Town of Amsterdam v. Amsterdam Indus. Dev. Agency

CourtNew York Supreme Court Appellate Division
Citation95 A.D.3d 1539,2012 N.Y. Slip Op. 03919,945 N.Y.S.2d 434
PartiesIn the Matter of the TOWN OF AMSTERDAM, Respondent, v. AMSTERDAM INDUSTRIAL DEVELOPMENT AGENCY, Respondent, and Amsterdam Materials Recycling, LLC, Appellant.
Decision Date17 May 2012

95 A.D.3d 1539
945 N.Y.S.2d 434
2012 N.Y. Slip Op. 03919

In the Matter of the TOWN OF AMSTERDAM, Respondent,
v.
AMSTERDAM INDUSTRIAL DEVELOPMENT AGENCY, Respondent,
and
Amsterdam Materials Recycling, LLC, Appellant.

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

May 17, 2012.


[945 N.Y.S.2d 436]


Bond, Schoeneck & King, P.L.L.C., Albany (Robert H. Feller of counsel), for appellant.

Peter Henner, Clarksville, for Town of Amsterdam, respondent.


Before: MERCURE, J.P., LAHTINEN, SPAIN, STEIN and McCARTHY, JJ.

STEIN, J.

[95 A.D.3d 1539]Appeal from a judgment of the Supreme Court (J. Sise, J.), entered January 14, 2011 in Montgomery County, which partially granted petitioner's application, in a proceeding pursuant to CPLR article 78, to, among other things, annul two resolutions of respondent Amsterdam Industrial Development Agency permitting, among other things, respondent Amsterdam Materials Recycling, LLC, to construct and operate a construction and demolition debris landfill and recycling center.

In 2003, respondent Amsterdam Materials Recycling, LLC (hereinafter respondent) submitted an application to respondent Amsterdam Industrial Development Agency (hereinafter AIDA) ( seeGeneral Municipal Law § 890–i) to develop a construction and demolition debris landfill and recycling center in an industrial park owned by AIDA in the City of Amsterdam, Montgomery County. AIDA became the lead agency with respect to the project and found that the proposed facility might have a significant effect on the environment, triggering the State Environmental Quality Review Act ( see ECL art. 8 [hereinafter SEQRA] ) and the requirement of an environmental impact statement (hereinafter EIS) ( seeECL 8–0109[2] ). Two periods of public comment were held on drafts of the EIS, during which many individuals and organizations interested in the project, including petitioner, submitted comments. After the second comment[95 A.D.3d 1540]period, AIDA accepted the latest draft EIS—which incorporated changes and included the numerous reports that were relied upon, as well as the public comments and responses thereto—as the final EIS (hereinafter FEIS). In 2007, AIDA adopted two resolutions which, among other things, set forth a findings statement ( see6 NYCRR 617.11) and authorized AIDA to enter into a contract with respondent for the construction of the facility.

Petitioner then commenced this CPLR article 78 proceeding, challenging the FEIS and the findings statement and seeking, among other things, to annul the aforementioned AIDA resolutions. Respondent

[945 N.Y.S.2d 437]

answered asserting affirmative defenses including, among others, lack of standing and failure to exhaust administrative remedies. Petitioner thereafter amended its petition in response. Supreme Court granted the amended petition in part by, as relevant here, declaring the FEIS null and void because it failed to meet SEQRA requirements and invalidating the resolutions that adopted AIDA's findings statement and authorized the contract between AIDA and respondent. Respondent now appeals.1

Preliminarily, we are unpersuaded by petitioner's argument that this appeal has been rendered moot by AIDA's adoption in February 2011 of a resolution stating that the SEQRA process would have to be repeated.2 There is no existing authority for an agency to independently rescind an EIS and the related findings statement in their entirety after they have already been accepted, based solely on the passage of time. Generally, “the mere passage of time does not warrant [the] reopening of environmental review” ( Matter of Stewart Park & Reserve Coalition v. New York State Dept. of Transp., 157 A.D.2d 1, 8–9, 555 N.Y.S.2d 481 [1990],affd.77 N.Y.2d 970, 571 N.Y.S.2d 905, 575 N.E.2d 391 [1991];see Matter of Jackson v. New York State Urban Dev. Corp., 67 N.Y.2d 400, 425, 503 N.Y.S.2d 298, 494 N.E.2d 429 [1986];see also Matter of Doremus v. Town of Oyster Bay, 274 A.D.2d 390, 393, 711 N.Y.S.2d 443 [2000] ). Even if the lead agency finds an existing EIS to be inadequate, SEQRA regulations permit the agency to require a supplemental EIS, where “specific significant adverse environmental impacts ... arise from ... changes proposed for the [95 A.D.3d 1541]project[,] newly discovered information[,] or ... a change in circumstances related to the project” ( 6 NYCRR 617.9[a][7][i]; see Matter of Doremus v. Town of Oyster Bay, 274 A.D.2d at 393–394, 711 N.Y.S.2d 443). Alternatively, if the inadequacies of the FEIS did not arise from the factors set forth in 6 NYCRR 617.9(a)(7)(i), the agency may require an amended FEIS ( see generally Matter of County of Orange v. Village of Kiryas Joel, 44 A.D.3d 765, 769, 844 N.Y.S.2d 57 [2007] ). Here, since Resolution No. 2011–12 is without legal effect insofar as it purports to rescind the FEIS and findings statement, this Court's determination will clearly impact the parties' rights. Indeed, even if AIDA's resolution was authorized, our determination would necessarily implicate respondent's rights under the contract with AIDA. Thus, the appeal is not moot.

