Wooster v. Queen City Landing, LLC

• Decision Date: 05 May 2017
• Citation: 54 N.Y.S.3d 812,150 A.D.3d 1689
• Parties: In the Matter of Margaret WOOSTER, Clayton S. "Jay" Burney, Jr., Lynda K. Stephens and James E. Carr, Petitioners–Appellants–Respondents, v. QUEEN CITY LANDING, LLC, Respondent–Respondent–Appellant, City of Buffalo Planning Board and City of Buffalo Common Council, Respondents–Respondents. (Proceeding No. 1.). In the Matter of Buffalo Niagara Riverkeeper, Inc., Petitioner–Appellant–Respondent, v. City of Buffalo, Respondent–Respondent, and Queen City Landing, LLC, Respondent–Respondent–Appellant. (Proceeding No. 2.) (Appeal No. 1.).
• Court: New York Supreme Court — Appellate Division

150 A.D.3d 1689

54 N.Y.S.3d 812

In the Matter of Margaret WOOSTER, Clayton S. "Jay" Burney, Jr., Lynda K. Stephens and James E. Carr, Petitioners–Appellants–Respondents,

v.QUEEN CITY LANDING, LLC, Respondent–Respondent–Appellant, City of Buffalo Planning Board and City of Buffalo Common Council, Respondents–Respondents. (Proceeding No. 1.).

In the Matter of Buffalo Niagara Riverkeeper, Inc., Petitioner–Appellant–Respondent,

v.City of Buffalo, Respondent–Respondent, and Queen City Landing, LLC, Respondent–Respondent–Appellant. (Proceeding No. 2.) (Appeal No. 1.).

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

May 5, 2017.

Arthur J. Giacalone, Buffalo, and Lippes & Lippes, for Petitioners–Appellants–Respondents.

Hopkins Sorgi & Romanowski PLLC, Buffalo (Marc A. Romanowski of Counsel), and Duke Holzman Photiadis & Gresens LLP, for Respondent–Respondent–Appellant.

Timothy A. Ball, Corporation Counsel, Buffalo (Jessica M. Lazarin of Counsel), for Respondents–Respondents.

PRESENT: WHALEN, P.J., SMITH, CENTRA, PERADOTTO, AND SCUDDER, JJ.

MEMORANDUM:

Petitioners Margaret Wooster, Clayton S. "Jay" Burney, Jr., Lynda K. Stephens, and James E. Carr (collectively, Wooster petitioners) and Buffalo Niagara Riverkeeper, Inc. (Riverkeeper) commenced these CPLR article 78 proceedings seeking, among other things, to annul the negative declaration issued by respondent City of Buffalo Planning Board (Planning Board) under the State Environmental Quality Review Act ( [SEQRA] ECL art 8) with respect to the proposed construction of Queen City Landing (project) in Buffalo's Outer Harbor area. Respondent Queen City Landing, LLC (QCL), the developer of the project, plans to construct a mixed-use facility that will include a 23–story tower containing nearly 200 residential units. In appeal No. 1, petitioners appeal and QCL cross-appeals from a judgment that denied respondents' motions to dismiss Riverkeeper's petition and the Wooster petitioners' amended petition for lack of standing, and granted respondents' motions to dismiss the petition and amended petition except insofar as the Wooster petitioners claimed that respondents violated the performance bond provisions of General City Law §§ 27–a (7) and 33(8)(a). In appeal No. 2, the Wooster petitioners appeal from a judgment that granted those parts of respondents' motions to dismiss the Wooster petitioners' performance bond claim. We affirm in both appeals.

Addressing first the cross appeal in appeal No. 1, we reject QCL's contention that petitioners do not have standing to challenge the SEQRA determination. The allegations in the affidavits of petitioners Wooster, Burney and Carr, read in the context of the amended petition (see Matter of Sierra Club v. Village of Painted Post, 26 N.Y.3d 301, 311 n. 4, 22 N.Y.S.3d 388, 43 N.E.3d 745 ), establish that they engage in "repeated, not rare or isolated use" of the Outer Harbor for recreation, study and enjoyment, thereby showing that the threatened environmental and ecological harm to that area, which includes aquatic and terrestrial wildlife habitats and two nature preserves, "will affect them differently from ‘the public at large’ " (Matter of Save the Pine Bush, Inc. v. Common Council of City of Albany, 13 N.Y.3d 297, 305, 890 N.Y.S.2d 405, 918 N.E.2d 917 ; see Matter of Long Is. Pine Barrens Socy., Inc. v. Central Pine Barrens Joint Planning & Policy Commn., 113 A.D.3d 853, 856, 980 N.Y.S.2d 468 ). Contrary to QCL's contention, the alleged injuries are " ‘real and different from the injur[ies] most members of the public face’ " (Sierra Club, 26 N.Y.3d at 311, 22 N.Y.S.3d 388, 43 N.E.3d 745, quoting Save the Pine Bush, Inc., 13 N.Y.3d at 306, 890 N.Y.S.2d 405, 918 N.E.2d 917 ). Furthermore, the threatened environmental and ecological harm to the area caused by the development of the project falls within the zone of interests sought to be protected by SEQRA (see Society of Plastics Indus. v. County of Suffolk, 77 N.Y.2d 761, 773, 570 N.Y.S.2d 778, 573 N.E.2d 1034 ; Long Is. Pine Barrens Socy., Inc., 113 A.D.3d at 856, 980 N.Y.S.2d 468 ). Inasmuch as at least one of the Wooster petitioners has standing, it is not necessary to address QCL's challenges to any other individual petitioner (see Matter of Humane Socy. of U.S. v. Empire State Dev. Corp., 53 A.D.3d 1013, 1017 n. 2, 863 N.Y.S.2d 107, lv. denied 12 N.Y.3d 701, 876 N.Y.S.2d 348, 904 N.E.2d 503 ; see also Saratoga County Chamber of Commerce v. Pataki, 100 N.Y.2d 801, 813, 766 N.Y.S.2d 654, 798 N.E.2d 1047, cert. denied 540 U.S. 1017, 124 S.Ct. 570, 157 L.Ed.2d 430 ). Contrary to QCL's further contention, Supreme Court properly concluded that Riverkeeper, through the affidavits of its members, met the requirements to establish organizational standing (see generally Society of Plastics Indus., 77 N.Y.2d at 775, 570 N.Y.S.2d 778, 573 N.E.2d 1034 ; Long Is. Pine Barrens Socy., Inc., 113 A.D.3d at 856, 980 N.Y.S.2d 468 ).

