Preview:

Supreme Court, Cayuga County, April 21, 2011
APPEARANCES OF COUNSEL
Carl DePalma, Auburn, for petitioner. Michael A. Cardozo, Corporation Counsel, Auburn (Andrew S. Fusco of counsel), for respondent.
{**31 Misc 3d at 1035} OPINION OF THE COURT
Joseph D. Valentino, J.
By notice of petition and petition filed March 16, 2011, petitioner challenges respondent's February 25, 2011 negative declaration pursuant to the State Environmental Quality Review Act (SEQRA) with respect to the proposed CCC-Center for Performing Arts, an unlisted action. Petitioner seeks a judgment pursuant to CPLR article 78 against respondent City of Auburn: (1) annulling the negative declaration of the Auburn City Council; (2) enjoining respondent from approving or going forward with this project or any other related project until it has complied with the procedural and substantive requirements of SEQRA (ECL art 8) and related regulations, including preparation of an environmental impact statement; (3) requiring respondent to evaluate its plan as a whole and not merely segments thereof, pursuant to SEQRA; (4) allowing costs and disbursements; and (5) granting such other and further relief.
Petitioner's Claims
In his first claim, petitioner asserts that respondent failed to take a hard look at the environmental issues and the City did not adequately address the identified environmental issues [*2]before issuing a negative declaration. Petitioner points to respondent's failure to examine existing air quality and surface or groundwater quality or quantity, noise levels, existing traffic patterns, solid waste production or disposal, drainage or flooding problems, impact on the community's existing plans to develop the Schine Theater, impacts on further development in the downtown area, increased number of visitors, impact of demolition on neighboring buildings, variances needed and ingress or egress of emergency vehicles to the proposed building.
Next, petitioner claims that respondent improperly segmented the project by failing to consider the construction phase in its short environmental assessment form (EAF), leaving the construction phase up to the college. Petitioner further alleges that by issuing a negative declaration and awarding a demolition contract in advance of compliance with SEQRA, respondent failed to perform its duty, proceeded in excess of its jurisdiction, rendered an arbitrary and capricious decision, and abused its discretion. Petitioner contends that respondent is required to prepare a full environmental impact statement (EIS).
Also, petitioner contends that respondent failed to include as involved agencies the State Departments of Health and Labor.{**31 Misc 3d at 1036} In addition, petitioner claims that respondent failed to involve the public and limited his access to documents and curtailed public comment. In his fifth claim, petitioner asserts that the short EAF was improperly amended when an eight-page supplement was added on February 24, 2011. Additionally, petitioner asserts that following the negative declaration, respondent revised the project description and incorporated that into a supplement to the negative declaration which was not voted upon by City Council. And last, petitioner asserts that respondent violated SEQRA procedures.
Respondent filed an answer opposing petitioner's requests for relief seeking dismissal of the petition. Respondent stipulated to the 290-page record submitted by petitioner. Attached to respondent's answer is the affidavit of Stephen M. Selvek, respondent's City Planner and the documents he prepared in connection with the EAF.
On April 18, 2011, petitioner moved for an order requiring respondent to file a complete certified record and replied to respondent's answer with a 23-page affirmation and four exhibits. Additionally, petitioner contends that respondent's negative declaration is really a conditioned negative declaration and respondent has not followed regulations pursuant to a conditioned negative declaration. Plaintiff reiterates that respondent failed to take a "hard look" at the environmental issues, including existing contaminants, noise, traffic patterns, parking, solid waste production or disposal, drainage or flooding problems. Petitioner also faults respondent for ignoring the Schine Theater and allowing it to fall into further disrepair and reiterates a host of other shortcomings concerning the respondent's short EAF.
On April 20, 2011 petitioner and respondent appeared by counsel for oral argument.
Background
On January 6, 2011, respondent declared its intent to act as lead agency for SEQRA purposes with respect to the proposed Center for Performing Arts & Education Project. The first page of the short EAF is dated February 17, 2011, when it was prepared by Selvek. On February 17, 2011, City Council tabled its determination until February 24, 2011 and requested that further details be provided in the EAF. A supplement to the short EAF is dated February 24, 2011. On February 24, 2011, respondent's City Council in a three-two vote issued a negative{**31 Misc 3d at 1037} declaration and authorized the award of a demolition contract. The negative declaration is dated February 25, 2011, and a two-page [*3]supplement dated February 25, 2011 summarizing the project is attached to the negative declaration, as well as the supplement dated February 24, 2011.
Discussion
"The basic purpose of SEQR [State Environmental Quality Review] is to incorporate the consideration of environmental factors into the existing planning, review and decision

Download 2011_21148.pdf

New York Law