Glen Head--Glenwood Landing Civic Council, Inc. v. Town of Oyster Bay

• Decision Date: 30 August 1982
• Docket Number: HEAD--GLENWOOD
• Citation: 88 A.D.2d 484,453 N.Y.S.2d 732
• Parties: GLENLANDING CIVIC COUNCIL, INC., et al., Respondents, v. The TOWN OF OYSTER BAY, etc., et al., Appellants.
• Court: New York Supreme Court — Appellate Division

Page 732

453 N.Y.S.2d 732

88 A.D.2d 484

GLEN HEAD--GLENWOOD LANDING CIVIC COUNCIL, INC., et al., Respondents, v. The TOWN OF OYSTER BAY, etc., et al., Appellants.

Supreme Court, Appellate Division,

Second Department.

Aug. 30, 1982.

Cohn & Foley, Baldwin (William S. Cohn, Baldwin, of counsel), for appellant Benjamin, and Milton L. Levine, Forest Hills, for appellant Glen Head Country Club (one brief filed).

Nathaniel G. Gole, Town Atty., Oyster Bay (John A. Paider, Oyster Bay, of counsel), for the Town appellants.

Carlino & Scharf, P. C., Mineola (Joseph F. Carlino, Julian Jawitz and Simon B. Jawitz, Mineola, of counsel), for respondents.

Before DAMIANI, J. P., and LAZER, BROWN and NIEHOFF, JJ.

LAZER, Justice.

Article 8 of the Environmental Conservation Law (see L.1975, ch. 612), ¹ the State Environmental Quality Review Act (SEQRA), is modeled on the National Environmental Policy Act (NEPA, U.S.Code, tit. 42, § 4321 et seq.), and, like the national legislation, ² it concentrates on the environmental impact of projects and activities which are undertaken or approved by public agencies. SEQRA's purpose is to compel the agencies principally responsible for the ultimate action-taking decision to give the environment its deserved due in deciding whether the specific proposal under consideration is to proceed (ECL 8-0103, subd. 7; Matter of Town of Henrietta v. Department of Environmental Conservation of State of N. Y., 76 A.D.2d 215, 430 N.Y.S.2d 440; see, generally, Note, The New York State Environmental Quality Review Act: An Overview and Analysis, 41 Alb.L.Rev. 293). The statutory scheme attempts to achieve this purpose by designating the public agency most significantly involved in a particular project as the "lead" agency and by obliging that body to partake in a series of procedures intended to expose and explore the environmental consequences of the determination which finally approves the project. In the final step of the SEQRA process, the agency must make written findings concerning the environmental impact of its decision. SEQRA has also been implemented--and somewhat elucidated--by a detailed set of regulations (6 NYCRR Part 617) adopted by the State Department of Environmental Conservation (DEC). Our burden here is to determine whether the Town of Oyster Bay complied with SEQRA in the course of rezoning certain property in the Glen Head area.

As early as possible in the SEQRA process, the agency having principal responsibility for carrying out or approving" a given project or activity--the "lead" agency (ECL 8-0111, subd. 6)--must determine whether an environmental impact statement (EIS) should be prepared with reference to the proposal submitted (ECL 8-0109, subd. 4; 8-0111, subd. 6). If the lead agency determines that the project "may have a significant effect on the environment", either the agency or the applicant--at the latter's option--must prepare a draft environmental impact statement (DEIS) (ECL 8-0109, subds. 2, 4). If the draft statement is accepted by the agency "as satisfactory with respect to scope, content and adequacy," it is then circulated to the DEC, other agencies having an interest in the proposal, and "interested members of the public" (ECL 8-0109, subds. 4, 5; 6 NYCRR 617.8617.10). After allowing a period for comment, the lead agency must prepare a final environmental impact statement (FEIS) and circulate it in the same manner as the draft statement (ECL 8-0109, subds. 4, 5, 6; 6 NYCRR 617.10). Finally, upon adoption of the environmental-affecting proposal by the lead agency, it is required to make explicit findings that (1) the requirements of SEQRA have been met, and (2) adverse environmental effects revealed in the EIS process will be minimized or avoided to the maximum extent possible (ECL 8-0109, subd. 8; 6 NYCRR 617.9).

