Riverkeeper v. Planning Bd. of Southeast

• Decision Date: 19 November 2007
• Docket Number: 149.,150.
• Citation: 881 N.E.2d 172,851 N.Y.S.2d 76,9 N.Y.3d 219
• Parties: In the Matter of RIVERKEEPER, INC., Respondent, v. PLANNING BOARD OF TOWN OF SOUTHEAST et al., Appellants. In the Matter of Richard Feuerman et al., Respondents, v. Planning Board of Town of Southeast et al., Appellants. In the Matter of Croton Watershed Clean Water Coalition, Inc., et al., Respondents, v. Planning Board of Town of Southeast et al., Appellants. In the Matter of Cherie Ingraham et al., Respondents, v. Planning Board of Town of Southeast et al., Appellants.
• Court: New York Court of Appeals Court of Appeals

881 N.E.2d 172

9 N.Y.3d 219

851 N.Y.S.2d 76

In the Matter of RIVERKEEPER, INC., Respondent, v. PLANNING BOARD OF TOWN OF SOUTHEAST et al., Appellants.

In the Matter of Richard Feuerman et al., Respondents, v. Planning Board of Town of Southeast et al., Appellants.

In the Matter of Croton Watershed Clean Water Coalition, Inc., et al., Respondents, v. Planning Board of Town of Southeast et al., Appellants.

In the Matter of Cherie Ingraham et al., Respondents, v. Planning Board of Town of Southeast et al., Appellants.

149.

150.

Court of Appeals of New York.

November 19, 2007.

Willis H. Stephens, Jr., Town Attorney, Brewster, for Planning Board of the Town of Southeast, appellant in the first three above-entitled proceedings.

Keane & Beane, P.C., White Plains (Richard L. O'Rourke, Judson K. Siebert and Edward J. Phillips of counsel), and Chadbourne & Parke LLP, New York City (Alan I. Raylesberg and Thomas E. Butler of counsel), for Glickenhaus Brewster Development, Inc., appellant in the first three above-entitled proceedings.

James L. Simpson, White Plains, for Riverkeeper, Inc., respondent in the first above-entitled proceeding.

McMillan, Constabile, Maker & Perone, LLP, Larchmont (William Maker, Jr., of counsel), for Richard Feuerman and others, respondents in the second above-entitled proceeding.

James Bacon, New Paltz, for Croton Watershed Clean Water Coalition, Inc. and others, respondents in the third above-entitled proceeding.

Andrew M. Cuomo, Attorney General, Albany (Barbara D. Underwood, Benjamin N. Gutman, Katherine Kennedy and Philip M. Bein of counsel), for State of New York, amicus curiae in the first three above-entitled proceedings.

Michael E. Kenneally, Jr., Albany, and Riele J. Morgiewicz for Association of Towns of State of New York and another, amici curiae in the first three above-entitled proceedings.

Shamberg Marwell Davis & Hollis, P.C., Mount Kisco (John S. Marwell, Diana Bunin and Carrie E. Hilpert of counsel), for Building and Realty Institute of Westchester & the Mid-Hudson Region, amicus curiae in the first three above-entitled proceedings.

Sive, Paget & Riesel, PC, New York City (Mark A. Chertok and Elizabeth Knauer of counsel), and Fried, Frank, Harris, Shriver & Jacobson LLP (Richard G. Leland and Susanna J. Gray of counsel) for Real Estate Board of New York, Inc., amicus curiae in the first three above entitled proceedings.

Willis H. Stephens, Jr., Town Attorney, Brewster, for Planning Board of the Town of Southeast, appellant in the fourth above-entitled proceeding.

Keane & Beane, P.C., White Plains (Richard L. O'Rourke, Judson K. Siebert and Edward J. Phillips of counsel), and Chadbourne & Parke LLP, New York City (Alan I. Raylesberg and Thomas E. Butler of counsel), for Glickenhaus Brewster Development, Inc., appellant in the fourth above-entitled proceeding.

McMillan, Constabile, Maker & Perone, LLP, Larchmont (William Maker, Jr., and Gary Kyme of counsel), for respondents in the fourth above-entitled proceeding.

[851 N.Y.S.2d 228]

OPINION OF THE COURT

KAYE, Chief Judge.

At the heart of the two appeals before us is the impact of environmental and regulatory change on a residential development that has been in the planning and review stages for nearly 20 years. The particular question presented is whether the Planning Board of the Town of Southeast, lead agency under the State Environmental Quality Review Act (SEQRA), both took the requisite hard look at project and regulatory changes that arose after the filing of a SEQRA findings statement, and made a reasoned elaboration that a second supplemental environmental

[851 N.Y.S.2d 229]

impact statement (SEIS) was not necessary to address those changes. We conclude that the Board did both, and that its determination was not arbitrary or capricious.

Background

In 1988 Glickenhaus Brewster Development, Inc. submitted an application to the Board seeking subdivision approval for a residential development called the Meadows at Deans Corners. The site spans approximately 309 acres and, in its final form, proposes a cluster development of 104 homes.

