Hpg v Hamlin Town Board Decision 01-05-09

8/8/2019 Hpg v Hamlin Town Board Decision 01-05-09

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COURT COUNTY OF MONROE

ofLIN PIWSERVATION GROUP,

G. B O m O L D E R ?E. BROWN, BAFtBAFU A. BROWN,HONY C, CALLARI, MARY L. CALLARI,

B. CANNON, MARYLOU F. CANNON,E CLIFF, DALE CLIFF?E. COOK, TAMMY E. COOK,G. DeRUE, JOHN G. DeRUE,

P. LAPINSW, PAUL F. LAPINSKI,

J. VALEK-MacDONALD,W. SHEVLIN, JR., CHIUSTINE M. SHEVLIN,

C. SIMPSON, DENISE D. SIMPSON,E C. SNYDER, HEATHER K. SNYDER,

. SPELLAN and GLENDON J. SPELLAN,Petitioners/Plaintiffs

to CPLR Art. 78 & See. 3001-against-

OAFW OF THE TOWN OF HAMLIN,Respondent,mefend~ni.

J:

Index No. 2008111217

ORDER AND JUDGMENT

Hon. David Michael Barry

Petitioners bring this application for a judgment pursuant to CPLR Article 783001 against respondentldefendant Town Board of the Town of

(1) annulling and setting aside respondent's April 24,2008al of a Determination of Non-Significancemegative Declaration relating to

and the regulations promulgated thereunder; (2) annulling and setting aside24, 2008 approval of a local law entitled "A Local Law


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Energy Facilities in the Town of Hamlin" [Local Law3 of 20081, asSEQRA and the regulations promulgated thereunder;

(3 ) declaring the local law adopted by respondent on April 24, 2008, entitled"AGoverning Wind Energy Facilities in the Town of Hamlin", null and void

ative of Section 263 andlor Section 272-a(l1) of the Town Law of the State of

In their first claim, petitioners assert that respondent Board adopted its Windy Facilities Law (Wind Law) without first conducting the rigorous

(EIS) process. Petitioners assert that rather than issuing a Determination

ceNegative Declaration on April 24, 2008, and adopted specific criteriar weaker than those recommended by the Wind Tower Committee. Theyhat the requirements to issue a Positive Declaration and prepare a draftEISIS") is triggered by a "relatively low threshold", i.e., a DEIS is needed if the

on may have a significant effect on any one or more aspects of the environment.

tion under SEQRA to assess potential environmental impacts at the earliest

As a result, petitioners argue that by adopting the Negative Declaration andhe Wind Law without first fully complying with its obligations underrespondent has failed to perform a duty enjoined upon them by law,ry to law, arbitrary and capricious, andlor an abuse of discretion.

Petitioners argue that the SEQRA regulations require a lead agency'srmination of significance or non-significance, that is, Positive Declaration orand providing reference to any supporting documentation." They further


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that the Negative Declaration issued by the Board on April 24,2008 consistson~lusory tatements, devoid of any substantive information7and therefore?tes the process mandated by SEQRA. The petitioners state that the Board

pecific site is involved" "no facility is permitted" and


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e of land use," and with several policies and purposes in the Local Waterfrontization Program which seek to protect and enhance the scenic and opennd south of the Lake Ontario State Parkway.By reason of the foregoing, petitioners argue that respondent has violated263 and 272-a, and thus the Wind Law must be declared null and void.Petitioners do not request preliminary relief at this because there is no

Use Permit has been submitted to the Town of Hamlin.nt's Answ er a nd Opposit ion:

Respondent submitted a verified answer containing denials and admissions toners' verified complaint, and seeks dismissal of the petition in addition to costs

The Town Board argues that it fully complied with SEQRA, that it issued ar reasoned elaboration for its decision, and that the local Wind Law istent with the Town's Comprehensive Plan. In essence, respondent asserts thatners are really objecting to the fact that the Board did not adopt their opinionsing setbacks and noise, and not to the process that led to the decision.

that petitioners' arguments rely on the erroneous belief thatnd Law increased the allowable uses. With respect to thehensive Plan, respondents argue that because the wind law is a legislativent, petitioners must prove beyond a reasonable doubt that it is anonable arbitrary and capricious action.DISCUSSION

"The basic purpose of SEQR [State Environmental Quality Review] is toorate the consideration of environmental factors into the existing planning,governments at the earliest possible time. To accomplish this goal, SEQRA requires thatactions they directly undertake, fund or approvee a significant impact on the environment, and, if it is determined that they have a significant adverse impact, prepare or request an environmental[EIS] " 6 NYCRR 6 17-1 c) ; see also ECL section 8-0 1029(2).

