Coca-Cola Bottling Co. of New York, Inc. v. Board of Estimate of City of New York

• Decision Date: 20 December 1988
• Docket Number: COCA-COLA
• Parties: , 532 N.E.2d 1261 In the Matter ofBOTTLING COMPANY OF NEW YORK, INC., Respondent, v. BOARD OF ESTIMATE OF the CITY OF NEW YORK et al., Appellants.
• Court: New York Court of Appeals Court of Appeals

Page 33

536 N.Y.S.2d 33

72 N.Y.2d 674, 532 N.E.2d 1261

In the Matter of COCA-COLA BOTTLING COMPANY OF NEW YORK INC., Respondent, v. BOARD OF ESTIMATE OF the CITY OF NEW YORK et al., Appellants.

Court of Appeals of New York.

Dec. 20, 1988.

Peter L. Zimroth, Corp. Counsel (Jeffrey Schanback, Leonard Koerner and John De Angeli, New York City, of counsel), for the Bd. of Estimate of the City of New York and others, appellants.

Stanley S. Zinner, White Plains, for Con-Agg Recycling Corp., appellant.

John T. Van Der Tuin and Jon Y. Arnason, New York City, for respondent.

Robert Allan Muir, Jr., Brooklyn, for Howard Golden and others, amici curiae.

OPINION OF THE COURT

WACHTLER, Chief Judge.

In the early 1980's respondent Con-Agg Recycling Corp. (Con-Agg) began operating a concrete recycling business on a site in The Bronx owned by the City of New York (the City). The applicable urban renewal plan, however, did not authorize the use of the site for this purpose. Thus in 1984 Con-Agg sought amendment of the plan to allow for its recycling activities. It also sought to purchase the site from the City. Respondent Board of Estimate is the entity within the City government that was principally responsible for amending the urban renewal plan and selling the site. ¹

These proposed actions were subject to environmental review under the State Environmental Quality Review Act SEQRA) (ECL art. 8). In New York City, SEQRA is implemented pursuant to the dictates of Mayoral Executive Order No. 91. Under this Executive Order two City agencies--the City Department of Environmental Protection (DEP), and the Department of City Planning--are designated as permanent "lead agencies" responsible for implementation of SEQRA. These agencies divide the environmental review of proposals according to their respective areas of expertise.

DEP reviewed the proposals in this case, and issued a "conditional negative declaration," concluding that if certain noise abatement steps were taken by Con-Agg there would be no significant effect on the environment emanating from its recycling activities. The Board of Estimate subsequently approved the sale of the site to Con-Agg and the amendment of the urban development plan to allow for recycling on the property.

The present article 78 proceeding was then commenced against respondents ² by The Coca-Cola Bottling Company of New York, Inc. (Coca-Cola), a neighbor of Con-Agg's in The Bronx. It was argued, among other things, that SEQRA was violated because the Board of Estimate, and not DEP, was the agency responsible for implementing the statute in this case. The trial court agreed, granted the petition, and nullified the Board of Estimate's actions. The Appellate Division, 135 A.D.2d 404, 521 N.Y.S.2d 964, affirmed. We also affirm.

I

SEQRA's fundamental policy is to inject environmental considerations directly into governmental decision making; thus the statute mandates that "economic, and environmental factors shall be considered together in reaching decisions on proposed activities" (ECL 8-0103 see, Matter of Jackson v. New York State Urban Dev. Corp., 67 N.Y.2d 400, 415, 503 N.Y.S.2d 298, 494 N.E.2d 429; Governor's Mem., 1975 N.Y. Legis.Ann., at 438). This policy is not mere exhortation. The statute and its implementing regulations make elaborate provision for requiring consideration of the environmental effects of governmental decisions by the decision maker, primarily through the "lead agency" concept.

Under SEQRA and its implementing regulations, a lead agency is defined as the governmental entity "principally responsible for carrying out, funding or approving" the proposed action (ECL 8-0111 6 NYCRR 617.2). It is this agency that must initially determine whether a proposed action may have a significant effect on the environment (ECL 8-0109 6 NYCRR 617.2). If no significant effect is found, the lead agency may issue a "negative declaration," identifying areas of environmental concern, and providing a reasoned elaboration explaining why the proposed action will not significantly affect the environment (6 NYCRR 617.6 see, Chinese Staff & Workers Assn. v. City of New York, 68 N.Y.2d 359, 364, 509 N.Y.S.2d 499, 502 N.E.2d 176). ³ The regulations also provide for a "conditioned negative declaration", whereby the lead agency requires modification of a proposed action alleviating potential significant environmental effects (6 NYCRR 617.2).

If the lead agency determines that there may be significant environmental impact, it must see to it that an environmental impact statement (EIS) is prepared, which fully evaluates the potential environmental effects, assesses mitigation measures, and considers alternatives to the proposed action (ECL 8-0109). When there is a decision to proceed with a proposed action for which an EIS has been prepared, the lead agency must make "an explicit finding that * * * consistent with social, economic and other essential considerations, to the maximum extent practicable, adverse environmental effects revealed in the environmental impact statement process will be minimized or avoided" (ECL 8-0109).

In the case now before us, Coca-Cola primarily argues that under SEQRA the Board of Estimate was the lead agency, so that it, and not DEP, was required to assess the significance of the environmental impact of the project. This error, Coca-Cola asserts, renders the Board of Estimate's actions void. In rejoinder, respondents recognize that the statute specifically requires that the "lead agency" with principal responsibility for approving a proposed action also be the body which determines whether the action "may have a significant effect on the environment" (see, ECL 8-0111). They maintain, however, that SEQRA was not violated here, and essentially make two supporting arguments, the first factual, and the second based upon statutory construction.

Respondents initially contend that Coca-Cola's claim of a SEQRA violation lacks a factual basis, because here the DEP did not issue the conditional negative declaration itself, but only served as an advisor to the Board of Estimate on environmental matters. Thus, respondents conclude, the determination whether the project threatened significant environmental consequences was made by the appropriate agency under SEQRA.

The trial court, however, made a factual determination that the final decision to issue the conditional negative declaration was made by DEP. The Appellate Division affirmed the trial court's order, without opinion. This finding, which respondents continue to dispute, is supported in the record before us, and therefore is beyond our further review (see, People ex rel. Scarpetta v. Spence-Chapin Adoption Serv., 28 N.Y.2d 185, 189, 321 N.Y.S.2d 65, 269 N.E.2d 787; Cohen and Karger, Powers of the New York Court of Appeals § 108, at 452 ).

In the alternative, respondents contend that SEQRA anticipates that municipalities will develop their own SEQRA procedures, tailored to their particular needs. They cite ECL 8-0107 and 8-0113(...