After declaring itself lead agency, the Board issued a positive declaration, which determined that the project would likely have a significant impact on the environment, and required the preparation of a draft environmental impact statement (DEIS). Between 1988 and 1991, Glickenhaus submitted a DEIS, final EIS (FE IS), draft SEIS (DSEIS) and final SEIS (FSEIS), which were reviewed by the Board and subject to public comment. On February 25, 1991, the Board issued a SEQRA findings statement determining that SEQRA's requirements had been met and that the project "minimized or avoid[ed] adverse environmental effects to the maximum extent practicable."

These early processes unearthed concern that the development would degrade the quality of the Croton Watershed because Holly Stream, which runs through the site, is a tributary of the Muscoot Reservoir. Additionally, the Town of Southeast lies within the Croton Watershed, which supplies New York City with ten percent of its drinking water. The New York City Department of Environmental Protection (NYCDEP) opposed the initial sewage treatment plan and Glickenhaus substituted a more advanced plan with a subsurface disposal system. The Board's findings acknowledged that treated effluent from the development would flow into Holly Stream and be discharged into the Muscoot Reservoir. The findings also documented Glickenhaus's obligation to develop the advanced treatment plant in conjunction with NYCDEP The Board granted preliminary subdivision approval on August 10, 1998, and conditional final approval on June 10, 2002.

Petitioners challenged the conditional final approval in a CPLR article 78 proceeding. On February 3, 2003, Supreme Court Justice Francis A. Nicolai annulled the conditional final approval because of the Board's failure to take a hard look at certain areas of environmental concern. Judge Nicolai remitted the matter to the Board to determine whether a second SEIS

[851 N.Y.S.2d 230]

was necessary in light of subsequent developments, namely the United States Army Corps of Engineers' (USACE) expansion of the delineated wetlands acreage on the site; the tightened phosphorous regulations for the Muscoot Reservoir; Governor Pataki's designation of the Croton Watershed as a "Critical Resource Water"; the flagging of additional watercourses by NYCDEP not previously shown on the site plan; the realignment of various roadways; the increase of stormwater basins from 9 to 20; the additional traffic development near the site; and the flooding caused by Hurricane Floyd.

After remittal, the chairman of the Board reexamined Meadows' file, which had been supplemented with the local wetlands permit application before the Town of Southeast Conservation Commission and the Town Board; the application for a State Pollutant Discharge Elimination System (SPDES) permit before the New York State Department of Environmental Conservation (NYSDEC); the application for a wetlands activities permit before USACE; and the application for approval of the Stormwater Pollution Prevention Plan (SPPP) before NYCDEP The Board then reviewed two reports from the Town Conservation Commission's independent wetlands consultant, Stephen Coleman, and another report from Glickenhaus's engineering consultant, Finally, the Board's own environmental and planning consultant examined the file and circulated a draft resolution for Board review. On April 14, 2003, the Board adopted a resolution that a second SEIS was not necessary because "any modifications to the project and any changes [to the regulations] ... [were] not significant and will not result in any significant adverse environmental impacts...." Conditional final approval was granted, for a second time, on February 23, 2004.

In May 2003 petitioners commenced Matter of Riverkeeper, Inc. v. Planning Bd. of Town of Southeast—the first of the two appeals before us—challenging the Board's determination that a second SEIS was not required. In a comprehensive opinion dismissing the petitions, Judge Nicolai concluded that the Board had taken the requisite hard look at the areas of concern and made a reasoned elaboration of its decision not to require a second SEIS. The Appellate Division reversed. Without reflecting the proper standard of review, a divided Appellate Division determined that the Board "could not have met its obligation under SEQRA without requiring a SEIS to analyze the current subdivision plat in light of the change in circumstances since 1991" (32 A.D.3d 431, 435, 820 N.Y.S.2d 113 [2d. Dept.2006]).

[851 N.Y.S.2d 231]

The second appeal before us—Matter of Ingraham v. Planning Bd. of Town of Southeast—commenced in March 2004, challenged the February 2004 conditional final approval on the ground that it violated various subdivision regulations of the Code of the Town of Southeast. Petitioners alleged that the final plat improperly utilized dead-end streets, the application was not "complete" because it did not include all of the required permits and the Board improperly waived a public hearing for final approval. Judge Nicolai found no violation of the Town's subdivision regulations. Although agreeing that no violation of the subdivision regulations had been shown, the Appellate Division annulled the February 2004 conditional final approval based on its August 2006 decision that a second SEIS was required (36 A.D.3d 911, 912, 828 N.Y.S.2d 568 [2d Dept.2007]). We now reverse the Appellate Division orders and dismiss the petitions.

Analysis

A lead agency's determination whether to require a SEIS—or in this case a second, SETS—is discretionary. The relevant SEQRA regulations provide that:

"[t]he lead agency may require a supplemental EIS, limited to the specific significant adverse environmental impacts not addressed or inadequately addressed in the EIS that arise from: (a) changes proposed for the...