Falcon Grp. Ltd. Liab. v. Town/Village of Harrison Planning Bd.

• Citation: 131 A.D.3d 1237,2015 N.Y. Slip Op. 07025,17 N.Y.S.3d 469
• Decision Date: 30 September 2015
• Docket Number: 2013-05821, Index No. 2715/12.
• Parties: In the Matter of FALCON GROUP LIMITED LIABILITY COMPANY, respondent, v. TOWN/VILLAGE OF HARRISON PLANNING BOARD, appellant.
• Court: New York Supreme Court Appellate Division

131 A.D.3d 1237

17 N.Y.S.3d 469

2015 N.Y. Slip Op. 07025

In the Matter of FALCON GROUP LIMITED LIABILITY COMPANY, respondent

v.TOWN/VILLAGE OF HARRISON PLANNING BOARD, appellant.

2013-05821, Index No. 2715/12.

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

Sept. 30, 2015.

Friedman Harfenist Kraut & Perlstein, LLP, Lake Success, N.Y. ( Steven J. Harfenist, Leo Napior, and Neil Torczyner of counsel), for appellant.

Hocherman Tortorella & Wekstein, LLP, White Plains, N.Y. (Adam L. Wekstein and Geraldine N. Tortorella of counsel), for respondent.

MARK C. DILLON, J.P., CHERYL E. CHAMBERS, L. PRISCILLA HALL, and COLLEEN D. DUFFY, JJ.

Opinion

In a proceeding pursuant to CPLR article 78, inter alia, to review a determination of the Town/Village of Harrison Planning Board dated February 28, 2012, adopting a findings statement pursuant to the State Environmental Quality Review Act (ECL art. 8), in connection with an application for subdivision approval, the Town/Village of Harrison Planning Board appeals, as limited by its brief, from so much of a judgment of the Supreme Court, Westchester County (Adler, J.), dated April 12, 2013, as granted that branch of the petition of Falcon Group Limited Liability Company which was to annul the findings statement and remitted the matter to the Town/ Village of Harrison Planning Board for the issuance of a new findings statement that is consistent with a certain Final Environmental Impact Statement.

ORDERED that the judgment is affirmed insofar as appealed from, without costs or disbursements.

The petitioner, Falcon Group Limited Liability Company (hereinafter Falcon), owns an undeveloped 14.62–acre parcel of land in the Town of Harrison. The property is in an R–1 zoning district, in which single-family homes on one-acre lots are permitted. In May 2005, Falcon submitted an application to the Town/Village of Harrison Planning Board (hereinafter the Board) for approval to subdivide the property into 13 single-family building lots and a 14th lot for stormwater detention. The project would require improvement of a paper street and construction of an emergency access road. It would also require a waiver of the cul-de-sac length requirements of the Town/Village's zoning ordinance and steep slope and wetlands permits.

The Board declared itself the lead agency under the State Environmental Quality Review Act (ECL art. 8; hereinafter SEQRA) and adopted a positive declaration finding that the site was significantly constrained by the presence of steep slopes, wetlands, a stream, and subsurface conditions. A public scoping session was held and a draft environmental review statement (hereinafter DEIS) was prepared which included several alternative development plans. The Board accepted the DEIS as complete on March 25, 2008. Public hearings were held on the DEIS, which was then revised to incorporate a further alternative plan. Additional public hearings were held, and a final environmental impact statement (hereinafter FEIS) was prepared. The Board accepted the FEIS as complete on September 27, 2011. The FEIS included two new alternatives which would reduce the density of the project and many of the environmental impacts.

After a public hearing on the FEIS, the Board adopted a findings statement pursuant to SEQRA on February 28, 2012. The Board found that the proposed action, as well as the various alternative development plans, did not minimize or avoid adverse environmental effects to the maximum extent practicable, and would result in significant adverse environmental impacts that could not be avoided. Falcon commenced this CPLR article 78 proceeding seeking, inter alia, to annul the findings statement on the grounds that it contradicted conclusions reached in the FEIS and DEIS and was not supported by empirical evidence in the record before the Board. The Supreme Court, inter alia, granted that branch of the petition which was to annul the findings statement and remitted the matter to the Board for the issuance of a new findings statement that is consistent with the FEIS. The Board appeals from that portion of the judgment.

Judicial review of an agency determination under SEQRA is limited to whether the agency procedures were lawful and “whether the agency identified the relevant areas of environmental concern, took a ‘hard look’ at them, and made a ‘reasoned elaboration’ of the basis for its determination” (Matter of Jackson v. New York State Urban Dev. Corp., 67 N.Y.2d 400, 417, 503 N.Y.S.2d 298, 494 N.E.2d 429, quoting Aldrich v. Pattison, 107 A.D.2d 258, 265, 486 N.Y.S.2d 23 ; see Matter of Riverkeeper, Inc. v. Planning Bd. of Town of Southeast, 9 N.Y.3d 219, 231–232, 851 N.Y.S.2d 76, 881 N.E.2d 172 ). “In a statutory scheme whose purpose is that the agency decision-makers focus attention on environmental concerns, it is not the role of the courts to weigh the...