Augustinian Recollects of NJ v. Planning Bd. of the Village of Montebello

For a Judgment pursuant to Article 78 Civil Practice Law and Rules DECISION & ORDER   The within Article 78 proceeding revolves around the development of a parcel of land in the Route 59 Development District in Montebello, New York. By Resolution dated December 12, 2017, Respondent, Village of Montebello Planning Board (hereinafter “Planning Board”) granted Respondent Montebello Crossings LLC’s (hereinafter “Respondent MC”) application for preliminary and final site plan approval of Respondent MC’s mixed-use development project.¹ The Resolution also granted Respondent Hemion Holdings LLC’s (hereinafter “Respondent Hemion”) application for amended site plan approval of the Hemion Holdings project, which consisted of changes to the existing strip mall on a parcel of land adjacent to the Montebello Crossings development site.² Petitioner, Augustinian Recollects of New Jersey, an adjacent landowner to the Montebello Crossings site, now seeks to annul the December 12, 2017 Resolution/Decision by Respondent Planning Board. Respondents have filed Answers and Opposition to the Petition. The Court has considered the following papers: 1. Notice of Petition, Petition, Supporting Affirmation, Exhibits A through C; 2. Planning Board’s Verified Answer and Affirmative Defenses, Affirmation in Opposition and Exhibits 1 and 2 attached thereto, Affidavit in Opposition and Record and Return containing Documents No. 000001 to No. 1367A,³ as well as Site Plans and Site Plans No. 1 through 32; 3. Verified Answer and Objections in Point of Law and Affirmation in Opposition filed on behalf of MC and Hemion and Exhibits 1 through 26 attached thereto; 4. Petitioner’s Affirmation in Reply; and 5. Miscellaneous correspondence. The Facts: Due to the complexity of the within matter, the Court hereinafter sets forth a comprehensive factual and procedural history, as is relevant to the within proceeding, based on the Record and Return submitted to this Court:⁴ The Montebello Crossings development project pertains to an 11+ acre site (hereinafter “the site”) on Route 59 in the Village of Montebello, Rockland County, New York. It was first “informally” presented to the Village of Montebello Board of Trustees (hereinafter “Board of Trustees”) in September 2013.⁵ Respondent MC proposed a mixed-use project which consisted of a 104-unit, three story assisted living facility, a CVS pharmacy with drive-thru and a 4,500 square foot building/restaurant (hereinafter “the project”).⁶ R:000955. The project would “connect” to the shopping center to the east, which is owned by Respondent Hemion. The site is essentially unimproved and mostly wooded. Between 2013 and 2015, the project was in its “informal” stages, first before the Board of Trustees and then before the Community Design Review Committee (sometimes referred to as “CDRC”). R:000098; R:000130. It was not until September 2015 that Respondent MC submitted an Application Review Form and Narrative Summary to the Board of Trustees again for “informal” review. The application now described the site plan as a “mixed use development that includes 14,600 [square foot] CVS/Pharmacy, 10,000 [square foot] medical office and 200 bed assisted living facility.” R:000015-000016. It further indicated that the total size of the buildings would exceed 120,600 square feet. R:000016. Upon review of MC’s application, the Board of Trustees passed Resolution 15-085 which referred the application back to the Community Design Review Committee to continue to work with the Village Planner and the applicant to refine the plan and “to report to the Village Board [of Trustees] its recommendation as to what code amendments and steps may be necessary to move the application forward.” R:001130. Three weeks later, Respondent MC submitted another Application Review Form, this time to the Community Design Review Committee and checked off the following for review: informal, site plan, preliminary, final and zoning code amendment. R:000048.⁷ At its meeting on October 27, 2015, the CDRC conducted another “informal” discussion. The zoning amendments, the possible necessity of an amended site plan for the adjacent shopping center, and the determination of SEQRA (referring to the State Environmental Quality Review Act) classification and procedure were discussed. R:000133. At another CDRC meeting that took place six months later, on April 26, 2016, to “informally” discuss Respondent MC’s application for a zoning amendment to permit assisted living facilities in the Route 59-DD zone, the CDRC recommended various revisions to the proposed draft of the zoning law submitted by Respondent MC. R:000149-000150. The CDRC minutes also indicated that the application was not ready for the Village Board of Trustees and that the SEQRA status was still yet to be determined. R:000149. At a Board of Trustees meeting held on June 15, 2016 regarding Respondent MC’s application to amend the Village zoning law, the Board of Trustees passed Resolution No. 16-058 which referred MC’s application to amend the zoning law for further review and reaction to the Planning Board.⁸ In referring the application to amend the zoning law to the Planning Board, the Board of Trustees cited to Section 195-118 of the Village Code, which requires the Board of Trustees to refer potential amendments to the Zoning Code to the Planning Board, as well as to the Rockland County Planning Department and other entities entitled to such notice pursuant to GML Section 239-m. R:001061, 001065-001066, 001129. The text of Resolution No. 16-058 also cited to Section 195-64 of the Village Code, for the proposition that the Board of Trustees can seek “the comprehensive consultative advice of the Planning Board with respect to overall mix of uses, conceptual plan, and bulk regulations proposed by [MC].”⁹ R:1066. As Respondent MC’s application to amend the zoning code was now referred to the Planning Board, at its July 12, 2016 meeting, Respondent MC’s attorney explained to the Planning Board why the zoning amendment application was before them (on referral from the Village Board of Trustees regarding the zoning amendment) and gave them an overview of the project (a 130,000 square foot, four-story, 132 room, 200 bed assisted living facility, a 14,600 square foot CVS pharmacy with drive-through and a 10,000 square foot medical building). R:000136. Respondent MC’s attorney “emphasized that the application is before the [Planning] Board not for site plan development and review, but for Planning Board consideration and recommendation of this zone change to the Village Board.” R:000136. It was further explained to the Planning Board that Respondent MC “does not want to go into a lot of detail and engineering on the site plan until they know they have the zone change approval for the assisted living facility.” R:000137. MC’s attorney and engineer reiterated that MC was “not asking for a momentous decision” as “they [were] not seeking an approval to the conceptual layout” but “[were] only asking that the Planning Board report back to the Board [of Trustees] whether or not they are generally in favor of the amendment to the Route 59 development district to allow this use….” R:000138. While the members of the Planning Board “all agreed that conceptually they would recommend this zone amendment to the Village Board [of Trustees],” the Planning Board adjourned the matter to obtain more details and for further discussion. R:000138-000139. In preparation for the next scheduled meeting of the Planning Board, Respondent MC submitted a Supplemental Narrative dated August 4, 2016 wherein it detailed the specific text amendments it sought to the Route 59 Development District zoning code. R:000045, R:001010.