Avy v. Town of Amenia, 2004 NY Slip Op 50972(U) (NY 8/13/2004)
| Decision Date | 13 August 2004 |
| Docket Number | 908/04. |
| Citation | 2004 NY Slip Op 50972(U) |
| Parties | STANLEY AVY, HAROLD GORDON, ARLENE IULIANO, GERRY L. THOMPSON and MARCIA DUE, Petitioners, v. TOWN OF AMENIA, NEW YORK and JACK GREGORY and LINDA GREGORY, Respondents. |
| Court | New York Court of Appeals Court of Appeals |
TEAHAN & CONSTANTINO, Attorneys for Petitioners, Poughkeepsie, New York, By: Marilyn D. Berson, Esq. McCABE & MACK, LLP, Attorneys for Respondent Town of Amenia, Poughkeepsie, New York, By: Arabella W. Teal, Esq. CUDDY & FEDER, LLP, Attorneys for Respondents Gregory, White Plains, New York, By: Neil J. Alexander, Esq.
Petitioners Stanley Avy, Harold Gordon, Arlene Iuliano, Gerry L. Thompson and Marcia Due (hereinafter collectively referred to as "petitioners") move for relief pursuant to Article 78 of the Civil Practice Law and Rules for a judgment annulling two determinations of the Town Board of the Town of Amenia ("Town Board") made on or about September 18, 2003, adopting a Negative Declaration under the New York State Environmental Quality Review Act ("SEQRA"), and adopting Local Law No. 1 of 2003 ("Local Law No. 1") amending the zoning district designation of a portion of a parcel of land located in the Town of Amenia owned by respondents Jack Gregory and Linda Gregory (the "Gregorys").
The Gregorys are the owners of Town of Amenia Tax Map Parcel No. 7167-00-29472 (the "Property"), which consists of approximately 7.79 acres of undeveloped land located on the westerly side of Route 22 in the Town of Amenia, New York. The zoning classification of the Property is divided east to west, with 3.18 acres abutting Route 22 classified as RM (Residential — Medium Density) and 4.61 acres to the west classified as Agricultural ("RA"). The entire parcel is located within New York State Agricultural District No. 21.
On February 19, 2002, the Gregorys filed a rezoning application with the Town Board seeking to rezone approximately three acres of the Property from RM (Residential-Medium Density) to GB (General Business). The rezoning was necessary to permit the expansion and relocation of the Gregorys' automobile repair business from a site on Route 22 in the southern portion of the Town of Amenia (known as the hamlet of Wassaic) to the Property. The application proposed the construction of a 6,000 square foot building for use as an automotive repair facility and associated parking.
A proposed Part 1 of an Environmental Assessment Form (the "Proposed EAF") dated March 27, 2002 and a conceptual site plan map were submitted by the Gregorys to the Town Board in March of 2002. The Proposed EAF indicated that the project would include the construction of a building that was 35 feet high, 60 feet wide and 100 feet in length, and would entail the development of approximately 0.80 of an acre.
On April 4, 2002, the Town Board referred the Gregorys' application to the Town of Amenia Planning Board ("Planning Board") for review and comment.
Thereafter, on or about April 25, 2002 the Town Board initiated the SEQRA review process by circulating its Notice of Intent to Assume Lead Agency to coordinate the review of the rezoning, which process culminated in the Town Board becoming lead agency in June of 2002 (see 6 NYCRR §617.6[b][1]).
By letter dated May 5, 2002, the Planning Board submitted its report on the rezoning application to the Town Board. In its report, the Planning Board stated that the Gregorys' proposed project "appears" to be a goal of the 1992 Amenia Master Plan and "appears" to comply with the recommendation of the Future Land Use Map. While silent on the specific approval of the rezoning itself, the report stated that the Planning Board recommended that "the Town Board consider the proposed Zoning Map amendment" (emphasis added).
In accordance with General Municipal Law §§239-l and 239-m, the Town Board referred the rezoning application to the Dutchess County Department of Planning and Development ("Dutchess County Planning"). By memorandum dated May 30, 2002, Dutchess County Planning submitted its comments regarding the application and recommended that the requested rezoning be denied.1
In connection with its review of the Gregorys' rezoning application, the Town Board retained GreenPlan, Inc. ("GreenPlan") to act as its consulting planner. In a memorandum dated October 10, 2002, GreenPlan, requested that additional information be supplied by the Gregorys. Specifically, the Town Board was advised that, due to the lack of proposed site plans detailing the "service station project," Part 1 of the Proposed EAF should be deemed incomplete "since it only addresses in a generalized (generic) sense, the full scale of the proposed project."
