Negative Declaration SEQRA Review Upheld for Fairway Manor Expansion in Town of Islip
June 24, 2019
Fairway Manor, a senior rental housing complex for ages 55 and older, located on the border of Blue Point and Bayport, was created in 1991 when the Town Board of the Town of Islip approved a change of zone application on a 70 acre parcel (with 45.6 acres located in the Town of Islip and the remainder located in the Town of Brookhaven) to construct a 394 unit senior citizen residential development. The project was deemed a Type I action pursuant to the New York State Environmental Quality Review Act (“SEQRA”) and an Environmental Impact Statement (“EIS”) was completed. As part of the original approval, a covenant was recorded limiting the number of units to 394 for the portion of the property located in Islip and requiring 21.72 acres to become a 9-hole golf course or remain open space.
In 2014, Fairway Manor applied to the Town of Islip for a change of zone to amend the covenants and restrictions on the property seeking to build an additional 260 units which was above the residential density permitted on the property. Thereafter, the application was reduced to construct 156 units on the east side of John Avenue, just south of Sunrise Highway in Bayport, which complied with the Town of Islip’s zoning code for the maximum residential density of 12 units per acre. Approximately 13 acres were proposed to remain open space. In response, Fairway Manor submitted a short form Environmental Assessment Form in connection with its application. The Blue Point Community Civic Association objected to the application, arguing, in part, that the project should not be permitted to expand into the original 21 acres of open space.
An initial public hearing was held before the Town Board in 2014 where the Board, pursuant to referral recommendations from the Planning Board, reserved decision for further review of the project and kept the public hearing record open. In March of 2017, the Planning Board held a public hearing and sought additional information from the applicants. In response, Fairway Manor submitted a comprehensive traffic impact review and waste and sewage treatment plan to expand and improve the capacity of its existing sewage treatment facility. The Planning Board recommended approval to the Town Board. On July 27, 2017, the Town Board held another public hearing and, regardless of the opposition, adopted a resolution adopting a negative declaration pursuant to SEQRA and approving the application.
Petitioners, the Blue Point Community Civic Association, Inc., brought a hybrid Article 78 Proceeding/Declaratory Judgment action alleging that a positive declaration should have been adopted in connection with the application and an EIS prepared. Specifically, petitioner’s action sought (a) to declare that the Town Board resolution issued on July 27, 2017 granting approval was issued in violation of the SEQRA and as a result was void ab initio; (b) to vacate the Town Board resolution as unlawful, arbitrary and capricious, an abuse of discretion and unsupported by substantial evidence; (c) to remand the matter to the Town Board with a direction to make a finding of significant adverse environmental impact and requiring the preparation of an EIS; (d) to enjoin the Town respondents from issuing, granting, awarding or otherwise authorizing any site-plan approval, permit, license or other approval based upon the resolution; and (e) an award of costs and disbursements.
The Supreme Court, Suffolk County, in Matter of Blue Point Community Civic Assn. Inc. v. Town of Islip et al., 2019 Slip Op 50906(U), June 11, 2019, denied the petition and dismissed the proceeding finding that the Planning Board and Town Board took the required hard look at the relevant areas of environmental concern and made a reasoned elaboration for their basis of approving a Negative Declaration and approving the application. The Court quoted Jackson v. NY State Urban Dev. Corp., 67 NY 2d 400, 416-417 (1986) stating,
“SEQRA contains no provision regarding judicial review, which must be guided by standards applicable to administrative proceedings generally: “whether a 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” (CPLR 7803 ; see, Matter of City of Schenectady v Flacke, 100 AD2d 349, 353, lv denied 63 NY2d 603; Matter of Environmental Defense Fund v Flacke, 96 AD2d 862). In a statutory scheme whose purpose is that the agency decision-makers focus attention on environmental concerns, it is not the role of the courts to weigh the desirability of any action or choose among alternatives, but to assure that the agency itself has satisfied SEQRA, procedurally and substantively.
More particularly, in a case such as this, courts may, first, review the agency procedures to determine whether they were lawful. Second, we may 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 (Aldrich v Pattison, 107 AD2d 258, 265, supra; Coalition Against Lincoln W. v City of New York, 94 AD2d 483, 491, affd 60 NY2d 805, supra; H.O.M.E.S. v New York State Urban Dev. Corp., 69 AD2d 222, 232). Court review, while supervisory only, insures that the agencies will honor their mandate regarding environmental protection by complying strictly with prescribed procedures and giving reasoned consideration to all pertinent issues revealed in the process.”
After reviewing the record before the Planning Board and Town Board the Court held that both boards considered all of the statutory factors and used the requisite balancing test under SEQRA. Therefore, the SEQRA review was upheld and the matter was dismissed.