Village of Westbury v. Department of Transp.

• Decision Date: 19 December 1989
• Citation: 75 N.Y.2d 62,550 N.Y.S.2d 604,549 N.E.2d 1175
• Parties: , 549 N.E.2d 1175 In the Matter of the VILLAGE OF WESTBURY, Respondent, v. DEPARTMENT OF TRANSPORTATION OF the State of New York et al., Appellants.
• Court: New York Court of Appeals Court of Appeals

Page 604

550 N.Y.S.2d 604

75 N.Y.2d 62, 549 N.E.2d 1175

In the Matter of the VILLAGE OF WESTBURY, Respondent, v. DEPARTMENT OF TRANSPORTATION OF the State of New York et

al., Appellants.

Court of Appeals of New York.

Dec. 19, 1989.

Robert Abrams, Atty. Gen. (Andrea Green, O. Peter Sherwood and Lawrence S. Kahn, New York City, of counsel), for appellants.

Thomas R. Derosa, Stephen L. Gordon, Sy Gruza and Craig Kravit, New York City, for respondent.

OPINION OF THE COURT

SIMONS, Judge.

Petitioner Village of Westbury instituted this CPLR article 78 proceeding seeking relief from respondents' alleged violation of the State Environmental Quality Review Act (ECL art. 8). Specifically, it requests that the negative declaration issued by the respondent Department of Transportation for reconstruction of the interchange of the Northern State Parkway and the Meadowbrook State Parkway be annulled and that the matter be remitted to DOT for preparation of environmental impact statement (EIS) after consideration of the cumulative environmental effects of the interchange project and a proposed widening of a section of the Northern State Parkway east of it. Supreme Court dismissed the petition but the Appellate Division reversed its judgment, annulled the negative declaration and remitted the matter to the Department for further consideration, 146 A.D.2d 578, 536 N.Y.S.2d 502. Construction has been enjoined until completion of proceedings complying with SEQRA.

We granted respondents leave to appeal so that we might decide whether (1) the interchange reconstruction and the proposed widening of Northern State Parkway to the east of it must be considered together when determining whether the actions of DOT will have a significant effect on the environment (see, 6 NYCRR 617.11[a]; 17 NYCRR 15.11[a], (2) the regulations of the Department of Environmental Conservation or those of the Department of Transportation are to control that determination and (3) the proceeding is timely. Our review of these questions is limited to deciding whether DOT's determination was made in violation of lawful procedures, was affected by an error of law or was arbitrary or capricious or an abuse of discretion (see, CPLR 7803[3]; Chinese Staff & Workers Assn. v. City of New York, 68 N.Y.2d 359, 363, 509 N.Y.S.2d 499, 502 N.E.2d 176). It is not our role to weigh the desirability of any proposed actions or choose among alternatives but only to insure that the agency has satisfied the substantive and procedural requirements of SEQRA and of the regulations implementing it (Matter of Jackson v. New York State Urban Dev. Corp., 67 N.Y.2d 400, 416, 503 N.Y.S.2d 298, 494 N.E.2d 429). For the reasons which follow, we conclude that it has not and that the Appellate Division order should be affirmed.

I

The Northern State Parkway is a limited-access parkway running generally east and west and serving the northern corridor of Long Island. It presently consists of eight lanes of traffic west of the interchange and four lanes east of it. The Meadowbrook State Parkway is a six-lane limited-access parkway running generally north and south and extending from the interchange with the Northern State Parkway southerly to Jones Beach State Park. The interchange is located in Nassau County, principally in petitioner Village of Westbury.

Reconstruction was undertaken because the design of the exit and entry ramps of the interchange is confusing, requiring drivers in some instances to leave one parkway to obtain access to the other, and the road capacity, particularly east of the interchange, is inadequate and produces excessive traffic congestion. As a result of these conditions, the accident rate in the area is more than six times the State-wide average.

The proposed reconstruction was started in June 1988 and scheduled to be completed in 1991. It will change the configuration of the interchange, providing new entrance and exit ramps, and include a new connection between the Northern State Parkway and the Meadowbrook State Parkway. The reconstruction will also provide two additional lanes (a total of four in each direction) for traffic on the Northern State Parkway for a short distance east of the interchange. Although these additional lanes on the east end of the interchange will be built as part of the interchange project, they will not be used until after Northern State Parkway is widened from the interchange east to Wantagh State Parkway. They serve no purpose independent of the widening project, so appropriate traffic control devices will prevent their use until the widening project is completed.