¹⁰ Then, at the August 9, 2016 Planning Board meeting, the Assistant Village Attorney “inquired about the SEQR status of the site plan/zone change and asked who the lead agency was.” R:000104, R:000140-000141. In response, Respondent MC’s attorney stated “that the lead agency had not been decided and will be decided once they get into site plan review.” R:000141. Prior to the conclusion of the discussion, the Planning Board Engineer consultant noted “that a lot of progress could be made doing the [site] plan they would do for SEQR review.” R:000142. However, Respondent MC’s attorney stated that “he did not want to take the risk of doing any extra site plan work without the assisted living zoning in place.” R:000142. Similarly, MC’s engineer “interjected that all they [were] really asking is for the Village to add [Assisted Living Residence] to the zone, adding they cannot continue with a full blown site plan for ALR use without having a guarantee that use would be permitted.” R:000142. By the end of the meeting, the Planning Board Engineer and the Planning Board concluded that they “had enough information to draft a letter of recommendation to the Village Board for the proposed zone amendment.” R:000142. Thereafter, in a letter dated October 19, 2016, the Planning Board advised the Village Mayor and Board of Trustees that it, the Planning Board, was “generally in favor toward the application [for a zoning amendment].” R:001039-001040. It stated that its recommendation was made after careful review of the materials and after having sought the advice of its planning consultants and legal counsel and having deliberated at its meetings of July 12, 2016, August 9, 2016 and September 19, 2016.¹¹ The Planning Board drafted its recommendation for the proposed zoning law “for use by the Board of Trustees should it concur with the Planning Board’s recommendation.” R:001040, R:001041-001048. As the Village Board of Trustees determined that it needed time “to review and deliberate” on the information and materials it received from the Planning Board regarding the proposed amendments to the zoning code, no action was taken at its meeting on November 2, 2016.¹² R:001701. However, subsequent to that meeting, an “internal debate [arose] about how to conduct SEQR review of this project.” R:000924-A. Thus, a meeting was held between the Assistant Village Attorney, the Village Planning Consultant, Respondent MC and its attorney wherein it was “agree[d] that the ‘action’ for SEQR purposes is the entire development process: zoning code amendment, layout plan, site plan, etc.” and it was determined that “the Village Board [of Trustees] will review the entire proposal, including site plan and other elements, as part of its SEQR review.” R:000924-A. In this regard, the Assistant Village Attorney concluded: We, therefore, anticipate that the project review will proceed along two parallel and simultaneous tracks before the Village Board [of Trustees] and the Planning Board: the Village Board will review overall layout and concepts while the Planning Board delves into more detailed engineering and environmental impact and mitigation issues. Once the two boards are satisfied, the Village Board would adopt the necessary SEQR findings and the text amendment, and formally approve the layout; the Planning Board would then adopt the final site plan and (sitting as the ARB) adopt the architectural controls. R:000924-A-000924-B. Thereafter, in early December 2016, Respondent MC submitted to the Board of Trustees an “Application Review Form — Part 1″ seeking a “Special Permit” and “R59-DD Approval.”¹³ R:001049. On the same date, Respondent MC also submitted an “Application Review Form — Part 1″ to the Planning Board seeking “Subdivision” (3 lots) and final site plan approval.¹⁴ R:000026-000034. A Narrative Summary of the Montebello Crossing project appears to have been submitted as well.¹⁵ R:000023-000025. Similarly, a Narrative Summary and Application Review Form — Part 1 were also submitted to the Planning Board by Respondent Hemion seeking final site plan approval of the amended site plan “for [the] existing shopping center” that is adjacent to the MC site.¹⁶ R:000035-000044. On December 21, 2016, the next meeting of the Board of Trustees, Resolution No. 16-100 was adopted.¹⁷ Specifically, based on the recommendations of the Village Planning consultant, the Board of Trustees declared “its intent to declare lead agency status for coordinated review” and preliminarily classified the action as “Unlisted.” The Resolution also directed the Planning Board to review and recommend a Full Part 2 Environmental Assessment Form and subsequently prepare or cause to be prepared a Part 3 Environmental Assessment Form. The Board of Trustees also sought a recommendation from the Planning Board regarding the appropriate determination of environmental significance (negative declaration or positive declaration) and requested that the Planning Board assist the Village Clerk in making any necessary referrals. The Resolution also directed the Village Clerk to schedule a public hearing on the proposed zoning text amendments and special use permit application for February 15, 2017. R:001058-001060. In compliance with the Board of Trustee’s Resolution No. 16-100, a Notice of Intent to Become Lead Agency dated December 21, 2016 was prepared and circulated to various agencies. R:000380-000382. It appears that MC’s Full Environmental Assessment Form — Part 1 (hereinafter “FEAF P1″) was also distributed to those agencies along with the Notice of Intent.1⁸ R:000388-000402; R:000383-000385; R:000386-000387. In response, numerous letters were sent to the Village, addressed either to the village mayor or to the clerk of the village Planning/Zoning Boards, either consenting to the Board of Trustees acting as lead agency for SEQRA purposes and/or providing comments to the FEAF P1. R:000383, R:000386, R:000799, R:000802, R: 000805-000807. Despite the Board of Trustee’s designation as lead agency for the project, MC’s application for site plan/subdivision approval and Hemion’s application for amended site plan approval were on the agenda and discussed at the Planning Board’s meeting held on January 10, 2017.