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

• Decision Date: 25 April 1991
• Citation: 165 A.D.2d 578,568 N.Y.S.2d 974
• Parties: , Util. L. Rep. P 26,065 In the Matter of WEOK BROADCASTING CORPORATION, Respondent, v. PLANNING BOARD OF the TOWN OF LLOYD, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 974

568 N.Y.S.2d 974

165 A.D.2d 578, Util. L. Rep. P 26,065

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

Supreme Court, Appellate Division Third Department.

April 25, 1991.

Di Stasi and Moriello (Thomas P. Halley, of counsel), Highland, for appellant.

Van De Water & Van De Water (David D. Hagstrom, of counsel), Poughkeepsie, for respondent.

Drayton Grant, Rhinebeck, for Scenic Hudson, Inc., amicus curiae.

Before WEISS, J.P., and MIKOLL, YESAWICH, LEVINE and MERCURE, JJ.

YESAWICH, Justice.

Petitioner submitted a request to respondent for site plan approval to build an AM radio transmitter facility in Ulster County. The facility, to consist of five radio transmission towers not exceeding 245 feet in height, is a permitted use under the local zoning laws. Nevertheless, respondent, concerned about potential aesthetic impairment, issued a State Environmental Quality Review Act (ECL art. 8) (hereinafter SEQRA) positive declaration statement which directed petitioner to consider the towers' visual impact from various locations, one of which was a national historic landmark in Dutchess County, the Franklin D. Roosevelt residence.

Petitioner submitted a comprehensive draft environmental impact statement (hereinafter EIS) which included an analysis, prepared by landscape architects, of the proposed towers' visual impact on these sites. This study revealed there would be minor visual impact from six identified viewpoints, moderate visual impact from one, and no visual impact from the remaining two (the Mid-Hudson Bridge and Roosevelt's historic home). Thereafter, respondent retained an independent consultant to critique the draft EIS. 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". She cautioned, however, that "subjective judgments are inextricably involved in any visual assessment".

In the final EIS, petitioner addressed the specific instances of subjectivity identified by the consultant as well as other negative public comments. Respondent disagreed with petitioner's visibility assessment and denied site plan approval. It neglected, however, to articulate any sound aesthetic basis for denying petitioner's application despite having previously approved a single 400-foot high radio transmission tower located atop a nearby hill; a special permit was required and granted allowing the erection of this much taller, more visible tower which can be seen from the Roosevelt site.

This CPLR article 78 proceeding was commenced by petitioner to annul respondent's determination. It is alleged that the decision was arbitrary, not supported by substantial evidence and contrary to respondent's earlier holding. Scenic Hudson, Inc., a nonprofit environmental organization dedicated to the preservation of the Hudson River valley, submitted an amicus curiae brief in support of respondent's position. Supreme Court agreed with petitioner and granted the petition. Respondent has appealed. We agree with Supreme Court that the petition should be granted.

A threshold issue is whether SEQRA has any application when the proposed use is one specifically permitted by local zoning ordinances. ¹ The question presented is not whether the proposed use comports with local zoning ordinances, in which event the issue should not be resolved by SEQRA analysis (see, Gerrard, Ruzow, Weinberg, Environmental Impact Review in New York § 8.14, at 8-55), but, given the proposed use's conformance with local zoning ordinances, whether SEQRA review was still necessary.

SEQRA's fundamental policy is to inject environmental considerations directly into governmental decision-making at the earliest possible time so that agencies conduct their affairs in a manner which will protect the environment (Coca-Cola Bottling Co. v. Board of Estimate of City of New York, 72 N.Y.2d 674, 679, 536 N.Y.S.2d 33, 532 N.E.2d 1261; see, ECL 8-0103 [8]. To accomplish this goal, all agencies must determine whether those actions they fund, undertake or approve may significantly affect the environment (6 NYCRR 617.1[c]. With respect to zoning ordinances in particular, the Legislature specifically intended that they be interpreted and administered in accordance with SEQRA's declared policies (see, ECL 8-0103[6]. SEQRA neither preempts nor interferes with local zoning ordinances (ECL 8-0103 [6]; see, Town of Poughkeepsie v. Flacke, 84 A.D.2d 1, 5, 445 N.Y.S.2d 233, lv. denied 57 N.Y.2d 602, 454 N.Y.S.2d 1026, 439 N.E.2d 1245); rather, it establishes an analytical process to assure careful, defensible land use decisions (Damsky, SEQRA and Zoning Law's Requirement of a Comprehensive Plan, 46 Alb L Rev 1292, 1297 [1982]. Consequently, an agency is not precluded from subjecting an action to SEQRA review simply because the proposed project is specifically permitted by the applicable zoning ordinances (see, Matter of Jaffee v. RCI Corp., 119 A.D.2d 854 856, 500 N.Y.S.2d 427, lv. denied 68 N.Y.2d 607, 506 N.Y.S.2d 1032, 498 N.E.2d 434).

