The determination set forth below is based on the following e-filed documents: Motion Sequence #1: 1-13, 15-28, 35 Motion Sequence #2: 37-52, 77-87, 125-130 Motion Sequence #3: 53-74, 88-98, 120-124 DECISION & ORDER The Petition (Motion Sequence No. 1) filed by the Academy Charter School (School) for a Judgment pursuant to Article 78 of the CPLR, vacating and setting aside, a Decision dated December 21, 2020, made by Respondent, Planning Board of the Incorporated Village of Hempstead’s (Planning Board). The Decision granted approval of the Respondent, Faith Baptist Church’s (Church) Proposed Plan and determined it was a Type 1 Action under the State Environmental Quality Review Act (SEQRA) and issued a Negative SEQRA Declaration. Notice of Motion (Motion Sequence No. 2), by the Respondent, Church, for an order pursuant to CPLR 7804 (f), 3211 (a) (1), (7) dismissing the Petition for failure to state a claim and as barred by documentary evidence is determined as provided herein. Notice of Motion (Motion Sequence No. 3), by Respondents, Pettus, as Chairperson, Leroy Brown, as Member, Rashid Walker, as Member, Marcia P. Turner, as Member, and. Rev. Lynnwood E. Deans, as Member, Constituting the Planning Board of the Incorporated Village of Hempstead, the Planning Board, and the Incorporated Village of Hempstead for an order pursuant to CPLR 7804 (f), 3211 (a) (7) dismissing the Petition for failure to state a claim is determined as provided herein. The Planning Board’s Decision approved the Church’s Proposed Plan at 145 North Franklin Street, Hempstead, New York (Subject Property), for the construction of a mixed-use development with 244 units of affordable senior housing for age 62 and over and ground floor commercial space (the Proposed Plan). As of October of 2019, Respondent, 145 North Franklin LLC a/k/a 145 N. Franklin LLC a/k/a 145 Franklin LLC (“145 North Franklin”) was under contract to purchase Subject Property from the Church. The Academy owns and operates a public school by statute which is attended by approximately 2,000 students grades K-12. The Academy is also a political subdivision with designated boundaries that are coterminous with the boundaries of the Hempstead Union Free School District. The Academy’s campus consists of two properties in the Village of Hempstead. The first property consists of the Elementary and High School campus located at 117 North Franklin Street at the southeast corner of North Franklin Street and Jackson Avenue. The second property is the Middle School campus located at 159 North Franklin Street on the northeast corner of North Franklin Street and Bedell Street. The lot situated in between, the Academy’s two campuses is Subject Property and is owned by the Church. The Academy alleges that Subject Property holds three easements entered into by the prior owners in 1949. The alleged easements consist of a use easement and right of way over specified areas of the Church’s rear lot for entrance, passageway, exits or otherwise, in connection with the use and operation of the Academy “for such other use as the property owner may deem at any time necessary or proper.” These alleged easements traverse the Church’s property in a north-south direction. The Academy’s students, faculty, visitors, agents-and invitees have traversed the Church’s property via these easements on a continuous basis since its campuses were established. The Church initially applied for permission to build the Proposed Plan in 2019 under the traditional provisions of the Village Code and was denied. Subject Property is located in the Business B Zone in which residences are not permitted under the Village Code. The Church then sought variances, however, the variance application was eventually abandoned. Prior to applying to the Planning Board in July 2020, for approval of the Proposed Plan under Chapter 139 of the Village Code a/k/a “Downtown Overlay Zone” (the DOZ), the Church used the Downtown Advisory Board (DAB) and the Professional Advisory Team (PAT). DAB and PAT which were created to assist both applicants and the Planning Board in preparing and reviewing applications under the DOZ. The PAT reviews applications and advises applicants, while the DAB ultimately decides via a vote whether to refer the application to the Planning Board and whether to recommend its approval or not. The Decision states: WHEREAS, the [DAB] retained independent professional engineers, GPI-Greenman Pederson, and the law firm of Harris Beach, to-act as the Professional Advisory Committee to review said application to ensure all zoning and Proposed Plan requirements have been met and to advise the DAB; WHEREAS, the [DAB] voted unanimously on October 14, 2020, to forward [The Church's Project] to the Village of Hempstead Planning Board for Proposed Plan and New York State Environmental Quality Review (SEQR) determination. On October 1, 2020, at the Planning Board meeting, the Board heard testimonies and reviewed documents prepared by the professional engineers and planners. In addition, the Planning Board by resolution declared its intent to act as SEQRA Lead Agency. The Planning Board also declared this action “Type 1″ and stated its intent to seek a Negative Declaration Action based on all testimony, reports and other documents. On October 16, 2020, the Planning Board circulated plan related documents, along with their intentions (Lead Agency; Type 1; and Negative Declaration) and the Municipal Zoning Referral Submission Form, to the Nassau County Planning Commission, NYSDEC (Region 1), Nassau County Planning & Public Works, Town of Hempstead, Long island Regional Planning Council, and Village of Hempstead Mayor. The Nassau County Planning Commission voted at their October 22, 2020 meeting, to recommend that the Planning Board act as it deems appropriate and added a letter in support of the Proposed Plan. The Planning Board in its Decision lists the documents considered: a traffic study prepared by Kimley-Horn, professional engineers and planners, (dated 10/13/20 and SEQRA Long Environmental Assessment Form (EAF) Part 1 (dated 9/30/20); Proposed Plan and Renderings (dated October 7, 2020, prepared by Emilio Susa, AIA); Drainage Plan (dated October 2, 2020, and amended October 30, 2020, Prepared by Master Consulting); Radius Map and photographs (dated September 22, 2020, prepared by RMB Development Consultants). Additionally, the Planning Board states it had not received any