Sun Beach Real Estate Development Corp. v. Anderson

• Decision Date: 27 December 1983
• Citation: 469 N.Y.S.2d 964,98 A.D.2d 367
• Parties: In the Matter of SUN BEACH REAL ESTATE DEVELOPMENT CORP., Respondent, v. Charles ANDERSON, as Town Clerk of The Town of East Hampton, et al., Appellants.
• Court: New York Supreme Court — Appellate Division

Page 964

469 N.Y.S.2d 964

98 A.D.2d 367

In the Matter of SUN BEACH REAL ESTATE DEVELOPMENT CORP., Respondent, v. Charles ANDERSON, as Town Clerk of The Town of East Hampton et al., Appellants.

Supreme Court, Appellate Division Second Department.

Dec. 27, 1983.

Smith, Finkelstein, Lundberg, Crimmins & Yakaboski, Riverhead (Frank A. Isler, Riverhead, of counsel), for appellants.

Esseks, Hefter, Cuddy & Angel, Riverhead (William W. Esseks and James Heffron, Riverhead, of counsel), for respondent.

Before DAMIANI, J.P., and LAZER, THOMPSON and GULOTTA, JJ.

LAZER, Justice.

Under the Town Law, a planning board which fails to act on a preliminary subdivision plat application within 45 days is deemed to have approved the preliminary plat (Town Law, § 276, subd. 3). What we now decide is how that rigorous mandate for prompt action interacts with the State Environmental Quality Review Act (SEQRA) (ECL 8-0101 et seq.) requirement that an application for a permit or authorization shall not be deemed complete until a draft environmental impact statement (DEIS) has been accepted by the agency principally responsible for the approval (ECL 8-0109, subd. 5).

Having been found in violation of the Town Law time restriction in processing petitioner's 777-acre subdivision plat, East Hampton's Planning Board argues that the 45-day time limit did not even begin to run until the board accepted petitioner's DEIS and that 45 days was too short a time for the board to meet its SEQRA obligations. Victorious at Special Term, the petitioner disagrees, contending that the 45-day time limit is an absolute one and that it is unaffected by any provision of SEQRA. We believe that preliminary plat approval determines important design features of a subdivision and therefore SEQRA's mandate for early meaningful consideration of the environmental consequences of a project requires environmental review to be undertaken when a preliminary plat application is filed. Once the East Hampton Planning Board determined that a DEIS was necessary, the preliminary plat application was not complete until the DEIS was accepted by the board. As a consequence, the time requirements of the Town Law did not commence running until after that acceptance.

On July 29, 1982, Sun Beach Real Estate Development Corp., the owner of a 777-acre tract in the Town of East Hampton, applied to the planning board for preliminary approval of a subdivision plat which showed a proposed development of 188 one-family residences and 143 condominium units. Attached to the application was an environmental assessment form (EAF) intended to assist the planning board in determining the environmental significance of the application (see 6 NYCRR 617.2[L] ). By letter dated September 7, 1982, the planning board informed Sun Beach that its application would be processed when it was complete, i.e., when the board issued a determination that the preliminary approval was of no environmental significance or when it accepted a DEIS if it decided there was environmental significance. Relying on subdivision 3 of section 276 of the Town Law, on October 15, 1982, Sun Beach demanded a certificate from the Town Clerk granting preliminary plat approval because the planning board had failed to hold a hearing on the plat within 45 days after submission of the application. On October 27, 1982, 90 days after the application had been filed, the planning board determined that the subdivision might significantly affect the environment and accepted as satisfactory a DEIS the applicant had submitted in mid-September, more than 45 days after filing of the application. A hearing was scheduled for December 8, 1982 to consider both the DEIS and the preliminary plat approval application. In January, 1983, Sun Beach brought this proceeding pursuant to CPLR article 78 against the town, the Town Clerk and the planning board seeking judgment directing issuance of a certificate of preliminary plat approval. Special Term granted the petition and directed the Town Clerk to issue the certificate. That judgment is at issue here.

There can be no doubt that absent SEQRA's requirements, Sun Beach would have been entitled to the approval certificate because default statutes such as section 276 of the Town Law and similar provisions governing city and village planning authorities (see General City Law, § 32; Village Law, § 7-728) have been uniformly construed to require automatic approval upon the failure to act within the prescribed time limits (see, e.g., Matter of Pekar v. Town of Veteran Planning Bd., 58 A.D.2d 703, 396 N.Y.S.2d 102; Matter of Wallkill Manor v. Coulter, 40 A.D.2d 828, 337 N.Y.S.2d 366, affd. 33 N.Y.2d 783, 350 N.Y.S.2d 416, 305 N.E.2d 494; Matter of Northern Operating Corp. v. Chamberlain, 34 A.D.2d 686, 312 N.Y.S.2d 398, affd. 31 N.Y.2d 704, 337 N.Y.S.2d 513, 289 N.E.2d 554; Matter of Fishman v. Arnzen, 29 A.D.2d 954, 289 N.Y.S.2d 42; Matter of Scarsdale Meadows v. Smith, 20 A.D.2d 906, 249 N.Y.S.2d 229; Matter of Levin v. Thornbury, 2 A.D.2d 774, 154 N.Y.S.2d 584). None of the cited cases dealt, however, with the co-ordination between existing subdivision approval procedures and the SEQRA process. Recognizing the impact of SEQRA, the town contends that when section 276 of the Town Law is harmonized with SEQRA, the time limits imposed by the Town Law do not commence to run until the planning board has accepted a DEIS.

