MATTER OF DOREMUS v. Town of Oyster Bay

• Citation: 274 A.D.2d 390,711 N.Y.S.2d 443
• Parties: In the Matter of WILLIAM DOREMUS et al., Respondents,<BR>v.<BR>TOWN OF OYSTER BAY et al., Appellants, and<BR>TILLES INVESTMENT COMPANY, Intervenor-Appellant.
• Decision Date: 03 July 2000
• Court: New York Supreme Court Appellate Division

274 A.D.2d 390

711 N.Y.S.2d 443

In the Matter of WILLIAM DOREMUS et al., Respondents,

v. TOWN OF OYSTER BAY et al., Appellants, andTILLES INVESTMENT COMPANY, Intervenor-Appellant.

Decided July 3, 2000.

O'Brien, J.P., Ritter and Florio, JJ., concur.

Ordered that the appeal by the Town of Oyster Bay and the Town Board of Oyster Bay is dismissed as withdrawn; and it is further,

Ordered that the judgment is affirmed insofar as appealed from by the intervenor Tilles Investment Company; and it is further,

Ordered that the respondents are awarded one bill of costs payable by the intervenor.

The record supports the Supreme Court's determination that the Town Board of the Town of Oyster Bay (hereinafter the Town Board) failed to meet its obligation as lead agency under the State Environmental Quality Review Act (ECL art 8) (hereinafter SEQRA) when it approved the application by the intervenor Tilles Investment Company (hereinafter Tilles) to rezone the subject property. The Town Board relied on a 10-year-old environmental impact statement (hereinafter EIS), which was submitted in connection with a prior application by the appellant to rezone the property, and failed to meet its obligation to consider not only whether the passage of time created new environmental concerns, but whether the adverse environmental effects identified in the prior EIS could be minimized.

The subject property consists of approximately 81 acres which had been zoned in part as an "A" residence district under Town of Oyster Bay Code § 200, permitting single-family homes on lots of at least two acres, and in part as a "B-A" residence district under Town of Oyster Bay Code § 215, permitting single-family homes on lots of at least one acre. Tilles purchased the property and in 1981 petitioned the Town Board to rezone the property in order to permit the construction of 220 units in residence "B-1", "D", and "B-A" categories. In 1983, after consideration of a Final Environmental Impact Statement (hereinafter FEIS), the Town Board denied Tilles' application.

In 1985, Tilles applied to the Town Board to rezone the property to a combination "E-2" district, in which 218 condominium units would be built, and a "D" district, in which 124 single-family homes would be built, for a total of 342 units. Tilles submitted a Draft Environmental Impact Statement (hereinafter DEIS) in connection with its application, and an FEIS to address comments on the DEIS. After reviewing the DEIS and FEIS, the Nassau County Planning Commission (hereinafter the Planning Commission) recommended denial of Tilles' "E-2/ D" rezoning application.

The Planning Commission concluded that the proposed development would over-intensify the use of the property which had many natural amenities. The property was identified as a major deep aquifer recharge zone, and therefore the Planning Commission recommended that the property be developed as low-density residential, to ensure a source of uncontaminated water, and that any rezoning should include cluster zoning or other limitations on development to minimize possible adverse effects. The Town Board denied this application citing water supply problems, reduction of open space, and inadequate efforts to mitigate adverse environmental effects.

Tilles commenced an action, inter alia, for a judgment declaring that the existing zoning of the property was invalid, and in 1994 this Court affirmed an order of the Supreme Court, Kings County, dated April 7, 1992, which denied the parties' respective motions for summary judgment (see, Tilles Inv. Co. v Town of Oyster Bay, 207 AD2d 393). Tilles then submitted a settlement proposal in which the entire 81-acre property would be rezoned as a "D" residence district. Under Tilles' proposal, 270 single-family homes would be constructed under the Town's cluster-zone provisions.

The Town Board held hearings on the proposal, and on August 6, 1996, adopted a resolution which authorized the Town Attorney to enter into a consent order agreeing to the settlement proposal submitted by Tilles. The consent order, dated October 3, 1996, which was so-ordered by the Supreme Court, Kings County, stated in part: "WHEREAS, the FEIS contained sufficient information to support a conclusion that the potential environmental impacts of the Application, and development of the Property in accordance therewith, is acceptable environmentally and that any potential environmental impacts can be satisfactorily mitigated. The extensive environmental review in this matter adequately considered the potential adverse consequences of developing the Property at a density equal to the `E-2' General Residence District * * * Development of the Property in accordance with the provisions of the Residence `D' District zone, * * * will not have significant environmental impacts, due consideration to those potential environmental impacts and mitigation having been given in connection with approval of the prior FEIS and the Town Board's approval of this Order on Consent. In addition, it is acknowledged that Tilles and/or its successors and/or assigns will perform an environmental study in connection with the necessary Nassau County Planning Commission approval". Following entry of the consent order, Tilles submitted an environmental assessment form to the Nassau County Planning Commission.

The petitioners, who are either individuals residing near the property or civic associations interested in preserving the property, commenced the instant proceeding pursuant to CPLR article 78/action against the Town of Oyster Bay and the Town Board (hereinafter the appellants), inter alia, to review the proposed zoning changes, annul the consent order, and require the promulgation of a new EIS or a supplemental environmental impact statement (hereinafter SEIS). The Supreme Court granted the petition, and, among other things, annulled the consent order and directed the appellants to promulgate a SEIS.

Contrary to the appellants' contention, the consent order entered into by the parties in the action commenced by Tilles is not exempt from review under SEQRA, since the exemption for court actions does not apply to "Type 1" actions (see, Matter of Abate v City of Yonkers, 264 AD2d 517; see also, 6 NYCRR 617.5 [c] [37]). Furthermore, the requirements of SEQRA were not satisfied by the provision in the consent order which required Tilles to complete an environmental assessment form for the Planning Commission after the property was rezoned (see, Matter of Tri-County Taxpayers Assn. v Town Bd., 55 NY2d 41; Matter of Abate v City of Yonkers, supra; Riverhead Bus. Improvement Dist. Mgt. Assn. v Stark, 253 AD2d 752).

The rezoning of the property to a "D" residential district constituted an action which may have a significant effect on the environment and for which a DEIS and an FEIS were required (see, ECL 8-0109 [2], [4]; 6 NYCRR 617.7, 617.9; Matter of WEOK Broadcasting Corp. v Planning Bd., 79 NY2d...