Bliek v. Town of Webster
| Decision Date | 16 May 1980 |
| Citation | 104 Misc.2d 852,429 N.Y.S.2d 811 |
| Court | New York Supreme Court |
| Parties | LaVerne BLIEK and Virginia Bliek, 1127 Ridge Road; Donald Seeley and Margaret Seeley, 912 Holt Road; Robert Finley and Arlene Finley, 1137 Ridge Road; Margaret LaDue, 1133 Ridge Road; Jerome Stotler, 973 Jackson Road; Michael Syracusa and Nancy Syracusa, 770 Holt Road; Bruce C. Hegedorn, 635 Timothy Lane; and Hegedorn's Holdings, Inc., Petitioners/Plaintiffs, v. TOWN OF WEBSTER; Webster Town Board; Homart Development Co. and Leonard Dobbs, Individually, and as Partners Doing Business as Webster Associates; Celia Ruth Wright, 1030 Ridge Road West; Alexander Schaer and Della Schaer, 1042 Ridge Road West; the Psaty Corp. and Bronxville Knolls, Inc., 1214 Midland Avenue, Bronxville, N.Y.; George D. Huntoon and Ethel R. Huntoon, 1076 Ridge Road West; Margaret Rampe, 1080 Ridge Road West; Othello Thurston and Marjorie Thurston, 1082 Ridge Road West; William W. Phelan and Mary J. Phelen, 1086 Ridge Road West; Warren W. Ghyzel and Norma R. Ghyzel, 1088 Ridge Road West; Darryl Gronsky and Simone Gronsky, d/b/a D&S Designs, 1092 Ridge Road West; William A. Lieberman and Oneita I. Lieberman, 945 Holt Road; Albert B. Eckler, Jr., Ronald B. Eckler and Harriet Eckler, 935 Holt Road, Respondents/Defendants. Robert E. WILSON and Mary E. Wilson, 85 Sherwood Avenue; Michael Bills and Sandra Bills, 933 Little Pond Way; Morris B. Hotchkiss and Mary Hotchkiss, 1115 Shoemaker Road; Edward O. Griepp, 826 Woodcock Drive; Fred Watts, 838 Lake Road; Norbert G. Zink and Gertrude Zink, 635 Holt Road; and Harold B. Zink and Michelle Zink, 1715 Woodsboro Road, Petitioners/Plaintiffs, v. TOWN OF WEBSTER; Webster Town Board; Homart Development Co., and Leonard Dobbs, Individually and as Partners Doing Business as Webster Associates; Celia Ruth Wright, 1030 Ridge Road West; Alexander Schaer and Delia Schaer, 1042 Ridge Road West; the Psaty Corp. and Bronxville Knolls, Inc., 1214 Midland Ave., Bronxville, N. Y.; George D. Huntoon and Ethel R. Huntoon, 1076 Ridge Road West; Margaret Rampe, 1080 Ridge |
Shields & Petruccelli, Rochester (John A. Shields, Rochester, of counsel), for petitioners/plaintiffs Wilson, et al. (Action No. 2).
Sutton, DeLeeuw, Clark & Darcy, Rochester (Robert L. Teamerson, Rochester, of counsel), for respondents/defendants Webster Town Board and the Town of Webster.
Robinson, Williams, Angeloff & Frank, Rochester (Bernard A. Frank, Rochester, of counsel), for respondents/defendants Homart Development Co. and Leonard Dobbs.
DECISION
In these separate proceedings, which request declaratory judgment and Article 78 relief, the petitioners-plaintiffs seek to invalidate rezoning by the Webster Town Board on December 27, 1979 which created a PCS (Planned Shopping Commercial District) within an existing CS (Commercial Shopping Center District). The subject property, which is owned by some of the respondent-defendants 1 is located at the intersection of Ridge and Holt Roads in the Town of Webster, New York. Respondents Homart Development Co. and Leonard Dobbs are the developers of the proposed enclosed shopping center to be built on this site (hereinafter the "Homart site").
The petitioners are primarily resident homeowners living adjacent to or very near the Homart site. Hegedorn Holdings, Inc., is the owner and operator of a large food market on Ridge Road less than one-half mile from the Homart site and also owns or controls approximately 100 acres at the same location. This property has been optioned to National Shopping Centers, Inc., which apparently intends to develop it into an enclosed shopping center and mall, depending, no doubt, upon the ultimate outcome of these proceedings.
