Shapiro v. Planning Bd. of the Town of Ramapo

• Decision Date: 08 November 2017
• Citation: 155 A.D.3d 741,65 N.Y.S.3d 54
• Parties: In the Matter of Susan Hito SHAPIRO, as successor executor of the estate of Sonya Shapiro, et al., petitioners/plaintiffs-appellants, v. PLANNING BOARD OF the TOWN OF RAMAPO, et al., respondents/defendants-respondents, et al., respondents/defendants.
• Court: New York Supreme Court — Appellate Division

155 A.D.3d 741

65 N.Y.S.3d 54

In the Matter of Susan Hito SHAPIRO, as successor executor of the estate of Sonya Shapiro, et al., petitioners/plaintiffs-appellants,

v.PLANNING BOARD OF the TOWN OF RAMAPO, et al., respondents/defendants-respondents, et al., respondents/defendants.

Supreme Court, Appellate Division, Second Department, New York.

Nov. 8, 2017.

Susan H. Shapiro, named herein as Susan Hito Shapiro, Nanuet, NY, petitioner/plaintiff-appellant pro se, and for petitioner/plaintiff-appellant Benjamin Ostrer.

Michael L. Klein, Town Attorney, Suffern, NY (Janice Gittelman and Michael Specht of counsel), for respondents/defendants-respondents Planning Board of the Town of Ramapo, Town of Ramapo, and Town Board of the Town of Ramapo.

Terry Rice, Suffern, NY, for respondents/defendants-respondents Scenic Development, LLC, and Scenic Development SM, LLC.

JOHN M. LEVENTHAL, J.P., LEONARD B. AUSTIN, JEFFREY A. COHEN, and COLLEEN D. DUFFY, JJ.

In a hybrid proceeding pursuant to CPLR article 78 to review three determinations of the Planning Board of the Town of Ramapo, all dated March 22, 2013, which granted three separate applications of the respondent Scenic Development, LLC, for final subdivision and site plan approval of three housing development projects, respectively, and action for injunctive relief, the petitioners/plaintiffs appeal, as limited by their brief, from so much of a judgment of the Supreme Court, Rockland County (Walsh II, J.), dated May 19, 2014, as, in effect, denied the petition and dismissed the proceeding.

ORDERED that the judgment is reversed insofar as appealed from, on the law, with one bill of costs payable by the respondents appearing separately and filing separate briefs, the petition is granted, the determinations dated March 22, 2013, are annulled, and the matter is remitted to the Planning Board of the Town of Ramapo for further proceedings consistent herewith.

In three determinations, all dated March 22, 2013, the Planning Board of the Town of Ramapo (hereinafter the Planning Board) granted three separate applications, respectively, of the respondent Scenic Development, LLC (hereinafter Scenic), for final subdivision and site plan approval for portions of a planned housing development on property it owns in the Town of Ramapo (hereinafter the project). The petitioners/plaintiffs (hereinafter the petitioners) commenced this hybrid proceeding/action challenging those approvals, contending that a Supplemental Environmental Impact Statement (hereinafter SEIS) is needed. Insofar as appealed from, the judgment, in effect, denied the petition and dismissed the proceeding.

" ‘[I]n a proceeding seeking judicial review of administrative action, the court may not substitute its judgment for that of the agency responsible for making the determination, but must ascertain only whether there is a rational basis for the decision or whether it is arbitrary and capricious' " ( Matter of Fogelman v. New York State Dept. of Envtl. Conservation,

74 A.D.3d 809, 810, 903 N.Y.S.2d 455, quoting Flacke v. Onondaga Landfill Sys., 69 N.Y.2d 355, 363, 514 N.Y.S.2d 689, 507 N.E.2d 282 ; see

Matter of Suffolk County Assn. of Mun. Empls., Inc. v. Levy, 133 A.D.3d 676, 677, 20 N.Y.S.3d 114 ). This is true even where the court would have reached a different result (see

Matter of Terrace Ct., LLC v. New York State Div. of Hous. & Community Renewal, 18 N.Y.3d 446, 454, 940 N.Y.S.2d 549, 963 N.E.2d 1250 ; Matter of Deerpark Farms, LLC v. Agricultural & Farmland Protection Bd. of Orange County,

70 A.D.3d 1037, 1038, 896 N.Y.S.2d 126 ). "An action is arbitrary and capricious when it is taken without sound basis in reason or regard to the facts" ( Matter of Deerpark Farms, LLC v. Agricultural & Farmland Protection Bd. of Orange County, 70 A.D.3d at 1038, 896 N.Y.S.2d 126 ).

