Calverton Manor LLC v. Town of Riverhead decision: July 15, 2014

8/12/2019 Calverton Manor LLC v. Town of Riverhead decision: July 15, 2014

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M E M O R A N D U MSUPREME COURT - STATE OF NEW YORK

I.A.S. PART 7 SUFFOLK COUNTY

SUPREME COURT OF THE STATE OF NEW YORKCOUNTY OF SUFFOLKIn the Matter of the Ap plication of Index No.: 05582/2004Calverton Manor, LLC, Motion Sequence No.: 014; MD ; CDMotion Date: 10/4/07Petitioner/Plaintiff, Subm itted: 2/5/ 14For a Judgment pursuant to Article 78 of theCivil Practice Law Rules Motion Sequence No.: 015; M DMotion Date: I0/4/07Submitted: 2/5/14

Attorney for Petitioner/Plaintiff:Certilman, Balin,Adler Hyman, LLP100 Motor Parkway, Suite 156Hauppauge, N Y 11788

- against -Town of Riverhead andTown Board of the Town of Riverhead,

RespondentdDefendants.

Attorney for Respond ents/Defendants:Twom ey, Latham, Shea,Kelly, Dubin Quatararo, LLP33 West Second StreetRiverhead, NY 1 1901

In this hybrid Article 78 proceeding/declaratory judgment action, the petitionerlplaintiffCalverton Manor, LLC (petitioner) seeks judgm ent annulling and declaring the zoningcomprehensive plan adopted by the respondent Tow n Board of the Town of Riverhead (Town Board)on November 3 ,2003 to be illegal, unconstitutional, inv alid, void, and of no effect. Petitioner alsoseeks a judgm ent annulling , reversing and setting aside the resolution and other actions of the TownBoard approving a Draft Gen eric Environmental Impact S tatemen t, a final Generic EnvironmentalImpact Statement, and a findings statement, all prepared in co nnection with the To wn ,Bo ardsproposed comp rehensive plan. In addition, Petitioner seeks partial summ ary udgm ent on its claims.The record establishes that in 1997 the Tow n Board authorize d the Tow n Planning Board toprepare a revision of the Tow ns comprehensive plan. In 1998, the To wn hired a consultan t for thepreparation of the plan. From 1999 to 2003, the T own conducted focus groups, public workshops,surveys and interview s with the public, soliciting the citizens concern s, ideas and opinions regardingthe future development of the T own. The Town also created a Citizens Advisory Committee to


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Calverton Manor LLC v Town of RiverheadIndex No.: 0558212004Page No. 2review the draft compre hensive plan prior to its finalization in draft form and release to the generalpublic.

The draft com prehensiv e plan exam ined eleven different eleme nts with Chapter 2 , the LandUse Plan, being the centerpiece, weaving together the many goals and recommendations set forththroughout the plan. The land use plan envisioned a thriving comm ercial corridor along Route 58with reduced traffic congestion and an attractive visual quality. A key pro vision of the land use planwas the expan sion of the business district zoning along Route 58 to allo w d estination retail uses atthe western end of Route 58. It also proposed the creation of an e w zoning district called DestinationRetail Center (DRC). Th e purpose of this new district was to provide a location for large retailcenters along Route 58, while linking development to open space protection along the Route 58corridor and in agricultural zones. Th e proposed design concepts included campu s-like layouts, nostrip development/freestanding businesses, a higher floor area ratio with the pu rchase of Transfer ofDevelopm ent Rights (TD R), significant open space, and landscaping requiremen ts in parking lots.

Chapter 3 of the draft comprehensive plan, entitled Agricultural Protection, proposedamending the Town Code to require TDR to increase coverage within th e DR C district from 10percent to a maximum o f 15 percent, at the rate of one development right per 1,500 square feet ofincreased floor area. One purpose of the proposed Agricultural Protection -TD R sending zone wasto promote and sustain agricultural activity and farming while protecting prime soil through thetransfer of develop men t rights. A Rural Corridor (RLC) zone was also proposed to allow a limitedrange of roadside sh ops and serv ices in a rural setting along a corridor leading into a village centerin downtown Riverhead, mainly along Route 25 .Chapter 6 of the draft compreh ensive plan, entitled Business Districts, recognized that Route58 is Riverhead's largest and most important commercial center and that high percentages ofresidents utilize that road way (P lan, p 6-2). It acknowledged that the road way su ffers from trafficcongestion and poor aesthetics, and it recognized the need to address suc h issues before additional

development is permitted (Plan, p 6-6 .On M ay 29, 2002, the To wn held a public scoping session on the G eneric EnvironmentalImpact Statement (GEIS) in connection with the proposed revised comprehen sive plan. In the springof 2003, the Town Board form ally proposed an action with two components. The first was theadoption of the new com prehensive plan, and the second was the amendm ent of the Town's ZoningCode (Chapter 108) to implement the recom mendations of the comprehensive plan. By resolutiondated May 16 ,20 02 , the Tow n Board declared itself lead agency in the S tate Environmental Qu ality