¹⁹ R:000111. Once again, the Assistant Village attorney, after giving a brief procedural introduction, “clarif[ied] the somewhat unprecedented way in which the Board [of Trustees] and the Planning Board [were] reviewing this application simultaneously.” R:000151. As set forth in the minutes: [The Assistant Village attorney] explained to the [Planning] Board that they will hear the formal presentation from the applicant who believes this proposal is appropriate for the use and layout of this property, but there is no zoning code yet in place for guidance. Further, he said, the Planning Board does not make the decision as to what the use and layout will be. That is for the Village Board [of Trustees] to decide because the Village Board [of Trustees] sets up the uses and layout by defining what the various bulk requirements are. [The Village Attorney] further explained that the Village Board [of Trustees] declared itself lead agency under SEQRA, but recognizes that the Planning Board has the expertise with respect to evaluating environmental impacts, layout and uses and is therefore authorized to act as the Village Board [of Trustees]‘s consultant. [The Assistant Village attorney] made it clear that the Village Board [of Trustees] wants the Planning Board to go through Site Plan review and to report back so it can evaluate accordingly, which does not mean that the Planning Board has no approval authority. He explained that if the Village Board [of Trustees] accepts the Zoning amendment, the layout and the use, the applicant will still need to come back to the Planning Board for Site Plan approval. The Site Plan approval process begins tonight, he said, and this way of proceeding provides economy of work and evaluation…. R:000151-000152 (Emphasis added). Respondent MC’s attorney then presented the Site Plan and numerous issues were discussed and concerns were raised. The Assistant Village Attorney next “brought up the potential impact on the Tagaste Monastery to the west.”²⁰ R:000154. When the Planning Board chairperson opened the meeting for public comment, Petitioner’s attorney “respectfully disagree[d] with the process” and voiced his concern over the fact that the Planning Board has begun Site Plan review even though the necessary zoning amendment had yet to be approved.²¹ R:000154. Petitioner’s attorney “reiterated his concerns with this process, adding that the Planning Board should only review and approve permitted uses, not uses that have not yet been permitted.” R:000155 (Emphasis added). After asking additional questions regarding the process, Petitioner’s attorney reserved the right to address the Planning Board at future public hearings and to address both the Planning Board and the Board of Trustees in writing with his concerns. R:000155. While numerous letters from various agencies continued to be received by the Planning Board regarding site plan review, a Notice of Public Hearing was prepared indicating that the Board of Trustees would be holding a public hearing on February 21, 2017 “to consider the approval of the conceptual plan entitled: ‘Montebello Crossing’…and to consider amending the Zoning Local Law Chapter 195, and in particular Chapter 195-24, 64, 88 and Use Regulations to permit ALR (Adult Living Residence) in said mixed district, including establishing area, bulk and dimensional regulations for the same.” R:001097. It further stated that “[t]he Village Board [of Trustees] has declared Lead Agency status for said Plan pursuant to SEQRA (State Environmental Quality Review), it being expressly understood that the Planning Board is acting as the consultative arm of the Village Board [of Trustees] in this matter, and that it is proceeding simultaneously to consider the detailed Site Plans, such activity being dependent upon the Village Board [of Trustees]‘s determination made in the Public Hearing set forth herein.”²² R:001097. Interestingly, the Planning Board had a meeting scheduled on February 14, 2017 for the continuation of a public hearing on the Montebello Crossing site plan/subdivision and amended site plan. R:000112; R000162. In anticipation of the two meetings scheduled in February, Petitioner’s attorney submitted a five-page letter to both the Board of Trustees and the Planning Board preliminarily opposing MC’s proposals “to amend the Zoning Code of the Village and to the Planning Board’s simultaneous review of a site plan/subdivision application.” R:001291. Petitioner’s attorney argued that the “Village Law and your Village Code prohibit the process by which you are proceeding.” R:001291. After setting forth an extensive argument in opposition, Petitioner’s attorney wrote: The current proposal has the appearance of forcing approval of the amendments which are tailored to the specific needs of the proposed site plan. The two should be separated and independently considered. The proposed amendments to the Zoning Code are not minor, and the site plan proposal presents significant issues for the community to consider, the least of which is a major impact on the traffic and congestion with the Village of Montebello, including Tagaste…. Due process dictates that specific procedures be followed for both changes to the Zoning Code and the site plan application process which have been plainly ignored here. Tracking the site plan application process simultaneously with amendments to the Zoning Code not only poses logistical complications, but it also deprives the public with the opportunity to consider and object to these two proposals independently, which is not only reasonable, but statutorily mandated. R:001295. In addition to Petitioner’s opposition to the procedure, the Planning Board also received a memorandum from the Planning Board engineering consultant wherein he provided the Planning Board with his preliminary review of both MC’s site plan and Hemion’s amended site plan. As its consultant, he reminded the Planning Board of its roles: to review MC’s subdivision, site plan and recommendation on referral from the Board of Trustees for special permit approval of an assisted living residence for the construction of three buildings to be used as a 200 bed assisted living facility, 14,600 square foot CVS/Pharmacy with drive-through and a 10,000 square foot medical office building, as well as to act on behalf of the Board of Trustees in reviewing and providing recommendation on all required SEQRA steps for the proposed actions and the proposed zoning amendment, authorization of use and establishment of bulk standards. R:000869-000871. He again explained the SEQRA process, referring to the FEAF P2 that was previously submitted to the Planning Board for its review and recommendation to the Board of Trustees and noted that the FEAF P2 identified eight areas of environmental concern.²³ R:000869-000872. As scheduled, at the February 14, 2017 meeting of the Planning Board, additional discussion ensued with respect to Respondent MC’s site plan/subdivision and Respondent Hemion’s amended site plan.