Friends of Woodstock, Inc. v. Town of Woodstock Planning Bd.

• Decision Date: 20 July 1989
• Citation: 152 A.D.2d 876,543 N.Y.S.2d 1007
• Parties: In the Matter of FRIENDS OF WOODSTOCK, INC., et al., Respondents-Appellants, v. TOWN OF WOODSTOCK PLANNING BOARD et al., Respondents, and Ulster County Communications Corporation, Intervenor-Appellant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 1007

543 N.Y.S.2d 1007

152 A.D.2d 876

In the Matter of FRIENDS OF WOODSTOCK, INC., et al.,

Respondents-Appellants, v. TOWN OF WOODSTOCK PLANNING BOARD et al., Respondents, and Ulster County Communications Corporation,

Intervenor-Appellant-Respondent.

Supreme Court, Appellate Division,

Third Department.

July 20, 1989.

Franklyn J. Engel, Woodstock, for respondents-appellants.

DiStasi & Moriello (Lewis C. DiStasi, Jr., of counsel), Highland, for respondents.

Hinman, Straub, Pigors & Manning (William F. Sheehan, of counsel), Albany, for intervenor-appellant-respondent.

Before KANE, J.P., and CASEY, MIKOLL, YESAWICH and MERCURE, JJ.

MERCURE, Justice.

Cross appeals from a judgment of the Supreme Court (Bradley, J.), entered March 4, 1988 in Ulster County, which partially granted petitioners' application, in a proceeding pursuant to CPLR article 78, to annul a determination of respondent Town of Woodstock Planning Board approving intervenor's request for a special use permit.

Ulster County Communications Corporation (hereinafter UCCC) proposed construction of a television transmission tower on Overlook Mountain in an R-A (Residence-Agriculture) zoning district of the Town of Woodstock, Ulster County. The 297-foot tower was to be stabilized by guy wires secured to three separate concrete anchors, also referred to as deadmen, each located 173 feet from the base of the tower. Under the Zoning Ordinance of the Town of Woodstock (hereinafter Zoning Ordinance) a public utility or transportation use is permitted in an R-A zone by securing a special use permit if garage or maintenance facilities are involved and otherwise without a special permit (Zoning Ordinance § III [A]. In either case, site plan approval is required prior to issuance of a building permit (Zoning Ordinance § V [M]. On December 17, 1981, UCCC made a preliminary presentation of the project to respondent Town of Woodstock Planning Board (hereinafter the Planning Board). At the meeting there was discussion of the Zoning Ordinance's height regulations and the need for action of respondent Town of Woodstock Zoning Board of Appeals (hereinafter the Zoning Board); it concluded with the instruction that once preliminary matters were completed, the matter would be forwarded to the Planning Board for site plan review. No indication was made that a special use permit was required. On July 18, 1983, UCCC applied to the Zoning Board for a variance from the area and bulk regulations of the Zoning Ordinance to permit construction of a building in excess of 35 feet in height. On August 11, 1983 a public hearing was conducted on this application and on what appears to be UCCC's appeal from the Town Building Inspector's determination, inter alia, that the project was a public utility use for which a special permit was required. On September 1, 1983, the Zoning Board rendered its decision granting the requested variance and stating that the question of whether a special use permit was required "was resolved [at the public hearing] when it was determined that only a small portion of the building was to be used, and only to house the transmitter equipment". Although the Zoning Board decision is by no means clear, we take this as a determination that a special use permit was not required.

In the meantime, environmental review of the project under the State Environmental Quality Review Act (ECL art. 8) (hereinafter SEQRA) was taking place. The Ulster County Industrial Development Agency (hereinafter IDA), the original anticipated source of funding, was appointed lead agency for environmental review and prepared a "statement of environmental impact" dated August 23, 1983, which concluded that the project would have no significant impact on the environment. By letter dated September 12, 1983, the Ulster County Planning Board indicated that it had reviewed the document and had no objection to the proposed facility. UCCC made application for site plan review and the matter came before the Planning Board on June 21, 1984. At this time, there was discussion of the fact that the project would be surrounded by a six-foot high fence and that one of the guy wire anchors would infringe upon a side-line, requiring further variances. In response to the plea of UCCC's representatives that they be allowed to proceed with the project, the Planning Board voted in favor of "approval of the project" pending variances forthcoming from the Zoning Board for the height of the fence and the location of the northerly-most deadman. On June 22, 1984, the Building Inspector issued UCCC a building permit to construct the antenna tower and to renovate the existing structure. UCCC applied for the variances required by the height of the fence and location of the deadman and the Zoning Board referred the application to the Ulster County Planning Board pursuant to General Municipal Law § 239-m. The Ulster County Planning Board considered the matter and recommended "local determination" of the variance applications. On August 9, 1984, the Zoning Board granted the variances.

The project again came before the Planning Board on May 5, 1985, apparently due to the fact that the existing structure on the site could not be used to house the transmitting equipment, requiring construction of a new building, and the location of the base of the tower was to be moved 45 feet. For the very first time, the Planning Board indicated that a special use permit was required, a position contested by UCCC. However, with construction due to begin in 10 days and it appearing that a public hearing would not be required, UCCC did agree to file a permit application. On May 14, 1985, the Planning Board granted "preliminary approval" for the project and on May 24, 1985, the Building Inspector issued a permit to construct the accessory building and the fence, pursuant to the August 9, 1984 variances. The tower was constructed in August and September 1985. Subsequently, on November 7, 1985, the Planning Board issued what it denominated a "Special Use Permit and Site Plan Approval", imposing certain limitations and conditions upon the use of the tower. On December 4, 1985, the Building Inspector issued a certificate of occupancy.

Petitioners commenced this CPLR article 78 proceeding on December 13, 1985 to annul the Building Inspector's issuance of the June 1984 and May 1985 building permits, the Zoning Board's September 1983 variance approval, the IDA's August 1983 negative declaration of environmental impact and the Planning Board's actions of November 1985. UCCC moved for and was granted leave to intervene. Supreme Court granted the petition only to the extent of determining that the Planning Board was not authorized to issue the special use permit and site plan approval without first referring the matter to the Ulster County Planning Board in accordance with General Municipal Law § 239-m. Petitioners and UCCC cross-appeal.

Initially, we agree with Supreme Court that the individual petitioners have standing to maintain this proceeding. The individual petitioners allege that they live in close proximity to the tower and "are adversely affected by this project". The requisite showing of standing has been made (see, Matter of Sun-Brite Car Wash v. Board of Zoning and Appeals of Town of N. Hempstead, 69 N.Y.2d 406, 414, 515 N.Y.S.2d 418; Glen Head-Glenwood Landing Civic Council v. Town of Oyster Bay, 88 A.D.2d 484, 490, 453 N.Y.S.2d 732; 2 Anderson, New York Zoning Law & Practice § 26.07, at 373 [3d ed]. We further uphold Supreme Court's determination that the civic association, petitioner Friends of Woodstock, Inc., lacks standing. Applying the four-pronged test set forth in Matter of Douglaston Civic Assn. v. Galvin (36 N.Y.2d 1, 7, 364 N.Y.S.2d 830, 324 N.E.2d 317), we agree that there was insufficient information provided to determine whether the association was fairly representative of the Town of Woodstock community. ^*

Turning to the merits, we reverse that part of Supreme Court's judgment which remitted the matter to the Planning Board and otherwise affirm. We agree with ...