Aldrich v. Pattison
| Decision Date | 04 March 1985 |
| Parties | William ALDRICH, et al., Appellants, v. Lucille PATTISON, et al., Respondents. |
| Court | New York Supreme Court — Appellate Division |
Robert M. Lustberg and Joan M. Ferretti, Larchmont, for appellants.
Chadbourne, Parke, Whiteside & Wolff, New York City (William M. Bradner, Jr., David L. Snyder and Peter H. Levitt, New York City, of counsel), for respondents.
Before MOLLEN, P.J., and WEINSTEIN, RUBIN and EIBER, JJ.
The question on this appeal is whether there has been compliance with the procedural and substantive requirements of the State Environmental Quality Review Act (ECL art. 8) (hereinafter SEQRA) and the applicable regulations in the formulation and approval of a final environmental impact statement (hereinafter FEIS).
The FEIS challenged by petitioners in the instant proceeding concerns the construction of a proposed resource recovery facility (hereinafter facility) in the Town of Poughkeepsie in Dutchess County. Resource recovery is broadly defined in the FEIS as the "recovery of waste materials for use in a productive manner". The proposed facility approved by the Dutchess County Legislature will utilize the technology known as "mass burning", whereby refuse is incinerated at high temperatures in the condition it is delivered without prior processing, other than screening to eliminate materials defined as "[u]nacceptable [w]astes". 1 The facility will recover energy from the hot gases produced by the combustion process in the form of steam, most of which will be sold to the IBM Corporation for use in its South Road complex. The remainder of the steam will be used to generate electricity for sale to the Central Hudson Gas & Electric Corporation. The residue from the incinerated refuse will be quenched with waste water from the facility's boilers and then deposited at a sanitary land fill located in the Town of Fishkill.
The proposed site for the facility is an 11.5-acre parcel of land on the east bank of the Hudson River, which is to be acquired by Dutchess County from New York Trap Rock, Inc. The site is bordered on the west by a railroad right of way and, beyond that, by the Hudson River. Immediately to the north of the proposed facility site is the Arlington Sewer District Sewage Treatment Plant. The IBM South Road Complex, which will be the major consumer of the steam produced by the facility, is located north of the sewage plant. The facility site is bordered on the east by Sand Dock Road. Located approximately 1,500 feet east of Sand Dock Road is the closest residential subdivision in the immediate vicinity. According to the plan for construction of the proposed facility, a 37-acre, wooded The concept of resource recovery has been under study by Dutchess County since 1972 as an alternative to sanitary landfills, the current method employed by the county for disposing of the majority of its solid waste. The county attempted to implement a proposal for the construction of a resource recovery facility using technology other than "mass burning" in the wake of the 1973-1974 energy crisis, but this project was subsequently abandoned in or about 1975. The groundwork for the present facility was laid in 1980 when the Dutchess County Resource Recovery Task Force, which had been in existence since the mid-1970's, recommended the construction of a resource recovery facility using the "mass burning" technology. In 1981, the county employed a contractor to perform a study to implement plans for a resource recovery facility. This initial study, completed in September, 1981, recommended the construction of a "mass burning" plant capable of incinerating 400 tons of refuse per day to be located at the present proposed site, which was found to be superior to the other sites investigated from an environmental, topographic, access, economic and aesthetic point of view. In 1982, the New York State Legislature passed legislation creating the Dutchess County Resource Recovery Agency, a public benefit corporation which will ultimately assume responsibility for the facility at issue in the instant proceeding (L.1982, ch. 675). In the same year the county solicited proposals to develop, construct, test and operate a resource recovery facility utilizing the "mass burning" technology.
tract of land between Sand Dock Road and this residential area is also to be purchased by the county from New York Trap Rock, Inc. to serve as a buffer zone. South of the facility site is approximately 325 acres owned and used by New York Trap Rock, Inc. for quarrying rock.