²⁴ R:000112; R:000162. According to the minutes, the only attendees present at the meeting, other than the Planning Board members and Village employees, were Respondent MC, MC’s attorney and MC’s engineer. Based on the comments at the last meeting with respect to traffic, drainage and other issues, the site plans were revised with the hope that “all the concerns were addressed and that the goal of this meeting is to be able to advance the SEQRA process, noting that the Planning Board will make a recommendation for an EAF Part 2 to the Village Board [of Trustees], which is having its Public Hearing on this application February 21, 2017.” MC’s attorney further noted, however, that not all responses had been received pertaining to the General Municipal Law 239-m review and further noted that Petitioner submitted correspondence opposing the procedure in which MC’s applications are being reviewed. R:000162. When the issue of whether Respondent MC should again revise its Site Plan, MC’s attorney inquired whether “revisions should be made [to the Site Plan] before or after the zone change.” R:000164. At that point, the Planning Board chairman “reminded [the applicant] that procedurally and legally, they are right now reviewing this for recommendation to the Village Board [of Trustees], explaining further that these meetings are conducted for review of the current information, not for final Site Plan review.” He further stated, “[t]he focus for now should be on SEQRA Part II review…and that there are a number of items that will be revisited once formal Site Plan review begins.” R:000164. The focus of the meeting then turned to SEQRA, including a discussion regarding the FEAF P2 and P3, and the respective roles of the Board of Trustees and the Planning Board. R:000164. After further discussion amongst the members of the Planning Board, two more areas of potential environmental impact were identified. The Planning Board then moved to recommend Part 2 of the FEAF. R:000164. After the motion “carried unanimously,” the meeting was opened to the public. No one spoke. R:000164-000165. The Planning Board thereafter advised the Board of Trustees that the Planning Board prepared a recommended FEAF P2, wherein nine areas of environmental concern were identified for the Board of Trustee’s consideration. R:000575. The Planning Board instructed that these nine areas “must be further investigated before determining whether a potential significant environmental impact is likely to occur and whether to require an environmental impact statement.” R:000575. In conclusion, the Planning Board reminded the Board of Trustees that “[a]lthough the Planning Board can advise the Village Board [of Trustees] on its opinion of potential likely impacts, the Village Board of Trustees cannot delegate its responsibilities under SEQRA to take a hard look at potential environmental impacts.” R:000576. It further instructed the Board of Trustees that it must review the FEAF P1 and the submitted materials to determine whether it agrees with the FEAF P2 and if so, the Board of Trustees could then adopt the FEAF P2. Once the FEAF P2 is adopted, Respondent MC can gather the additional information required for the FEAF P3 which the Board of Trustees will ultimately base its decision on regarding “whether or not an environmental impact will be likely.” R:000576. The following week, on February 21, 2017, the Board of Trustees held its previously noticed public hearing “to consider the approval of the [Montebello Crossing] conceptual plan,” “to amend the Site Plan of Hemion Holding Shopping Center,” and “to consider amending the Zoning Local Law Chapter 195…to permit ALR (Adult [sic] Living Residence) in said mixed district….”²⁵ R:001156-001157. Once the meeting was opened to the public, discussion ensued regarding the changes that were made to the Site Plan since the last meeting, as well as the positive responses received regarding the Board of Trustee’s intent to declare Lead Agency status. R:001158. Additional documents received were noted in the minutes, including Petitioner’s attorney’s letter objecting to “the process” and Petitioner’s letter requesting “that environmental issues are properly addressed.” R:001159. In response to Petitioner’s attorney’s letter, the Assistant Village Attorney indicated that he “reviewed the letter and believes [that Petitioner's attorney] is operating under some misconceptions about the process and that some of his facts are just wrong.” R:001159. The Assistant Village Attorney then reiterated the SEQRA process to the Board [of Trustees]: The first thing that has to be done with a SEQRA activity is to define whether or not there will be an agency in charge which was done when the Village adopted the Route 59 Development District and determined that the Village Board would be the Lead Agency. As Lead Agency, it is the Village Board’s responsibility to run the process and make the decisions. R:001159. The Assistant Village Attorney proceeded to explain the SEQRA process, including the Environmental Assessment Form, which has three parts. R:001159. The Assistant Village Attorney further explained, in detail, “all sections of impacts of Part II of the [F]EAF.” R:001159. Although it was suggested that the Board of Trustees keep the public hearing open regarding the application for the zone change, the Board of Trustees unanimously voted to accept the [F]EAF Part II…subject to adding the noted sensitive properties: Tagaste Monastery, the Suffern Free Library and the Renal Center in the adjacent shopping center” and passed Resolution No. 17-012 that evening.²⁶ R:001160. Over the next several months, Respondent MC requested that the public hearing before the Board of Trustees regarding its zoning change application be adjourned so that the Planning Board could continue its site plan review. R:001113-R:001117. During those several months, from February to August, numerous letters and memoranda containing comments and concerns from various agencies were submitted to the Planning Board with respect to the site plan review.