E.F.S. Ventures Corp. v. Foster, 1

• Decision Date: 20 April 1987
• Docket Number: No. 1,No. 2,1,2
• Citation: 128 A.D.2d 28,514 N.Y.S.2d 981
• Parties: E.F.S. VENTURES CORP., Appellant, v. Debra FOSTER, et al., Respondents. (Proceeding). E.F.S. VENTURES CORP., Appellant, v. Joseph DeCHRISTOFARO, etc., Respondents. (Proceeding).
• Court: New York Supreme Court — Appellate Division

Page 981

514 N.Y.S.2d 981

128 A.D.2d 28

E.F.S. VENTURES CORP., Appellant, v. Debra FOSTER, et al., Respondents. (Proceeding No. 1).

E.F.S. VENTURES CORP., Appellant, v. Joseph DeCHRISTOFARO, etc., Respondents. (Proceeding No. 2).

Supreme Court, Appellate Division,

Second Department.

April 20, 1987.

Paul, Weiss, Rifkind, Wharton & Garrison, New York City (Edward N. Costikyan and Bruce Birenboim, of counsel), for appellant.

Scheinberg, Schneps, DePetris & DePetris, Riverhead (Richard E. DePetris, of counsel), for respondents.

Before LAWRENCE, J.P., and RUBIN, EIBER and SPATT, JJ.

PER CURIAM.

The petitioner, E.F.S. Ventures Corp., is the owner of approximately 5.2 acres of real property located on Old Montauk Highway in the Town of East Hampton. This property had been improved by a small motel and surrounding cottages which, collectively, were known as the Beachcomber. Shortly after purchasing the property, the petitioner submitted a site plan application to the respondent Planning Board of the Town of East Hampton which called for the improvement and upgrading of the existing motel units as well as the construction of certain additional units. The foregoing application was considered by the planning board and was ultimately approved, on September 29, 1982, without the benefit of any environmental impact study. ^*

On January 26, 1983, the petitioner submitted a further application wherein it sought to modify the site plan to include, inter alia, the erection of an additional building. The planning board, in response, directed that an environmental assessment form be prepared. This form was ultimately prepared, in part, by the petitioner and, in part, by an independent consultant retained by the planning board. After evaluating the information contained in this form, the board, pursuant to the State Environmental Quality Review Act (hereinafter SEQRA; ECL 8-0101, et seq.) issued a formal "negative declaration", based on its determination that the amendment would result in a "potential overall small to moderate impact on the environment" which could effectively be mitigated by the measures delineated in the environmental assessment form. Accordingly, on March 17, 1983, a resolution adopting the petitioner's modified site plan was filed with the Town Clerk and construction commenced shortly thereafter.

Approximately one month later, on or about April 14, 1983, certain local residents who opposed construction of the project initiated a proceeding pursuant to CPLR article 78, in an effort to set aside the planning board's resolution which granted the petitioner permission to proceed with the construction. These residents alleged in their petition that the board's resolution was of questionable validity, primarily because the requirements of SEQRA had not been complied with nor satisfied. A preliminary injunction to halt all construction during the pendency of the CPLR article 78 challenge was denied, and the petitioner continued to work on the construction project in accordance with the specifications contained in the approved modified site plan.

The aggrieved local residents were ultimately successful in their bid to set aside the planning board's determination and, on October 12, 1983, the matter was remitted to the board for a de novo examination of the modified site plan in order to ensure compliance with the requirements of SEQRA. The court, additionally, enjoined the issuance of certificates of occupancy for 64 units which had already been constructed or renovated under previous approvals.

The petitioner, in the interim, appealed to this court. While that appeal was pending however, the planning board, pursuant to Special Term's judgment, was in the process of conducting a de novo examination of the modified site plan in order to ascertain the environmental ramifications of the project.

On April 15, 1985, this court modified the judgment of Special Term, to the extent of vacating the prohibition against the issuance of certificates of occupancy with respect to the 64 constructed units. We did so on the ground that this relief was precluded due to the passage of the four-month Statute of Limitations. The judgment, in all other respects, was affirmed. This court stated that "the planning board's initial finding of nonsignificance did not take into account the designated environmental criteria as mandated by 6 NYCRR 617.11(a)(1)-(11). The subsequent preparation of environmental assessment forms does not vitiate the planning board's failure to literally comply with the statutory mandate" (Matter of Nielsen v. Planning Bd. of Town of East Hampton, 110 A.D.2d 767, 768, 487 N.Y.S.2d 845 emphasis supplied). Thus, we concluded that the planning board's determination was properly annulled by Special Term and that a de novo examination, pursuant to the precepts of SEQRA, was required (see, Matter of Nielson v. Planning Bd. of Town of East Hampton, supra ).

