Gabrielli v. Town of New Paltz

• Citation: 984 N.Y.S.2d 468,2014 N.Y. Slip Op. 02826,116 A.D.3d 1315
• Parties: In the Matter of Robert GABRIELLI et al., Respondents, v. TOWN OF NEW PALTZ et al., Appellants.
• Decision Date: 24 April 2014
• Court: New York Supreme Court Appellate Division

116 A.D.3d 1315

984 N.Y.S.2d 468

2014 N.Y. Slip Op. 02826

In the Matter of Robert GABRIELLI et al., Respondents,

v.TOWN OF NEW PALTZ et al., Appellants.

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

April 24, 2014.

Rapport Myers, LLP, Rhinebeck (George A. Rodenhausen of counsel), for appellants.

Whiteman Osterman & Hanna, LLP, Albany (Robert S. Rosborough IV of counsel), for respondents.

Daniel E. Estrin, Pace Environmental Litigation Clinic, White Plains, for Riverkeeper, Inc., amicus curiae.

Before: LAHTINEN, J.P., STEIN, GARRY and ROSE, JJ.

GARRY, J.

Appeal from a judgment of the Supreme Court (Elliott III, J.), entered September 12, 2012 in Ulster County, which granted petitioners' application, in a combined proceeding pursuant to CPLR article 78 and action for declaratory judgment, to, among other things, annul a determination of respondent Town Board of the Town of New Paltz enacting Local Law No. 5 (2011) of the Town of New Paltz.

In 2005, respondent Town Board of the Town of New Paltz (hereinafter Board) enacted a local law to prevent the “despoliation and destruction of wetlands, waterbodies and watercourses.” In 2007, Supreme Court (Egan Jr., J.) annulled that enactment based upon the failure to comply with General Municipal Law § 239–m. The Board thereafter undertook redrafting of the 2005 law by, among other things, designating itself as the lead agency for the purpose of the State Environmental Quality Review Act ( see ECL art. 8 [hereinafter SEQRA] ), directing the Town Engineer to update a previously-prepared report, directing respondent Town of New Paltz Wetlands Inspector to conduct a “quality vernal pool analysis,” conducting meetings, and holding public hearings upon the revised law.

In October 2011, the Board reviewed the full environmental assessment form (hereinafter EAF) that had been prepared by the Town Engineer and, in November 2011, issued a negative declaration of environmental significance under SEQRA. The Board enacted the revised law in December 2011 as Local Law No. 5 (2011) of the Town of New Paltz (hereinafter the 2011 law). Petitioners, who own real property in the Town and Village of New Paltz, thereafter commenced this combined CPLR article 78 proceeding and action for declaratory judgment against the Board, respondent Town of New Paltz, respondent Town of New Paltz Planning Board, and various Town officials challenging the 2011 law and negative declaration on multiple grounds. Supreme Court (Elliott III, J.) annulled the 2011 law and negative declaration upon finding that respondents had failed to comply with SEQRA and that the 2011 law was unconstitutionally vague. Respondents appeal.

Initially, respondents contend that Supreme Court erred in concluding that the Board failed to take the “hard look” required by SEQRA before concluding that an environmental impact statement (hereinafter EIS) was not required. SEQRA requires an EIS when an agency action “may have a significant effect on the environment,” and such an impact is presumed to be likely where, as here, a type I action is involved (ECL 8–0109[2]; see Matter of Frigault v. Town of Richfield Planning Bd., 107 A.D.3d 1347, 1349, 968 N.Y.S.2d 673 [2013];6 NYCRR 617.4[a][1] ); however, a type I action does not, “per se, necessitate the filing of an [EIS]” (Matter of Shop–Rite Supermarkets, Inc. v. Planning Bd. of the Town of Wawarsing, 82 A.D.3d 1384, 1386, 918 N.Y.S.2d 647 [2011],lv. denied17 N.Y.3d 705, 2011 WL 2535249 [2011];see Matter of Gabrielli v. Town of New Paltz, 93 A.D.3d 923, 924, 939 N.Y.S.2d 641 [2012],lv. denied19 N.Y.3d 805, 2012 WL 2094313 [2012] ).¹ A negative declaration may be issued, obviating the need for an EIS, if the lead agency—here, the Board—determines that “no adverse environmental impacts [will result] or that the identified adverse environmental impacts will not be significant” ( 6 NYCRR 617.7[a][2]; see Matter of City Council of City of Watervliet v. Town Bd. of Town of Colonie, 3 N.Y.3d 508, 520, 789 N.Y.S.2d 88, 822 N.E.2d 339 [2004];Matter of Troy Sand & Gravel Co., Inc. v. Town of Nassau, 82 A.D.3d 1377, 1378, 918 N.Y.S.2d 667 [2011] ). Upon judicial review, we may not substitute our judgment for that of the Board, and may annul its decision “only if it is arbitrary, capricious or unsupported by the evidence” ( Matter of Riverkeeper, Inc. v. Planning Bd. of Town of Southeast, 9 N.Y.3d 219, 232, 851 N.Y.S.2d 76, 881 N.E.2d 172 [2007];accord Matter of Residents for Responsible Govt. v. Grannis, 75 A.D.3d 963, 966, 907 N.Y.S.2d 330 [2010],lv. denied16 N.Y.3d 701, 2011 WL 32504 [2011] ).

