Troy Sand & Gravel Co. v. Town of Nassau

• Decision Date: 27 December 2012
• Citation: 101 A.D.3d 1505,2012 N.Y. Slip Op. 09113,957 N.Y.S.2d 444
• Court: New York Supreme Court — Appellate Division
• Parties: TROY SAND & GRAVEL COMPANY, INC., et al., Respondents, v. TOWN OF NASSAU et al., Appellants.

101 A.D.3d 1505

957 N.Y.S.2d 444

2012 N.Y. Slip Op. 09113

TROY SAND & GRAVEL COMPANY, INC., et al., Respondents,

v.TOWN OF NASSAU et al., Appellants.

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

Dec. 27, 2012.

Joseph Catalano, Rensselaer (Bruce S. Huttner of Donohue, Sabo, Varley & Huttner, Albany, of counsel), for appellants.

Tuczinski, Cavalier, Burstein & Collura, PC, Albany (Andrew W. Gilchrist of counsel), for respondents.

Before: ROSE, J.P., LAHTINEN, SPAIN, KAVANAGH and McCARTHY, JJ.

SPAIN, J.

Appeal from an order of the Supreme Court (Lynch, J.), entered February 2, 2012 in Rensselaer County, which partially granted plaintiffs' motion for, among other things, a preliminary injunction.

In December 2003, plaintiff Troy Sand & Gravel Company, Inc. (hereinafter plaintiff) applied to the Department of Environmental Conservation (hereinafter DEC) for a mining permit to construct a quarry in the Town of Nassau, Rensselaer County on land owned by plaintiff Henkel Realty Associates, LLC. In February 2004, plaintiff also submitted applications to the Town for a special use permit and site plan approval for the quarry, applications which are still pending today due to ongoing litigation ( see Matter of Troy Sand & Gravel Co., Inc. v. Town of Nassau, 89 A.D.3d 1178, 932 N.Y.S.2d 564 [2011],lv. dismissed18 N.Y.3d 920, 941 N.Y.S.2d 554, 964 N.E.2d 1022 [2012] ). Thereafter, the Commissioner of Environmental Conservation appointed DEC as the lead agency for the environmental review of the proposed quarry pursuant to the State Environmental Quality Review Act ( see ECL art. 8 [hereinafter SEQRA] ), and DEC conducted a full review of the quarry's potential environmental impact, in which the Town Board actively participated as an involved agency. In 2007, DEC accepted plaintiff's final environmental impact statement, published a SEQRA findings statement, and issued a mining permit to plaintiff under the Mined Land Reclamation Law (hereinafter MLRL), with a number of specific conditions ( seeECL 23–2701 et seq.).

In November 2011, the Town Board held a special meeting concerning plaintiff's pending 2004 applications for a special use permit and site plan review, and determined that it would hire a planning consultant to provide expert assistance to the Town in analyzing environmental issues as part of its review of the pending applications, as authorized by the Town's 1986 “Land Use and Development Regulations of the Town of Nassau, Rensselaer County, New York” (hereinafter the zoning regulations).¹ Notably, as required by the zoning regulations, plaintiff—as applicant—must reimburse the Town for the costs incurred by this consultant. Shortly thereafter, plaintiffs commenced this declaratory judgment action (which is still pending) seeking a declaration, among others, that (1) the Town and Town Board (hereinafter collectively referred to as the Town) are bound—in their review of plaintiff's applications—by all determinations made in DEC's SEQRA review, (2) the Town is without authority to either revisit any environmental issue addressed in the SEQRA findings or to retain a professional consultant for the purpose of reviewing any environmental issue already determined in the SEQRA process, and (3) plaintiff is not required to reimburse the Town for any costs incurred in retaining the consultant.

Plaintiffs also requested a preliminary injunction, during the pendency of the action and by order to show cause, restraining the Town from incurring any expense associated with hiring a consultant to review any issue that has already been determined in the SEQRA process. Supreme Court issued a written decision partially granting the requested preliminary injunction by enjoining the Town from reassessing, pursuant to the zoning regulations governing special use permits, the environmental impact of the proposed quarry to the extent already addressed by the SEQRA determination and further stated that any review of plaintiff's applications shall “not include a reconsideration of DEC's SEQRA determination” (34 Misc.3d 1219[A], 2012 N.Y. Slip Op. 50182[U], *3, 2012 WL 335767 [Sup. Ct., Rensselaer County 2012] ). Defendants now appeal, challenging the grant of injunctive relief.

We find merit in defendants' argument on appeal that Supreme Court erred in granting plaintiffs' request for a preliminary injunction, which effectively precluded the Town from following its zoning regulations to the extent that they authorize consideration of environmental factors in its review of plaintiff's pending applications. Plaintiffs did not demonstrate a likelihood of success on the merits, that irreparable harm will occur without this relief, or that the equities balance in their favor ( see Emerald Green Prop. Owners Assn., Inc. v. Jada Developers, LLC, 63 A.D.3d 1396, 1397, 882 N.Y.S.2d 328 [2009] ).

