Matter of County of Orange v. Village of Kiryas Joel

• Decision Date: 09 October 2007
• Docket Number: 2005-11560.,2006-02997.
• Citation: 844 N.Y.S.2d 57,2007 NY Slip Op 07699,44 A.D.3d 765
• Parties: In the Matter of COUNTY OF ORANGE, Respondent, v. VILLAGE OF KIRYAS JOEL et al., Appellants.
• Court: New York Supreme Court — Appellate Division

44 A.D.3d 765

844 N.Y.S.2d 57

2007 NY Slip Op 07699

In the Matter of COUNTY OF ORANGE, Respondent, v. VILLAGE OF KIRYAS JOEL et al., Appellants.

2005-11560.

2006-02997.

Appellate Division of the Supreme Court of the State of New York, Second Department.

Decided October 9, 2007.

In a proceeding pursuant to CPLR article 78 to review (a) a determination of the Board of Trustees of the Village of Kiryas Joel dated July 8, 2004, authorizing, inter alia, the construction of a public water supply facility and a pipeline connecting the public water supply facility with the Catskill Aqueduct, (b) a determination of the Board of Trustees of the Village of Kiryas Joel dated July 9, 2004, adopting a findings statement pursuant to the State Environmental Quality Review Act in connection with the project, and (c) a determination of the Board of Trustees of the Village of Kiryas Joel dated October 29, 2004, in effect, declining to conduct any further environmental review in connection with the project, the Village of Kiryas Joel and the Board of Trustees of the Village of Kiryas Joel appeal from (1) a judgment of the Supreme Court, Orange County (Rosenwasser, J.), dated October 20, 2005, which granted the petition, annulled the determinations, and remitted the matter to the Board of Trustees of the Village of Kiryas Joel for the preparation and circulation of a supplemental environmental impact statement addressing certain environmental issues, and (2) so much of an order of the same court dated February 27, 2006, as denied that branch of their motion which was for leave to renew their opposition to the petition.

Ordered that the judgment is modified, on the law, by deleting the provision thereof remitting the matter to the Board of Trustees of the Village of Kiryas Joel for the preparation and circulation of a supplemental environmental impact statement addressing certain environmental issues, and substituting therefor a provision remitting the matter to the Board of Trustees of the Village of Kiryas Joel for the preparation and circulation of an amended final environmental impact statement, in accordance herewith, which analyzes the impact of the project on wetlands, sewage facilities, and the discharge of wastewater and treated effluent into surface and ground waters, includes a phase 1-B archaeological study and review, analyzes the growth-inducing effects of the project, and analyzes those alternatives to the project which were identified in the final environmental impact statement with respect to these impacts; as so modified, the judgment is affirmed; and it is further,

Ordered that the order dated February 27, 2006, is affirmed insofar as appealed from; and it is further,

Ordered that one bill of costs is awarded to the petitioner.

After the Board of Trustees of the Village of Kiryas Joel (hereinafter the Board of Trustees) prepared and circulated a draft environmental impact statement (hereinafter the DEIS) and a final environmental impact statement (hereinafter the FEIS) in connection with a proposal to construct water pumping and wastewater treatment facilities within the Village, together with a 13-mile-long water pipeline connecting those facilities to an aqueduct, located in the Town of New Windsor, that is owned and operated by the City of New York (hereinafter the project), the Board of Trustees authorized the issuance of bonds to finance the project and approved a findings statement pursuant to the State Environmental Quality Review Act (ECL art 8 [hereinafter SEQRA]). In response to a resolution of the County Legislature of the County of Orange requesting further environmental review, the Board of Trustees later resolved, in effect, to refuse to undertake any additional environmental review.

The County, in which the Village is located, commenced the instant CPLR article 78 proceeding challenging the FEIS and the SEQRA findings statement, on the grounds that those documents failed to contain adequate analysis of several areas of environmental concern, and failed to identify and analyze a reasonable number of feasible alternatives to the project. The Supreme Court granted the petition, annulled the Board of Trustees' determinations, and remitted the matter to the Board of Trustees, directing it to prepare a supplemental environmental impact statement that properly analyzed the areas of environmental concern that were in controversy, and addressed certain alternatives to the project proposed by the County. We modify in order to clarify that the environmental document required to be prepared by the Board of Trustees upon remittitur should be characterized as an amended FEIS, but we decline the County's request to compel the Board of Trustees to identify and consider alternatives in addition to those already identified in the DEIS and the FEIS.

Initially, the County has established "a demonstrated interest in the potential environmental impacts of the project" (Matter of Town of Babylon v New York State Dept. of Transp., 33 AD3d 617, 618-619 [2006]), and thus, had standing to prosecute this CPLR article 78 proceeding, predicated upon both its status as an involved agency (see Village of Chestnut Ridge v Town of Ramapo, 45 AD3d 74 [2007]; Matter of Town of Pleasant Val. v Town of Poughkeepsie Planning Bd., 289 AD2d 583 [2001]; see also 6 NYCRR 617.2 [s]), and as an interested property owner facing injury in fact (see Society of Plastics Indus. v County of Suffolk, 77 NY2d 761, 774 [1991]; Village of Chestnut Ridge v Town of Ramapo, 45 AD3d 74 [2007]; Town of Riverhead v New York State Dept. of Envtl. Conservation, 193 AD2d 667, 669 [1993]). Moreover, this proceeding was commenced within the four-month statute of limitations that is applicable (see CPLR 217), measured from when the lead agency committed itself to a definite course of future action (see Matter of Eadie v Town Bd. of Town of N. Greenbush, 7 NY3d 306, 316 [2006]; Matter of Village of Pelham v City of Mount Vernon Indus. Dev. Agency, 302 AD2d 399, 400 [2003]; Matter of Mule v Hawthorne Cedar Knolls Union Free School Dist., 290 AD2d 698, 699-700 [2002]; see also 6 NYCRR 617.2 [b] [2], [3]).

"The law is well settled that judicial review of a SEQRA determination is limited to determining whether the challenged determination was affected by an error of law or was arbitrary and capricious, an abuse of discretion, or was the product of a violation of lawful procedure" (Matter of Village of Tarrytown v Planning Bd. of Vil. of Sleepy Hollow, 292 AD2d 617, 619 [2002]; see Akpan v Koch, 75 NY2d 561 [1990]; Matter of Jackson v New York State Urban Dev. Corp., 67 NY2d 400, 416 [1986]; Matter of City of Rye v Korff, 249 AD2d 470 [1998]). In reviewing the lead agency's determination, the court must determine whether the lead 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 Jackson v New York State Urban Dev. Corp., 67 NY2d at 417; see Chinese Staff & Workers Assn. v City of New York, 68 NY2d 359 [1986]; Matter of Doremus v Town of Oyster Bay, 274 AD2d 390 [2000]). In this regard, "it is not the role of the courts to weigh the desirability of any action or choose among alternatives, but to assure that the agency itself has satisfied SEQRA, procedurally and substantively" (Matter of Jackson v New York State Urban Dev. Corp., 67 NY2d at 416; Matter of Village of Tarrytown v Planning Bd. of Vil. of Sleepy Hollow, 292 AD2d at 619).

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