Judicial review of an agency determination under the State Environmental Quality Review Act (ECL art 8; hereinafter SEQRA) is "limited to whether the agency procedures were lawful and whether the 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 Village of Kiryas Joel, N.Y. v. Village of Woodbury, N.Y., 138 A.D.3d 1008, 1011, 31 N.Y.S.3d 83 [internal quotation marks omitted]; see Matter of Jackson v. New York State Urban Dev. Corp., 67 N.Y.2d 400, 417, 503 N.Y.S.2d 298, 494 N.E.2d 429 ; Matter of Falcon Group Ltd. Liab. Co. v. Town/Village of Harrison Planning Bd., 131 A.D.3d 1237, 1239, 17 N.Y.S.3d 469 ). "[A]n agency, acting as a rational decision maker, must have conducted an investigation and reasonably exercised its discretion so as to make a reasoned elaboration as to the effect of a proposed action on a particular environmental concern" ( Akpan v. Koch, 75 N.Y.2d 561, 571, 555 N.Y.S.2d 16, 554 N.E.2d 53 ). However, " ‘[i]n a statutory scheme whose purpose is that the agency decision-makers focus attention on environmental concerns, 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 Village of Kiryas Joel, N.Y. v. Village of Woodbury, N.Y., 138 A.D.3d at 1012, 31 N.Y.S.3d 83, quoting Matter of Jackson v. New York State Urban Dev. Corp., 67 N.Y.2d at 416, 503 N.Y.S.2d 298, 494 N.E.2d 429 ; see Matter of Saint James Antiochian Orthodox Church v. Town of Hyde Park Planning Bd., 132 A.D.3d 687, 687–688, 17 N.Y.S.3d 481 ).

"A lead agency's determination whether to require a SEIS ... is discretionary" (Matter of Riverkeeper, Inc. v. Planning Bd. of Town of Southeast, 9 N.Y.3d 219, 231, 851 N.Y.S.2d 76, 881 N.E.2d 172 ). "The 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 project; (b) newly discovered information; or (c) a change in circumstances related to the project" ( 6 NYCRR 617.9 [a][7][i]; see Matter of Riverkeeper, Inc. v. Planning Bd. of Town of Southeast, 9 N.Y.3d at 231, 851 N.Y.S.2d 76, 881 N.E.2d 172 ). "The decision to prepare a SEIS as a result of newly discovered information ‘must be based upon ... (a) the importance and relevance of the information; and (b) the present state of the information in the EIS' " (Matter of Riverkeeper, Inc. v. Planning Bd. of Town of Southeast, 9 N.Y.3d at 231, 851 N.Y.S.2d 76, 881 N.E.2d 172, quoting 6 NYCRR 617.9 [a][7][ii] ). The limitations that apply to a court's review of an agency's SEQRAdetermination, that is, only to ascertain whether the agency took a hard look at the relevant areas of environmental concern and made a reasoned elaboration of the basis for its determination, also apply to the agency's determination regarding whether a SEIS is needed, and the court may no more substitute its judgment on this point than it may on other aspects of agency decision-making (see Matter of Riverkeeper, Inc. v. Planning Bd. of Town of Southeast, 9 N.Y.3d at 231–232, 851 N.Y.S.2d 76, 881 N.E.2d 172 ).

Here, the petitioners contend that a SEIS is needed because Scenic never obtained a jurisdictional determination from the United States Army Corps of Engineers (hereinafter ACOE) validating Scenic's delineation of wetlands on the subject property. They argue that, prior to issuing the determinations challenged on appeal, the Planning Board was presented with critical new evidence demonstrating that no jurisdictional determination had been issued by the ACOE for the subject property. The petitioners are correct.

Although the Planning Board and Scenic relied...