Cady v. Town of Germantown Planning Bd.

• Decision Date: 18 June 2020
• Docket Number: 528603
• Citation: 126 N.Y.S.3d 543,184 A.D.3d 983
• Parties: In the Matter of Arthur M. CADY et al., Respondents, et al., Petitioners, v. TOWN OF GERMANTOWN PLANNING BOARD et al., Appellants, et al., Respondents.
• Court: New York Supreme Court — Appellate Division

184 A.D.3d 983
126 N.Y.S.3d 543

In the Matter of Arthur M. CADY et al., Respondents, et al., Petitioners,
v.
TOWN OF GERMANTOWN PLANNING BOARD et al., Appellants, et al., Respondents.

528603

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

Calendar Date: May 19, 2020
Decided and Entered: June 18, 2020

126 N.Y.S.3d 544

Whitbeck Benedict & Smith LLP, Hudson (Corrine R. Smith of counsel), for Town of Germantown Planning Board, appellant.

Monaco Cooper Lamme & Carr PLLC, Albany (Jacob F. Lamme of counsel), for Primax Properties, LLC, appellant.

Warren S. Replansky, PC, Rhinebeck (Warren S. Replansky of counsel), for respondents.

Before: Lynch, J.P., Devine, Pritzker and Reynolds Fitzgerald, JJ.

MEMORANDUM AND ORDER

Pritzker, J.

184 A.D.3d 984

Appeal from a judgment of the Supreme Court (Zwack, J.), entered February 5, 2019 in Columbia County, which granted petitioners' application, in a combined proceeding pursuant to CPLR article 78 and

126 N.Y.S.3d 545

action for declaratory judgment, to annul a determination of respondent Town of Germantown Planning Board approving the request of respondent Primax Properties, LLC for subdivision and site plan approval.

In January 2015, respondent Primax Properties, LLC applied to respondent Town of Germantown Planning Board for subdivision and site plan approval to subdivide an existing lot of approximately 6.1 acres in the Town of Germantown, Columbia County (hereinafter the property) into two lots. Respondents Paul D'Souza and Henrietta D'Souza, who owned the property, would retain one lot of approximately 4.7 acres, while the remaining lot of approximately 1.4 acres (hereinafter the site) would be conveyed to Primax. Primax would then construct an approximately 9,000–square–foot Dollar General retail store on the site, a permitted use in the relevant zoning district requiring site plan approval. Petitioners Arthur M. Cady and Elizabeth M. Cawley owned certain real property that shared a common boundary with the property. The site falls within the Town's scenic viewshed overlay district, which is designed to protect the Hudson River corridor and the Catskill Mountain viewshed in accordance with the Town's Comprehensive Plan.

Following Primax's application, the Planning Board declared itself lead agency pursuant to the State Environmental Quality Review Act (see ECL art 8 [hereinafter SEQRA] ). The Planning Board issued a positive declaration, thus requiring the preparation of an environmental impact statement (hereinafter EIS). After Primax submitted three draft EISes, the Planning Board determined that the draft EIS was complete and accepted it for public review. The Planning Board subsequently held a public hearing and continued to accept public comments for a month afterwards. At the Planning Board's request, Primax submitted a proposed final EIS (hereinafter FEIS). The Planning Board then held an internal meeting and voted to accept the FEIS as written. After the Planning Board revised its draft

184 A.D.3d 985

SEQRA findings statement, it unanimously voted to adopt it. Among other things, the proposed revised findings statement indicated that, although the proposed 71–foot–wide building and accompanying signage would be visible from surrounding locations, the building and signage were "not expected to present a significant visual impact" on the viewshed. The Planning Board subsequently held a public hearing and opened a public comment period on the Planning Board's SEQRA findings statement. Despite predominantly negative public comments, the Planning Board unanimously adopted a resolution conditionally approving the site plan and subdivision. The resolution incorporated the Planning Board's SEQRA findings statement and further noted that the project complied with all standards for subdivision and site plan approval, as well as applicable zoning and design standards.

Thereafter, petitioners commenced this combined CPLR article 78 proceeding and action for declaratory judgment setting forth 12 causes of action generally involving alleged SEQRA violations. Petitioners argued, as relevant here, that the Planning Board failed to take the requisite hard look at the visual and environmental impact of the project and acted outside of its authority by approving the building design with a 71–foot fac¸ade without submitting the...