The Dutchess County Department of Solid Waste Management (hereinafter Department of Solid Waste Management) was designated as the "lead agency" for the purposes of this project pursuant to SEQRA (ECL 8-0101, et seq.). It retained the contractor which had conducted the initial study for the resource recovery facility to prepare a Draft Environmental Impact Statement (hereinafter DEIS), in accordance with the requirements of SEQRA and the applicable regulations (see ECL 8-0109[4]; 6 NYCRR 617.8). The DEIS was completed on or about January 7, 1983 and, shortly thereafter, copies were distributed and made available to the public at the county's government offices, the clerk's office of each of the municipalities in the county and at several public libraries. A public hearing was held on February 23, 1983 for the purpose of receiving comments on the DEIS, after notices of the hearing were published in local newspapers. Thirty-eight individuals testified at this hearing. In addition, written comments on the DEIS were accepted until March 7, 1983, including those submitted by the New York State Department of Environmental Conservation (hereinafter NYSDEC), local municipalities, other government agencies, and various nonprofit organizations and individuals. None of the individual petitioners submitted either oral or written comments on the DEIS. However, some members of petitioner South Road Civic Association appeared at the public hearing and voiced comments about the proposed facility. Thereafter, a FEIS was prepared, incorporating the comments received on the DEIS and the responses thereto. The FEIS was filed on May 6, 1983 and made available to the public in order to afford interested parties a further opportunity to review this complex 500-page document, pursuant to 6 NYCRR 617.10.
On May 17, 1983, the lead agency, the Department of Solid Waste Management, issued a statement of findings accepting the FEIS as the basis for proceeding with the resource recovery facility project and certifying that the requirements of SEQRA had been complied with and that the adverse environmental impacts of the project would be mitigated to the maximum extent practicable (see ECL 8-0109[8]; 6 NYCRR
617.9[c] ). Thereafter, on May 18, 1983, the Dutchess County Legislature passed resolution 230 in which it approved the FEIS and the findings of the lead agency as the basis to proceed with the construction of the proposed facility.
By notice of petition, dated August 11, 1983, the South Road Civic Association and three individual residents of the subdivision closest to the proposed facility site commenced a proceeding pursuant to CPLR article 78 to review, vacate and set aside resolution 230 of the Dutchess County Legislature. 2 The petition asserted, inter alia, that the FEIS did not comply with the requirements of SEQRA because it failed to adequately address certain issues and adverse environmental impacts of the proposed project. Respondents moved to dismiss the petition, under, inter alia, CPLR 3211(a)(1) and 7804(f), on the ground the FEIS, when read in light of the applicable regulations and petitioner's own exhibits, was not deficient in any of the respects alleged in the petition. Special Term granted respondents' motion to dismiss the petition, after concluding that the action of the Dutchess County Legislature in passing the resolution approving the proposed project was neither arbitrary nor capricious and was supported by substantial evidence. Special Term found that the FEIS, upon which the Dutchess County Legislature's resolution was based, complied fully with the requirements of SEQRA and the applicable regulations, and that the document "distinctly addressed" each of the areas of concern raised by petitioners. 3
We concur with the result reached by Special Term, but find it necessary to further clarify the judicial standard of review applicable in a case where the agency's compliance with the substantive, as opposed to the procedural, requirements of SEQRA and its implementing regulations is at issue.
SEQRA and its implementing regulations establish a procedural framework designed to incorporate the consideration of environmental factors into the existing planning, review and decision-making process of State, regional and local government agencies at the earliest possible time so as to minimize, to the greatest degree possible, the adverse environmental consequences of any project that is approved (see 6 NYCRR 617.1[c]; Matter of Sun Beach Real Estate Dev. Corp. v. Anderson, 98 A.D.2d 367, 469 N.Y.S.2d 964, affd. 62 N.Y.2d 965, 479 N.Y.S.2d 341, 468 N.E.2d 296, for reasons stated in the opn. by Lazer, J. at the App.Div.).
In Glen Head-Glenwood Landing Civic Council v. Town of Oyster Bay, 88 A.D.2d 484, 486-487, 453 N.Y.S.2d 732, we summarized the procedure as follows:
"As early as possible in the SEQRA process, the agency 'having principal responsibility for carrying out or approving' a given project or activity--the 'lead' agency (ECL 8-0111, subd 6)--must determine whether an environmental impact statement (EIS) should be prepared with reference to the proposal submitted (ECL 8-0109, subd 4; 8-0111, subd 6). If the Since the...
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