To begin, we agree with Supreme Court that DEC's SEQRA determination, including its findings statement and accepted final environmental impact statement, are binding on the Town to the extent that it may not conduct its own or any de novo SEQRA review ( see Matter of Gordon v. Rush, 100 N.Y.2d 236, 243, 762 N.Y.S.2d 18, 792 N.E.2d 168 [2003] ). However, local land use matters and zoning decisions—such as the consideration of special use permits—are within the exclusive responsibility of the Town, as representative of its local community, which “possess[es] the familiarity with local conditions necessary to make the often sensitive planning decisions which affect the development of [its] community” ( Matter of Cowan v. Kern, 41 N.Y.2d 591, 599, 394 N.Y.S.2d 579, 363 N.E.2d 305 [1977];see Matter of Albany–Greene Sanitation v. Town of New Baltimore Zoning Bd. of Appeals, 263 A.D.2d 644, 646, 692 N.Y.S.2d 831 [1999],lv. denied94 N.Y.2d 752, 700 N.Y.S.2d 425, 722 N.E.2d 505 [1999];Waste Mgt. of N.Y., LLC v. Town of Albion, 18 Misc.3d 1133[A], 2005 N.Y. Slip Op. 52343[U], *8, 2005 WL 6059691 [Sup. Ct., Orleans County 2005],affd.32 A.D.3d 1295, 2006 WL 2789377 [2006],lv. denied8 N.Y.3d 805, 2007 WL 510174 [2007];seeTown Law § 261). Significantly, while zoning ordinances are to be interpreted and administered in accord with SEQRA, the SEQRA process and requirements do “not change the existing jurisdiction of agencies nor the jurisdiction between or among state and local agencies” (6 NYCRR 617.3[b]; seeECL 8–0103[6]; Matter of Albany–Greene Sanitation v. Town of New Baltimore Zoning Bd. of Appeals, 263 A.D.2d at 646, 692 N.Y.S.2d 831)—that is, “SEQRA neither preempts nor interferes with local zoning ordinances” ( Matter of WEOK Broadcasting Corp. v. Planning Bd. of Town of Lloyd, 165 A.D.2d 578, 581, 568 N.Y.S.2d 974 [1991],affd.79 N.Y.2d 373, 583 N.Y.S.2d 170, 592 N.E.2d 778 [1992], citing Matter of Town of Poughkeepsie v. Flacke, 84 A.D.2d 1, 5, 445 N.Y.S.2d 233 [1981],lv. denied57 N.Y.2d 602, 454 N.Y.S.2d 1026, 439 N.E.2d 1245 [1982];see Monroe–Livingston Sanitary Landfill v. Town of Caledonia, 51 N.Y.2d 679, 683–684, 435 N.Y.S.2d 966, 417 N.E.2d 78 [1980] ). DEC's SEQRA and permit approvals simply mean that plaintiff's proposal satisfies the applicable state law and regulatory standards.

Thus, DEC's SEQRA determination did not supplant the Town's zoning regulations governing review of special use permit applications, nor did it predetermine the Town's decision on plaintiff's permit application. Likewise, the SEQRA findings did not bind the Town to issue the requested special use permit or preclude it from employing the procedures—and considering the standards—in its own local zoning regulations, including the environmental and neighborhood impacts of the project ( see Matter of Albany–Greene Sanitation v. Town of New Baltimore Zoning Bd. of Appeals, 263 A.D.2d at 646, 692 N.Y.S.2d 831;Matter of Wal–Mart Stores v. Planning Bd. of Town of N. Elba, 238 A.D.2d 93, 97, 668 N.Y.S.2d 774 [1998];Matter of Zagoreos v. Conklin, 109 A.D.2d 281, 297, 491 N.Y.S.2d 358 [1985];see also Matter of Chadwick Gardens Assoc. v. City of Newburgh Zoning Bd. of Appeals, 273 A.D.2d 232, 232, 709 N.Y.S.2d 450 [2000] ).

Indeed, DEC's SEQRA findings statement recognizes as much, specifically noting that DEC's “final decision on this proposal would not override the municipality's local land use or zoning ordinances, and [plaintiff] would be required to obtain any required local, state and federal approval prior to undertaking the [mining] activity.” Thus, while the SEQRA process is concluded and the Town is bound by DEC's SEQRA determination, the Town remains entitled to independently review plaintiff's application for the special use permit in accord with the standards contained in its zoning regulations, including consideration of the “health, safety, welfare, comfort and convenience of the public,” both in general and in the immediate neighborhood, as well as “the environmental impact” (Local Law No. 2 [1986] of Town of Nassau art. VI[A] ). The Town, in its review of, among other things, the environmental impact of the proposed quarry under its zoning regulations, will necessarily take into consideration and abide by DEC's SEQRA determination and mining permit approval, but these DEC determinations do not displace local special use permit review. Of course, the Town's ultimate determination is subject to CPLR article 78 review, and will be upheld only if it is rational and supported by substantial evidence ( see Matter of Feinberg v. Board of Appeals of Town of Sanford, 306 A.D.2d 593, 594, 759 N.Y.S.2d 706 [2003] ).²

Moreover, while DEC issued a mining permit ( seeECL 23–2711), plaintiff has “no...