Shop-Rite Supermarkets, Inc. v. Planning Bd. of Town of Wawarsing

• Decision Date: 10 March 2011
• Citation: 82 A.D.3d 1384,918 N.Y.S.2d 647
• Parties: In the Matter of SHOP-RITE SUPERMARKETS, INC., et al., Appellants, et al., Petitioner, v. PLANNING BOARD OF the TOWN OF WAWARSING et al., Respondents. (And Another Related Proceeding.)
• Court: New York Supreme Court — Appellate Division

918 N.Y.S.2d 647
82 A.D.3d 1384

In the Matter of SHOP-RITE SUPERMARKETS, INC., et al., Appellants, et al., Petitioner,
v.
PLANNING BOARD OF the TOWN OF WAWARSING et al., Respondents.
(And Another Related Proceeding.)

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

March 10, 2011.

918 N.Y.S.2d 648

Calhelha & Doyle, L.L.C., Cornwall (Moacyr R. Calhelha of counsel), for appellants.

Harter, Secrest & Emery, L.L.P., Buffalo (Marc A. Romanowski of counsel), for respondents.

Before: CARDONA, P.J., PETERS, LAHTINEN, McCARTHY and GARRY, JJ.

PETERS, J.

Appeals from an order and judgment of the Supreme Court (Connolly, J.), entered March 16, 2010 and March 25, 2010 in Ulster County, which, among other things, dismissed petitioners' applications, in two combined proceedings pursuant to CPLR article 78 and actions for declaratory judgment, to review two determinations of respondent Planning Board of the Town of Wawarsing adopting a negative declaration of environmental significance and approving the site plan, subdivision and special use permit applications of respondent Wal-Mart Real Estate Business Trust.

918 N.Y.S.2d 649

In 2006, respondent Wal-Mart Real Estate Business Trust (hereinafter Wal-Mart) entered into negotiations with respondents Joseph Tso and Cecilia Tso Warner to purchase a 110,000-square-foot strip mall located along State Route 209 in the Town of Wawarsing, Ulster County for the purpose of constructing, among other things, a 132,000-square-foot superstore. In October 2008, Wal-Mart submitted site plan, subdivision and special use permit applications, along with an environmental assessment form (hereinafter EAF), to respondent Planning Board of the Town of Wawarsing (hereinafter Planning Board). After classifying the proposed development as a type I action under the State Environmental Quality Review Act ( see ECL art. 8 [hereinafter SEQRA] ) and declaring itself lead agency, the Planning Board identified areas of environmental concern and sought input from interested government agencies. Following several public meetings and the submission of various studies, in March 2009 the Planning Board issued a negative declaration of environmental significance. Two months later the Planning Board approved Wal-Mart's applications.

Petitioners commenced two combined proceedings pursuant to CPLR article 78 and actions for declaratory judgment—later joined by Supreme Court—challenging the negative declaration of environmental significance and the resolutions approving the applications. Supreme Court dismissed the petitions and these appeals by petitioners Shop-Rite Supermarkets and Wawarsing-Ellenville for Responsible Development (hereinafter collectively referred to as petitioners) ensued.

Initially, petitioners contend that the Planning Board failed to take the requisite "hard look" at the potential adverse impacts of the Wal-Mart project. Specifically, they argue that the Planning Board did not seriously consider the environmental concerns raised by, among others, the Ulster County Planning Board. Petitioners further contend that, upon designating the Wal-Mart project a type I action, the Planning Board should have required an environmental impact statement.

"Judicial review of an agency determination under SEQRA is limited to 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 Riverkeeper, Inc. v. Planning Bd. of Town of Southeast, 9 N.Y.3d 219,...