In addition to identifying specific comments that required "particular attention" by the Town Board in its consideration of any revision to the Proposed EAF, GreenPlan advised the Town Board that the question regarding whether the proposed action was consistent with the recommended uses in the Master Plan should be answered "currently unavailable, pending completion of the planning process." This recommendation was based upon two factors: 1) the Amenia Planning Board's questioning of the consistency of the proposed rezoning with the Comprehensive Plan, and 2) the Town Board's creation of a Comprehensive Plan Committee to update the Master Plan. In closing, GreenPlan advised the Town Board that completion of Part 2 of the EAF could not be "properly prepared" until the revisions to Part 1 were made and the proposed site plans submitted.
On March 7, 2003, the Gregorys' consultant, Land Resource Consultants ("Land Resource"), submitted a response to GreenPlan's memorandum. Land Resource acknowledged that the site plan which had been submitted by the Gregorys was not a fully engineered site plan. It requested that the Town Board accept the conceptual site plan, as a fully engineered site plan prepared in accordance with the Town Zoning Law would require an "outlay of several thousand dollars"; a cost that the Gregorys were not in a financial position to incur.
In a letter dated April 21, 2003, to the Town Board, the Department of Environmental Conservation ("DEC") identified the potential for the presence of threatened and endangered species of flora and fauna on the Property.2
On May 8, 2003, Land Resource, on behalf of the Gregorys, submitted a further, revised full EAF ("Revised EAF") for the Town Board's consideration. In Part 1 of the Revised EAF, the amount of land which would ultimately be developed was increased from .080 acres to 1.65 acres. The Revised EAF also indicated that the development of the Property and the construction of the automotive repair facility would necessitate the removal of approximately 3,000 tons/cubic yards of natural material and approximately 1.65 acres of vegetation from the rezoned portion of the Property.
Relying upon information provided by two biologists who had been consulted in connection with an unrelated rezoning application for property located on the easterly side of Route 22, the applicants indicated that no endangered or threatened species were present on the Property. However, in "Part 1D — Information Details," the Revised EAF stated: "that only an on-site investigation can determine with any certainty whether the identified rare and endangered animal and plant specie [sic] are in fact absent from the project site." Therefore, "assuming that the change in zone request is granted, the applicants would commission a study of the site."
Part 2 of the Revised EAF identified 14 potentially significant environmental impacts. These impacts included, inter alia: 1) adverse affect on groundwater; 2) substantial erosion and alteration of existing on-site drainage patterns; 3) impact on aesthetic resources caused by the proposed land use being obviously different from or in sharp contrast to surrounding land use patterns; 4) routine odors; 5) operating noise exceeding the local ambient noise levels for noise outside of structures; and 6) change in the density of land use.
With respect to the potential adverse environmental impact to surface and groundwater, the Revised EAF indicated that the proposed project, which required the use and storage of oil and petroleum products, is located over an aquifer, which, as the only source of potable water for the area surrounding the Property, constitutes an "economically vital natural resource" that must be "preserved to assure public health and safety."
At a Town Board meeting held on June 19, 2003, the Town Board set a date for a public hearing on July 24, 2003.
The rezoning application was resubmitted to Dutchess County Planning, and in a memorandum dated July 15, 2003, it once again recommended that the application be denied. It was also recommended that any decision regarding the rezoning be deferred until such time as the Town of Amenia's Master Plan update objectives had been identified, recommendations determined and the process completed.3
Notwithstanding this recommendation, a public hearing on the rezoning application was held on July 24, 2003, and a motion to close the public hearing was granted after two hours of public comment. Thereafter, on September 18, 2003, Town Supervisor Thomas LeJeune presented a draft Negative Declaration and proposed Local Law No. 1 to the Town Board for its vote. In light of Dutchess County Planning's disapproval, in order for the Town Board to approve the rezoning, a majority plus one of all members of the Town Board were required to vote in favor of the proposed Local Law No. 1 (see General Municipal Law §239-m[5]). A vote was taken and the resolutions adopting the Negative Declaration and Local Law No. 1 were adopted by a vote of four to one.
The Negative Declaration was issued after a determination by the Town Board, as the lead agency, that the environmental effects of the proposed project would not exceed any of...
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