Meanwhile, in accordance with Special Term's directives mandating a de novo review of SEQRA considerations, a decision which, as noted, was held by this court to be legally correct, a draft and then a final environmental impact statement were prepared and submitted. These statements disclosed the existence of numerous major adverse impacts upon the environment which would result from the construction as proposed, including drainage problems, disruption of a wildlife corridor, limited site distance of access roadways, and insufficient interior traffic circulation for emergency vehicles. Following a public hearing, the planning board, possessed of the foregoing information, voted to grant site plan approval subject to conditions requiring the petitioner to implement various measures to minimize the adverse environmental impacts of the construction. The most significant of these measures called for the destruction of 10 motel units, located in three separate buildings. The planning board's resolution further required, inter alia, that landscape plans be modified and that certain roadways be relocated. Once notified of the planning board's determination requiring the destruction of 10 motel units, which were already constructed, the petitioner submitted various alternate proposals which, it maintained, would effectively alleviate the adverse environmental impacts referred to by the board, but which would also avoid the burdensome and costly destruction of 10 completed units. The board, thereafter, considered all of the proposals and ultimately adhered to its determination that the destruction of the motel units would be the most efficacious means of minimizing adverse environmental impacts.

On October 4, 1984, the petitioner commenced Proceeding No. 1 in an effort to set aside the planning board's determination. The petitioner claimed, in essence, that the modifications and conditions imposed by the board were arbitrary and capricious and that it was legally entitled to retain all 92 existing units situated on the property. Special Term, however, concluded that the planning board had arrived at an acceptable balance between the conflicting interests, that the board's determination was based upon substantial evidence, and that the petitioner by "proceeding full tilt" with construction during the pendency of a proceeding pursuant to CPLR article 78, had completed the project "at its peril". Special Term, accordingly, dismissed Proceeding No. 1 on the merits.

On or about May 15, 1985, the petitioner initiated a second proceeding pursuant to CPLR article 78 (Proceeding No. 2) seeking to compel the Building Inspector to issue 64 permanent certificates of occupancy for units constructed pursuant to earlier site plan approvals. The Building Inspector had previously agreed to issue 58 temporary certificates of occupancy but refused to issue the remaining six certificates, inasmuch as these certificates referred to six of the 10 units which were ordered to be destroyed. In addition, the Building Inspector had refused to issue any permanent certificates of occupancy until the petitioner fully complied with all of the conditions and modifications required by the planning board.

Special Term, on August 5, 1985, dismissed Proceeding No. 2, finding no legal predicate upon which to justify a judgment compelling the Building Inspector to issue the certificates of occupancy. The petitioner now appeals from each of the judgments dismissing its proceedings.

The central question to be resolved on these appeals is whether the planning board of the Town of East Hampton may, under the aegis of SEQRA, impose conditions upon or require modifications to a construction project which had already been completed in reliance upon previous site plan approvals. Under the circumstances of this case, this question must be answered in the affirmative.

SEQRA and its implementing regulations require agencies to "act and choose alternatives which, consistent with social, economic and other essential considerations, to the maximum extent practicable, minimize or avoid adverse environmental effects" (ECL 8-0109[1] ). Accordingly, "[a]n agency may not approve an action unless it makes 'an explicit finding that the requirements of [SEQRA] have been met and 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[8]; see, 6 NYCRR 617.9[c][2][i] )" (see, Matter of Jackson v. New York State Urban Dev. Corp., 67 N.Y.2d 400, 416, 503 N.Y.S.2d 298, 494 N.E.2d 429; emphasis added).

It is readily apparent, from the express language utilized in the regulatory scheme, as well as from pertinent decisional authority, that literal compliance with the review procedures set forth in SEQRA is required, and that even substantial compliance is insufficient (see, e.g., Glen Head-Glenwood Landing Civic Council v. Town of Oyster Bay, ...