These various actions are grounded upon the claim that the Town Board, in its haste to grant the rezoning before the end of the year 1979 and the expiration of its members' terms, failed to comply with the procedures mandated for a project of this kind by the State Environmental Quality Review Act (hereinafter "SEQR") and the regulations promulgated thereunder (6 NYCRR §§ 617.1 et seq.); further, that the General Municipal Law, the Public Officers Law and the Webster Town Code were also violated.
These actions are now before the court on motions brought by all of the parties except the Town Board and the Town of Webster, as follows:
1. Petitioners move to consolidate the Article 78 proceedings and the declaratory judgment actions and request a preliminary injunction in the declaratory judgment actions;
2. Respondents move to dismiss the Article 78 proceedings and for summary judgment in the declaratory judgment actions;
3. Petitioners cross-move for summary judgment in their declaratory judgment actions and for judgment pursuant to CPLR 7804 in the Article 78 proceedings.
On October 22, 1979, Homart and Dobbs announced their intention to seek a change of zoning from CS to PCS on the subject site to enable them to build an enclosed regional shopping center and mall. This application was made in accordance with the Webster Town Code Planned Unit Development District Provisions (Webster Town Code § 59-21 et seq.). As planned, the mall would occupy approximately 93 acres of land and would contain four major stores and more than 120 smaller stores. It would consist of over 900,000 square feet of buildings and approximately 4600 parking spaces. The developers also submitted an Environmental Assessment Form (hereinafter "EAF") to the Town Board. This form, which is required by the SEQR regulations (6 NYCRR §§ 617.6(b) and 617.3(d)), is submitted by land developers to assist the agency in charge of approving such proposals to determine their environmental significance. The EAF is required to contain enough information to describe the proposed action, its location, its purpose and its potential impact on the environment (6 NYCRR § 617.2(k)).
On November 1, 1979 the Town Board, based upon the information supplied in the Homart EAF, determined that the proposed rezoning and development was a "Type I" action as defined in the SEQR regulations (6 NYCRR § 617.12).
On the same date, the Town Board found that the project would have a significant effect on the environment (for SEQR purposes, this is a "positive declaration" and will be referred to as such hereinafter). This finding was consistent with the criteria set forth in 6 NYCRR § 617.11 for determining the significance of Type I actions, which include substantial adverse changes in existing air quality, water quality and noise levels, a substantial increase in solid waste production (subd. 1), the attractions of a large number of people for more than a few days who would not otherwise be at that location (subd. 3), a major change in the use of energy (subd. 6), and a substantial change in the use and intensity of use of the land (subd. 8). At the same time, the Town Board declared itself the "lead agency" for SEQR purposes (6 NYCRR § 617.6(c)) and, by so doing, assumed responsibility for administration of the SEQR process under the legislative scheme. Lastly, because of the positive declaration, the Town Board in its capacity as lead agency, directed that a Draft Environmental Impact Statement (hereinafter "DEIS") would be required. The DEIS, the second-level requirement of the SEQR process, is designed to "relate environmental considerations to the inception of the planning process, to inform the public and other public agencies . . . about proposed actions that may significantly affect the quality of the environment, and to solicit comments which will assist the agency . . . in determining the environmental consequences of the proposed action." ECL § 8-0109(4)).
On November 7, 1979, after a Town Board election which saw the incumbents losing their political majority, Homart and Dobbs formally commenced the process required for obtaining the rezoning.
In addition to submitting sketch plans to the Planning Board, the developers, on November 16, 1979, delivered a lengthy DEIS to the Town Offices. This having been done, the Town Board, as lead agency, was legally required to meet and to review the DEIS to determine whether to accept it as satisfactory with respect to scope, contents and adequacy (ECL § 8-0109(5); 6 NYCRR § 617.8(b)). However, it is conceded by the Town Board in its Answer that it did no such thing. In addition, the Town Board, although filing notices of completion of the DEIS with involved governmental agencies as required by SEQR (ECL § 8-0109(4); 6 NYCRR § 617.10(d)), failed to file copies with the state and federal clearinghouses, as is also required (6 NYCRR § 617.10(d)).
On November 21, 1979, the Town Board published a notice in the "Webster Herald", a local newspaper, which stated that the DEIS was on file and advised that public comment on the DEIS would be accepted until December 17, 1979, the 30-day minimum required by the regulations if no public hearing is held (6 NYCRR § 617.10(d)(3)).
The Town Board met the same week, on Friday, November 23, 1979, and scheduled two public hearings for December 13, 1979 one for the purpose of determining, under the zoning ordinance, its "intention to rezone" the Homart site, and the other for receiving public comments on the DEIS. A notice of these hearings was also published in the "Webster Herald".
On December 13, 1979, the Town Board...
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