Group For The South Fork, Inc. v. WinesGroup For The South Fork, Inc. v. Wines
— In a proceeding pursuant to CPLR article 78 to review a determination of the respondent Planning Board of the Town of Southampton which granted prеliminary approval for a subdivision application, the appeal is from a judgment of the Supreme Court, Suffolk County (Brown, J.), entered September 20, 1990, whiсh, inter alia, granted the petition, annulled the determination, and directed the Planning Board of the Town of Southampton to prepare a Draft Environmental Impact Statement before reconsidering the subject application on its merits.
Ordered that the judgment is affirmed, with one bill of costs.
The petitioner’s claims with respect to the propriety of the review by the Planning Board of the Town of Southampton (hereinafter the Planning Board) of the subdivision application pursuant to the State Environmental Quality Review Act (hereinafter SEQRA) were not time barred by Town Law § 282. There is no question that the proceeding wаs commenced within 30 days after the filing of the Planning Board’s preliminary plat approval (see, Town Law § 282). The appellants contend, however, that the 30-dаy Statute of Limitations began to run with the filing of the "conditioned negative declaration”, approximately nine months prior to the preliminary plat approval. This position lacks merit because the filing of the conditioned negative declaration was a mere intermediate step in the еnvironmental review process. Indeed, subsequent to the filing of the conditioned declaration, the Planning Board conducted a hearing at which the еnvironmental significance of the proposed subdivision was discussed, and it hired a consultant to conduct a hydrogeologic and water quality evaluation of the property. Furthermore, when the Planning Board granted preliminary approval it found that "as a result of said investigation” the subdivision would not havе a significant effect upon the environment. Thus it is clear that the Planning Board had not completed its environmental review until it issued the preliminary plat аpproval containing the
We also find that Planning Board’s issuance of the conditioned negative declaration constituted an unauthorized departure from the strictures of SEQRA. In so finding, we are mindful of the fact that "[judicial review of a lead agency’s SEQRA determination is limited tо whether the determination was made in accordance with lawful procedure and whether, substantively, the determination 'was affected by an error of law or was arbitrary and capricious or an abuse of discretion’ ” (Akpan v Koch,
The primary purpose of SEQRA is " 'to inject environmental considerations directly into governmental decision making’ ” (Akpan v Koch, supra, at 569, quoting Matter of Coca-Cola Bottling Co. v Board of Estimate,
Agencies are dirеcted to make an initial determination as early as possible as to whether an EIS needs to be prepared for a proposed action (ECL 8-0109 [4]). "[T]o require an EIS for a proposed action, the lead agency must determine that the action may include the potential for at leаst one significant environmental effect” (6 NYCRR 617.6 [g] [1] [i]). Such a finding is deemed a "positive declaration” (6 NYCRR 617.2 [cc]). "[T]o determine that an EIS will not be required for an
In 1984, when the Planning Board issued a "conditioned negative declaration” for the proposed subdivision, thеre was no provision in either SEQRA or the implementing regulations delineating such a determination. In 1987, the Department of Environmental Conservation amended the regulations to provide for the issuance of a conditioned negative declaration in certain circumstances (see, 6 NYCRR 617.6 [h]). However, we find no support for the assertion that this amendment applied retroactively to the instant determination or that conditioned negative declarations were procedurally appropriate at the time the Planning Board made its determination. Indeed, given the requirement of literal compliance with SEQRA, such a position is untenable.
Even assuming arguendo that the 1987 amendment applied to the 1984 determination, the Planning Board failed to demonstratе that it took a "hard look” at the areas of environmental concern, and failed to make a "reasoned elaboration” of the basis for its determination (see generally, Matter of Jackson v New York State Urban Dev. Corp., supra, at 417). "Conditioned negative declaration (CND) means a negative declaration issued * * * for an unlisted action * * * in which the action as initially proposed may result in one or more significant adverse environmental effects; however, mitigation measures identified and required by the lead agency * * * will modify the proposed action so that no significant adverse environmental impacts will result” (6 NYCRR 617.2 [h]). 6 NYCRR 617.6 (h) (1) (iii) provides in рertinent part that,
"a lead agency has the option to issue a conditioned negative declaration of significance provided that
"thе SEQRA conditions imposed * * * have eliminated or adequately mitigated all significant environmental impacts and are supported by the full EAF and any other documentation”.
Significantly, the Planning Board found that the original subdivision proposal, as submitted, could have several significant effects on the environment. The conditioned negative declaration was premised upon the finding that "these impacts [could] be reduced”, and that a negative declaration could be made conditioned "upon the submission of an acceptable
The appellants’ remaining contentions are academic in light of our determination, or without merit. Rosenblatt, J. P., Ritter, Pizzuto and Santucci, JJ., concur.