Pickerell v. Town of Huntington

• Decision Date: 15 October 2014
• Docket Number: No. 13–18087.,13–18087.
• Court: New York Supreme Court
• Parties: Ronald PICKERELL, Steven Goldstein, Gerald McCarthy, Saumil Gandhi and Centerport Harbor Civic Association, Petitioners, For a Judgment under Article 78 of the Civil Practice Law and Rules and for Declaratory Judgment, and Article 30 of the Civil Practice Law and Rules, v. The TOWN OF HUNTINGTON, The Town of Huntington Zoning Board Of Appeals, 7–Eleven, Inc., Harborfields Realty LLC, and Suffolk County Planning Commission, Respondents.

3 N.Y.S.3d 286 (Table)

Ronald PICKERELL, Steven Goldstein, Gerald McCarthy, Saumil Gandhi and Centerport Harbor Civic Association, Petitioners, For a Judgment under Article 78 of the Civil Practice Law and Rules and for Declaratory Judgment, and Article 30 of the Civil Practice Law and Rules
v.
The TOWN OF HUNTINGTON, The Town of Huntington Zoning Board Of Appeals, 7–Eleven, Inc., Harborfields Realty LLC, and Suffolk County Planning Commission, Respondents.

No. 13–18087.

Supreme Court, Suffolk County, New York.

Oct. 15, 2014.

Darrin Berger, Esq., Huntington, for Petitioners.

Amato Law Group, PLLC, Garden City, for Respondent 7–Eleven, Inc.

Dennis M. Brown, Esq., Suffolk County Attorney, Hauppauge, for Respondent Suffolk County.

James F. Matthews, Esq., Huntington, for Respondent The Town of Huntington & The Town of Huntington ZBA.

Opinion

ANDREW G. TARANTINO JR., J.

Petitioners commenced this Article 78 proceeding seeking a judgment aning a determination of respondent Town of Huntington Zoning Board of Appeals, dated June 13, 2013, which granted respondent 7–Eleven, Inc., a special use permit and an area variance for a proposed demolition and construction project on commercial premises known as 2 Little Neck Road, Centerport, New York. Petitioners also request an injunction enjoining respondent 7–Eleven, Inc., and respondent Town of Huntington from taking any further action in connection with such project “pending literal compliance with [the] procedural and substantive requirements of SEQRA and Section 274–b of the Town Law.” In addition, petitioners seek a judgment directing respondent Town of Huntington Zoning Board of Appeals to provide copies of the documents that were the subject of a Freedom of Information Law request served on June 20, 2013, and awarding them attorneys fees under Public Officers Law § 89. For the reasons set forth herein, the petition is granted to the extent that the determination awarding respondent 7–Eleven, Inc., an area variance and a special use permit for the subject project is aned, as respondent Town of Huntington Zoning Board of Appeals failed to comply with the requirements of the State Environmental Quality Review Act (SEQRA) (see Environmental Conservation Law art. 8).

Respondent Harborfields Realty, LLC, is the owner of a parcel of land located at the northeast corner of Route 25A and Little Neck Road in respondent Town of Huntington (hereinafter the Town) that for decades was used to operate a gasoline service station and automotive repair shop. Known as 2 Little Neck Road, Centerport, the subject property is improved with a one-story building and a 28' x 54' canopy. It is in an area of Route 25A designated by New York State as a scenic and historic corridor, and is zoned C–6 General Business District. Directly across the street from the subject property, on the southeast corner of Route 25A and Centerport Road (called Little Neck Road north of Route 25A), is the Suydam House, an historic home built in the early 1700s that is on the National Register of Historic Places and is operated as a museum. A second home on the National Register of Historic Places, the Nelson Velzer House and Caretaker's Cottage, also is in close proximity to the subject property. In May 2010, Harborfields Realty entered into a 15–year ground lease with respondent 7–Eleven, Inc. (hereinafter 7–Eleven), permitting the property to be developed with a convenience store. Seeking to demolish the existing structures, construct a new one-story commercial building, and make various related improvements, including the installation of curbing and sidewalks, asphalt pavement, site drainage, and changes to Little Neck Road's right-of-way, representatives of 7–Eleven met with officials with the Town's Department of Planning and Environment in 2010 and 2011 to discuss its development proposal for the land. It also secured approval from the New York State Department of Transportation for those portions of its proposal involving the dedication of land to widen the roadway for a turn lane on Little Neck Road, as well as changes in curb cuts and roadway markings.

Meanwhile, in June 2011, the Town adopted a local law providing that “freestanding convenience markets” in the C–6 General Business District, like the one proposed by 7–Eleven, require a special use permit and a minimum lot size of 25,000 square feet (see Code of the Town of Huntington § 198–27[C] [11] ). Although 7–Eleven revised the project in an effort comply with the new Town requirements for freestanding convenience stores, its development proposal for the land, which measures only 21,553 square feet, was rejected by the Town's Department of Planning and Environment. Shortly thereafter, on October 12, 2011, 7–Eleven filed an application with respondent Town of Huntington Zoning Board of Appeals (hereinafter the Huntington ZBA) for a special use permit to build and operate a freestanding convenience store, and for an area variance from the 25,000 square foot minimum lot size requirement for freestanding convenience markets. As part of its application, 7–Eleven submitted a Short Environmental Assessment Form (EAF) for Unlisted Projects. The Huntington ZBA sent out notices to various agencies, including the New York State Department of Environmental Conservation, the New York State Department of Transportation, and the Suffolk County Department of Health Services, Wastewater Management Division, advising of the application filed by 7–Eleven and its intent to assume lead agency status. Included with such notice was a copy of the application and Part I of the Short EAF filed by 7–Eleven. Thereafter, by correspondence dated October 28, 2011, respondent Suffolk County Planning Commission (hereinafter the Planning Commission) advised the Huntington ZBA that 7–Eleven's application to construct a convenience store on the corner of Little Neck Road and Route 25A “was a matter for local determination as there appears to be no significant county-wide or inter-community impacts.”

Subsequently, on January 26, 2012, the Huntington ZBA conducted a public hearing on 7–Eleven's proposal to develop the subject property with a convenience store. Prior to the meeting, 7–Eleven submitted various maps, photographs, site plans and reports to the Huntington ZBA, including a traffic impact study prepared by Stonefield Engineering & Design, an engineering report prepared by High Point Engineering, a planning study prepared by VHB Engineering, Surveying and Landscape Architecture, and an appraisal report on the proposed convenience store's impact on real property values prepared by Breslin Appraisal Company. The Huntington ZBA also received numerous letters from area residents regarding the proposed project. At the opening of the hearing, the people in attendance were advised by the Huntington ZBA Chairman, Christopher Modelewski, that only 7–Eleven would be permitted to make a presentation that day. Mr. Modelewski explained that the Huntington ZBA might exercise its right to retain an expert on the issues raised by the application, and that a second public session would be held at a later date, so residents could have an opportunity to review the reports and testimony of 7–Eleven's experts and the report of any expert retained on the matter by the Huntington ZBA. The Chairman also entered into evidence a “Convenience Store Study,” dated April 28, 2011, prepared by the Town's Department of Planning and Environment. The January 26 session focused primarily on the potential traffic impacts of the proposed convenience store, with 7–Eleven presenting the testimony of the exerts who prepared the reports previously submitted to the Huntington ZBA. In an effort to address a concern regarding the use of tractor trailers and large trucks to deliver goods to the proposed convenience store raised by the Huntington ZBA, it also presented the testimony of Kenneth Barnes, Regional Development Director for 7–Eleven.

The hearing on 7–Eleven's application was held open for comment, and the Huntington ZBA retained Dunn Engineering Associates to review the proposed project, particularly the potential impacts on traffic. In addition to a reports prepared by Dunn Engineering, the Huntington ZBA received numerous supplemental reports, expert affidavits and other documents from 7–Eleven, nearly all related to the traffic issues raised during the January 26 hearing session. It also received more letters from Town residents, both in support of and in opposition to the proposed project. Although a public hearing was scheduled for October 25, 2012, the hearing was adjourned by the Huntington ZBA on the ground that it did not have sufficient time to review the material contained in the 7–Eleven's recent submissions. Finally, after months of seeking additional information related to its concerns about changes in traffic conditions and deliveries to the proposed convenience store, the Huntington ZBA conducted a second public hearing on 7–Eleven's application on May 9, 2013.

During the May 9 hearing, 7–Eleven presented Brian Rathgaber, the principal shareholder of Harborfields Realty, who testified about the prior operations on the subject property, and Kenneth Barnes, who provided additional testimony as to 7–Eleven's ability to use only box trucks to deliver goods to the site, and to make such deliveries from Route 25A during off-peak hours. The public also was afforded an opportunity to speak on the application submitted by 7–Eleven. During the public comment period, two residents raised the issue of...