Before passing the negative declaration, the Board reviewed the EAF, which identified five environmental areas on which the 2011 law would have “small to moderate impact,” including land, plants and animals, aesthetic resources, space and recreation and “growth and character of community or neighborhood.” As no “potentially large” impacts were identified, completion of part 3 of the EAF—in which such impacts must be analyzed in detail—was not required (Matter of Yellow Lantern Kampground v. Town of Cortlandville, 279 A.D.2d 6, 11, 716 N.Y.S.2d 786 [2000] ). The Town nevertheless elected to complete part 3, in which the identified impacts were evaluated, and each was found to have either no impact or a beneficial impact. Included in the EAF were data and conclusions from the Town Engineer's updated report regarding the potential impact of the 2011 law on tax revenue and land planning, the Town's written responses to numerous public comments, and a list of properties potentially located within wetland buffer areas to be created by the proposed law. The Board also solicited input from the Town's Environmental Conservation Board and from the Department of Agriculture. As the proposed law included “quality vernal pools” (hereinafter QVPs) among the wetlands to be regulated,² the Town considered the Wetlands Inspector's report on the quantity and area of unregulated vernal pools in the Town. Following its review, the Board issued a negative declaration that included a detailed description of the action to be taken, reasons supporting the Board's determination, and an evaluation of the areas of relevant environmental concern, incorporating the EAF and the reports and information considered.

Petitioners contend that the identification of the area to be regulated was not sufficiently specific, thus precluding accurate assessment and rendering the Town's review inadequate. The 2011 law defines regulated areas with reference to the Town's “Wetland & Watercourse Map” (hereinafter the Town map). The Town map was prepared by the Town Engineer based upon a compilation of state and federal wetland and watercourse maps, electronic mapping resources, and data from other sources. As acknowledged in the 2011 law, the Town map delineates the approximate boundaries of the regulated areas, but, because of its scale, does not reveal the precise locations of the boundaries, which can only be accurately determined by a field survey. Notably, however, the 2011 law provides a mechanism by which property owners can determine the presence and location of regulated areas on their land, by requesting an onsite inspection, at the Town's cost, by the Wetlands Inspector. Following such inspection, a written determination must be provided within 60 days or, if delay is required because of weather or ground conditions, “as early as practicable” (Code of Town of New Paltz § 139–6[D], as added by Local Law No. 5 [2011] of Town of New Paltz § 1 ).³ Following passage of the 2011 law, the Town notified all real property owners in the Town and Village of its enactment, included a copy of the Town map with the notice, and advised owners of the availability of property inspections.

Considering the record evidence relative to the methodology employed in preparing the Town map, the expense and impracticality of alternate methods of identifying regulated areas, and the availability of Town-financed property inspections, we are unpersuaded by petitioners' contention that the Town's identification of regulated areas was insufficient to permit the environmental impact assessment required by SEQRA. Although, as petitioners argue, “strict compliance with SEQRA is required” (Matter of Troy Sand & Gravel Co., Inc. v. Town of Nassau, 82 A.D.3d at 1379, 918 N.Y.S.2d 667), it is also true that “an agency's obligation under SEQRA must be viewed in light of a rule of reason, realizing that not every conceivable environmental impact, mitigating measure or alternative must be identified and addressed before the substantive dictates of SEQRA are satisfied” (Matter of Saratoga Lake Protection & Improvement Dist. v. Department of Pub. Works of City of Saratoga Springs, 46 A.D.3d 979, 984, 846 N.Y.S.2d 786 [2007],lv. denied10 N.Y.3d 706, 857 N.Y.S.2d 38, 886 N.E.2d 803 [2008] [internal quotation marks, brackets and citations omitted]; see Matter of Gernatt Asphalt Prods. v. Town of Sardinia, 87 N.Y.2d 668, 688, 642 N.Y.S.2d 164, 664 N.E.2d 1226 [1996] ). Here, the record establishes that the Board engaged in a thorough and lengthy review process, identified relevant areas of environmental concern, took the requisite hard look at these concerns, and made a reasoned and detailed elaboration of the basis for its determination—thus satisfying its obligations under SEQRA ( see6 NYCRR 617.7[b]; Matter of Frigault v. Town of Richfield Planning Bd., 107 A.D.3d at 1350–1352, 968 N.Y.S.2d 673;Matter of Mombaccus Excavating, Inc. v. Town of Rochester, N.Y., 89 A.D.3d 1209, 1211, 932 N.Y.S.2d 551 [2011],lv. denied18 N.Y.3d 808, 2012 WL 539188 [2012] ). We, therefore, find that Supreme Court erred in annulling the 2011 law and negative declaration on this basis.

We further conclude that the 2011 law is not unconstitutionally vague. A local law is entitled to an “exceedingly strong presumption of constitutionality” that may be rebutted only by...