Webster Associates v. Town of Webster
| Decision Date | 11 December 1981 |
| Citation | 85 A.D.2d 882,446 N.Y.S.2d 955 |
| Parties | WEBSTER ASSOCIATES, et al., Appellants, v. TOWN OF WEBSTER, et al., Respondents. |
| Court | New York Supreme Court — Appellate Division |
Winer, Neuburger & Sive, New York City and Robinson, Williams, Angeloff & Frank, Rochester by David Sive, New York City, for appellants.
Sutton, DeLeeuw, Clark & Darcy by Robert L. Teamerson, Rochester, for respondents Town of Webster, Heiligman, et al.
Harter, Secrest & Emery by William H. Helferich, Rochester, for respondent Expressway Associates.
Middleton, Wilson, Boylan & Gianniny by John M. Wilson, Rochester, for respondent Hegedorn.
Frederick D. Kunz, pro se, amicus curiae.
Before SIMONS, J. P., and HANCOCK, CALLAHAN, DENMAN and SCHNEPP, JJ.
The order of Special Term should be affirmed for the reasons stated by Justice David O. Boehm, except we add the following observations concerning the sufficiency of the "alternatives" section of the environmental impact statement (EIS) filed by Expressway Associates (Expressway), and in this area our holding is based on different grounds from those relied on by Special Term. We recite only those facts which are relevant to our consideration of this question.
Expressway submitted an EIS to the Webster Town Board as lead agency with relation to a proposed regional shopping mall (Expressway Mall). Appellants contend that both the draft environmental impact statement (DEIS) and the final environmental impact statement (FEIS) submitted by Expressway were inadequate and failed to comply with the State Environmental Quality Review Act (SEQRA). Webster Associates, one of appellants and a rival developer, has also proposed to build a mall in Webster (Webster Mall) of similar size to Expressway Mall on a site one-half mile away. We confine our discussion to appellants' contention that the DEIS submitted by Expressway did not comply with SEQRA because it did not include the Webster Mall proposal as an alternative to its project. Expressway's FEIS does contain a detailed study of the proposal of the Webster Mall as an alternative project. Appellants contend, however, that this was insufficient to cure the deficiency in the DEIS. They argue that the DEIS must contain a description and evaluation of reasonable alternatives, whether or not the alternative is available to the applicant preparing the EIS, and that the filing of new material in a FEIS is improper unless the DEIS is recirculated for comment with the additional material, a procedural step not taken in this case. Justice Boehm ruled that SEQRA does not require an EIS submitted by a private developer to consider alternatives outside its control. Consequently, he found that Expressway was not required to discuss Webster Mall in its EIS. Without determining the scope of alternatives which must be considered in an EIS prepared pursuant to SEQRA, we hold, on the basis of the entire record, that Webster Mall was given full consideration by the Webster Town Board as an alternative to Expressway's proposal and no violation of SEQRA occurred.
Section 8-0109 of the Environmental Conservation Law requires that the EIS include a discussion of reasonable alternatives to the proposed action. Section 617.14(f)(5) of title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York provides that in the body of a DEIS and FEIS there should be a discussion of reasonable alternatives to the action "which would achieve the same or similar objectives" and that the "description and evaluation should be at a level of detail sufficient to permit a comparative assessment of the alternatives discussed". Since Expressway's FEIS considers Webster Mall as an alternative project, appellants' argument is really focused on the DEIS discussion of alternatives, in which Expressway admittedly considered only alternatives for its own site.
As appellants argue, Federal courts construing the National Environmental Policy Act (NEPA) upon which SEQRA is modeled (see H.O.M.E.S. v. New York State Urban Dev. Corp., 69 A.D.2d 222, 231, 418 N.Y.S.2d 827) have uniformly held that a FEIS which is not circulated for comment among the general public and subjected to public scrutiny before final action is taken cannot perfect a deficient DEIS (see Natural Resources Defense Council v. Callaway, 524 F.2d 79, 93-94; Essex County Preservation Ass'n v. Campbell, 399 F.Supp. 208, 215-216, affd. 536 F.2d 956, 960-961; Appalachian Mountain Club v. Brinegar, 394 F.Supp. 105, 121-122). (Appalachian Mountain Club v. Brinegar, supra, p. 121-122).
However, provisions of SEQRA concerning the circulation and review of the FEIS differ from NEPA. Until July 30, 1979 the Federal rules did not require the solicitation of public comments and essentially provided only for an "in-house review" of the FEIS (see Appalachian Mountain Club v. Brinegar, 394 F.Supp. 105, 121, supra; see, also, 43 FR 55978 et seq.). The State rules regarding circulation and review of the FEIS provide for the following steps: (1) filing of the FEIS and notice of its completion, and circulation of copies to numerous designated State, local and regional agencies and interested persons, including members of the public (ECL 8-0109 6 NYCRR 617.8617.10); (2) allowance for a minimum 10-day public and agency comment period on the FEIS prior to a decision on the proposed project (ECL 8-0109 6 NYCRR 617.9); and (3) consideration of the FEIS by the agency whose approval is required for the proposed project prior to the making of a final...
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