On the merits, however, we conclude that the court properly dismissed the petition and amended petition. Contrary to petitioners' contention in appeal No. 1, the Planning Board was properly designated as the lead agency (see generally 6 NYCRR 617.2 [u]; Matter of Coca–Cola Bottling Co. of N.Y. v. Board of Estimate of City of N.Y., 72 N.Y.2d 674, 680, 536 N.Y.S.2d 33, 532 N.E.2d 1261 ). There is a conflict between that part of the Buffalo City Code providing that respondent City of Buffalo Common Council (Common Council) had an "[a]utomatic designation of lead agency" for actions that, like this project, are undertaken within the Buffalo Coastal Special Review District (Buffalo City Code § 168–7[A][2][d] ), and that part of the Buffalo City Code automatically designating the Planning Board as lead agency for actions undertaken for subdivision developments and site plan review (see § 168–7[A][1][a], [b] ). Although arguably either the Common Council or the Planning Board could have been designated as the lead agency, the Planning Board had oversight of subdivision approval and site plan review, and was responsible for preparing a report of recommendations to the Common Council on QCL's application for a "restricted use permit" describing "considerations involving air and water quality, coastal management, flood hazards and environmental impact of the proposed uses" (§ 511–67[A][4]; see § 511–55 [C] ). Under these circumstances, the Planning Board was properly designated lead agency (see Matter of Schodack Concerned Citizens v. Town Bd. of Town of Schodack, 148 A.D.2d 130, 134, 544 N.Y.S.2d 49, lv. denied 75 N.Y.2d 701, 551 N.Y.S.2d 905, 551 N.E.2d 106 ; cf. Matter of Price v. Common Council of City of Buffalo, 3 Misc.3d 625, 629–632, 773 N.Y.S.2d 224 ; see also ECL § 8–0111[6] ).

Contrary to petitioners' further contention, the court properly concluded that the Planning Board did not abdicate its responsibilities as lead agency. Although members of the strategic planning department from respondent City of Buffalo (City) filled out part of the full environmental assessment form and prepared the negative declaration, the Planning Board was entitled to rely on the information provided by such experts, and the record establishes that it "fully retained and exercised its role as the lead agency assessing the environmental impact of the [project]" ( Akpan v. Koch, 75 N.Y.2d 561, 575, 555 N.Y.S.2d 16, 554 N.E.2d 53 ; see Matter of Mombaccus Excavating, Inc. v. Town of Rochester, N.Y., 89 A.D.3d 1209, 1211–1212, 932 N.Y.S.2d 551, lv. denied 18 N.Y.3d 808, 942 N.Y.S.2d 35, 965 N.E.2d 262 ). We reject petitioners' contention that the Planning Board improperly deferred its review of site contamination to other agencies (cf. Matter of Penfield Panorama Area Community v. Town of Penfield Planning Bd., 253 A.D.2d 342, 349–350, 688 N.Y.S.2d 848 ).

We also reject petitioners' contention that the Planning Board failed to comply with the requirements of SEQRA in issuing the negative declaration. The record establishes that the Planning Board took the requisite hard look and provided a reasoned elaboration of the basis for its determination regarding the potential impacts of the project on aesthetic resources and community character, particularly with respect to the height of the building (see Matter of Frigault v. Town of Richfield Planning Bd., 107 A.D.3d 1347, 1350, 968 N.Y.S.2d 673 ; Matter of Schweichler v. Village of Caledonia, 45 A.D.3d 1281, 1283, 845 N.Y.S.2d 901, lv. denied 10 N.Y.3d 703, 854 N.Y.S.2d 103, 883 N.E.2d 1010 ); migratory birds, especially in light of the project's conformance with accepted governmental guidelines to mitigate bird impacts (cf. Matter of Wellsville Citizens for Responsible Dev., Inc. v. Wal–Mart Stores, Inc., 140 A.D.3d 1767, 1769, 33 N.Y.S.3d 653 ; see generally Matter of Granger Group v. Town of Taghkanic, 77 A.D.3d 1137, 1142–1143, 909 N.Y.S.2d 556, lv. denied 16 N.Y.3d 781, 919 N.Y.S.2d 505, 944 N.E.2d 1144 ; Matter of East End...