Review Act (SEQRA ) review of the proposed com prehensive plan, determined it to be a Type 1action, and directed that a Draft Gene ric Environm ental Impact Statem ent (DG EIS ) be prepared. TheDGEIS and draft comprehensive plan were presented to the Town Board in June of 2003.On July 1, 2003, the To wn Board accepted the DGEIS as complete with respect to scope,content and adequacy. On July 7 and July 2 1 2003, the Town Board held hearings on the DGEIS

and the draft comprehensive plan. At the public hearing, a number of organizations appeared,including the Long Island Farm Bureau, Long Island Builders Institute, Long Island Association,


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Calverton Manor LLC v Town of RiverheadIndex No.: 05582 2004Page No. 3Long Island Ho using Partnership, Pine Barrens Society and New York League of ConservationVoters. They addressed issues of farmland preservation, afford able housing , TD Rs, traffic andenvironmental concerns. Wh ile the majority of speakers supported the propose d comprehensiveplan, most alsomad e suggestion s for additions, amen dm ents, deletions or impro vem ents to the plan.A number of property ow ners, including petitioner, expressed conce rn regarding the effect of theimplementation o f the com prehensive plan on the development of their properties. At the publichearing on July 7,2 00 3, a representative o f the petitioner informed th e Tow n Board that as part ofits application to develop its property, petitioner prop osed to donate apo rtio n of the property for thedevelopment of a YM CA facility.

The draft comp rehensive plan was referred to the Suffolk Cou nty Planning Department bylctter dated July 23,2 00 3. On September 3,20 03 , the Suffolk County Planning Comm ission votedto conceptually approve the draft comprehensive plan with a num ber of comm ents thereto. OnOctober 21, 2003, the Town Board accepted the Final Generic Environmental Impact Statement(FGEIS) as complete and a notice of completion was filed. On November 3,2 00 3, the Town Boardadopted the SEQRA findings statement and the comprehensive plan.

The Co urt takes judic ial notice that two days after the ado ption of the com prehensive plan,the respondent To wn Board , by Resolution 1217 dated Novem ber 5, 2003, adopted an interimmeasure designed to provide for the continued processing of non-residential development planspending the adoption of legislative amendments to the Tow n Zoning C ode necessitated by the termsof the newly adopted compreh ensive plan. Pursuant to Resolution 12 17, develop men t plans fornon-residential property that were co nsistent with existing zoning classifications would continue tobe processed by the Town, notwithstanding that said development plans were likely to beinconsistent with anticipated am endments to the Z oning C ode, dictated by the terms of the newlyadopted comprehensive plan.Petitioner ow ns two parcels of land consisting of approxim ately 4 1.7acres, located at or nearthe northwesterly corner of M anor Lane and Ro ute 25, in the hamlet of Calverton. The parcelsformerly were zoned B usiness Country Rural (Business CR , Residen ce A, and Agricultural A Asa result of the To wn Boards adoption of certain local laws im plementing the T owns comprehensiveplan, the parcels are now zo ned Ru ral Corridor (RLC) and placed w ithin the Agricultural ProtectionZone (APZ). In or about M arch of 2001 , prior to the zoning change, petitioner filed a three phasesite plan application with the Town for approval of a campus style retail development of theBusiness CR zoned portion o f the property. Th e first phase w as to con sist of retail buildings of4,000 and 13,000 square feet and two restaurants of 10,000 square feet e ach, together with relatedsite improvem ents, on approximately 9.85 acres of the business zoned property. Developm ent ofthe balance of the site (Phases I1 and 111) would occur at a later time. How ever, the To wn foun d thatthe floor-area ratios for the proposed buildings d id not com ply with the purposes and requirementsof the zoning co de and advised petitioners then-attorney by letter to revise the site plan. In June of2002 , petitioner subm itted an additional and separate application for preliminary site plan approval.A full environmental assessment form (EAF) was subm itted therewith. Th is application detailedPhase I of a multi-phase deve lopm ent. Phase I, as already noted, wou ld consist of retail buildingsand two restaurants together with associated infrastructure on the Business CR zoned part of the


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Calverton Manor LLC v Town of RiverheadIndex No : 0558212004Page No. 4property. Phases I1 and I11 were to be developed on the remaining acres of the property. Petitionerhad previously informed the Tow n in discussions that Phases I1 and I11 wo uld inclu de a residentialsubdivision and further comm ercial developm ent. The Town suggested that petitioner submit am orefully developed EAF that too k into consideration Phases I1 and I11 to avoid improper segmentationunder SEQRA.

