Notice ofmotion/supporting Exhibits... X Affirmation in Opposition... X Reply Affirmation... X

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1 s SUPREME COURT-STATE OF NEW YORK PRESENT: Honorable James P. McCormack Acting Justice of the Supreme Court x MUTTONTOWN ACRES, LLC Petitioner/Plain tiffs, For a Judgment under Article 78 of the Civil Practice Law and Rules and for Declaratory Judgment under Article 30 of the Civil Practice Law and Rules, TRIAL/lAS, PART 42 NASSAU COUNTY Index No.: Motion Seq. No.: 001 & 002 Motion Submitted: 6/28/13 -against- THE INCORPORATED VILLAGE OF MUITONTOWN and THE IN CORPORA TED VILLAGE OF MUTTONTOWN BOARD OF TRUSTEES, Res pondents!defendan ts. x The following papers read on this motion: Notice ofmotion/supporting Exhibits X Affirmation in Opposition... X Reply Affirmation X Motion by plaintiff, Muttontown Acres, LLC, seeking an Order of this Court pursuant to Articles 78 and 30 of the CPLR: on the first and second causes of action, that the defendants/respondents, the Incorporated Village of Muttontown (" Village'') and the Incorporated Village of Hempstead Board oftrustees ("Bo_ard") violated the procedural

2 and substantive requirements of SEQRA thus rendering the Local law null and void; on the third cause of action, that the Local Law is unconstitutional and violation of the Village's police powers and therefore null and void; on the fourth cause of action, that the local Law violates the New York Municipal Home Law, thus rendering it null and vo.id; and ordering that the costs and disbursements of the action be paid by the respondents, is granted in part. Motion by Incorporated Village of Muttontown ("Village"), and Board of Trustees of the Incorporated Village of Muttontown ("Board"), for an Order of this Court, pursuant to CPLR 32ll(a)(1). (a)(3), (a)(7) and 7804(f), dismissing the complaint/petition in its entirety, is rendered academic. PROCEDURE The instant motions arise from an underlying action concerning certain real property located at 225 Muttontown-Eastwood Road, Muttonto'-"n, New York. The plaintiff/petitioner is seeking an annulment of Village Local Law I of2012, adopted by the Board in March, 2012 and filed with the Secretary of State in March, The plaintiff/petitioner alleges in its First and Second Causes of action that the Village failed to comply with the procedural and substantive requirements of the New York State Environmental Quality Review Act ("SEQRA") respectively, prior to enacting the subject local law. The petition in its third cause of action, sets forth that the Local Law is unconstitutional and the fourth cause of action alleges that the Local Law is 2

3 contrary to the Municipal Home Rule Law. FACTS Petitioner/Plaintiff was the successful bidder of certain real property, located at 225 Muttontown-Eastwoods Road, Muttontown, New York and legally described on the Nassau County Tax Map as Section 15, Block A, Lot 29. The subject property was sold at a b(lnkruptcy auction on May 6, At that time, the 107 acre property was improved with the Woodcrest Country Club, which included improved structures, the golf course, and man made ponds. The defendant Village, in partnership with other investors, bid unsuccessfully on the subject property at the same auction. According to the plaintiff, the stated purpose of the Village's intent regarding the. subject property, provided it was the successful bidder, was to preserve the property as ''open space". Shortly after the auction was announced in March, 2010, the Village scheduled a public hearing to consider a Moratorium on all subdivisions within the Village boundaries; _The Board prepared a resolution setting forth the recitals of the Moratorium and the subject property was specifically referenced therein. In April, 20 I 0, the Board after hearing concerns regarding the imposition of the proposed Moratorium at a public hearing at its March 31, 2010 Board Meeting, proposed a local law on the Moratorium, which it modified and approved at its May, 2010 meeting. According to the tenns of the Moratorium, it was set to expire by November, 2010, with the proviso that it could be extended for three additional 90-day time periods. 3

