IN RE: SCENIC HUDSON

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

IN RE: SCENIC HUDSON, INC., et al., appellants, v. TOWN OF FISHKILL TOWN BOARD, et al., respondents.

Decided: February 22, 1999

LAWRENCE J. BRACKEN, J.P., FRED T. SANTUCCI, WILLIAM D. FRIEDMANN and ANITA R. FLORIO, JJ. John W. Caffry, Glens Falls, N.Y. (Inga L. Fricke of counsel), for appellants. Drake, Sommers, Loeb, Tarshis & Catania, P.C., Newburgh, N.Y. (Stephen J. Gaba of counsel), for respondent Town of Fishkill Town Board. Laura Zeisel, New Paltz, N.Y., for respondent Sour Mountain Realty, Inc.

In a hybrid action for a judgment declaring that Local Laws, 1993, No. 4 of the Town of Fishkill is invalid and a proceeding pursuant to CPLR article 78 to review a resolution of the Town of Fishkill Town Board, enacting Local Laws, 1993, No. 4 of the Town of Fishkill upon the issuance of a negative declaration under the State Environmental Quality Review Act, the petitioners-plaintiffs appeal from a judgment of the Supreme Court, Dutchess County (Jiudice, J.), dated December 8, 1997, which declared the local law to be valid, denied the petition, and dismissed the proceeding.

ORDERED that the judgment is reversed, on the law, without costs or disbursements, the petition is granted, the resolution is annulled, and it is declared that Local Laws, 1993, No. 4 of the Town of Fishkill is void and unenforceable.

The respondent Sour Mountain Realty, Inc. (hereinafter Sour Mountain), owns two contiguous parcels in the Town of Fishkill totalling approximately 250 acres.   At least a portion of the site has been designated as part of a “Critical Environmental Area” and is adjacent to land that is administered by the New York State Department of Parks, Recreation and Historic Preservation as part of Hudson Highlands State Park (see, 6 NYCRR 617.14[g] ).  With the exception of two acres that were zoned for commercial use prior to the enactment of the local law at issue, Sour Mountain's entire site was zoned for residential use.   Specifically, the site was either zoned R-40 (residential, minimum lot size 40,000 square feet) or R-4A (residential, minimum lot size 4 acres).

Pursuant to Local Laws, 1993, No. 4, the respondent Town of Fishkill Town Board rezoned 213 acres of Sour Mountain's site to Planned Industrial.   It is uncontroverted that Sour Mountain intends to operate a gravel mine on the rezoned site and that the rezoning application was submitted by it in furtherance of this enterprise.   The mine, whose operation will be accompanied by blasting, will ultimately have an impact upon 174 acres.   The life of the mine will be approximately 130 years.   An application to operate the mine is currently pending before the New York State Department of Environmental Protection (hereinafter the DEC).

During the rezoning process, the Town Board issued a negative declaration under the State Environmental Quality Review Act (ECL art 8, hereinafter SEQRA).   The petitioners have challenged the negative declaration.   The Supreme Court, inter alia, dismissed the proceeding.   We reverse.

 It is undisputed that the rezoning at issue constitutes a “Type I” action under SEQRA (see, 6 NYCRR 617.4[b][2];  6 NYCRR 617.14[g] [4] ).  It is well settled that, where a Type I action is involved, there is a relatively low threshold that must be met to require the issuance of a positive declaration under SEQRA (see, 6 NYCRR 617.4[a][1];  Matter of Chemical Specialties Mfrs. Assn. v. Jorling, 85 N.Y.2d 382, 397, 626 N.Y.S.2d 1, 649 N.E.2d 1145;  Riverhead Bus. Improvement Dist. Mgt. Assn. v. Stark, 253 A.D.2d 752, 677 N.Y.S.2d 383).   However, the respondents assert that this threshold has not been reached here.   In support, the respondents note that prior to the rezoning, mining was permitted within the residential districts in question upon granting of a special use permit by the Town Board.   Under current law, mining, while permitted within a Planned Industrial district, continues to be subject to an application for a soil removal permit from the Town Board (see, Town Code of Town of Fishkill § 150-43).   Accordingly, the respondents argue that the rezoning effectuated no actual change in the law and therefore, in and of itself, had no potential effect on the environment.   We disagree.

The Town Ordinance as currently in effect, which we consider for the purpose of this appeal (see, Matter of Alscot Investing Corp. v. Incorporated Vil. of Rockville Centre, 64 N.Y.2d 921, 488 N.Y.S.2d 629, 477 N.E.2d 1083;  Matter of Millerton Properties Assocs. v. Town of North East Zoning Bd. of Appeals, 227 A.D.2d 562, 643 N.Y.S.2d 169), specifically provides that mining is a prohibited use in all residentially-zoned parcels in the Town, and therefore is no longer subject to a special use exception in those districts (see, Town Code of Town of Fishkill § 150-33[A], Table III, as amended by Local Laws, 1997, No. 3 of Town of Fishkill).   This prohibition of mining in all residential districts was effectuated by a local law enacted four years after the enactment of the local law at issue (see, Local Laws, 1997, No. 3 of Town of Fishkill).   Moreover, pursuant to this subsequently-enacted local law, asphalt processing is currently an expressly permitted accessory use to mining (see, Town Code of Town of Fishkill § 150-2, as amended by Local Laws, 1997, No. 3 of Town of Fishkill).   Further, at the time of the rezoning at issue, mining was not a permitted use in a Planned Industrial district.   It was only pursuant to the subsequently-enacted local law that the Town Board permitted mining as of right in a Planned Industrial district (see, Local Laws, 1997, No. 3 of Town of Fishkill § 2[D][2];  see also, Town of Fishkill, Schedule of Regulations for Nonresidential Districts, Table III).