In August of 2002 , the Town began the SEQ RA review process by notifying other involvedagencies and requesting input on the issue of designating a lead agency. No ne of the involvedagencies were interested in being designated lead agency. On October 3, 20 02 , the Tow n PlanningDepartment prepared a staff report regarding the environmental review that wo uld be required underSEQ RA . The staff report evaluated the entire project and noted a num ber of potentially largeenvironmental impacts, including traffic and groundwater concerns, and recommended that apositive declaration notice of sig nificance be issued. The report also raised the issue of the impacton the proposed comprehensive plan, which w as not yet adopted but was in an advanced stage.There was no activity with regard to this applicatio n in the Planning Dep artmen t between October3, 2002 and July of 2003. However, as noted above, at the public hearing held on the proposedComprehensive Plan on July 7, 2003 , a representative of petitioner inform ed the T own Board thatthe petitioner, as part of its application for the subject site, proposed to donate a portion of theproperty for the developm ent of a YMC A facility. In August of 2003, petitioner submitted a revisedsite proposal by filing a revised EAF which set forth changes to the proposal, including theconstruction of a YM CA facility instead of the residential subdivision , and a sewage treatment plant.On August 25, 2003, the Planning Department notified the petitioners then-attorney that the fullEAF had not been revised to take into accou nt the major changes in the proposed project.

On August 26,2 003 , the Planning Department and Town Board received a memo from theFire Marshall stating that the revised site plan did no t address any of the com me nts raised in a June20 ,20 02 letter sent to petitioner, and suggested that an additional meeting be set up betw een the FireMarshall, the Planning Department, the Fire Comm issioner, the Fire Ch ief and petitioner. A copyof this mem o was sent to petitioner and its then-attorney. The mee ting never took place. OnSeptember 18, 2003, the Town requested additional comments from the State Department ofTransportation on petitioners revised traffic study, and stated that the Town considered thisapplication a modification of the initial project and not a new action requiring a new SEQRAcoordination and determination of lead agency. On September 22, 20 03 , the Planning Departmentissued an additional SE QRA staff report on petitioners revised plan and on ce again recommendeda positive declaration o f environ men tal significance.

It is here that the parties versions of the facts diverg e. Petitioner alleges that it neverreceived the September 22 ,20 03 staff report and that the Town im properly , illegally and in violationof its rights failed and refused to properly carry out and com plete the site plan process. Petitionerfurther alleges that it should be allowed to develop its property in accordance with the zoningclassifications that existed prior to the re-zoning of the property on June 22 ,20 04 . In opposition,respondents allege that the petitioner received and failed to respond to the staff report and the FireMarshalls comments and never properly completed the site plan process and, thus, that it is notentitled to such relief.


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Calverton Manor LLC v Town of RiverheadIndex No.: 0558212004Page No. 5The site plan issue, howeve r, is not before the Court in this m atter. Rather, it is at issue in twoof four related actiondpro ceedings having the same caption and pending before this Court underindex numbers 04-25551 and 05-04714.Here, the burden is on petitioner to establish that the action taken by the respondent To wnBoard with regard to its zoning o rdinance s was unconstitutiona l, illegal or invalid for the purposesof the declaratory judg me nt proceeding (see Ilasi v City of Long Beach, 38 NY2d 383 ,342 NE2d594, 379 NYS2d 83 1 [19761; see alsoAmrod v Mayor, 87 AD2d 6 21,44 8 NYS2d 247 [2d Dept19821). A heavy burden falls on one challenging the determination of a local government board.Parties who attack an ordinance have the burden of showing that the regulation assailed is notjustified under the police power of the state by any reasonable interpretation of the facts; if thevalidity of the legislative classification for zoning purposes is fairly debatable, the legislativejudgment must be allowed to control Matter of Town o Bedford v Village of Mount Kisco, 33