4 The Board extended the Moratorium for the three time periods and then adopted a Second Moratorium Local Law at its July 27, 2011 Board Meeting with the essentially the same terms as the First Moratorium Local Law. In October, 2011, a Third Moratorium Local Law was adopted with the same tenns as the prior local laws. Shortly thereafter, the Village retained engineers, Sidney B. Bowne & Son for purposes of developing a master plan regarding the affected real property. During the pendency of the Third Moratorium, the Board scheduled a public hearing regarding proposed amendments to the Village's Local Law. According to the defendants, the Board proposed and eventually adopted amendments to the Local Law, which, inter alia, modified the definition of"freshwater wetlands'' as set forth in the Code's Chapter 74, and changed the provisions of the Code's Chapter 15 8, to exclude all "slope lands', "freshwater wetlands' and "adjacent areas" for purposes of computing the number of lots that a subdivision will yield. In January, 2012, prior to the Local Law's adoption in March, 2012, the Board designated itself as the lead agency to conduct a SEQRA review of the law, and adopted a negative declaration. According to the defendants, the first Environmental Assessment Form ("EAF") contained errors in that the classification of the action was designated as a Type 1 action instead of an Unlisted action. The negative declaration was amended accordingly. The Local Law, prior to the amendment, provided as follows: "... Chapter 74, Freshwater Wetlands 4

5 74-2. Definitions... FRESHWATER WETLANDS Lands and waters lying within the boundaries of the village, as shown on the Freshwater Wetlands Map prepared by or for the State of New York and filed with the village pursuant to of the New York State Environmental Conservation Law or as shown on any freshwater wetland maps the village shall prepare..." The Local Law, as modified is set forth as follows: "FRESHWATER WETLAND-An area of at least 2,000 square feet that is naturally or artificially inundated or saturated by surface water or groundwater at a frequency and duration sufficient to support, under normal circumstances, a prevalence of vegetation typically adapted for life in saturated conditions..., or contains hydric soils. Freshwater wetlands area commonly referred to as 'swamps, 'marshes, 'bogs' or ' vernal pools'. Regulated freshwater wetlands for the purpose of this chapter include water bodies and watercourses." In the Local Law's Chapter 158, Subdivision of Land, a section was added which reads as follows: "F. Preservation of a natural buffer. In granting approval of any application for a subdivision other than a partitioning as defined in section of this Chapter, the subdivider shall set aside and reserve a perimeter buffer of fifty feet which shall remain undisturbed, except as may be required for access or such augmentation of the existing flora or other existing natural features as the Planning Board may require or permit in accordance with the planning objectives set forth in the Village Comprehensive Master PJan, as amended from time to time." The Board amended other related sections of the Local Law, which also impacted the subject real property; however, the foregoing provisions are at the heart of the instant proceeding. ARGUMENTS The plaintiff/petitioner contends that the defendants/respondents failed to take the 5

6 statutorily required "hard look" to detennine significant environmental impacts of the proposed Local Law and/or the amendments and/or modifications to the then existing Local Law. Also, the defendants' actions were not for the purposes of protecting the Village's wetlands a much as it was to interfere with the plaintiff's rights to develop the property. Not only did the defendants fail to conduct a yield analysis or conduct a scientific study to detennine the overall impact of the community, its changes to the Local Law impacted 178 parcels where only 34 parcels were impacted prior to the laws' adoption and enactment. The plaintiffs, in support of their motion, submit: a copy of the Village's Local Law filing of Chapter 74, 74-2, and Chapter 158, , , as amended, with notation that it was filed with the State; copies of the April29, 2010 Board Resolution establishing the moratorium on subdivisions, referencing the subject property in addition other properties; copies of transcripts of the public hearings regarding the moratoriums dated Apri129, 2010, May 11, 2101, copies oftranscripts of the April28, 2011, July 27, 2011, February 14, 2012, March 6, 2012; Board Meetings; Copy of January 10, 2012 Board Resolution proposing adoption and/or amendments of the Local Laws in dispute, where it sets forth the Village as the Lead Agency and the firm of Sidney B. Bowne & Son, LLP ("Bowne & Sons") as the preparers of the Environmental Assessment Form("EAF"); copy of the SEQRA Full Environmental Assessment Form ("FEAF"); ViJiage of Muttontown Geographic Information System; February 13, 2012, and March 6, 2012letters from plaintiffs counsel citing objection to the proposed Local Law decrying 6