²⁷ At the next meeting of the Planning Board, on May 9, 2017, the Chairman of the Planning Board inquired as to why MC’s applications for site plan and subdivision review and Hemion’s amended site plan review were on the agenda since site plan review by the Planning Board cannot continue until the zone change for the assisted living residence is granted by the Board of Trustees. R:000180. In response to his question, the Planning Board engineering consultant, in agreement with the Assistant Village Attorney “clarified that the Planning Board is advising the Village Board [of Trustees] who is lead agency, on Part 3 of the [F]EAF” and that the Planning Board would be reviewing Part 3 and making recommendations to the Village Board of Trustees. R:000180. The Planning Board engineering consultant further “elaborated that the zoning code requires that the Village Board [of Trustees] is lead agency but only on the Planning Board’s advice.” R:000180. The FEAF Part 3 (“FEAF P3″) was then distributed in mid-May 2017. R:001115, R:000707. The FEAF Part 3 identified nine areas of potential environmental impact. In a memorandum to the Planning Board prior to its upcoming meeting on June 13, 2017, the Planning Board engineering consultant, in commenting on the FEAF P3, reiterated that the ongoing SEQRA review is for both the zoning and Site Plan approval. R:000886. The next meeting of the Planning Board took place on June 13, 2017, and on the agenda was the continuation of the public hearing for MC’s site plan/subdivision and amended site plan approval. R:000117; R:000204. Respondent MC’s attorney, in explaining the reason it was before the Planning Board, stated, “We are here now…to hopefully advance the SEQRA review in order to return to the Village Board [of Trustees] with a recommendation from this Board to grant a Negative Declaration.” R:000213. After the Planning Board was updated on the current status and developments of the project, the Planning Board engineering consultant not only reminded the Planning Board that “these plans are still preliminary,” but also “cautioned that this proposal requires a zoning amendment by the Village Board [of Trustees] to allow for an Assisted Living Residence.” R:000214. As stated by the Planning Board engineering consultant, “[t]he Village Board [of Trustees] asked the Planning Board to recommend the EAF Part 3 and ultimately a Negative Declaration.” He further explained that “[t]he Village Board [of Trustees]…needs that recommendation before they can enact the zone change.” R:000214. Additional issues were thereafter discussed, the matter was opened for public hearing at which time no one wished to speak and the public hearing was adjourned to July 11, 2017. R:000216. At the next Planning Board meeting held on July 11, 2017, the continuation of the public hearing on MC’s “site plan/subdivision, amended site plan” was the first item on the agenda. R:000119; R:000222. When the item was called, MC’s engineer “explained that they were here before the [Planning] Board this evening specifically to ask for a referral to the Village Board [of Trustees], the lead agency, for a Negative Declaration.” R:000222. After additional issues were addressed, the Planning Board engineering consultant recommended that the Planning Board adopt the FEAF P3 and the revised FEAF P1, and recommend to the Board of Trustees that it “adopt the Negative Declaration of Environmental Significance subject to the receipt of [certain] outstanding information.” R:000223. The Assistant Village attorney, speaking about the SEQRA process, again “clarified that the Village Planning Board is not the lead agency and therefore cannot really adopt the EAF from a legal perspective.” R:000223. He further explained that “[o]nly the Village Board [of Trustees], as lead agency, can do that. The Planning Board can only recommend the Village Board [of Trustees] adopt it.” R;000223. The following colloquy is set forth in the July 11, 2017 meeting minutes: Member Iatropoulos asked if this is the first application for which the Planning Board is not assuming lead agency and ask[ed] for clarification of the legal conditions that allowed for this alternate process. [The Assistant Village attorney] said that the Planning Board is not the lead agency, but only for this application. Mr. Iatropoulos asked if this can be noted as an amendment to the regular process. [The Assistant Village attorney] explained that the zoning code for the Route 59 Development District is unique and was established after the second Village Comprehensive Plan in 2009. Until now, he said, an application has not advanced significantly. Member Iatropoulos wanted to know if this would set a precedent. [The Assistant Village attorney] responded that this process was developed for this particular property only and will never occur anywhere else in the village. For every other property in the Village, the Planning Board will revert back to the regular process. R:000223. After Member Iatropoulos thanked the Assistant Village Attorney for the explanation, the Assistant Village Attorney reiterated that “it will never occur again.” R:000223. The public hearing portion of the meeting was then opened, and, when no one wished to speak, the Planning Board unanimously voted to recommend to the Village Board [of Trustees] that it adopt the FEAF P3 and render a Negative Declaration. R:000224. On August 16, 2017, the Board of Trustees held its monthly meeting wherein the MC project was listed as number six on the agenda for “Public Hearing: Montebello Crossing continued.” R:001139.²⁸ When the MC project was finally reached out of order, the public hearing portion of the meeting lasted for ten minutes, after which the Board of Trustees passed three resolutions pertaining to the MC development project.²⁹ With respect to the first resolution, Resolution No. 17-112, which cited to the Public Notice dated January 30, 2017, the Board of Trustees accepted the FEAF P3 and the Negative Declaration “all as recommended by the Planning Board for the reasons set forth by the Planning Board as this Board’s consultant….” and adopted the findings contained in the Negative Declaration “as its own.”³⁰ R:001119-R:001122.³¹ The Negative Declaration dated August 16, 2017 identified the name of the action as “Montebello Crossing,” and the SEQRA status as “Unlisted.” R:001103. It further listed numerous areas of potential environmental impact but concluded that “[t]he Proposed Action is not anticipated to result in any potential adverse environmental impact.” R:001104. Specifically, the Negative Declaration referred to the findings made by the Planning Board that “potential moderate to large impacts identified in the Part 2 EAF [have been addressed] in the Part 3 EAF.” R:001105. The Board of Trustees also passed Resolution No. 17-113.³² R:001243. By that resolution, the Board of Trustees granted a special permit to Respondent MC “to allow the construction, maintenance and use of an Assisting Living Residence (“ALR”)” on the site and granted a special permit to Respondent MC “to develop said property as consistent with the conceptual plan entitled: Montebello Crossing, including the overall mix the [sic] Route 59 DD.” R:1244. The third resolution that the Board of Trustees passed that evening pertaining to MC’s applications was Resolution No. 2017-114.”³³ R:001245. Specifically, Resolution No. 2017-114 enacted Local Law No. 4 of 2017, which amended the village zoning code to permit and allow the addition of Assisted Living Residences to the mixed uses permitted in the Route 59 Development District. R:001246. As the minutes indicate, the public hearing portion of the meeting lasted for ten minutes during which time the only person who spoke was MC’s attorney.