Hoffman v. Town Bd. of Town of Queensbury

• Decision Date: 12 November 1998
• Citation: 255 A.D.2d 752,680 N.Y.S.2d 735
• Parties: 1998 N.Y. Slip Op. 10,090 In the Matter of Mark HOFFMAN et al., Respondents, v. TOWN BOARD OF the TOWN OF QUEENSBURY et al., Respondents, and Thomas J. Farone & Son Inc. et al., Appellants.
• Court: New York Supreme Court — Appellate Division

Page 735

680 N.Y.S.2d 735

1998 N.Y. Slip Op. 10,090

In the Matter of Mark HOFFMAN et al., Respondents, v. TOWN BOARD OF the TOWN OF QUEENSBURY et al., Respondents and Thomas J. Farone & Son Inc. et al., Appellants.

Supreme Court, Appellate Division Third Department.

Nov. 12, 1998.

Ferrara Jones (Matthew J. Jones, of counsel), Saratoga Springs, for appellants.

Ward, Sommer & Moore (Michael J. Moore, of counsel), Albany, for Mark Hoffman and others, respondents.

Before CARDONA, P.J., and WHITE, SPAIN, CARPINELLO and GRAFFEO, JJ.

GRAFFEO, Justice.

Appeal from a judgment of the Supreme Court (Ferradino, J.), entered August 5, 1997 in Saratoga County, which granted petitioners' application, in a proceeding pursuant to CPLR article 78, to annul resolutions of respondent Town Board of the Town of Queensbury determining that an environmental impact statement was not required for a proposed subdivision.

In December 1995, respondents, Thomas J. Farone & Son Inc. and Michael J. Vasiliou Inc. (hereinafter collectively referred to as respondents), submitted an application to respondent Town Board of the Town of Queensbury to rezone a 140-acre tract of land in the Town of Queensbury, Warren County. The application also sought approval for a development consisting of single-family homes, duplex units and senior citizen housing. Respondents submitted an environmental assessment form (hereinafter EAF) in December 1995 and a revised EAF in April 1996. The project was designated a type I action for purposes of the State Environmental Quality Review Act (ECL art. 8) (hereinafter SEQRA) and the Town Board was designated as the lead agency. The Department of Environmental Conservation, Department of Health and the Town of Queensbury Planning Board were declared involved agencies.

The Planning Board held hearings from January 16, 1996 through August 5, 1996 and expressed concern to the Town Board with regard to the limited amount of land dedicated to open space/public use, population density, the impact of increased traffic, and the effect upon local property values. Respondents commissioned an archeological study which found sites worthy of protection and incorporated the suggestions regarding protection of wetlands and other sites into their revised plan. Geological studies were undertaken, including soil studies and percolation tests, and the Department of Health approved the project for on-site sewage treatment systems. Additionally, traffic studies were performed. On August 19, 1996, after several revisions of the proposal based on Town Board and Planning Board concerns and community input, and after review and acceptance of the final portion of the EAF, the Town Board approved the application for the subdivision and issued a formal negative declaration.

In December 1996, petitioners commenced a CPLR article 78 proceeding challenging the Town Board's approval. Supreme Court granted the petition, finding that the Town Board erred in issuing a conditional negative declaration. This appeal ensued.

In its review of an agency's determination, a court may not substitute its judgment for that of the agency and weigh the desirability of the proposal (see, Akpan v. Koch, 75 N.Y.2d 561, 570, 555 N.Y.S.2d 16, 554 N.E.2d 53; Matter of Har Enters. v. Town of Brookhaven, 74 N.Y.2d 524, 529, 549 N.Y.S.2d 638, 548 N.E.2d 1289; Matter of East Coast Props. v. City of Oneida Planning Bd., 167 A.D.2d 641, 642, 562 N.Y.S.2d 864). An agency has considerable discretion in evaluating environmental effects and judicial review is limited to "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 King v. Saratoga County Bd. of Supervisors, 89 N.Y.2d 341, 349-350, 653 N.Y.S.2d 233, 675 N.E.2d 1185, quoting 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).

Upon review of the entire record, we reject petitioners' contention that the Town Board's declaration was subject to impermissible conditions. Although a negative declaration by a lead agency may not be subject to conditions, a type I action subject to SEQRA may be modified...