7 the Village's reference to a map incorrectly being designated as "freshwater Wetlands Map when no such map exits, and that a negative detennination regarding environmental impact is improper without appropriate environmental review; copy of the March 6, 2012 Board Resolution amending the SEQRA negative declaration; a Draft Environmental Impact Statement for the Jewish Congregation of Brookville, copy of the Village's Comprehensive Master Plan of 1969; maps prepared by plaintiffs expert, Certified Enviromnental Professional and Managing Partner and Environmental Planning Department Head of Nelson, Pope & Voorhis, LLC ("Nelson Pope"), Charles J. Voorhis highlighting the alleged affected parcels; and February6, 2012letter from Village Planning Commission citing concern about.the moratoriums and expressing concerns regarding the moratorium and suggesting that the Commission first adopt its Master Plan and amend its zoning code accordingly. The defendants/respondents argue that the plaintiff's contentions are conclusory and devoid of merit. The Local Law is Constitutional as it promotes a legitimate State interest in protecting the environmental characteristics of the Village and moreover, as the plaintiff/petitioner has not alleged a real, concrete injury, he has no standing to bring the underlying petition. Notwithstanding, challenges to SEQRA do not address the merits of a municipal agency's action but whether the procedural requirements have been fulfilled. Finally, the amendments and modifications to the local law are legislative in nature and do not significantly alter the slope and wetlands provisions already in the Village Code. In addition to the foregoing referenced Board Resolutions and transcripts of Board 7

8 meetings. Respondent/defendants submit the supporting affidavits of James Antonelli, P.E. and Director of Planning and Environmental Services of Bowne & Sons, and Paul Stevens, P,E, also Bowne & Sons, LLP. DISCUSSION While this Court acknowledges that an agency's interpretation of a statute that it administers and the regulations implementing it are entitled to great weight and judicial deference, the instant case turns upon specific facts in determining whether the respondent mwlicipal agency was reasonable in its administration and interpretation warranting such judicial deference. In other words, in a proc.eeding such as this, which challenges a determination made by an administrative agency as to the proper interpretation of statutes and regulations, the court's function is to ascertain, upon the proof before the agency, whether its determination had a rational basis in the record (see Jennings v. Commissioner, NYS. Dept. of Social Services, 71 AD3d 98 [2nd Dept 2010]). Article 78 provides in relevant part, "...[t]he only questions that may be raised in a proceeding under this article are: l. whether the body or officer failed to perform a duty enjoined upon it by law; or whether a determination was made in violation oflawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion..." Under the arbitrary and capricious standard of review, the municipal agency must examine relevant data and articulate satisfactory explanation for its action including a 8

9 rational connection between facts found and the choice made. (Public Citizen, Inc. v. lvfineta, 340 F3d 39, Cohen v. State of New York, 2 AD3d 522 [2"d Dept 2003], 770 NYS2d 36I,Tockwotten Associates, LLC v. New York State Div. Of Housing and Community Renewal, 7 AD3d 453 [PtDept 2004], 777 NYS2d 465). Generally, abuse of discretion is not an independent ground for review under CPLR 7803(3). If a court overturned an agency's exercise of discretion, the agency was also said to have acted arbitrarily and capriciously. (McKinney' s Consolidated Laws of New York Annotated, CPLR 7803, Practice Commentaries). This Court will first address the issue of standing. The Court notes that this is a threshold issue and a litigant must establish standing in order to seek judicial review (see Society of Plastics Indus. v. County of Suffolk, 77 NY2d 761,[1991] ). Standing involves a two part test: First, a plaintiff must show injury in fact, meaning that plaintiff will actually be harmed by the challenged administrative action. As the tenn itself implies, the injury must be more than conjectural. Second, the injury a plaintiff asserts must fall within the zone of interests or concerns sought to be promoted or protected by the statutory provision under which the agency has acted" {see NY State Ass 'n of Nurse Anesthetists v. Novello, 2 NY3d 207[2002]). In order to be deemed aggrieved, the party must demonstrate "special damage", different in kind and degree from the general community. The plaintiff/petjtioner has submitted evidence that subject local laws will 9