The widening project is tentatively scheduled to begin after completion of the interchange project and funding for it has been programmed for 1991. It will result in the continued expansion of the Northern State Parkway to four lanes in each direction east of the easterly limit of the interchange project. The projected lane alignment will match the widened alignment of the Northern State Parkway built as part of the interchange project. When the widening east of the interchange is complete, the traffic control devices preventing use of the additional lanes built during the interchange project will be removed and maximum capacity and traffic flow will be achieved.

In making its environmental review, DOT relied on the provisions of SEQRA and its own implementing regulations (see, ECL art. 8; 17 NYCRR part 15). Pursuant to its regulations, DOT characterized the project as a non-Type II action, which required preparation of an environmental assessment to determine whether an environmental impact statement was needed (see, 17 NYCRR 15.6). The draft environmental assessment, issued in November 1986, originally included a proposed alternative to widen the Northern State Parkway from four to eight lanes easterly of the interchange from the Meadowbrook Parkway to the Wantagh Parkway. Serious public objections to the construction were expressed by the Village of Westbury and others. The Village objected particularly to parts of the widening proposal, and the necessary closing or elimination of certain bridges in connection with it, and the rerouting of traffic through the Village during construction of this extended improvement. Consequently, in June 1987 DOT issued a final report/environmental assessment which revised the easterly limit of the project by shifting it about 1,200 feet west towards the interchange. DOT determined the project, as so modified, would have no significant environmental impact and issued a negative declaration.

Petitioners contend this declaration must be annulled because it was issued without considering the cumulative environmental impact of both the interchange and the projected construction to widen Northern State Parkway, as required by applicable regulations, was arbitrary and capricious and an abuse of discretion.

II

Generally speaking, SEQRA charges State and local agencies with the responsibility of implementing the procedures and purposes it sets forth. To that end, they must determine first whether a proposed action may have a "significant effect" on the environment and, if it does, prepare or cause to be prepared an environmental impact statement in the manner set forth in the statute (ECL 8-0109[2]. The idea is to insure investigation and study before proceeding so that "agency decision-makers--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 their choices." (Matter of Jackson v. New York State Urban Dev. Corp., 67 N.Y.2d 400, 414-415, 503 N.Y.S.2d 298, 494 N.E.2d 429, supra.) Inquiry starts with an assessment of the action and a determination of whether it "may have a significant effect" on the environment. If it might, an EIS is required. If the agency determines that the proposed action will not have a significant effect on the environment it issues a "negative declaration" (see, 6 NYCRR 617.2[y]; 17 NYCRR 15.6[b].

The criteria for determining whether a proposed action "may have a significant effect" on the environment are set forth in the regulations (6 NYCRR 617.11; 17 NYCRR 15.11). ^* The agency must compare the impacts which may reasonably be expected from the proposed action with these criteria, in making its assessment. Relevant to this litigation, the agency must, in determining whether an action will have any of the consequences listed, consider reasonably related effects "including other simultaneous or subsequent actions which are: (1) included in any long-range plan of which the action under consideration is a part; (2) likely to be undertaken as a result thereof; or (3) dependent thereon" (6 NYCRR 617.11[b]; 17 NYCRR 15.11[b].

It is petitioner's claim that respondents violated these regulations because DOT's environmental review should have considered--together--the reconstruction of the interchange and the project to widen Northern State Parkway east of it; that when considered together, their environmental impact meets the criteria of the regulations requiring the preparation of an EIS. DOT claims that the two projects are separately conceived and serve separate purposes, one to eliminate a traffic hazard, the other to increase traffic capacity; they are not part of an area- or community-wide plan, as in Matter of Save the Pine Bush v. City of Albany, 70 N.Y.2d 193, 518 N.Y.S.2d 943, 512 N.E.2d 526 and Chinese Staff & Workers Assn. v. City of New York (supra ) and thus they need not be considered together.

We conclude that the widening of Northern State Parkway is the type of subsequent action contemplated by the regulations and that the environmental effects of the two projects should be considered together. The...