³⁴ R:001242, R:001245-001246. In the months that followed, the site plans were continuously revised based on numerous comments received by the agencies involved. These comments were discussed at the monthly Planning Board meetings and thereafter incorporated into the revised plans. It was at the November 14, 2017 Planning Board meeting and public hearing on MC’s and Hemion’s applications for site plan and amended site plan approval that final site plan approval was imminent.³⁵ In fact, at the next Planning Board meeting/public hearing on December 12, 2017, the Planning Board passed Resolution 04 of 2017, which approved MC’s subdivision plan and passed Resolution 05 of 2017, which granted MC’s application for final site plan approval and Hemion’s application for amended site plan approval.³⁶ R:000316, R:000322, R:000324. It is these Resolutions passed by the Planning Board on December 12, 2017 approving MC’s subdivision plan, granting MC final site plan approval and granting Hemion amended site plan approval that are the subject of the within Article 78 proceeding. The within Article 78 Proceeding: Petitioner, who is a nearby property owner to the site, challenges the December 12, 2017 Resolutions by Respondent Planning Board on various grounds. Specifically, Petitioner argues, inter alia, that the process used by the Village to simultaneously review the site plan and zoning amendment was unlawful and that the resolutions were arbitrary and capricious as the Planning Board failed to consider various environmental impacts under SEQRA. Respondents filed their answers, objections of law and affirmative defenses. Respondent Planning Board objects to the Petition on the grounds that Petitioner failed to name a necessary party, i.e., the Board of Trustees, and that the Petition is barred by the statute of limitations. Respondent Planning Board also argues that the review process was lawful and appropriate. In their Affirmation in Opposition and Objections in Point of Law, Respondents MC and Hemion similarly contend that the Planning Board process was proper. Respondents also contend that Petitioner’s Petition is time-barred, that Respondents were not required to obtain a use variance, and that the Planning Board thoroughly reviewed traffic and run-off, as well as the potential impacts to Petitioner’s property. Legal Discussion: I. Village of Montebello Local Law §2-2010 The crux of the within Article 78 proceeding centers around Petitioner’s contention that the Board of Trustees and Respondent Planning Board failed to adhere to the proper procedure set forth in Village of Montebello Local Law §2-2010, codified as Montebello Zoning Code §195-64 (hereinafter “the Code”), in reviewing Respondent MC’s application for a zoning amendment and subsequent application for site plan approval.³⁷ Specifically, Petitioner argues that the review of MC’s proposed zoning amendment before the Board of Trustees (but deferred to the Planning Board for review and recommendation as the “consultative arm” of the Board of Trustees) at the same time the Planning Board was reviewing MC’s application for site plan and subdivision approval and Hemion’s application for amended site plan approval was improper and unlawful.³⁸ The process for development in the Route 59 Development District, which is the zone at issue here, is set forth in Montebello Zoning Code §195-64. That section states, in relevant part, as follows: A. Purpose. The Route 59 Development District is intended to effectuate the goals and objectives of the Montebello Comprehensive Plan, which allows the development of this property according to the NS, LO-C, R-AH, or R25 Zoning District, or a mix thereof, each portion complying with the requirements of the associated district with a one-hundred foot conservation easement impressed along Route 59 preserving existing vegetation and the stone wall, except as necessary for egress and ingress, and a fifty-foot conservation easement along the westerly boundary. The development of this property shall require the review and approval of the Village Board [of Trustees], with consultative input from the Planning Board. Development restrictions may include screening requirements along adjacent properties, time-of-day restrictions on any business hours, density limitation or specific traffic mitigation requirements. B. Route 59 Development District uses by right. The permitted uses by right shall be the same as those of the ER-80 Zone. C. Route 59 Development District alternative uses. Subject to approval from the Village Board, and with the advice of the Planning Board, the property may also be used according to general use requirements governing zoning district NS, LO-C, R-AH or R-25, or a mix thereof, each portion complying with the requirements of the associated district…. Where a mix of uses is proposed, the Village Board [of Trustees] shall establish the bulk regulations, taking into account the unified nature of the proposal. D. Process. The development of any use within the Route 59 Development District shall first be reviewed and approved by the Village Board [of Trustees] with respect to use and bulk and the requirements of the State Environmental Quality Review Act (SEQRA). The Village Board shall be the lead agency for SEQRA purposes. The proposal is then subject to site plan review and approval by the Planning Board in accordance with the site plan regulations and any additional standards set forth herein. The proposal is also subject to review and approval by the ARB [Architectural Review Board] to assure that development is consistent with the design goals, policies and guidance expressed in the Comprehensive Plan adopted by the Village Board in 2003. Depending on the proposed development, subdivision plat approval by the Planning Board may also be required. Since development in this district is by application to the Village Board [of Trustees] and is subject to negotiation, development proposals are not eligible for variances or other relief from the Zoning Board of Appeals. Village Code §195-64 (Emphasis added). See, Planning Board’s Exhibit 1. In other words, the plain language of the Village’s own zoning code required the Board of Trustees to review and approve the development of any uses in the Route 59 Development District, including compliance with SEQRA. Moreover, for the purpose of SEQRA compliance, the Board of Trustees shall be the lead agency. Thus, because Respondent MC’s project site was within the Route 59 Development District, the zone amendment had to first be reviewed and approved by the Board of Trustees. Once the use, i.e., assisted living residences, was approved by the Board of Trustees, which required an amendment to the village zoning code, it was then subject to site plan review and approval by the Planning Board. That is not the process that occurred here.