10 negatively impact its ability to subdivide its property as the number of lots that can be subdivided will be reduced. Further, the appraisal submitted into evidence indicates a diminution in property value as a result of the change of the permitted use ofthe property. Further, as the record indicates, the petitioner's/plaintiffs subject property was specifically referenced in the 1969 Master Plan and the preceding public hearings and Board meetings, which supports that the general community is not so damaged. As such, the plaintiff/petitioner has standing to challenge the action taken by the defendants/respondents. Generally speaking, a negative declaration will be sustained where it is clear that the effects of an action on the environment will be beneficial. In cases where courts have detennined that a lead agency neither abused its discretion nor was arbitrary or capricious when it issued a negative declaration under SEQRA, detennining that proposed amendments and adoption of certain local laws would have no significant adverse effect on the environment; 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 detennination (see McKinney's ECL Chinese Staffv. Burden, 19 NY3d 922 [2012]). Here, the seminal issue is whether the Village complied with the requirements of the SEQRA and/or Article 8 ofthe Environmental Conservation Law [ECL],and the SEQRA Regulations (6 NYCRR Part 617). For example, in Village of Tarrytown v. Planning Board of Village o.fsleepy 10

11 Hollow, 292 AD2d 617 (2nd Dept 2002), the court determined that the Village Planning Board took the requisite hard look at areas of environmental concern before issuing a negative declaration under SEQRA for the proposed development of an ll-unit housing subdivision when the board received input on the project from members of the public, interested and involved agencies, and a neighboring vi1lage. The Board also considered the impact of development on land within the critical environmental area, on open spaces and the community character, on local traffic patterns, and on \.vater runoffs. The Local Law at issue seeks to regulate the subdivision of certain real properties situate in the Village. Although the Local Law does not specify any particular parcel of land, the evidence indicates that the motivating factor for the laws' enactment was to restrict the plaintiff/petjtioner' s attempts to subdivide and ultimately further develop the property. That is quite clear given the initial Board Resolution where the property is referenced and the Village mayor's specific reference to not having "control over the o"::ner" but being able to control the zoning of the property (see Notice of Petition, Exhibit B, Exhibit C. P. 40, 87). It appears that the Village chose not to wait until the issue of subdivision came to the fore, so it acted preemptively by modifying its Local Law. A cogent recitation of the legislature' s intent and relevant statutory authority is appropriate in reviewing the instant petition. The legislature has stated in ECL S-0103(7): "It is the intent of the legislature that the protection and enhancement of the environment, human and community resources shall be given appropriate 11

12 weight with social and economic considerations in public policy. Social, economic, and environmental factors shall be considered together in reaching decisions on proposed activities." Pursuant to ECL (4)(ii), an action subject to SEQRA review includes "policy, regulations~ and procedure-making." Pursuant to ECL S-0105(6): ~"Environment' means the physical conditions which will be affected by a proposed action, including land, air, water, minerals, flora, fauna, noise, objects of historic or aesthetic significance, existing patterns of population concentration, distribution, or growth, and existing community or neighborhood character." Under SEQRA, an Environmental Impact Statement ("EIS") must be prepared regarding any action that 'may have a significant effect on the environment' (ECL 8-0 I 09 [2]), and the Deparlment of Environmental Conservation has adopted regulations governing the process (see, 6 NYCRR ). SEQRA sets forth both the procedure for fommlating an EIS and its content." Pursuant to ECL (7): "'Environmental impact statement' means a detailed statement setting forth the matters specified in section 8-0 l 09 of this article. It includes any comments on a draft environmental statement which are received pursuant to section ofthis article, and the agency's response to such comments, to the extent that such comments raise issues not adequately resolved in the draft enviromnental statement." TI1e SEQRA regulations, in implementing ECL Article 8, divide actions into three (3) categories: Type I, ""hich are those most likely to require the preparation of an EIS 6 NYCRR 616.2[a][I]); Type II, which have been determined not to have a significant impact on the environment (6 NYCRR 617.2[aj.], 617.5); and Unlisted actions, such as 12

