WEOK Broadcasting Corp. v. Planning Bd. of Town of Lloyd

• Decision Date: 03 April 1992
• Citation: 583 N.Y.S.2d 170,592 N.E.2d 778,79 N.Y.2d 373
• Parties: , 592 N.E.2d 778, Util. L. Rep. P 26,202 In the Matter of WEOK BROADCASTING CORPORATION, Respondent, v. PLANNING BOARD OF THE TOWN OF LLOYD, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 170

583 N.Y.S.2d 170

79 N.Y.2d 373, 592 N.E.2d 778, Util. L.

Rep. P 26,202

In the Matter of WEOK BROADCASTING CORPORATION, Respondent, v. PLANNING BOARD OF THE TOWN OF LLOYD, Appellant.

Court of Appeals of New York.

April 3, 1992.

[79 N.Y.2d 374] Thomas P. Halley, Poughkeepsie, for appellant.

[79 N.Y.2d 375] [592 N.E.2d 779] David D. Hagstrom, Poughkeepsie, for respondent.

[79 N.Y.2d 376] Drayton Grant, Rhinebeck, for Scenic Hudson, Inc., amicus curiae.

OPINION OF THE COURT

ALEXANDER, Judge.

The respondent Planning Board of the Town of Lloyd denied petitioner WEOK Broadcasting Corporation's application for a site plan approval to construct a radio transmitter facility. After a review of the application pursuant to SEQRA, the Planning Board determined that petitioner "fail[ed] to adequately minimize or avoid adverse environmental effects to the maximum extent practicable" and that "the environmental effects [identified] in the Environmental Impact Statement process cannot be adequately minimized or avoided by the mitigation measures identified as practical." The Planning Board now appeals pursuant to CPLR 5601(a) from an order of the Appellate Division which affirmed Supreme Court's judgment annulling the Board's determination as not supported by substantial evidence. We agree with the Appellate Division's determination and therefore, for the reasons that follow, the order appealed from should be affirmed.

I

In July 1988, WEOK Broadcasting Corporation (WEOK) submitted an application to the Planning Board of the Town of Lloyd (Board) for site plan approval to build an AM radio transmitter facility consisting of five radio towers in Ulster County. The site is located in a Designed Business zone which allows radio and television towers as a permitted use, subject only to site plan approval by the Planning Board (Town of Lloyd Zoning Ordinance § 100-21[A][3].

Nine months later in April of 1989, the Board issued a positive declaration that the project "may have a significant effect on the environment" (ECL 8-0109[2]. Thus, concerned that the project threatened to impair the environment, the Board directed petitioner to file an Environmental Impact Statement (EIS) which would consider, among other things, the towers' visual impact from nine locations, one of which was the Franklin D. Roosevelt residence, a national historic landmark in Dutchess County. Petitioner prepared and submitted a comprehensive Draft Environmental Impact Statement (DEIS) which included an analysis, prepared by landscape architects, of the visual impact of the proposed towers from these viewpoints. The analysis concluded there would be minor visual impact from six of the identified viewpoints, moderate visual impact from one, and no visual impact from the remaining two viewpoints, the Franklin D. Roosevelt (FDR) home and the Mid-Hudson Bridge. The visual impact analysis from the FDR viewpoint was conducted in the spring of 1989 when the trees surrounding the proposed site were leafless.

Comment regarding the DEIS was sought and obtained by the Board from various other agencies, including the United States Department of the Interior, the Dutchess County Department of Planning and the Ulster County Planning Board. Comment was also sought from a variety of environmental conservation and historical preservation organizations. Negative comments received from the agencies, organizations and local residents focused on the potential visual impact of the towers from the FDR viewpoint.

The Board also retained an independent consultant to critique the DEIS. This consultant noted that petitioner had "prepared an in depth analysis which utilized a professional and thorough methodology to objectively assess the visual impact of [the proposed project]." The consultant cautioned, however, that "subjective judgments are inextricably involved in any visual assessment."