³⁹ Rather, as admitted numerous times throughout the record, the MC development project was reviewed simultaneously (“an unprecedented way”) by both the Board of Trustees and the Planning Board. See, e.g., R:000151; R:001097; R:000885; R:000924-A. Based upon this Court’s review of the various memos, notices, agendas and meeting minutes of both the Board of Trustees and the Planning Board, it is clear that the functions of the two boards were commingled and intertwined in a way that was confusing to both Petitioner, interested parties and the public. In fact, on the agenda for the Planning Board/Architectural Review Board meeting scheduled for November 14, 2017, Item 2 was the “Montebello Crossing — Public Hearing — Continued” for “Village Board Referral for Zoning Amendment.” R:000124. Yet, the Board of Trustees had already approved the zoning amendment by Resolution passed in August, three months prior to this Planning Board meeting. Clearly, the Planning Board would not be discussing a zoning amendment that had already been approved by the Board of Trustees.⁴⁰ R:000296. Since the Board of Trustees had not approved the use of assisted living facilities prior to the commencement of the Planning Board’s review of final site plan approval, this Court finds that the Planning Board violated Montebello Zoning Code §195-64 when it passed Resolutions 04, 05 and 06 of 2017. II. SEQRA: Delving next into the heart of the within proceeding, i.e., the issue of whether the Planning Board’s determination granting subdivision, final site plan and amended site plan approval was arbitrary and capricious for failing to comply with the State Environmental Quality Review Act (“SEQRA”), the Court is compelled to provide a brief discussion of the purpose of SEQRA, the procedural and substantive requirements of SEQRA, and the interplay between SEQRA and Village Code §195-64. To begin, the very purpose for which SEQRA was enacted is written in the statute itself. Section 8-0101 provides: It is the purpose of this act to declare a state policy which will encourage productive and enjoyable harmony between a man and his environment; to promote efforts which will prevent or eliminate damage to the environment and enhance human and community resources; and to enrich the understanding of the ecological systems, natural, human and community resources important to the people of the state. E.C.L. §8-0101. In other words, “the primary purpose of SEQRA is ‘to inject environmental considerations directly into government decision making.’” Matter of Oyster Bay Associates Limited Partnership v. Town Board of Town of Oyster Bay, 58 A.D.3d 855, 859 (2d Dept. 2009), quoting, Akpan v. Koch, 75 N.Y.2d 561, 569 (1990)(Additional citations omitted). As such, planning boards, as lead agencies under SEQRA, must “conduct their affairs with an awareness that they are stewards of the air, water, land and living resources [and have] an obligation to protect the environment for the use and enjoyment of this and all future generations.” E.C.L. §8-0103(8); see also, Matter of Bryn Mawr Properties v. Fries, 160 A.D.2d 1004 (2d Dept. 1990). In order to carry out the purpose and intent of SEQRA, “SEQRA and its implementing regulations establish a procedural framework designed to incorporate the consideration of environmental factors into the existing planning, review and decision-making process of State, regional and local government agencies at the earliest possible time so as to minimize, to the greatest degree possible, the adverse environmental consequences of any project that is approved.” Aldrich v. Pattison, 107 A.D.2d 258, 263 (2d Dept. 1985), citing, 6 NYCRR §617.1(c) and Matter of Sun Beach Real Estate Dev. Corp. v. Anderson, 98 A.D.2d 367 (2d Dept. 1983), aff’d, 62 N.Y.2d 965 (1984). The procedural framework is summarized as follows: As early as possible in the SEQRA process, the agency “having principal responsibility for carrying out or approving” a given project or activity — the “lead agency” (ECL §8-0111[6]) — must determine whether an environmental impact statement (EIS) should be prepared with reference to the proposal submitted (ECL 8-0109[4]; 8-0111[6]). If the lead agency determines that the project “may have a significant effect on the environment,” either the agency or the applicant — at the latter’s option — must prepare a draft environmental impact statement (DEIS)(ECL 8-0109[2], [4]). If the draft statement is accepted by the agency “as satisfactory with respect to scope, content and adequacy,” it is then circulated to DEC, other agencies having an interest in the proposal, and “interested members of the public” (ECL 8-0109[4], [5]; 6 NYCRR 617.8[b], 617.10). After allowing a period for comment, the lead agency must prepare a final environmental impact statement (FEIS) and circulate it in the same manner as the draft statement (ECL 8-0109[4], [5], [6]; 6 NYCRR 617.10[h]). Finally, upon adoption of the environmental-affecting proposal by the lead agency, it is required to make explicit findings that (1) the requirements of SEQRA have been met, and (2) adverse environmental effects revealed in the EIS process will be minimized or avoided to the maximum extent possible (ECL 8-0109[8]; 6 NYCRR 617.9[c]). Aldrich v. Pattison, 107 A.D.2d at 263-264. Literal compliance with the environmental review procedure is required. Id. Applied here, numerous factors make it difficult for this Court to find that the Planning Board complied with the requirements of SEQRA. In fact, due to the “simultaneous review” by the Board of Trustees and the Planning Board, the purpose and intent of SEQRA were not fully achieved with respect to the Planning Board’s granting of final site plan approval to Respondent MC and amended site plan approval to Hemion. To begin, pursuant to 6 NYCRR §617.6(b) and Montebello Zoning Code §195-64, the Board of Trustees established itself as lead agency for “the proposed action, which consist[ed] of several approvals including: (1) zoning authorization of use and bulk, (2) Zoning text amendment, (3) special use permit for Assisted Living Residence, (4) site plan approval, (5) subdivision approval, (6) Town of Ramapo approval of sewer hookups and water hookups, (7) Rockland County Sewer District #1 approval of sewer hookups, (8) Rockland County Health Department approval of Realty Subdivision, Mosquito Control, and Drainage Agency review, (9) NYS Department of Environmental Conservation State Pollutant Discharge Elimination System permit, and (10) New York State Department of Transportation Highway Work permit.” R:001080-1081. The Board of Trustee’s act of establishing itself as lead agency was proper and is not the subject of the within proceeding. However, because the Board of Trustees established itself as lead agency for the entire action, pursuant to 6 NYCRR §617.2(b) and Village Code §195-64, it was incumbent on the Board of Trustees to “act” as lead agency for the entire “action.” As lead agency, the Board of Trustees was the agency “principally responsible for undertaking, funding or approving an action, and therefore responsible for determining whether an environmental impact statement is required in connection with the action, and for the preparation and filing of the statement if one is required.” 