It is a familiar canon of statutory construction that apparently conflicting statutory provisions should be harmonized in a manner that preserves the essential purposes of both (Matter of Burger King v. State Tax Comm., 51 N.Y.2d 614, 435 N.Y.S.2d 689, 416 N.E.2d 1024; Matter of Lumpkin v. Department of Social Servs. of State of N.Y., 59 A.D.2d 485, 400 N.Y.S.2d 220, affd. 45 N.Y.2d 351, 408 N.Y.S.2d 421, 380 N.E.2d 249; McKinney's Cons.Laws of N.Y., Book 1, Statutes, § 98). Since Sun Beach claims there is no conflict, it is necessary to examine the requirements of SEQRA to see if they can be integrated into existing subdivision approval time limits, and if they cannot, to decide whether there is any reasonable method to reconcile the two statutes.

SEQRA's procedures are intended to minimize to the greatest degree possible the adverse environmental consequences of any project that is approved. In Glen Head-Glenwood Landing Civic Council v. Town of Oyster Bay, 88 A.D.2d 484, 486-487, 453 N.Y.S.2d 732 we summarized the procedure as follows:

"As early as possible in the SEQRA process, the agency 'having principal responsibility for carrying out or approving, a given project or activity--the 'lead' agency (ECL 8-0111, subd 6)--must determine whether an environmental impact statement (EIS) should be prepared with reference to the proposal submitted (ECL 8-0109, subd. 4; 8-0111, subd. 6). If the lead agency determines that the project 'may have a significant effect on the environment', either the agency or the applicant--at the latter's option--must prepare a draft environmental impact statement (DEIS) (ECL 8-0109, subds 2, 4). If the draft statement is accepted by the agency 'as satisfactory with respect to scope, content and adequacy', it is then circulated to the DEC, other agencies having an interest in the proposal, and 'interested members of the public' (ECL 8-0109, subds 4, 5; 6 NYCRR 617.8[b], 617.10). After allowing a period for comment, the lead agency must prepare a final environmental impact statement (FEIS) and circulate it in the same manner as the draft statement (ECL 8-0109, subds 4, 5, 6; 6 NYCRR 617.10[h] ). Finally, upon adoption of the environmental-affecting proposal by the lead agency, it is required to make explicit findings that (1) the requirements of SEQRA have been met, and (2) adverse environmental effects revealed in the EIS process will be minimized or avoided to the maximum extent possible (ECL 8-0109, subd 8; 6 NYCRR 617.9[c] )."

It is undisputed that development of petitioner's 777-acre tract will have environmental reverberations and that the instant subdivision process constitutes an "action" which invokes SEQRA's directives. An action is defined as "projects or activities involving the issuance to a person of a lease, permit, license, certificate or other entitlement for use or permission to act by one or more agencies" (ECL 8-0105, subd. 4, cl. [i] ). By regulation, "actions" also encompass "planning activities of an agency that commit the agency to a definite course of future decisions" (6 NYCRR 617.2[b][2] ). All of the activities or steps in a capital project (i.e., planning, design, contracting, construction and operation) constitute an action, but only one draft and one final environmental statement are necessary if the statement "address[es] each step at a level of detail sufficient for an adequate analysis of environmental effects" (6 NYCRR 617.2[b] ).

While the imprecision of the statutory language renders it difficult to identify the precise point when a DEIS must be prepared during an "action" (see Matter of Tri-County Taxpayers Assn v. Town Bd. of Town of Queensbury, 55 N.Y.2d 41, 45, 447 N.Y.S.2d 699, 432 N.E.2d 592), the legislative intent is that environmental factors be given consideration "[a]s early as possible in the formulation of a proposal for an action" (ECL 8-0109, subd. 4; see, also, 6 NYCRR 617.1[c] ). The emphasis on early consideration facilitates the underlying purposes of a DEIS--"to relate environmental considerations to the inception of the planning process, to inform the public and other public agencies as early as possible about proposed actions that may significantly affect the quality of the environment" (ECL 8-0109, subd. 4). This is consistent with the requirement that the SEQRA process "run concurrently with other procedures relating to the review and approval of the action" (ECL 8-0109, subd. 5). If the DEIS is not prepared at an early stage, modification of a project in light of subsequently discovered...