In the Matter of Mombaccus Excavating Inc. v. Town of Rochester

• Decision Date: 03 November 2011
• Citation: 89 A.D.3d 1209,2011 N.Y. Slip Op. 07778,932 N.Y.S.2d 551
• Parties: In the Matter of MOMBACCUS EXCAVATING, INC., Appellant,v.TOWN OF ROCHESTER, New York, et al., Respondents.
• Court: New York Supreme Court — Appellate Division

89 A.D.3d 1209

932 N.Y.S.2d 551

2011 N.Y. Slip Op. 07778

In the Matter of MOMBACCUS EXCAVATING, INC., Appellant,

v.TOWN OF ROCHESTER, New York, et al., Respondents.

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

Nov. 3, 2011.

Tuczinski, Cavalier, Gilchrist & Collura, P.C., Albany (Andrew W. Gilchrist of counsel), for appellant.Mary Lou Christiana, Kingston, for respondents.Before: MERCURE, J.P., SPAIN, MALONE JR., KAVANAGH and McCARTHY, JJ.MERCURE, J.P.

Appeal from a judgment of the Supreme Court (Melkonian, J.), entered August 25, 2010 in Ulster County, which dismissed petitioner's application, in a combined proceeding pursuant to CPLR article 78 and action for declaratory judgment, to review a determination of respondent Town Board of the Town of Rochester enacting Local Law No. 4 (2009) of the Town of Rochester.

Petitioner, which operates sand and gravel mines on property it owns in the Town of Rochester, Ulster County, commenced this combined CPLR article 78 proceeding and action for declaratory judgment seeking to annul Local Law No. 4 (2009) of the Town of Rochester. Enacted by respondent Town Board of the Town of Rochester in 2009, Local Law No. 4 amended respondent Town of Rochester's existing zoning law by, as relevant here, eliminating provisions that permitted unlimited gravel mining throughout the Town and restricting full-scale mining—i.e., mining subject to the jurisdiction of the Department of Environmental Conservation under the Mined Land Reclamation Law ( see ECL 23–2703 et seq.)—to natural resource zones. Local Law No. 4 also divided petitioner's 269–acre parcel between two zoning districts, only one of which permits unlimited gravel mining. Supreme Court dismissed the petition and complaint, and issued a declaration in favor of respondents. Petitioner appeals and we now affirm.

Petitioner first argues that respondents violated the substantive requirements of the State Environmental Quality Review Act ( see ECL art. 8 [hereinafter SEQRA] ).¹ In that regard, our review is limited to whether the lead agency—here, the Town Board—“ ‘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 Shop–Rite Supermarkets, Inc. v. Planning Bd. of the Town of Wawarsing, 82 A.D.3d 1384, 1385, 918 N.Y.S.2d 647 [2011], lv. denied 17 N.Y.3d 705, 2011 WL 2535249 [2011], quoting 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 [2007]; see Matter of Troy Sand & Gravel Co., Inc. v. Town of Nassau, 82 A.D.3d 1377, 1378, 918 N.Y.S.2d 667 [2011] ). In our view, the Town Board fulfilled its obligations under SEQRA in enacting Local Law No. 4, and its determination was not arbitrary, capricious or unsupported by the evidence ( see Matter of Riverkeeper, Inc. v. Planning Bd. of Town of Southeast, 9 N.Y.3d at 232, 851 N.Y.S.2d 76, 881 N.E.2d 172).

The record establishes that, following an unsuccessful attempt to revise the zoning code in 2007, the Town Board established the Comprehensive Plan, Zoning Code and Map Task Force in 2008, which was charged with reviewing the existing zoning regulations and maps, and then reporting to the Town Board. After holding numerous meetings that were open to public observation, the task force submitted its report, along with proposed zoning amendments. The Town Board held several public workshop meetings on the proposed amendments, as well as five public hearings at which it received written and oral comments from interested parties. As part of its review process, the Town Board referred the matter to the Ulster County Planning Board—which provided written recommendations—as well as to other municipal entities. The Town Board also considered petitioner's written comments, examined maps and studies, and reviewed the Town's comprehensive plan.

In addition, the Town Board retained a planning consultant, who submitted recommendations and prepared a long environmental assessment form that the Town Board reviewed, adopted and posted on the Town's Web site. The environmental assessment form fully set forth the relevant environmental concerns, including the housing, mining and groundwater resource issues raised by petitioner here, as well as the effect of the proposed amendments on those areas of concern. Ultimately, the Town Board issued a lengthy negative declaration of environmental significance that detailed its analysis with respect to each area of concern. Under these circumstances, we conclude that the Town Board fully complied with the requirements of SEQRA ( see 6 NYCRR 617.3[c][1]; 617.7[a], [b], [c]; Matter of Shop–Rite Supermarkets, Inc. v. Planning Bd. of Town of Wawarsing, 82 A.D.3d at 1386, 918 N.Y.S.2d 647; Matter of Granger Group v. Town of Taghkanic, 77 A.D.3d 1137, 1142, 909 N.Y.S.2d 556 [2010], lv. denied 16 N.Y.3d 781, 919 N.Y.S.2d 505, 944 N.E.2d 1144 [2011]; Matter of Anderson v. Lenz, 27 A.D.3d 942, 944–945, 811 N.Y.S.2d 210 [2006], lv. denied 7 N.Y.3d 702, 818 N.Y.S.2d 192, 850 N.E.2d 1167 [2006] ). Moreover, we note that designation as a type I action does not, per se, necessitate the filing of an environmental impact statement ( see Matter of Troy Sand & Gravel Co. v. Town of Nassau, 82 A.D.3d at 1378, 918 N.Y.S.2d 667; Matter of Shop–Rite Supermarkets, Inc. v. Planning Bd. of Town of Wawarsing, 82 A.D.3d at 1386, 918 N.Y.S.2d 647),...