Town of Henrietta v. Department of Environmental Conservation of New York

• Decision Date: 10 July 1980
• Citation: 76 A.D.2d 215,430 N.Y.S.2d 440
• Parties: In the Matter of the TOWN OF HENRIETTA and Miracle Mile Associates, Petitioners, v. DEPARTMENT OF ENVIRONMENTAL CONSERVATION OF the State of NEW YORK, Robert F. Flacke, Commissioner, Louis M. Concra, Jr., Chief Permit Administrator and Jayne F. Concra, Administrative Law Judge, Respondents, South Town Plaza, Inc., Intervenor-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 440

430 N.Y.S.2d 440

76 A.D.2d 215

In the Matter of the TOWN OF HENRIETTA and Miracle Mile

Associates, Petitioners, v. DEPARTMENT OF ENVIRONMENTAL CONSERVATION OF the State of NEW

YORK, Robert F. Flacke, Commissioner, Louis M. Concra, Jr.,

Chief Permit Administrator and Jayne F. Concra,

Administrative Law Judge, Respondents,

South Town Plaza, Inc., Intervenor-Respondent.

Supreme Court, Appellate Division, Fourth Department.

July 10, 1980.

Harris, Beach, Wilcox, Rubin & Levey, Rochester, for petitioner Miracle Mile (J. Montieth Estes, Rochester, of counsel).

Erwin N. Witt, Rochester, for petitioner Town of Henrietta.

Robert Abrams, Atty. Gen., Albany, for respondents (Peter G. Crary, Asst. Atty. Gen., Albany, of counsel).

Richard S. Mayberry, Rochester, for intervenor-respondent.

Before CARDAMONE, J. P., and SIMONS, CALLAHAN, DOERR and MOULE, JJ.

CALLAHAN, Justice.

In this article 78 proceeding, transferred to this court by order of Supreme Court, Monroe County, pursuant to CPLR 7804 (subd. (g)), petitioners Miracle Mile Associates and the Town of Henrietta, seek to vacate certain conditions imposed upon permits granted by respondent, Department of Environmental Conservation.

Petitioner Miracle Mile Associates, developer of a regional shopping center to be known as "The Marketplace", received final site approval from the Town of Henrietta in 1974 on a 125 acre tract simultaneously rezoned commercial for this project.

In accordance with an agreement with the developers, the County of Monroe has constructed a new Clay Road, which forms the eastern boundary of the mall site. Various other road improvements, including the construction of an interchange for the Genesee Expressway, have been authorized by the State and County, in part to facilitate traffic in and around the proposed mall. Also, the developers, with full knowledge and acquiescence of the United States Army Corps of Engineers and County and Town officials, relocated Red Creek to the southerly boundary of the property in order to accommodate the mall and mitigate the loss of the old creek.

In June 1978, the Commissioner of Environmental Conservation noted that it was still practicable to modify the proposed project in such a way as to mitigate adverse environmental impacts within the purview of the State Environmental Quality Review Act (ECL 8-0101 et seq., hereinafter SEQRA). He invoked his authority pursuant to that Act to require the preparation of an environmental impact statement (hereinafter EIS) for this project (ECL 8-0111(5)(a)). The Department of Environmental Conservation (hereinafter DEC) was designated as lead agency for the purpose of carrying out the environmental impact review of the project, which designation placed upon DEC the responsibility of preparing an adequate final EIS (ECL 8-0111(6); 6 NYCRR 617.8(e)).

Petitioner Miracle Mile Associates submitted to DEC a joint application for a freshwater wetlands permit (ECL, article 24; 6 NYCRR, Part 662) and for a water quality certification, pursuant to section 401 of the Federal Clean Water Act (33 U.S.C. § 1341) and 6 NYCRR, Part 608. ¹ Also submitted was an application for an indirect source air quality permit for parking facilities, as then required by article 19 of the Environmental Conservation Law and Part 203 (6 NYCRR, Part 203) of the DEC regulations. On June 12, 1979, the Town Board of the Town of Henrietta submitted, on behalf of the Henrietta Water District No. 1, an application for approval of engineering plans for the extension of the District's water supply and distribution mains to service the proposed shopping center.

On May 10, 1979, Miracle Mile Associates submitted to DEC an amended Draft Environmental Impact Statement (hereinafter DEIS) which contained a discussion and analysis of the project's total environmental setting, cumulative environmental and socioeconomic impacts expected to result from the project, and various mitigating measures proposed by petitioner to minimize adverse environmental effects. The proposed mitigation measures included ecosystem and wetland considerations, drainage and flooding abatement measures, and air pollution and noise pollution abatement measures, as well as abatement measures to mitigate aesthetic impacts, traffic impacts, and interference with community activities.