A Final EIS (FEIS) was prepared by petitioner addressing the comments and specific concerns identified by respondent's consultant as well as other negative public comments made in response to the DEIS. The FEIS indicated that in an effort to mitigate the effect of the towers and their lighting, petitioner, with the approval of the Federal Communications Commission (FCC), substantially reduced the height of the tallest tower from an optimum height of 445 feet to 245 feet, the minimum height that would meet FCC minimum efficiency standards. In commenting upon this effort, the consultant noted that petitioner was "obviously compromising by reducing tower heights to such an extent." In further mitigation of the objections articulated in the comments on the DEIS, petitioner noted that a variance from the Federal Aviation Administration had been obtained, permitting a reduction in the number of towers required to be lighted from five to two, and allowing petitioner to paint three of the towers gray to minimize their visibility. Additionally, the lighting on the towers was changed from a white strobe to a less visible red and in order to minimize the visual effect of the towers and to blend them in with the surroundings, they were designed as guyed towers with an 18-inch open face lattice instead of self-supporting towers tapering from an 18- to 20-foot base to two to three feet at the top.

The Board denied site plan approval in December 1989. It cited, inter alia, the following reasons for the denial: the Visual Impact Statement was unpersuasive in its analysis and was subject to conflicting interpretations and conclusions; there was a possibility that the towers would be visible from the FDR homestead; there was no direct financial benefit to be derived by the Town of Lloyd from the construction of the towers; the proposed action would be in "sharp contrast with the orderly development of the area and the district in which the proposed towers will be located, and therefore violates criteria set forth in section 100-8.2 of Zoning Ordinance"; because local property owners found the lighting objectionable, the towers would be incompatible with section 100-13 of the Zoning Ordinance; the height of the towers, in excess of 200 feet, could not be mitigated further without limiting or eliminating the towers' functions; and, approval of petitioner's application might create a precedent for future development of this type, threatening the ability of the area to develop as envisioned by the existing Master Plan.

This CPLR article 78 proceeding challenging the Board's determination followed. Petitioner alleged that the Board's determination was not supported by substantial evidence and was in fact contrary to a determination made by the Town of Lloyd Zoning Board of Appeals earlier that year in a SEQRA review, in which the Planning Board concurred, approving another transmission tower project known as the Walker Tower. The Walker Tower project involved the construction of a 400-foot-high FM radio transmission tower and accessory building at the southerly end of Illinois mountain in the Town of Lloyd which tower could be seen from both the FDR home and the Hudson River and in respect to which a special use permit was required.

Supreme Court annulled respondent's determination and granted petitioner's application for site plan approval. That court found "nothing in the record other than generalized complaints voiced at the public hearings * * * contradicted [the report of the Town's consultant] or WEOK's visual study." The Appellate Division, with two Justices dissenting, affirmed. That court noted that both parties acknowledged that respondent's denial of petitioner's application was based on aesthetic reasons alone and concluded, inter alia, that "[w]hile petitioner's EISes demonstrated that it minimized negative visual impacts to the greatest extent practical, respondent failed to furnish any rationale for completely disregarding petitioner's comprehensive and extensive visual impact analysis" and that "[a]s the only apparent grounds for denying petitioner's application consisted of generalized community objections, which are contrary to the data provided, respondent's determination lacks a substantial evidence basis in the record" (165 A.D.2d 578, 581-582, 568 N.Y.S.2d 974).

The dissenting Justices would have dismissed the petition, noting that "aesthetic impact is a proper and valid basis for environmental review" and finding that respondent "expresse[d] cogent reasons for not giving conclusive weight to the study, reasons which were not overcome by petitioner's responses to comments on the study contained in the final environmental impact statement" (id., at 582, 584, 568 N.Y.S.2d 974). Thus, the dissenters would find the determination supported by substantial evidence. Although the majority at the Appellate Division did not reach the issue of the prior approval of the Walker Tower project, the dissenters concluded that "the facts and circumstances of the earlier project were so completely dissimilar to the instant application as to not constitute a prior precedent requiring either approval of petitioner's application by respondent or an explanation of its reasons for reaching a different result"(id., at 585, 568 N.Y.S.2d 974). This appeal ensued.

II

The Legislature's stated purpose in enacting SEQRA was to "declare a state policy which will encourage productive and enjoyable harmony between [people and their] 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). Thus, the primary purpose of SEQRA "is to inject environmental considerations directly into governmental decision making" (Matter of Coca-Cola Bottling Co. v. Board of Estimate, 72 N.Y.2d 674, 679, 536 N.Y.S.2d 33, 532 N.E.2d 1261; see also, Akpan v. Koch, 75 N.Y.2d 561, 569, 555 N.Y.S.2d...