Troy Sand & Gravel Co., Inc. v. Town of Nassau

• Decision Date: 10 March 2011
• Citation: 82 A.D.3d 1377,918 N.Y.S.2d 667
• Parties: In the Matter of TROY SAND & GRAVEL COMPANY, INC., et al., Respondents, v. TOWN OF NASSAU et al., Appellants.
• Court: New York Supreme Court — Appellate Division

918 N.Y.S.2d 667
82 A.D.3d 1377

In the Matter of TROY SAND & GRAVEL COMPANY, INC., et al., Respondents,
v.
TOWN OF NASSAU et al., Appellants.

Supreme Court, Appellate Division, Third Department, New York.

March 10, 2011.

918 N.Y.S.2d 668

Donohue, Sabo, Varley & Huttner, Albany (Bruce S. Huttner of counsel), for appellants.

Tuczinski, Cavalier, Gilchrist & Collura, P.C., Albany (Andrew W. Gilchrist of counsel), for respondents.

Before: MERCURE, J.P., ROSE, LAHTINEN, MALONE JR. and STEIN, JJ.

MERCURE, J.P.

Appeal from a judgment of the Supreme Court (Lynch, J.), entered February 26, 2010 in Rensselaer County, which partially granted petitioners' application, in a combined proceeding pursuant to CPLR article 78 and action for declaratory judgment, to, among other things, invalidate the comprehensive plan and zoning law of respondent Town of Nassau.

In 2004, petitioner Troy Sand & Gravel Company, Inc. submitted applications to respondent Town of Nassau for a special use permit and site plan approval in connection with a quarry that it proposed to open on land owned by petitioner Henkel Realty Associates, LLC in Rensselaer

918 N.Y.S.2d 669

County. After passing successive moratoria on new mining applications, respondent Town Board of the Town of Nassau passed an extensive 2008 zoning law that, among other things, permanently banned commercial excavation. The Town Board also adopted a comprehensive plan pursuant to Town Law § 272-a, setting forth the Town's long-term land use goals and policies.

Petitioners commenced this combined proceeding pursuant to CPLR article 78 and action for declaratory judgment asserting numerous claims based upon respondents' alleged bad faith in seeking to prevent the operation of the proposed quarry. As detailed in our prior decision in this matter, the article 78 claims were submitted for judgment, and discovery commenced on the remaining claims (80 A.D.3d 199, 912 N.Y.S.2d 798 [2010] ). Supreme Court ruled in petitioners' favor on their seventh, eighth and fifteenth causes of action, and annulled the comprehensive plan and Local Law No. 1 (2008) of Town of Nassau. The court determined that the Town Board violated Town Law § 272-a when adopting the comprehensive plan and failed to follow the requirements of the State Environmental Quality Review Act ( see ECL art. 8 [hereinafter SEQRA] ) when approving both the comprehensive plan and the zoning law. Respondents appeal, and we now affirm.

Initially, we reject respondents' argument that Supreme Court erred in determining that they failed to comply with SEQRA in adopting the comprehensive plan and enacting the zoning law. Pursuant to SEQRA, an environmental impact statement (hereinafter EIS) "must be prepared regarding any action that 'may have a significant effect on the environment' " ( Matter of Jackson v. New York State Urban Dev. Corp., 67 N.Y.2d 400, 415, 503 N.Y.S.2d 298, 494 N.E.2d 429 [1986], quoting ECL 8-0109[2] ). A type I action, such as the adoption of zoning regulations or a comprehensive land use plan, "carries with it the presumption that it is likely to have a significant adverse impact on the environment" (6 NYCRR 617.4[a][1]; see Matter of Land Master Montg I, LLC v. Town...