJ.

Pigott, Jr., P.J.

On or about March 15, 1999, respondent NEC Transit William, LLC (NEC) submitted an application to respondent Town Board of the Town of Lancaster (Town Board) seeking to rezone approximately 36 acres of property located at the intersection of Transit Road and William Street in the Town of Lancaster (Town) from its previous designations as "commercial and motor services district" (15 acres with frontage on Transit Road) and "residential district one" (21 acres behind the 15-acre parcel with frontage on William Street) to "general business district". NEC sought rezoning in order to construct a 270,000 to 290,000 square foot commercial strip shopping center with approximately 1,400 parking spaces. Petitioners, members of a citizens' group comprised primarily of homeowners living in the area of the subject property, opposed the rezoning.

The Town determined that the proposed rezoning and development project was a "Type I" action as defined by regulations enacted pursuant to the State Environmental Quality Review Act (SEQRA) (ECL art 8) (see, 6 NYCRR 617.4 [b] [2]; [6] [i], [iii], [iv]). "Type I" actions are, by definition, "more likely to require the preparation of an EIS [Environmental Impact Statement] than Unlisted actions" (6 NYCRR 617.4 [a]).

The Town designated itself the lead agency for SEQRA purposes (see, 6 NYCRR 617.2 [u]), thereby assuming responsibility for determining whether an EIS was required in connection with the rezoning. After notifying appropriate State and County agencies of its designation as lead agency and holding a public hearing on the rezoning application, the Town issued a "positive declaration" (6 NYCRR 617.2 [ac]), indicating that implementation of the proposed rezoning "may have a significant adverse impact on the environment."

Because of the positive declaration, the Town required that a draft EIS be prepared (see, ECL 8-0109 [4]; 6 NYCRR 617.2 [n]). In November 1999 NEC submitted its draft EIS to the Town, which scheduled a further public hearing to consider it.

Petitioners submitted reports from various experts who had concluded that the draft EIS did not adequately address such issues as drainage, storm water quality, buffering, noise and wetlands. In addition, the U. S. Army Corps of Engineers, the New York State Department of Transportation, and the adjacent Town of Cheektowaga, challenged the conclusions in the draft EIS concerning wetlands and traffic issues. Indeed, the Town was advised by its own consultant that a supplemental draft EIS would be required.

Nevertheless, on December 20, 1999, the Town Board adopted a resolution issuing a "negative declaration", which is defined as "a written determination by a lead agency that the implementation of the action as proposed will not result in any significant adverse environmental impacts" (6 NYCRR 617.2 [y] [emphasis added]). On that same date, the Town Board, by a vote of 3 to 2, adopted a resolution amending its Zoning Ordinance to rezone approximately 33.63 acres of the approximately 36 acres to a general business district based upon its negative declaration, and further providing that "any appropriate mitigation measures proposed by [NEC] or other interested and involved persons should be reviewed and established in connection with the Site Plan Review process". The Town Board, by a vote of 4 to 1, then adopted what it labeled a "conditional rezone" resolution, approving NEC's application, "predicated upon approval by the * * * Town Board, within one [1] year of the date of adoption of this resolution, of a development site plan * * * for the real property * * *. In the event that such site plan is not so approved, the real property * * * shall revert back to the zoning classifications it enjoyed prior to the adoption of this conditional rezone."

Petitioners then commenced this special proceeding pursuant to CPLR article 78 seeking to annul the Town Board's resolutions of December 20, 1999, approving the rezoning of the subject property and issuing a negative declaration under SEQRA. Petitioners asserted that the Town did not prepare a final EIS and thus respondents failed to comply with the requirements of SEQRA; respondents failed to comply with the requirements of the Town Zoning Ordinance because a development plan was not submitted with the application for rezoning; and the approval of the rezoning application violated Town Law 263 because it was not in accordance with the Town's comprehensive plan.

Supreme Court granted respondents' motion to dismiss the petition in lieu of serving an answer, concluding, inter alia, that a final EIS was not required. That was error.

Upon our review of the record, we conclude that the Town Board failed to comply with the procedures mandated by SEQRA and the regulations promulgated thereunder for a project of this magnitude (see, Bliek v Town of Webster, 104 Misc.2d 852, 860-865). Having initially determined that NEC'S proposal was a "Type I" action that might have a significant effect on the environment, the Town Board properly required preparation of a draft EIS. After submission of the draft EIS and receipt of significant criticism of it by the public, governmental agencies, and the Town's own consultant, however, the Town Board abused its discretion as lead agency in dispensing with the requirement of a final EIS. We conclude that "application of the criteria for determining environmental significance of 'Type I' actions to the plans for development of [the proposed project] show, beyond peradventure, that this project may clearly have a significant effect upon the environment and that an EIS should have been required" (Bliek v Town of Webster, supra, at 862).

"SEQRA's fundamental policy is to inject environmental considerations directly into governmental decision making" (Matter of Coca-Cola Bottling Co. v Board of Estimate, 72 N.Y.2d 674, 679). "This policy is effectuated, in part, through strict compliance with the review procedures outlined in the environmental laws and regulations" (Matter of Merson v McNally, 90 N.Y.2d 742, 750). The heart of SEQRA is the EIS process (see, Matter of Jackson v New York State Urban Dev. Corp., 67 N.Y.2d 400, 415; Matter of Town of Henrietta v Department of Envtl. Conservation, 76 A.D.2d 215, 220). The EIS is the last step in the SEQRA review process. It is a detailed statement setting forth, inter alia, the long- and short-term environmental impacts of the proposed action, the...

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