NY2d 178, 186, 351 NYS2d 129 [1973]; see Matter o Hart v Town Bd. of the Town ofHuntington, 114 AD3d 68 0,9 80 NYS2d 128 [2d Dept 20141; Infinity Consulting G roup, Inc. vTown of Huntingto n, 49 AD 3d 81 3,8 54 NYS2d 524 [2d Dept 20081). Only as a last resort shouldcourts strike down legislation on these grounds see Kravetz v Plenge, 84 AD2d 422, 428, 446NYS2d 807 [4th Dept 19821).Petitioner argues that the Town failed to comply with Tow n Law 272-a (5)(b) and GeneralMunicipal Law 5 239-m as it did not make a proper referral to the Suffolk County PlanningCom mission (SCPC). Petitioner alleges there were significant differences between thecomprehensive plan submitted to the SCP C and the com prehensive plan adopted by the Town inNovember of 2003.General Mun icipal Law $2 39-m requires that all zoning actions and amendm ents affectingreal property within 500 feet of the boundary of any city, village, town or existing or proposedcounty or state park or road be referred to the county plannin g com mission for its review, which thenhas 30 days to report its recomm endation to the T own seeGeneral Mun icipal Law 239-m[2], [3 ],[4]). This referral shall be mad e prior to the municipality taking final action on a zoning am endment(see General Mu nicipal Law 239-m[2]). The statute further lists what docum ents must be providedto the County Planning Com mission including, inter alia a completed environm ental assessmentform (General Municipal Law 5 239-m[ l][c]) . A municipalitys failure to refer azo nin g amendmentto the County Planning Commission is a jurisdictional defect which renders its enactment invalidMatter of Zelnick v S mall, 268 AD2d 527, 702 NYS2d 105 [2d Dept 20001; Matter of EmalexConst. Realty Co rp. v City of Glen Co ve, 256 AD2d 33 6, 68 1 NYS 2d 296 [2d Dept 19981).Here, the draft comprehensive plan w as properly submitted to the Suffolk County PlanningComm ission by letter dated July 23, 2003. On Septem ber 3, 2003, the Suffolk County PlanningCommission voted to conceptually approve the draft comprehensive plan with a number ofcomments thereto. Several of these com ments were incorporated into the comprehensive plan thatwas adopted, including decreasing the size of the RLC zone along Middle C ountry Road, addingmandatory cluster provisions, and including the maximum amount of receiving areas for the TDRProgram.


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Calverton Manor LLC v Town of RiverheadIndex No : 0558212004Page No. 6Petitioner contend s that the Tow n, in referring the draft com prehen sive plan to the SCPC ,fdiled to include a full statem ent of such proposed action in violation of General Municipal Law23 9- m (l)( c). How ever, that section refers to all materials required by and submitted to thereferring body. Since this provision refers to materials submitted by a third-party applicant to theTow n, it is not app licab le herein. Furthermore, General M unicipal La w 239-m( l)(c) states thatany referring body may agree with the county planning agency as to what shall constitute a fullstatement for any and all of those proposed actions which the referring body is authorized to actupon. Since the SC PC accepted and reviewed the submitted draft comp rehensiv e plan, it can onlybe concluded that the SC PC had a full statement of [the] propo sed action before it for review (see,e.g., Matter of Basha Kill Area Assn. v Planning Board of the Town of Mamakating, 46 AD3d1309, 849 NYS 2d 112 [3d Dept 20071; Matter of Batavia First v T own of Batavia, 26 AD3d 840,8 1 NYS2d 236 [4th Dept 20061).

The only significant changes between the draft comprehensive plan and the adoptedcomprehensive plan w ere those com ments of the SC PC which were incorporated into the adoptedplan. None of the other changes were significant enough to require a referral back to the SCPC.Under these facts, the C ourt find s that the respondents com plied wi th the requirements of GeneralMun icipal Law 239-m . In light of this determination, the court also find s that the respondentscomplied with the referral requirements of Town Law 272-a.Petitioner also alleges that the respondents failed to comply with the requirements ofSEQRA. Judicial review of an agency determination under S EQ RA is limited to whether theagency identified the relevant area s of environmental concern, took a hard look at them and madea reasoned elaboration of the basis o f its determination Matter of Riverkeeper, Inc. v Town ofSoutheast, 9NY3d219,231-232,881 NE2d 172,851 NYS2d76 [2007],quotingMatterofJackson

v New York State Urban Dev. Corp., 67 NY2d 400,41 7,49 4 NE2d 4 29,50 3 NYS2d 298 [1986];Matter ofHighview Estates of Orange C ounty, Inc. v Town Board of Town ofMontgomery, 101AD3d 716, 955 NYS2 d 175 [2d Dep t 20121). An agency decision should be ann ulled only if it isarbitrary and capricious, or unsupported by evidence Mutter ofRiverkeeper, Inc. v Town ofSoutheast supra at 9 NY2d 232 . When reviewing a SEQ RA determination, it is not the role ofthe courts to weigh the desirab ility of any action or choose amo ng alternatives, but to assure that theagency itself has satisfied SE QR A, procedurally and substantively Matterof astEnd Prop. Co.

