DUNK v. CITY OF WATERTOWN (2004)

Petitioner commenced this CPLR article 78 proceeding to annul respondent's determination relating to the proposed demolition of three buildings.   Petitioner contends that Supreme Court should have determined that the City Council's issuance of a negative declaration pursuant to article 8 of the Environmental Conservation Law (State Environmental Quality Review Act [SEQRA] ) was arbitrary and capricious because the proposed action was the total demolition of three buildings listed on the State and National Registers of Historic Places.   We reject that contention.

 In reviewing whether a determination was made in accordance with SEQRA and its implementing regulations, the court is “limited to reviewing whether the determination was made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion” (Matter of Gernatt Asphalt Prods. v. Town of Sardinia, 87 N.Y.2d 668, 688, 642 N.Y.S.2d 164, 664 N.E.2d 1226).   The court's role is not “to weigh the desirability of any proposed actions or choose among alternatives but only to insure that the agency has satisfied the substantive and procedural requirements of SEQRA and of the regulations implementing it” (Matter of Village of Westbury v. Department of Transp. of State of N.Y., 75 N.Y.2d 62, 66, 550 N.Y.S.2d 604, 549 N.E.2d 1175).   The court should review the record to determine “whether the agency identified the relevant areas of environmental concern, took a ‘hard look’ at them, and made a ‘reasoned elaboration’ of the basis for its determination” (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;  see Matter of New York City Coalition to End Lead Poisoning v. Vallone, 100 N.Y.2d 337, 348, 763 N.Y.S.2d 530, 794 N.E.2d 672;  Gernatt Asphalt Prods., 87 N.Y.2d at 688, 642 N.Y.S.2d 164, 664 N.E.2d 1226).   An agency must prepare an environmental impact statement (EIS) if it determines that a proposed action “may have a significant effect on the environment” (ECL 8-0109[2];  see Westbury, 75 N.Y.2d at 68, 550 N.Y.S.2d 604, 549 N.E.2d 1175).   The proposed project here was classified as a Type I action, which “carries with it the presumption that it is likely to have a significant adverse impact on the environment and may require an EIS” (6 NYCRR 617.4[a][1] ), but an EIS is not a per se requirement for a Type I action (see Matter of Forman v. Trustees of State Univ. of N.Y., 303 A.D.2d 1019, 1020-1021, 757 N.Y.S.2d 180).  “Although the threshold triggering an EIS is relatively low, a ‘negative declaration is properly issued when the agenc[y] ha[s] made a thorough investigation of the problems involved and reasonably exercised [its] discretion’ ” (Matter of Spitzer v. Farrell, 100 N.Y.2d 186, 190, 761 N.Y.S.2d 137, 791 N.E.2d 394).

 Here, the City Council, as lead agency, completed a full environmental assessment form and made the requisite determination that the identified adverse environmental impacts would not be significant.   The City Council thus issued a negative declaration, thereby obviating the need for an EIS (see 6 NYCRR 617.7[a][2] ).   Contrary to petitioner's contention, the City Council identified the relevant areas of environmental concern, took the requisite hard look at them, and in its negative declaration set forth a reasoned elaboration of the basis for its determination of no environmental significance (see Spitzer, 100 N.Y.2d at 190-191, 761 N.Y.S.2d 137, 791 N.E.2d 394;  Gernatt Asphalt Prods., 87 N.Y.2d at 689-690, 642 N.Y.S.2d 164, 664 N.E.2d 1226;  Matter of Settco, LLC v. New York State Urban Dev. Corp., 305 A.D.2d 1026, 1027, 759 N.Y.S.2d 833, lv. denied 100 N.Y.2d 508, 764 N.Y.S.2d 385, 796 N.E.2d 477;  Matter of Golden Triangle Assoc. v. Town Bd. of Town of Amherst, 185 A.D.2d 617, 617-618, 585 N.Y.S.2d 895).   The City Council determined that the demolition of the buildings did not have environmental significance because, although they were historic buildings, they were only a relatively small part of the Historic District in the City. The City Council further elaborated that the buildings were unsafe and an “eyesore” and that there was little opportunity for rehabilitation.   The record establishes that the City Council complied both procedurally and substantively with SEQRA.   The City Council's determination to issue a negative declaration was neither arbitrary and capricious nor an abuse of discretion (see Settco, LLC, 305 A.D.2d at 1027-1028, 759 N.Y.S.2d 833).

 We reject petitioner's further contention that the demolition should be considered with the Streetscape Enhancement Project (Streetscape Project) for purposes of SEQRA review and that there was improper segmentation of environmental review in this case (see id. at 1026, 759 N.Y.S.2d 833).   Segmentation is “the division of the environmental review of an action such that various activities or stages are addressed under [part 617] as though they were independent, unrelated activities, needing individual determinations of significance” (6 NYCRR 617.2[ag] ).   The proposed demolition and the Streetscape Project were not in any way related, other than with respect to their general locations.   The Streetscape Project involved sidewalk, road, and utility improvements and had nothing to do with the buildings in the area.   The projects were planned separately and are independent of each other (see Settco, LLC, 305 A.D.2d at 1027, 759 N.Y.S.2d 833;  Forman, 303 A.D.2d at 1020, 757 N.Y.S.2d 180).

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed without costs.

MEMORANDUM: