Save the Pine Bush, Inc. v. Town of Guilderland

2022 NY Slip Op 03043

In the Matter of Save the Pine Bush, Inc., Appellant, v. Town of Guilderland et al., Respondents.

No. 534176

Supreme Court of New York, Third Department

May 5, 2022

Calendar Date: March 23, 2022

Pace Environmental Litigation Clinic, Inc., White Plains (Todd D Ommen of counsel), for appellant.

James Melita, Town Attorney, Guilderland (Peter G. Barber of counsel), for Town of Guilderland and another, respondents.

Whiteman Osterman & Hanna LLP, Albany (Robert S Rosborough IV of counsel), for Pyramid Management Group, LLC and others, respondents.

Before: Egan Jr., J.P., Clark, Pritzker, Ceresia and Fisher, JJ.

Egan Jr., J.P.

Appeal from a judgment of the Supreme Court (McDonough, J.), entered October 8, 2021 in Albany County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 78, to, among other things, review a determination of respondent Planning Board of the Town of Guilderland granting the requests of respondent Rapp Road Development, LLC for subdivision and site plan approval.

The underlying facts are detailed in this Court's decision in a related matter (Matter of Hart v Town of Guilderland, 196 A.D.3d 900 [2021]). To recap, in 2018 respondent Town of Guilderland rezoned Crossgates Mall and other lands in proximity to the Albany Pine Bush preserve (hereinafter the preserve) to allow for denser residential and commercial development. Later that year, respondent Rapp Road Development, LLC (hereinafter RRD) applied to respondent Planning Board of the Town of Guilderland (hereinafter the Planning Board) for subdivision and site plan approval to construct several buildings containing commercial space and apartment units (hereinafter the project) on vacant land in the area that was owned by a related entity, respondent Crossgates Releaseco, LLC, and that had previously been used for decades as a pig farm.

In July 2019, the Planning Board declared itself the lead agency for the review of the project required by the State Environmental Quality Review Act (see ECL art 8 [hereinafter SEQRA]). It then determined that a significant cumulative adverse effect on the environment was possible if the project was viewed in conjunction with other potential development in the area, including proposed construction of what was revealed to be a Costco Wholesale retail store on a second site and the possibility of development on a third site - the second site then containing, among other things, a largely vacant residential development and the remnants of a road, and the third site covered in large part by more empty residences and a parking lot - owned by RRD, Crossgates Releaseco, respondent Pyramid Management Group, LLC (hereinafter collectively referred to as the Pyramid respondents) or related entities. The Planning Board accordingly issued a positive declaration and directed that an environmental impact statement (hereinafter EIS) be prepared to assess the potential environmental impacts of development on the three sites. The Pyramid respondents submitted a draft EIS that assessed those impacts and was, in February 2020, accepted by the Planning Board. The Pyramid respondents then submitted the final EIS (hereinafter FEIS) in July 2020, and it was accepted by the Planning Board. The Planning Board issued a SEQRA findings statement in August 2020, determining that the project was approvable, minimized any adverse environmental impacts to the maximum extent practicable and appropriately balanced environmental protection against social and economic considerations. The matter proceeded to a public hearing on the application for site plan approval in October 2020, after which the Planning Board issued a findings statement and granted site plan approval for the project with conditions later that month.

In September 2020, prior to the Planning Board granting site plan approval, the petitioners in Matter of Hart v Town of Guilderland (supra) commenced a combined declaratory judgment action and proceeding pursuant to CPLR article 78 seeking to, among other things, annul the Planning Board's SEQRA findings statement. In November 2020, Supreme Court (Lynch, J.) issued a judgment granting the petition in that matter. Several days later, citing a desire to preserve its rights if the judgment in Matter in Hart were reversed upon appeal, petitioner commenced this CPLR article 78 proceeding seeking to, among other things, annul the Planning Board's SEQRA findings statement and site plan approval. Following joinder of issue, Supreme Court (McDonough, J.) granted petitioner's motion for a stay pending the outcome of the appeal in Matter of Hart. After this Court issued its decision in July 2021 reversing the judgment in Matter of Hart - determining, in the process, "that the Planning Board took the requisite hard look at the project's anticipated adverse environmental impacts and provided a reasoned elaboration of its basis for approving the project" as required by SEQRA (Matter of Hart v Town of Guilderland, 196 A.D.3d at 913-914 [internal quotation marks, ellipsis and citations omitted]) - the parties agreed that the stay should be lifted and a judgment rendered on the merits. Supreme Court thereafter issued a judgment in which it determined that this Court's decision was "wholly dispositive of all SEQRA issues raised by petitioner." Supreme Court further rejected petitioner's procedural challenges to the Planning Board's October 2020 site plan approval and, as such, dismissed the petition in its entirety. Petitioner appeals, and we affirm.

To begin, we do not agree with Supreme Court that petitioner was foreclosed from challenging the propriety of the Planning Board's SEQRA determination given our decision in Matter of Hart. Petitioner was not precluded from raising those challenges, as it was not a party to the prior proceeding and there is no indication that it was in privity with one (see Whitney Lane Holdings, LLC v Don Realty, LLC, 130 A.D.3d 1218, 1220 [2015]). Our holding "that a sufficient environmental review was conducted" is nevertheless "binding on this appeal under established principles of stare decisis" (Matter of Plotnick v City of New York, 148 A.D.2d 721, 725 [1989], lv denied 74 N.Y.2d 601 [1989]), and it is incumbent upon petitioner to articulate "compelling reasons" to depart from it (Matter of Schulz v State of New York, 241 A.D.2d 806, 808 [1997], appeal dismissed 90 N.Y.2d 1007 [1997]; see Matter of Best Payphones, Inc. v Public Serv. Commn. of State of N.Y., 192 A.D.3d 1416, 1421 [2021], lvs denied 37 N.Y.3d 914 [2021]). Petitioner largely attempts to do so by attacking aspects of the SEQRA determination that were not at issue in our prior decision, and we will accordingly address the merits of those challenges in the interest of judicial economy rather than remitting for Supreme Court to do so (see Matter of Town of Waterford v New York State Dept. of Envtl. Conservation, 187 A.D.3d 1437, 1440 [2020]). After considering those arguments and finding that petitioner has organizational standing to advance them (see Matter of Save the Pine Bush, Inc. v Common Council of City of Albany, 13 N.Y.3d 297, 304-306 [2009]; see also Matter of Town of Waterford v New York State Dept. of Envtl. Conservation, 187 A.D.3d at 1440), we perceive no compelling reason to depart from our prior holding.

"This Court will not disturb a SEQRA determination 'so long as the lead agency identified the pertinent areas of environmental concern, took a hard look at them and advanced a reasoned elaboration of the grounds for its determination'" (Matter of Evans v City of Saratoga Springs, 202 A.D.3d 1318, 1320 [2022] [brackets and citation omitted], quoting Matter of Town of Waterford v New York State Dept. of Envtl. Conservation, 187 A.D.3d at 1442; see Matter of Friends of P.S. 163, Inc. v Jewish Home Lifecare, Manhattan, 30 N.Y.3d 416, 430 [2017]). Our sole function, in short, "is to assure that the agency has satisfied SEQRA, procedurally and substantively," and we neither can nor will "evaluate data de novo, weigh the desirability of any particular action, choose among alternatives or otherwise substitute [our] judgment for that of the agency" (Matter of Town of Amsterdam v Amsterdam Indus. Dev. Agency, 95 A.D.3d 1539, 1543 [2012]; see Akpan v Koch, 75 N.Y.2d 561, 573 [1990]; Matter of Village of Ballston Spa v City of Saratoga Springs, 163 A.D.3d 1220, 1223 [2018]). With that standard in mind, we turn to petitioner's arguments that the Planning Board failed to take a hard look at the cumulative environmental impact of the project and related development by failing to assess several aspects of that impact, including on species that are endangered, threatened or otherwise of concern, the potential for pesticide use in the construction and operation of the project, and the effect of the development on wetlands, climate change and air quality. ^[1]

Addressing those potential impacts, the Planning Board found that there would be no adverse environmental impacts upon threatened endangered or otherwise significant flora and fauna. The Planning Board supported that finding by citing environmental studies prepared after site assessments that found no species of interest - including the Karner blue butterfly, the frosted elfin butterfly, the northern long-eared bat and various plant species, or any significant habitats, including those found in the preserve - on the three sites at issue. In response to comments submitted by individuals critiquing those studies, the FEIS reiterated that all three sites had been disturbed by prior human development and did not contain habitats that could support species of concern. The FEIS added that, even assuming that such a habitat could be restored, at great...