We also reject respondent's assertion that petitioner lacks standing to challenge the SEQRA determination. In order to establish standing to challenge a SEQRA determination, a municipality “must demonstrate ‘how its personal or property rights, either personally or in a representative capacity, will be directly and specifically affected apart from any damage suffered by the public at large’ ” (Matter of Saratoga Lake Protection & Improvement Dist. v. Department of Pub. Works of City of Saratoga Springs, 46 A.D.3d 979, 983, 846 N.Y.S.2d 786 [2007],

[945 N.Y.S.2d 438]

lv. denied10 N.Y.3d 706, 857 N.Y.S.2d 38, 886 N.E.2d 803 [2008], quoting Matter of City of Plattsburgh v. Mannix, 77 A.D.2d 114, 117, 432 N.Y.S.2d 910 [1980];accord Matter of Village of Canajoharie v. Planning Bd. of Town of Florida, 63 A.D.3d 1498, 1501, 882 N.Y.S.2d 526 [2009] ), and “ ‘that it will suffer an injury that is environmental and not solely economic in nature’ ” (Matter of Village of Canajoharie v. Planning Bd. of Town of Florida, 63 A.D.3d at 1501, 882 N.Y.S.2d 526, quoting Matter of Mobil Oil Corp. v. Syracuse Indus. Dev. Agency, 76 N.Y.2d 428, 433, 559 N.Y.S.2d 947, 559 N.E.2d 641 [1990];see Society of Plastics Indus. v. County of Suffolk, 77 N.Y.2d 761, 787–788, 570 N.Y.S.2d 778, 573 N.E.2d 1034 [1991] ). Here, petitioner has held an option to purchase property owned by the Butterfield family (hereinafter the Butterfield property), located directly adjacent to the proposed site, since January 2007. Petitioner argues that, by virtue of such interest, it will be subject to “greater exposure to the pollution and nuisance of the landfill.” Petitioner further argues that it has standing in a representative capacity on behalf of its residents living on Chapman Drive, which is also directly adjacent to the proposed landfill site.3 Given that the proposed landfill's impact on, among other [95 A.D.3d 1542]things, groundwater resources was specifically identified as a concern during the environmental review of the proposal, petitioner has alleged direct harm with respect to both the Butterfield property and the residences located on Chapman Drive ( see generally Matter of Basha Kill Area Assn. v. Planning Bd. of Town of Mamakating, 46 A.D.3d 1309, 1311, 849 N.Y.S.2d 112 [2007],lv. denied10 N.Y.3d 712, 861 N.Y.S.2d 272, 891 N.E.2d 307 [2008]...

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    ...917 ; Matter of Village of Woodbury v. Seggos, 154 A.D.3d at 1259–1260, 65 N.Y.S.3d 76 ; Matter of Town of Amsterdam v. Amsterdam Indus. Dev. Agency, 95 A.D.3d 1539, 1541–1542, 945 N.Y.S.2d 434 [2012] ). Accordingly, although not every petitioner may have established standing (see Saratoga ......
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    ...among alternatives or otherwise substitute its judgment for that of the agency." Matter of Town of Amsterdam v. Amsterdam Indus. Dev. Agency , 95 A.D.3d 1539, 1543, 945 N.Y.S.2d 434 (3d Dep't 2012). "[Judicial] review is deferential for it is not the role of the courts to weigh the desirabi......
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  • How Environmental Review Can Generate Car-Induced Pollution: A Case Study
    • United States
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    ...of Chestnut Ridge v. Town of Ramapo , 841 N.Y.S.2d 321, 332 (App. Div. 2007). 23 See Town of Amsterdam v. Amsterdam Ind. Dev. Agency , 945 N.Y.S.2d 434, 440 (App. Div. 2012) (explaining that the “primary purpose” of SEQRA is “to ensure that the agency gives appropriate respect and due consi......
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