"SEQRA [State Environmental Quality Review Act] insures that agency


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-- enlightened by public comment where appropriate -- will identi@focus attention on any environmental impact of proposed action, that they will, minimize adverse environmental effects to the maximum extent? and then articulate the bases for their choices." Jackson v. New York

Urban Development Corp., 67 N.Y.2d 4007414 -415 (1986).'7n assessing the significance of a proposed action under SEQRA, the leadto determine if the action may have a significant adverse impact on the. . . set forth its determination of significance in awritten form

aining a reasoned elaboration and providing reference to any supporting(6 NYCRR 61 7,7[b][3]? 4])."' New York Ciw Coalition to End Lead, Inc. v. VaZlone, 100 N.Y.2d 337?347 (2003). "Where the lead agency

6 17.7[a]1211, the agency may issue a negative declaration," whichthe requirement for an Environmental Impact Statement (EIS). Id.; 66 17.2(y).

In contrast, when the lead agency determines that a proposed action "may[6RR 6 17.79(a)(l), Jackson v. New York State Urban Development Corp., 672d at 41 517a lead agency will issue a Positive Declaration "indicating that [the]6

617.2(ac).To arrive at its determination of significance, the lead agency must identi@t areas of environmental concern' and take a 'hard look' at them."

N.Y.2d 742?75 1 (1997), quoting Matter of Chemicalcialties Mfrs. Assn. v. JorZing, 85 N.Y.2d 382>397 (1995). "The agency must setreasoned elaboration for its determination." Merson v. McNalZy790 N.Y.2d at

"Judicial review of a lead agency's negative declaration is restricted toagency identified the relevant areas of environmental concern, took aat them, and made a 'reasoned elaboration' of the basis for itsrmination."' New York City Coalition to End Lead Poisoning, Inc. v. Vallone,N.Y.2d 337,348 (2003), quoting Matter of Jackson v. New York State Urban


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67 N.Y.2d 400, 417 (1986). "The role of a court is not 'to weigh theSEQRAof the regulations implementing it."' Advocates for Prattsburgh, Inc. v. SteubenIndus. Development Agency, 48 A.D.3d 1 1-57? 1160 (4th Dept. 19981, quoting

of Vijlage o Westbuv v. Department of Transp. qf State of N.K , 75 N.Y.2d(1989).

"'[Wlhere an agency fails to take the requisite hard look and make a reasonedan error of law, or its decision was notby substantial evidence, the"Merson v. McNalZy, 90 N.Y.2d 742, 752g Matter of WEOKBroadcasting Corp. v. Planning Bd., 79 N.Y.2d383 (1992).

Action:Petitioners argue that the Wind Law adopted by the Town Board constituted

action under S E Q M 7 s defined in 6 NYCRR 617.2(b)(2)7 hat is, "agencyinite course of future decisions.''

In contrast, as set forth in respondent's Determination of Non-SEQR Status of the proposed Wind Law isas an "Unlisted Action." The Determination of Non-Significancemegative

red." It then goes on to state that current existing law allows for wind facilities

In arriving at its determination, and in response to specific criteria that a leady must consider when determining the significance of a Type I or Unlistedas set forth at 6 NYCRR 617.7(c)(I), the Board states in the "Reasonshis Determination?' section of the Determination of Non-

eNegative Declaration, that "[tlhere are no adverse impacts because theed law severely restricts where facilities can be placed" and "no specific site isolved" or "no specific project site is ap~roved'~r "no project is allowed under tht


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sed law, therefore nothing could create a hazard to human health" or "the localnothing'' or "the local law does not permit anything" and "the local lawgthens the Town goals by severely restricting a currently allowable useV7'DECISION

The Court concludes that even though the Board identified "the relevant areasnmental concern" in arriving at its Determination of Non-ation7 he Board did not take a "hard look" at them7nora "reasoned elaboration7'for its determination. Moreover? thesagrees with respondent's characterization that the wind facilities that were

d prior to the enactment of l2ocal Wind Law 3 - 2008 are public utilities.dingly, the Determination of Non-Significancemegative Declaration and theLaw 3-2008 are hereby set aside and annulled. Finally, the Court findsit in petitioner's argument that the Local Wind Law violates Section 263r Section 272-a(l1) of the Town Law of the State of New York.For the foregoing reasons, the petition is hereby granted in part and denied in

,-7January -9 3.2009Rochester, New York

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Hpg v Hamlin Town Board Decision 01-05-09