A public hearing to consider petitioners' permit applications was commenced by DEC on August 2, 1979 to fulfill both its procedural and substantive obligations under SEQRA (ECL, article 8). During the course of the hearing, the DEC regulations were amended to eliminate parking facilities, including lots and garages, from the definition of an indirect source of air contamination (6 NYCRR, Part 203, amend. eff. Aug. 11, 1979), thereby eliminating the necessity for an indirect source permit. Subsequent to the hearing, this court determined that as a result of the Town's prior site plan approval, the project was not subject to the requirements of the Freshwater Wetlands Act (Matter of Miracle Mile Assoc. v. Department of Environmental Conservation of State of N. Y., 73 A.D.2d 807, 423 N.Y.S.2d 732). Accordingly, during the course of the hearing, only two applications were properly before the DEC for consideration. It was determined that the evidence accumulated during the integrated EIS/permit hearing could not be reasonably differentiated into categories exclusively permit-related or exclusively EIS-related. The hearing report, therefore, was submitted as the final EIS and decision on the specific permit applications (ECL, article 8; 6 NYCRR, Part 617). It concluded that the petitioners' actions as proposed would not contravene the standard set by DEC concerning water supply (6 NYCRR 601.25) or water quality certification (6 NYCRR 608.6). However, the report/EIS also contained several conclusions concerning various other aspects of the project's cumulative environmental impact. DEC adopted the findings, conclusions and recommendations of the Administrative Law Judge and granted the permits subject to 18 conditions therein set forth. It is these conclusions which frame the basis for the permit conditions challenged by the petitioners.

According to DEC the majority of these conditions were intended to assure that petitioners, in carrying out their proposals, actually comply with the specific standards set for their respective permits. The remaining conditions were intended to fulfill DEC's obligation under SEQRA as an approving agency to insure that all of the project's adverse environmental effects revealed in the EIS are minimized or avoided (ECL 8-0109, subds. 1 and 8; 6 NYCRR 617.9(c)). As stated in the report, "the purpose of the above recommended conditions is not to infringe upon the authority of any other level of government, but rather to fulfill the Department's responsibility under the ECL to insure that the proposal is carried out in the least environmentally-damaging manner."

Petitioners seek in this proceeding to annul the conditions imposed upon the approvals granted by the DEC, contending that SEQRA does not authorize DEC to attach conditions to a permit or approval where such conditions have no relevance to the permit or approval sought. Although the attack in their petition was addressed to all 18 conditions, petitioners in their brief expressly limit their challenges to conditions 4(c), 8, 10, 11, 12, 17 and 18. ²

The purpose of the New York State Legislature in the enactment of SEQRA (ECL 8-0101 et seq.; L.1975 c. 612) was "to declare a state policy which will encourage productive and enjoyable harmony between man and his environment; to promote efforts which will prevent or eliminate damage to the environment and enhance human and community resources; and to enrich the understanding of the ecological systems, natural, human and community resources important to the people of the state." (ECL 8-0101). This court has recognized the legitimate purpose of this legislation and its intent that all regulatory agencies "conduct their affairs with an awareness that they are stewards of the air, water, land, and living resources, and that they have an obligation to protect the environment for the use and enjoyment of this and all future generations." (ECL 8-0103, subd. 8; 8-0109, subd. 1; H.O.M.E.S. v. New York State Urban Dev. Corp., 69 A.D.2d 222, 229, 418 N.Y.S.2d 827). These avowed purposes are achieved by the imposition of both procedural and substantive requirements upon agency decision-making.

Procedurally, SEQRA requires the preparation of an Environmental Impact Statement (EIS) for any action which may have a significant effect on the environment (ECL 8-0109(2)). An EIS is intended to provide detailed information about the effect which the proposed action is likely to have on the environment, to list ways in which any adverse effects of such an action might be minimized, and to suggest alternatives to such an action so as to form the basis for a decision whether or not to undertake or approve such action. The EIS, the heart of SEQRA, clearly is meant to be more than a simple disclosure statement as petitioners would construe it. Rather, it is to be viewed as an environmental "alarm bell" whose purpose is to alert responsible public officials to environmental changes before they have reached ecological points of no return (see Natural Resources Defense Council, Inc. v. Arcata National Corp., 59 Cal.App.3d 959, 966, 131 Cal.Rptr. 172, 176). Federal courts have recognized the significant role of an EIS under National Environmental Policy Act of 1969 (42 U.S.C. § 4321 et seq., hereinafter NEPA), the federal environmental statute upon which the New York act was modeled (see Calvert Cliffs' Coordinating Committee v. Atomic Energy Commission, 449 F.2d 1109, 1114 (D.C.Cir.); Iowa Citizens for Environmental Quality, Inc. v. Volpe, 487 F.2d 849, 851 (8th Cir.)). Moreover, federal courts have clearly enunciated that NEPA is more than...