13 the one at bar, which are not identitied as Type I or Type II (6 NYCRR 617.2[ak]). The regulations also provide that no agency may approve a Type I or Unlisted action until either a negative declaration has been issued or until a draft EIS has been accepted by the lead agency as satisfactory (6 NYCRR 617.3[c]). In determining the environmental significance or non-significance of actions, an agency is to use an Environmental Assessment Form [EAF]. "A properly completed EAF must contain enough information to describe the proposed action, its location, its purpose and its potential impacts on the environmenf' (6 NYCRR 617.2[m]). To find that an EIS is not required, "the lead agency must determine either that there will be no adverse environmental impacts or that the identified adverse environmental impacts will not be significant'' (see 6 NYCRR [a][2]). In relevant part, 6 NYCRR (b) provides: "For all Type I and Unlisted actions, the lead agency making a detennination of significance must: (1) consider the action as defined in sections 617.2(b) and 617.3(g) of this part; (2) review the EAF, the criteria contained in subdivision (c) of this section and any other supporting information to identify the relevant areas of environmental concern; (3) thoroughly analyze the identified relevant areas of environmental concern to detenuine if the action may have a significant adverse impact on the environment; and ( 4) set forth its determination of significance in a written form containing a reasoned elaboration and providing reference to any support documentation." l3

14 Court review is limited to ensuring that the three-step process, already set forth herein, was employed and that the ensuing decision is supported by substantial evidence ( see WEOK Broadcasting Corp. v. Planning Bd. oftown of Lloyd, 165 AD2d 578 [3rd Dept 1980]). The foregoing counters defendant/respondenfs argument, in response to plaintiff/petitioner's contention that the form was massively incomplete, that the EAF is merely a tool and a procedural guide that may be modified as needed. It is noted that the defendants/respondents argue that routine changes in Village Code do not mandate a SEQRA review, yet they prepared a requisite EAF form. While it is indeed true that an agency is not required to issue an environmental impact statement as to all actions, SEQRA provides that the agency must issue a statement where its action would have a 'significant effect' on the environment (ECL , subd. 2). As such, the defendants/respondents have a statutory duty to follow the SEQRA procedure. The primary method of achieving their purported protection of the environment is the requirement of the preparation of an EIS (see Hinsdale Central School v. Agway Petroleum, 73 AD2d 1043 [4th Dept 1980]). The defendants/respondents even concede that there is a significant impact on the environment, although not an adverse impact (see Respondents'/Defendants' Affidavit in Support, James Antonelli, ~~ 19, 20). Here, the EAF was completed by the defendants' engineering firm, Bowne & Sons, and executed by the Village Attorney. Notably. The description of the action was memorialized into two sentences, and questions No. 11, 13, 16, 18, 20 ofpart A were 14

15 either not answered or contained terse, two-line responses. Part C's No. 's 1,3,5, were also either incomplete or unanswered. Part 2 of the Project ImpaCts and Their Magnitude also contained incomplete responses. Further, there were no attachments to the form (see Notice of Petition, Exhibit H). Although the defendants/respondents argue that all references to the three moratoria were irrelevant to the issue at bar, this Court disagrees. It is noteworthy that the Nassau County Department of Public Works Planning Commission by letter dated February 6, 2012, took issue with the defendants' procedural conduct and recommended therein that the oft referenced Master Plan and/or its review be completed and then take the appropriate legislative action (see Notice of Petition, Exhibit I). The Court notes that the County's letter is dated February 6, 2012 and the EAF was prepared in January, 2012, indicating that the Master Plan was not completed and/or its review was not complete prior to the SEQRA process. 1be crux of the defendant's/respondent's rationale for the enactment and/or amendments of its local law is that it will have only beneficial impacts on the environment. However, there is no evidence that the 1969 Master Plan had been revised or a thorough study was conducted prior to the Board's action. ln swn, the Local Law was enacted without lawful review under SEQRA. There was failure under SEQRA both as to form and as to substance. 1sr ':

16 In light of the foregoing, this Court does not have to reach the remaining causes of action. The Court has also considered the defendant's/respondent's remaining argwnents and has detennined that they are without merit. Accordingly, the plaintiffs/petitioner's motion is granted as to the first and second causes.of action, and the defendant's/respondent's motion to dismiss is denied. This Court grants judgment to the petitioner voiding Local Law, Chapter 74, 74-2, and Chapter 158, , Submit Order and Judgment on notice. This constitutes the Decision and Order of the Court. Dated: August 16, Mineola, N.Y. ENTERE AUG NASSAU COUNTY COUNTY CLERK'S OFACE 16