I , LLC v Kessel, 46 AD3d 8 17, 820, 85 1 NYS2d 565 [2d Dept 20071, quoting Matter of Jacksonv New York State Urban Dev. C orp, 67 NY2d 40 0,4 16 ,49 4 NE2d 429, 503 NYS2d 298 [1986];see Red Wing Props., Inc. v Town of Milan, 71 AD3 d 1109, 898 NYS 2d 593 [2d Dept 20101).In its reply memorandum of law, the petitioner claims that the Town, in approving thecomprehensive plan and enacting the zoning amendments, failed to make a SEQRA positivedeclaration; that it failed to design ate a lead agency; that it failed to issue a p ositive d eclaration andfailed to publish such notice in th e Environmen tal Notice Bu lletin; that it failed to prepare a notice

of completion of the DGEIS and failed to publish such notice in the Environm ental Notice Bulletin;and that it held a public he aring o n the DG EIS a mere six days after the accep tance thereof, ratherthan the minimum 15 days required by SEQRA regulations. How ever, the record establishes thatthe Town did issue a positive declaration and designate a lead agency see Exhibit 3 of the


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Calverton Manor LLC v Town of RiverheadIndex No.: 0558212004Page No. 7Supplemen tal Return) and the C ourt takes judicial notice that the notice of positive declaration waspublished in the Environmental Notice Bulletin on June 5, 2002. Also, the Town did prepare anotice of the completion of the FGEIS (see Exhibit 8 of the Sup plemental Return) and the Courttakes judicial notice that said notice was published in the Environm ental Notice B ulletin on October29 and November 5 ,2 00 3. It is further alleged that the Tow n held a public hearing on the DGEISsix days after the accep tance of that docum ent by the To wn Bo ard, rather than the 15 days requiredby SEQR A regulations. A second hearing was held on July 21, 2003 , twenty day s after theacceptance of the DG EIS . Thu s, petitioner has failed to raise any facts sufficient to establish thatthe respondents violated the procedural requirements of SEQRA.

Turning to the substantive requirements of SEQR A, it is noted that the use of a genericimpact statement is specifically authorized when ado pting a compr ehensiv e plan in accordance withTown Law 5 272-a [4] see 6 NYC RR 617.10[b]). It is further noted that generic environmentalimpact statements may be broader and m ore general than site or project specific environmentalimpa ct statements and shou ld discuss the logic and rationale for the choices advanced EcumenicalTask Force vL ove Ca nalA rea Revitalization Agency, 179 AD2d 261, 583 NYS 2d 859 [4thDept19921). Here, based upon th e facts in the record and the relevant law, it is determ ined that therespondent Town B oard comp lied with the substantive requirements o f S EQR A in that it identifiedthe relevant areas of environ men tal concern with regard to the proposed com prehen sive plan, tooka hard look at them and m ade a reasoned elaboration of the basis of its determination. Furthermore,there was no imp roper segmen tation of the environmental review herein, because the Tow n Boardnot only reviewed the comprehensive plan, but it also considered the corresponding zoningamendm ents which would implement the comprehensive plan. The Court has consideredpetitioners remaining claims and finds them to be without merit.

Petitioner failed to carry its heavy burden of proof with regard to its mo tion for sum maryjudgm ent. Petitioners proof is insufficient to overcome the strong presumption of validityattached to the To wn Bo ards adoption of the com prehensive plan seeAsian Am s.f or Equality vKoch, 72 NY2d 121, 527 NE2d 265, 531 NYS2d 782 [1988]; see also Matter of BirclzwoodNeighborhoodAssn. v Planning Bd. Of Town o Colonie, 112 AD3d 11 84 ,97 7 NYS2d 454 [3dDept 20 131)and, therefore, the motion is denied. Furthermore, it is declared that the comprehensiveplan w hich is the subject of this action is a legal, constitutional and valid exercise of the police andzoning powers of the respondent Tow n Board of the To wn of Riverhead. Acco rdingly , the petitionis denied.

Dated: HON. WILLIAM B. REBOLINI J S C

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Calverton Manor LLC v. Town of Riverhead decision: July 15, 2014