Under these circumstances, the initial rezoning of the property to Planned Industrial should be viewed as part of a comprehensive plan to facilitate the commencement of mining on the site.   It was improper for the Town Board to segment its review of the proposed mining operation by first rezoning the site and subsequently making an express determination that mining is a permitted use and asphalt processing is an accessory use on the rezoned property (see, 6 NYCRR 617.2[gg];  6 NYCRR 617.3[k][1];  see also, Matter of Vil. of Westbury v. Department of Transp. of State of N.Y., 75 N.Y.2d 62, 69, 550 N.Y.S.2d 604, 549 N.E.2d 1175;  Matter of Teich v. Buchheit, 221 A.D.2d 452, 633 N.Y.S.2d 805;  Matter of Farrington Close Condominium Bd. of Mgrs. v. Incorporated Vil. of Southampton, 205 A.D.2d 623, 626, 613 N.Y.S.2d 257;  Matter of Long Is. Pine Barrens Socy. v. Planning Board of Town of Brookhaven, 204 A.D.2d 548, 550, 611 N.Y.S.2d 917).

The record is replete with potentially significant environmental impacts that might result from mining.   For example, in a memorandum issued pursuant to the referral of the rezoning proposal to it pursuant to General Municipal Law § 239-m, the Dutchess County Planning Department expressed “concern[ ] * * * that the involved parcels are not appropriate for industrial development due to the site's environmental constraints”.   Moreover, in an earlier memorandum, the Dutchess County Planning Department had stated that “the issues raised in this referral should be examined more fully and the appropriate mitigation measures imposed as part of the State Environmental Quality Review process * * * The Department believes that, as submitted, the proposed action will have a significant negative impact on the region's visual environment and requests that a Draft Environmental Impact Statement be prepared”.   The memorandum also noted that county planning policy “advocates the preservation of the county's scenic resources and significant natural areas” and that the proposed rezoning would potentially impact on this policy.

In addition, throughout the rezoning process, the Town Development Planner expressed serious concerns with respect to the environmental impacts of the rezoning.   Among those concerns were the lack of conformance of the rezoning with the Town's comprehensive plan, the change in the intensity of land use that the rezoning might create, the possibility that hazardous substances might be discharged into the soil in the Planned Industrial district, and whether the properties were “truly suited for industrial development” (see also, Town Code of Town of Fishkill § 128-1).

In response to the Development Planner's concerns, Sour Mountain submitted a supplement to its Environmental Assessment Form where it acknowledged the potential environmental impacts upon the future development of the site.   These included impacts on the well-field, and impacts on air quality, public health and safety, and the loss of open space.   Mitigation measures were not proposed, but were generally deferred until “specific land uses [were] proposed on the property”.

 It is well settled that “SEQRA's goal [is] to incorporate environmental considerations into the decision making process at the earliest opportunity” (Matter of Neville v. Koch, 79 N.Y.2d 416, 426, 583 N.Y.S.2d 802, 593 N.E.2d 256;  see also, ECL 8-0109[4] ).   Indeed, one of the purposes of SEQRA is to assure the preparation and availability of an environmental impact statement at the time any significant authorization is granted that may generate significant environmental impact (see, Matter of New York Canal Improvement Assn. v. Town of Kingsbury, 240 A.D.2d 930, 931-932, 658 N.Y.S.2d 765;  see also, Matter of Tri-County Taxpayers Assn. v. Town Bd. of Town of Queensbury, 55 N.Y.2d 41, 46-47, 447 N.Y.S.2d 699, 432 N.E.2d 592;  see also, Riverhead Bus. Improvement Dist. Mgt. Assn. v. Stark, supra).

We conclude that, under the particular circumstances of the instant case, the rezoning at issue was an integral part of a mining proposal that would have obvious potential environmental impacts.   The Town Board was obligated to consider these environmental concerns at the time of the rezoning and it failed to do so (Riverhead Bus. Improvement Dist. Mgt. Assn. v. Stark, supra;  see also, Matter of Young v. Board of Trustees of Vil. of Blasdell, 221 A.D.2d 975, 634 N.Y.S.2d 605, affd. 89 N.Y.2d 846, 652 N.Y.S.2d 729, 675 N.E.2d 464;  Matter of Eggert v. Town Board of Town of Westfield, 217 A.D.2d 975, 630 N.Y.S.2d 179;  Matter of Brew v. Hess, 124 A.D.2d 962, 964, 508 N.Y.S.2d 712;  Matter of Kirk-Astor Dr. Neighborhood Assn. v. Town Bd. of Town of Pittsford, 106 A.D.2d 868, 483 N.Y.S.2d 526).   Accordingly, since the Town Board's resolution was not enacted in accordance with lawful procedure as set forth in SEQRA, the petition should have been granted and the resolution enacting Local Laws, 1993, No. 4 of the Town of Fishill should have been annulled (see, Matter of Omni Partners v. County of Nassau, 237 A.D.2d 440, 654 N.Y.S.2d 824;  see also, 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;  Kahn v. Pasnik, 90 N.Y.2d 569, 664 N.Y.S.2d 584, 687 N.E.2d 402).

MEMORANDUM BY THE COURT.

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