Resolution of the instant litigation turns entirely on the question of SEQRA compliance. Various civic groups and individuals have obtained a judgment nullifying the Oyster Bay Town Board's action in amending its zoning ordinance by rezoning 21.57 acres of property from a predominantly one acre single family residential district to a condominium category which would permit five units to the acre. The defendants--and appellants here--are the town, its town board, and the contract vendor and vendee of the property, Glen Head Country Club, Inc. and Alvin Benjamin, respectively. The land involved, previously part of the Glen Head Country Club golf course, lies immediately south of the City of Glen Cove on the western side of Cedar Swamp Road (New York State Route 107). Benjamin's contract to purchase was conditioned on his ability to obtain condominium zoning, with a price fixed at $1,250,000 if the new zoning permitted 126 units or less, plus additional sums if more units were permitted. Under the existing zoning, approximately 20 to 25 single family homes could have been built on the site.

When Benjamin applied for the rezoning in September, 1977, there was in effect in Oyster Bay a local law designed to meet the SEQRA mandate that affected agencies adopt procedures to implement the statutory requirements (see ECL 8-0113, subd. 3; 6 NYCRR 617.4). By Local Law No. 3 of 1977, the town board had created a Town Environmental Quality Review (EQR) Commission, and, in essence, delegated to the commission all of the town board's lead agency obligations and responsibilities under SEQRA. The delegation included the duty to make the findings SEQRA required (see Town of Oyster Bay, Local Law No. 3 of 1977, §§ 8, 10, 11).

Nine months after Benjamin filed his application, the EQR Commission notified him that his proposal might have a significant impact on the environment and directed him to prepare a draft environmental impact statement. The commission's principal concern was the disposal of sewage which would emanate from the development. The draft statement submitted by Benjamin proposed to solve that problem by the use of septic tanks and cesspools while rejecting alternative disposal methods such as a dryline sewer system or an on-site sewer plant because no sewer district was anticipated for the area and the Nassau County Health Department was not granting approvals for private sewer plants. The EQR Commission rejected the draft statement because septic tanks and cesspools presented a potential for contamination of Cedar Swamp Creek, which flows into Hempstead Harbor. To the commission's further request that more information be supplied, Benjamin responded by submitting a 105-page draft statement containing three alternative solutions to the sewage disposal problem. Two of the alternatives--drylines and a private sewer system--previously had been rejected by Benjamin, but the third alternative suggested that the condominium sewage be disposed of by hooking into sewage treatment facilities in the City of Glen Cove. Benjamin's draft statement indicated that Glen Cove officials had made a verbal commitment to permit such a tie-in.

In June, 1979, after having accepted Benjamin's draft statement and circulated it with comments to other agencies as the final environmental impact statement, the EQR Commission issued findings (pursuant to Local Law No. 3 of 1977) that the applicant had complied with SEQRA and the proposal "will avoid adverse environmental effects to the maximum extent practicable." The commission explicitly relied upon Benjamin's receipt of written approval from the City of Glen Cove to use its sewer system. ³ These findings were intended to meet the SEQRA requirement that the lead agency make environmental findings in connection with the action approving the proposal under consideration.

Four months later, with the rezoning still under consideration by the town board, Celia Swing, President of Glen Head--Glenwood Landing Civic Council, advised the Town Supervisor that the Glen Cove City Council had not approved the use of its sewage treatment plant by the condominium project. The Town Attorney responded that the Glen Cove Commissioner of Public Works favored the hook-up and that Benjamin was willing to covenant to the construction of an on-site sanitation plant should the Glen Cove system be unavailable. In November, 1979, Swing furnished the Supervisor with a copy of a letter from the Mayor of Glen Cove that the necessary approval of the City Council had not been obtained and two months later she provided a further letter from the State Department of Environmental Conservation rejecting the alternatives to the Glen Cove system and stating that discharge of sewage through septic tanks would violate State ground-water standards and that an on-site sewage treatment plant would be costly and might not be acceptable.

Despite the negative orientation of these communications, on January 15, 1980, the town board rezoned the Benjamin property while limiting development to 112 units with sewage to be disposed of by hook-up to the Glen Cove sewer system or, alternatively, through "an on-site sanitation system approved by the Nassau County Department of Health". The town board's resolution contained no SEQRA findings and provided no comment concerning the sewage controversy or the additional environmental information which had surfaced subsequent to the EQR findings and the rezoning hearing. This action followed.

Following a trial, Special Term declared the rezoning void because the town board had failed to (1) issue a written statement finding that SEQRA's requirements had been satisfied (ECL 8-0109, subd. 8; 6 NYCRR 617.9); (2) provide adequate notice and opportunity to the public (i.e., civic associations) to review both the draft and final environmental impact statements; and (3) consider newly discovered evidence which raised serious unresolved sewage disposal problems (Glen Head--Glenwood Landing Civic Council v. Town of Oyster Bay, 109 Misc.2d 376, 438 N.Y.S.2d 715).

The first of defendants' challenges to the judgment concerns plaintiffs'...