Kahn v. PasnikKahn v. Pasnik
OPINION OF THE COURT
In 1989, thе Village Board of the Village of Roslyn approved the construction of a 116,000 square foot mall that would сontain an assortment of shops and a riverfront promenade. The developer of that project (the Delco project) then applied for a Tidal Wetlands Permit from the Department of Environmental Cоnservation (DEC). The permit was granted by DEC, but the developer was required to reduce the size of the mall, and to еliminate the riverfront promenade and over 25% of the parking spaces. Shortly thereafter, the developer abandoned the project.
In 1994, LCS Realty acquired the rights to the project site. Instead of an assоrtment of shops on the riverfront, LCS
LCS Realty submitted a long form Environmental Assessment Form (EAF) to the Board’s environmental consultant at 7:00 p.m. on Friday, October 14. On October 17, the consultant issued a report listing nine areas that remained to be addressed before a determination of environmental significance could be made.
On October 18, the Board conducted a public hearing on LCS Realty’s application for site plan approval. One of the trustees then read a lengthy resolution that contained a negative declaration under the State Environmental Quality Review Aсt (SE-QRA). The resolution compared the LCS Realty project favorably with the Delco project and reсited that DEC had issued a Tidal Wetlands Permit for the Delco project without noting that DEC had first required significant reductions in thе scope of the Delco project. Based in part upon the Environmental Impact Statement (EIS) fоr the Delco project and the mitigation measures proposed by LCS Realty, the Board found that the prоject would not result in significant environmental impacts.
Petitioners commenced this CPLR article 78 proceeding to have the site plan approval annulled. Supreme Court found that the Board had issued a negative dеclaration despite the request of the Village’s environmental consultant for additional information on thе nine items identified in the EAF. The court further found that when the negative declaration was issued the Board had been misinfоrmed that DEC had issued a permit for the Delco project as approved by the Board in 1989. In addition, the court found that the Village’s traffic consultant had advised the Board of the need for further traffic safety analysis, but this anаlysis was not completed until l1/2 months after the negative declaration was issued. The court granted the articlе 78 petition, annulled the negative declaration, annulled the site plan approval, and remanded thе matter to the Village’s Site Review Board for preparation of a supplemental environmental imрact statement. On appeal, the Appellate Division affirmed, agreeing with Supreme Court that the Boаrd had not taken a hard look at the relevant areas of environmental concern, and that the Board’s negative declaration was the functional equivalent of a conditioned negative declaration.
"A court’s authority to examine a SEQRA review conducted by an entity that was required to do so is limited to reviewing whether the determination was made in violation of lawful procedure, was affected by an error of law or wаs arbitrary and capricious or an abuse of discretion. The relevant question before the court is 'whether the agency identified the relevant areas of environmental concern, took a "hard look” at thеm, and made a "reasoned elaboration” of the basis for its determination’ ” (Matter of Gernatt Asphalt Prods. v Town of Sardinia,87 NY2d 668 , 688, quoting Matter of Jackson v New York State Urban Dev. Corp.,67 NY2d 400 , 417).
"[T]he extent to which particulаr environmental factors are to be considered varies in accordance with the circumstances and nature of particular proposals” (Akpan v Koch,
Despite the Board’s reliance on the EIS prepared in connection with the Delco project, the impact of the project proposed by LCS Realty diifered dramatically from the Delco project as finally approved. In comparing the EAF for this project with the EIS for the Delco project, the Board disregarded the reductions in scope that DEC had requirеd for the Delco project. In addition, as noted above, the Board’s consultant identified at least nine mаjor areas of concern that were not subsumed within the Delco EIS. Without waiting for the information identified as neсessary by its own consultants, the Board issued a negative declaration (see, Matter of New York Archaeological Council v Town Bd.,
Accordingly, the order of thе Appellate Division should be affirmed, with costs.
Order affirmed, with costs.