6 NYCRR §617.2(v). In addition, the lead agency was required to complete the FEAF Part 2, “which is designed to help the lead agency inventory all potential resources that could be affected by a proposed project or action.” 6 NYCRR §617.20. The instructions on the FEAF Part 2 states as follows: We recognize that the lead agency’s reviewer(s) will not necessarily be environmental professionals. So, the questions are designed to walk a reviewer through the assessment process by providing a series of questions that can be answered using the information found in Part 1…. 6 NYCRR §617.20. Thus, as the drafters of SEQRA anticipated, the lead agency may not have professional environmental expertise and so the assessment forms were designed with that in mind. As lead agency, the Board of Trustees was responsible for complying with SEQRA and taking the required hard look. Despite the Board of Trustees establishing itself as lead agency, the record is clear that the Board of Trustees did not act as lead agency. Rather, the Board of Trustees delegated its authority to the Planning Board, under the guise that the Planning Board was empowered to provide “consultative input.” Although the Board of Trustees actually passed the resolution approving the zoning amendment, its approval was based on the complete review and recommendation of the Planning Board. Similarly, it was the Planning Board that acted as lead agency with respect to final site plan approval. Yet, pursuant to Resolution 16-100, it was the Board of Trustees that was supposed to act as lead agency for the entire action, including site plan approval.⁴¹ Thus, the Planning Board’s approval of Respondent MC’s site plan and Respondent Hemion’s amended site plan was in violation of 6 NYCRR §617.2(b), 6 NYCRR 617.6(b) and Resolution 16-100. Notwithstanding the above, despite the fact that the Planning Board was not the established lead agency with respect to final and amended site plan approval, the next issue to determine is whether the Planning Board took the necessary “hard look” as required by SEQRA. It is well-settled that “[j]udicial review of an agency determination under SEQRA is limited to whether the agency procedures were lawful and ‘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.’” Matter of Oakleight Thorne v. Village of Millbrook Planning Board, 83 A.D.3d 723, 724-725 (2d Dept. 2011), quoting, Matter of Jackson v. New York State Urban Dev. Corp., 67 N.Y.2d 400, 417 (1986). “[I]t 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.” Id. at 725. Applied here, the Court finds that the Planning Board did not take the necessary “hard look.” Since the Planning Board separately approved the final site plan, as set forth in Village Code §195-64, it was incumbent on the Planning Board to strictly adhere to the provisions of SEQRA. Here, there are several ways in which the Planning Board failed to do so. Although the record establishes that the Planning Board essentially acted as lead agency regarding both the zoning amendment and final site plan approval, it is clear that the zoning amendment application and applications for final site plan approval were treated as two separate actions. Thus, as lead agency for final site plan approval, the Planning Board should have made its own determination regarding the type of action and its significance. See, 6 NYCRR §617.6 and 617.7. Here, the action was designated as an Unlisted action. Yet, Respondent MC’s site plan consisted of a 10,000 s.f. office building, a 14,600 s.f. CVS pharmacy with drive-through and a 130,000 s.f. 200-bed assisted living facility (“ALR”).⁴² R:000136. Such a description classifies the project as a Type I action, which is “more likely to require the preparation of an EIS [Environmental Impact Statement] than Unlisted actions.” 6 NYCRR §617.4(a). In fact, “the fact that an action or project has been listed as a Type I carries with it the presumption that it is likely to have a significant adverse impact on the environment and may require an EIS.” 6 NYCRR §617.4(a)(1). Not only was the project improperly classified as Unlisted, but after the various parts of the Environmental Assessment Form were completed, wherein at least nine areas of significant environmental impact were identified, the Planning Board did not issue a positive declaration. In fact, it recommended to the Board of Trustees that a Negative Declaration be issued with respect to the zoning amendment.⁴³ However, since the Planning Board was more or less acting as lead agency with respect to the site plan application, the Planning Board should have strictly adhered to SEQRA and required an EIS and followed the necessary procedure thereafter. See, 6 NYCRR §617.7, et seq. Significantly, an agency need only determine that an action may include the potential of at least one significant adverse environmental impact to require an EIS. See, 6 NYCRR §617.7(a)(1). Here, the Full Environmental Assessment form identified at least NINE areas of significant environmental impact. R:000575. Yet, no EIS was required. See, e.g., Citizens Against Retail Sprawl v. Giza, 280 A.D.2d 234 (4th Dept. 2001). The Court further notes that with a project of this magnitude, it is surprising that there was little to no public comment at the January 10, 2017 “public hearing” before the Planning Board.⁴⁴ Had a positive declaration been issued and an EIS prepared, “scoping” would have been required and would have “include[d] an opportunity for public participation.” 6 NYCRR §617.8(d). In conclusion, the record before this Court establishes that the Planning Board’s granting of final site plan approval to Respondent MC and amended site plan approval to Respondent He was in violation of lawful procedure as it violated the provisions of SEQRA as well as the Village’s own zoning code. This Court is aware that it’s role is not to weigh the desirability of any action or to choose among alternatives, but rather “to assure that the agency has satisfied SEQRA, procedurally and substantively.” Jackson v. NYS Urban Dev. Corp., 67 N.Y.2d 400, 416 (1986). Thus, as this Court is not convinced that the Planning Board satisfied both the procedural and substantive aspects of SEQRA, it must grant the Petition in order to carry out its role. Accordingly, it is hereby ORDERED AND ADJUDGED that the Petition is granted; and it is further ORDERED AND ADJUDGED that Resolution 04 of 2017 dated December 12, 2017 granting subdivision approval is vacated and set aside; and it is further ORDERED AND ADJUDGED that Resolution 05 of 2017 dated December 12, 2017 granting to Respondent MC final site plan approval is vacated and set aside; and it is further ORDERED AND ADJUDGED that Resolution 06 of 2017 dated December 12, 2017 granting to Respondent Hemion amended site plan approval is vacated and set aside; and it is further ORDERED AND ADJUDGED that the matter is remitted to the Village of Montebello Planning Board with respect to Respondent MC’s application for subdivision and final site plan and Respondent Hemion’s application for amended site plan approval. Dated: January 17, 2020 New City, New York