Troy Sand & Gravel Co. v. Town of Nassau

• Decision Date: 19 February 2015
• Citation: 125 A.D.3d 1170,4 N.Y.S.3d 613,2015 N.Y. Slip Op. 01511
• Parties: TROY SAND & GRAVEL COMPANY, INC., et al., Appellants, v. TOWN OF NASSAU et al., Respondents.
• Court: New York Supreme Court — Appellate Division

125 A.D.3d 1170

4 N.Y.S.3d 613

2015 N.Y. Slip Op. 01511

TROY SAND & GRAVEL COMPANY, INC., et al., Appellants

v.TOWN OF NASSAU et al., Respondents.

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

Feb. 19, 2015.

Tuczinski, Cavalier & Gilchrist, PC, Albany (Andrew W. Gilchrist of counsel), for appellants.

Joseph M. Catalano, Rensselaerville (Bruce S. Huttner of Donohue, Sabo, Varley & Huttner, LLP, Albany, of counsel), for respondents.

Underberg & Kessler, LLP, Buffalo (Edward P. Yankelunas of counsel), for New York State Builders Association, amicus curiae.

Couch White, LLP, Albany (Adam J. Schultz of counsel), for New York State Construction Materials Association, Inc. and another, amici curiae.

Before: McCARTHY, J.P., ROSE, EGAN JR. and DEVINE, JJ.

Opinion

ROSE, J.

Appeal from an order of the Supreme Court (Connolly, J.), entered October 21, 2013 in Rensselaer County, which, among other things, granted defendants' cross motion for summary judgment dismissing the complaint.

In 2003, plaintiff Troy Sand & Gravel Company, Inc. applied for a mining permit from the Department of Environmental Conservation (hereinafter DEC) to operate a quarry in the Town of Nassau, Rensselaer County. Plaintiff also applied for a special use permit and site plan approval from defendant Town of Nassau. As lead agency for the coordinated State Environmental Quality Review Act (hereinafter SEQRA) process, DEC issued a positive declaration and Troy Sand prepared a draft environmental impact statement (hereinafter EIS) in 2006. After a public hearing and comment period, Troy Sand prepared a final EIS in 2007 and, shortly thereafter, DEC issued its SEQRA findings approving the project and granting the mining permit. DEC's findings were then unsuccessfully challenged by the Town in a proceeding that did not reach this Court, and the parties have since engaged in related litigation that has brought the matter before us on three prior occasions (see Matter of Troy Sand & Gravel Co., Inc. v. Town of Nassau, 89 A.D.3d 1178, 932 N.Y.S.2d 564 [2011], lv. dismissed 18 N.Y.3d 920, 941 N.Y.S.2d 554, 964 N.E.2d 1022 [2012] ; Matter of Troy Sand & Gravel Co., Inc. v. Town of Nassau, 82 A.D.3d 1377, 918 N.Y.S.2d 667 [2011] ; Matter of Troy Sand & Gravel Co., Inc. v. Town of Nassau, 80 A.D.3d 199, 912 N.Y.S.2d 798 [2010] ).

In 2011, plaintiffs commenced this declaratory judgment action seeking, among other things, a declaration that the Town was bound by DEC's SEQRA findings. Supreme Court (Lynch, J.) granted a preliminary injunction that precluded the Town from conducting its own review of the environmental impact of the proposed quarry as part of its zoning determination. We then reversed that order and vacated the preliminary injunction (101 A.D.3d 1505, 957 N.Y.S.2d 444 [2012] ). Relying upon our decision, defendant Town Board of the Town of Nassau rescinded its prior determination that the permit application was complete in order to consider whether the SEQRA record was adequate to permit its own review under the environmental standards of its zoning law and whether any additional environmental information was needed to conduct its own jurisdictional review. Plaintiffs thereafter commenced a separate CPLR article 78 proceeding seeking to annul the rescission resolution.¹ They also sought summary judgment in this action declaring, as relevant here, that the Town must base its environmental impact findings on the EIS record developed as part of the coordinated SEQRA process. Defendants cross-moved for summary judgment dismissing the complaint. Supreme Court denied plaintiffs' motion and granted the cross motion, finding that, based upon its reading of our 2012 decision vacating the preliminary injunction, plaintiffs were not entitled to, among other things, a declaration limiting defendants to consideration of the SEQRA record in making their environmental impact findings as part of their own jurisdictional review. Plaintiffs appeal and we reverse.

In our 2012 decision, we said that, although the Town is bound by DEC's SEQRA findings and it may not repeat the SEQRA process, it nevertheless retains the authority to make an independent review of plaintiffs' application for a special use permit in accord with the standards and criteria set forth in its applicable zoning regulation (101 A.D.3d 1505, 957 N.Y.S.2d 444 [2012], supra ). That regulation provides that the Town may consider, among other things, the “health, safety, welfare, comfort and convenience of the public,” including “the environmental impact” of the proposed quarry (Local Law No. 2 [1986] of Town of Nassau art.

VI[A] ). However, we did not say that the Town's independent review includes the ability to now gather additional environmental impact information beyond the full SEQRA record. Rather, in conducting its own jurisdictional review of the environmental impact of the project, the Town is required by the overall policy goals of SEQRA and the specific regulations governing findings made by “involved agencies” to rely on the fully developed SEQRA record in making the findings that will provide a rationale for its zoning determinations.

To reach this conclusion, we begin by taking note that the “basic purpose” of SEQRA “is to incorporate the consideration of environmental factors into the existing planning, review and decision-making processes of state, regional and local government agencies at the earliest possible time” (6 NYCRR 617.1 [c]; see Matter of City Council of City of Watervliet v. Town Bd. of Town of Colonie, 3 N.Y.3d 508, 518, 789 N.Y.S.2d 88, 822 N.E.2d 339 [2004] ). Consistent with this policy, the review of environmental considerations should be carried out “as efficiently as possible” (Matter of Coca–Cola Bottling Co. of N.Y. v. Board of Estimate of City of N.Y., 72 N.Y.2d 674, 681, 536 N.Y.S.2d 33, 532 N.E.2d 1261 [1988], citing ECL 8–0107, 8–0113[3][b] ). Here, the full SEQRA record, covering thousands of pages, reflects the hard look at the proposed quarry's environmental impacts conducted by DEC with the Town's extensive involvement.

By virtue of the Town's jurisdictional authority over zoning determinations, it is an “involved agency” (6 NYCRR 617.2 [s] ). The...