Long Island Pine Barrens Soc., Inc. v. Planning Bd. of Town of Brookhaven

• Decision Date: 09 March 1992
• Citation: 581 N.Y.S.2d 803,178 A.D.2d 18
• Parties: In the Matter of LONG ISLAND PINE BARRENS SOCIETY, INC., et al., Appellants, v. PLANNING BOARD OF the TOWN OF BROOKHAVEN, et al., Respondents; Brestel Shopping Center Associates, et al., Intervenors-Respondents.
• Court: New York Supreme Court — Appellate Division

Page 803

581 N.Y.S.2d 803

178 A.D.2d 18

In the Matter of LONG ISLAND PINE BARRENS SOCIETY, INC., et al., Appellants, v. PLANNING BOARD OF the TOWN OF BROOKHAVEN, et al., Respondents Brestel Shopping Center Associates, et al., Intervenors-Respondents.

Supreme Court, Appellate Division Second Department.

March 9, 1992.

Berle, Kass & Case, New York City (Michael B. Gerrard and Philip Weinberg, of counsel), for appellants.

David P. Fishbein, Town Attorney, Medford (Denise F. Molia, of counsel), for respondent Town of Brookhaven.

Richard A. Ehlers, Riverhead, for respondent Planning Bd. of the Town of Riverhead.

Patricia C. Moore, Riverhead, for respondents Town Bd. of the Town of Riverhead and Zoning Bd. of Appeals of the Town of Riverhead.

Anthony B. Tohill, P.C., Riverhead, for respondents Planning Bd. of the Town of Southampton, Town Bd. of the Town of Southampton, and Zoning Bd. of Appeals of the Town of Southampton.

Robert J. Cimino, Co. Atty., Hauppauge, (Charles P. Kelly, Jennifer B. Kohn, and Ann S. Coates, of counsel), for respondent Dept. of Health Services of the Suffolk County Health Dist D'Amato, Forchelli, Libert, Schwartz, Mineo and Joseph F. Carlino, Mineola (Armand P. D'Amato and Peter R. Mineo, of counsel), Mars, Sloane & Conlon, Hauppauge (Theodore D. Sklar, of counsel), Certilman, Balin, Adler & Hyman, East Meadow and Leon D. Lazer, Melville (Zachary Murdock, of counsel), for intervenors-respondents Breskel Shopping Center Associates, Breskel Realty, Beau Bres Realty and Havenbrook Associates (one brief filed).

D'Amato, Forchelli, Libert, Schwartz, Mineo & Joseph F. Carlino, Mineola (Armand P. D'Amato and Peter R. Mineo, of counsel), for intervenor-respondent R-Three Investors.

Mars, Sloane & Conlon, Hauppauge (Theodore D. Sklar, of counsel), for intervenors-respondents Green Village Associates, Grammy Associates, Elias Kalimian, Ridge Plaza Associates, Balabanow Corp., Medford Acquisitions, Inc., Robert Seidenberg, Pardo Tamilio, Joseph Kohn Land Co., Leonard DeLalio, Bailey Road Associates, Russell Furia, Ollen Enterprises, Inc., Samuel Foresto, Kogel Lumber & Supply, Inc., Charles J. Zahra, Richard Toma, Jeanette Toma, Miller Place Associates, Brewran Medford Associates, SEM Development Corp., Westwood Equities at Fairview Lake, Karl V. Anton, Jr., Paradise North Associates, Shoreham Partners, Buena Vesa Builders, Inc., and Joseph DiMauro.

Esseks Hefter & Angel, Riverhead (William W. Esseks and John M. Wagner, of counsel), for intervenors-respondents Flanders Associates, Hampton Hills Associates, Patrick E. Malloy, III, Sina Associates, ABSI Associates, Siyown Mahfar, Simin Mahfar, and Henry B. Silverman.

Levine, Robinson & Algios, P.C., Mitchel Field (Kenneth L. Robinson, of counsel), for Assembly Members of the New York State Legislative Com'n on Water Resource Needs of Long Island, amicus curiae.

Robert Abrams, Atty. Gen., New York City (O. Peter Sherwood, James A. Sevinsky, and Leslie Allan, of counsel), for the State of N.Y., amicus curiae.

Carolyn Zenk, Bridgehampton, Neufeld & O'Leary, New York City (David S. Neufeld, of counsel), and Neal Lewis, Massapequa, for Group for South Fork Nassau/Suffolk Neighborhood Network Affiliated Brookhaven Civic Organization, Inc., North Fork Environmental Counsel, amicus curiae (one brief filed).

Howard I. Fox and Kirsten H. Engel, Washington, D.C., for Sierra Club, amicus curiae.

Before THOMPSON, J.P., and SULLIVAN, EIBER, MILLER and COPERTINO, JJ.

THOMPSON, Justice Presiding.

The principal question before us is whether the cumulative impact of proposed development in the environmentally fragile Pine Barrens area of Suffolk County must be assessed as part of the review process mandated by the New York State Environmental Quality Review Act (hereinafter SEQRA). We conclude that the appellants' amended verified petition alleges facts sufficient to state a cause of action requiring cumulative impact review under SEQRA, and accordingly, modify the order and judgment appealed from, by reinstating the first cause of action of the amended verified petition.