As in all SEQRA review situations, however, the agency must identify the relevant environmental concerns, analyze them closely and reasonably elaborate the basis for its decision (Matter of Jackson v. New York State Urban Dev. Corp., 67 N.Y.2d 400, 417, 503 N.Y.S.2d 298, 494 N.E.2d 429). Court review is limited to ensuring that this three-step process was employed and that the ensuing decision is supported by substantial evidence (id.).

It is acknowledged by both parties that respondent denied petitioner's application for aesthetic reasons alone. ² While petitioner's EISs 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, which its own independent consultant regarded as "comprehensive and thorough" (see, Society of Plastics Indus. v. County of Suffolk, 154 A.D.2d 179, 182, 552 N.Y.S.2d 138, lv. granted 76 N.Y.2d 705, 559 N.Y.S.2d 984, 559 N.E.2d 678). For example, respondent determined that the towers may be visible from the Roosevelt homestead. The draft EIS, however, informed that there was no visual impact, an observation with which respondent's consultant did not disagree. Moreover, the State's Deputy Commissioner of Historic Preservation opined that "the project will have No Adverse Effect upon [Roosevelt's homestead]".

Similarly, in denying petitioner's application, respondent found that the height of the screening trees was not sufficiently documented, that the impact analysis assumed optimal conditions, that there was no direct financial benefit to be derived from the towers' construction and that the lighting required by the towers would be objectionable. ³ Respondent ignored petitioner's responses to these criticisms, which were specifically addressed in the comment section of the final EIS. As 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 (see, Matter of Veysey v. Zoning Bd. of Appeals of City of Glens Falls, 154 A.D.2d 819, 820-821, 546 N.Y.S.2d 254, lv. denied 75 N.Y.2d 708, 554 N.Y.S.2d 833, 553 N.E.2d 1343; see also, e.g., Matter of Dodson v. Planning Bd. of Town of Highlands, 163 A.D.2d 804, 807, 558 N.Y.S.2d 1012 slip opn p. 4). An agency SEQRA decision which, as here, is unsupported by empirical or experimental data, scientific authority, or other explanatory basis is simply unacceptable (Matter of Tehan v. Scrivani, 97 A.D.2d 769, 771, 468 N.Y.S.2d 402). To conclude otherwise is to invest a reviewing agency with unfettered discretion to deny a specifically permitted use because of the emotional objection of irate community members. Adopting such a principle would be improvident; it would quite likely encourage reviewing agencies to develop that certain convenience of vision that community displeasure can inspire and makes further harmonious permitted special land use development virtually impossible.

Our finding that respondent's determination cannot stand makes it unnecessary to confront the parties' remaining argument.

Judgment affirmed, without costs.

MIKOLL and MERCURE, JJ., concur.

WEISS, J.P., and LEVINE, J., dissent in an opinion by LEVINE, J.

LEVINE, Justice (dissenting).

In our view, the application of the appropriate standard of judicial review of a lead agency determination under the State Environmental Quality Review Act (ECL art. 8) (hereinafter SEQRA) requires us to uphold the disapproval of this proposed action by respondent and reverse Supreme Court's annulment thereof. At the outset, we would flatly hold that, under the SEQRA statutes, regulations and case law, aesthetic impact is a proper and valid basis for environmental review. SEQRA contains legislative findings that "[t]he maintenance of a quality environment for the people of this state that at all times is * * * pleasing to the senses * * * now and in the future is a matter of statewide concern" (ECL 8-0103 [1] [emphasis supplied]. "Environment" is statutorily defined as physical conditions to be affected by a proposed action, including "objects of * * * aesthetic significance * * * and existing community or neighborhood character" (ECL 8-0105 [6]. The regulations include as one of the criteria indicating that an action will have a significant environmental effect that it causes "the impairment of the character or quality of * * * aesthetic resources" (6 NYCRR 617.11[a][5]. Decisional authorities also support this conclusion. The court in Matter of Holmes v. Brookhaven Town Planning Bd., 137 A.D.2d 601, 604, 524 N.Y.S.2d 492, lv. denied 72 N.Y.2d 807, 533 N.Y.S.2d 56, 529 N.E.2d...