I.

The core area of the Pine Barrens, comprising some 100,000 acres known as the Central Pine Barrens, is a largely undeveloped, environmentally sensitive region extending throughout the Towns of Brookhaven, Southampton and Riverhead in central Suffolk County. The Pine Barrens region is an indispensable component of the Long Island aquifer system, the sole source of drinking water for over 2,600,000 inhabitants of Nassau and Suffolk Counties. The aquifer system, the largest and most important groundwater resource in New York State, consists of several porous, waterbearing formations, which slope and gradually deepen towards the south shore of Long Island. Precipitation which infiltrates the land surface in the Pine Barrens percolates downward to the water table through the aquifer's "Upper Glacial" layer and eventually reaches the aquifer's lower layers, where it "recharges" or replenishes the groundwater which the system continually discharges into the surrounding environment. This process, known as "deep flow recharge", constitutes the sole natural source of recharge waters replenishing the lower layers of the aquifer, and is essential to the maintenance of the system's high quality groundwater reserves. Significantly, the "recharge" waters which emanate from the Central Pine Barrens radiate outwards toward all portions of the aquifer contributing to the dilution of contaminants which have permeated it.

The high soil permeability of the Central Pine Barrens, and naturally low nutrient levels, together with the absence of extensive development, have made it the largest and highest quality "deep flow recharge" area on Long Island. Although the Pine Barrens soils are ideal for the storage and discharge of precipitation, they lack the capacity to filter out or degrade contaminants, which, as a consequence, enter into the groundwater. Once the groundwater becomes contaminated, it may take hundreds of years before the contaminants can be assimilated by the natural processes of the aquifer system. Such contaminants pose a serious and lasting threat to the groundwater reserves contained in the system.

In 1978, and pursuant to Federal Water Pollution Control Act § 208 (33 U.S.C. § 1288), the Long Island Regional Planning Board issued the "Long Island Comprehensive Waste Treatment Management Plan", the first public planning document to address the importance of preventing groundwater degradation within the Pine Barrens. The so-called "208 Plan" identified the key areas of "deep flow" recharge and established eight "hydrogeologic zones" on Long Island, so designated in light of their importance as groundwater supply sources. Hydrogeologic Zone III represents the area of "deep flow recharge" which generally coincides with the boundaries of the Central Pine Barrens. Although the plan notes that the nearby zones in Nassau and Suffolk Counties have sustained significant contamination, it identifies Zone III as possessing "exceptionally high water quality and high potential yields". The "208 Plan" recommends, moreover, that sources of "deep flow" recharge such as the Central Pine Barrens, which contribute to the lower layers of the aquifer system, "should be subjected to the strictest management controls".

Various levels of government have recognized the critical ecological importance of Zone III and its impact on Long Island's drinking water (see, Safe Drinking Water Act, as amended, 42 U.S.C. § 300h-3; Long Island Groundwater Management Plan; Local Laws, 1984, No. 7 of Suffolk County; Local Laws, 1987, No. 24 of Suffolk County; Local Laws, 1987, No. 40 of Suffolk County). In 1978, the United States Environmental Protection Agency (hereinafter EPA) designated the Long Island aquifer system as one of the first four "sole source" aquifers in the country under the Safe Drinking Water Act (see, 42 U.S.C. § 300h-3[e]. Notably, a "sole source" aquifer is "an aquifer which is the sole or principal drinking water source for the area and which, if contaminated, would create a significant hazard to public health" (42 U.S.C. § 300h-3[e]. In designating the Long Island aquifer system as a "sole source" aquifer, the EPA observed that "the aquifer system underlying Nassau and Suffolk Counties * * * is vulnerable to contamination through its recharge zone" and further stated that, "[s]ince contamination of a ground water aquifer can be difficult or impossible to reverse, contamination of the aquifer system underlying Nassau and Suffolk Counties, New York, would pose a significant hazard to those people dependent upon the aquifer system for drinking purposes" (Aquifers Underlying Nassau and Suffolk Counties, New York, 43 Fed Reg, 26611, 26612).

In 1983, the Legislature enacted the so-called Long Island Landfill Law (ECL 27-0704), which prohibited the disposal of solid waste in landfills in Nassau and Suffolk Counties. Accompanying the statute are legislative findings which reveal the significance attributed by the Legislature to the preservation of the Long Island aquifer system. Specifically, the Legislature found that the "land burial and disposal of domestic, municipal and industrial solid waste poses a significant threat to the quality of the groundwater and therefore to the quality of the drinking water in the counties of Nassau and Suffolk * * * since the potable water supply for these counties is derived from a sole source aquifer" (L.1983, ch. 299 § 1; ECL 27-0704; see also, Governor's Mem. on Approving L.1983, ch. 299, 1983 Legis Ann at 135).

In 1987, and in response to mounting concerns regarding the integrity of the State's groundwater resources, the New York State Legislature enacted the Sole Source Aquifer Protection Law (ECL article 55) and designated the Central Pine Barrens as one of nine "special groundwater protection areas" in the State (see, ECL 55-0113[1][g]. The...