objections to their intent to be lead agency from any of noticed agencies. The Academy alleges that it first learned about the Church’s DOZ application of the Proposed planned when it appeared on the Planning Board’s meeting calendar on November 16, 2020. That meeting was adjourned until December 21, 2020. The Academy alleges its attorney submitted a 30-page detailed “Statement in Opposition” to the Proposed Plan before the meeting which included an analysis of the EAF by a Physical Engineer, an analysis of the Traffic Impact Study, and a detailed list of environmental and safety concerns. In its Decision, the Planning Board never referenced these documents nor addressed the safety concerns. The Academy alleges in its Petition that the Planning Board’s approvals came without any deliberation whatsoever and that its objections were not considered at all. In-fact, the Academy alleges that its attorney who appeared at the meeting was not offered an opportunity to address the Planning Board at all before the roll call and vote were taken. Only the Church’s Consultant, Greg Spiritis, addressed the Board and spoke-at the meeting. The Planning Board’s Decision declared itself the Lead Agency for SEQRA purposes, declared the action a Type 1 action, adopted a Negative Declaration and approved the Proposed Plan. The Academy’s Petition seeks vacatur (Motion Seq #1) of the Decision on the basis that it’s arbitrary, capricious, not supported by substantial evidence and constitutes an abuse of the Planning Board’s discretion. The Academy alleges that the entire process was shielded from the public eye with no notice or outreach with respect to the meetings held by the applicants, the DAB and PAT. The Academy alleges no references were made to the Proposed Plan’s effect on the neighboring Academy, the increased water demand, the commensurate massive additional tonnage of sewage, the health risks posed by the massive demolition and construction project, the fact that only 126 parking places were being provided for the number of living units, that the property is in the Business B zone, or the Traffic Impact Statement or other documents provided by the Academy. The Academy also alleges that in issuing a Negative Declaration under SEQRA, the Planning Board failed to take the “hard look” it is required to employ and instead relied on a study from 2012 that itself recommended additional evaluation which was never undertaken. Before this Court can determine the Petition, the Respondents’ motions to dismiss must be addressed. “On a motion pursuant to CPLR 3211(a)(7) and 7804(f) to dismiss a petition for failure to state a cause of action, the sole criterion is whether the petition sets forth allegations sufficient to make out a claim that the determination sought to be reviewed was made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion (quotations and citations omitted)” (Hene v. Egan, 206 AD3d 74, 2022 WL 2057812, at * 1; Kunik v. New York City Department of Education, 142 AD3d 616 (2nd Dept. 2016)). “On a motion [to dismiss] pursuant to CPLR 3211 (a) (7) and 7804 (f), only the petition is considered, all of its allegations are deemed true, and the petitioner is accorded the benefit of every possible [favorable] inference (quotations and citations omitted)” (Levy v. SUNY Stony Brook, 185 AD3d 689, 690 [2d Dept. 2020]). “As relevant here, the petition must set forth factual allegations which, if credited, are sufficient to make out a claim that the determination sought to be reviewed was made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion (quotations and citations omitted)” (Levy v. SUNY Stony Brook, 185 AD3d at 690). “Dismissal of the petition is warranted if the petitioner fails to assert facts in support of an element of the claim, or if the factual allegations and inferences to be drawn from them do not allow for an enforceable right of recovery (quotations and citations omitted)” (Levy v. SUNY Stony Brook, 185 AD3d at 690). To succeed in an Article 78 proceeding a petitioner must meet the high standard of showing that 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. Matter of Rosenberg v. New York State Off. of Parks, Recreation, & Historical Preserv., 94 A.D.3d 1006 (2d Dept. 2012). An Article 78 proceeding against a public body must be commenced “after the determination to be reviewed becomes final and binding upon the petitioner.” CPLR 7801. A “determination becomes final and binding when it has an impact on the petitioner.” Matter of Simon v. New York City Tr. Auth., 34 A.D.3d 823 (2d Dept. 2006). The Academy has sufficiently pled claims under Article 78 of the CPLR. While certain claims advanced by the Academy appear to be lacking in merit. It is clear to this Court that the central issue here, i.e., whether the Decision, issuing a Negative Declaration under SEQRA and approval of Proposed Plan was, inter alia, arbitrary and capricious is supported by substantial evidence and is not lacking in merit. For instance, in the Decision it cannot be determined whether the Academy has easements over the Church’s property and, if so, what effect the Proposed Plan has on them. In fact, that issue is being litigated in a separate action commenced by the Church in which it alleges that it has easements over the Academy’s properties (Faith Baptist Church of Hempstead, New York and 145 North Franklin, LLC v. The Academy Charter School, et al., Nassau County Supreme Court, index No. 607441/2020). As described by the Court of Appeals in Jackson v. N.Y. State Urban Development Corp., 67 N.Y.2d 400 (1986), SEQRA represents an attempt to strike a balance between social and economic goals and concerns about the environment. It ensures that “agency decision-makers — enlightened by public comment where appropriate — will identify and focus attention on any environmental impact of a Proposed action.” Id. at 414-15. SEQRA dictates that a lead agency must review proposed actions “that might affect the environment.” 6 NYCRR §617.2[B][1]. Here, the Planning Board acted as the lead agency. Pursuant to SEQRA, the Planning Board was required to “determine whether the proposed action[s] may have a significant impact on the environment.” 6 NYCRR §617.2(v). The Decision is devoid of any analysis. The Academy has adequately alleged that the Planning Board acted erroneously in relying on a GEIS that was prepared in 2012. While the Respondents correctly point out that that GEIS was in fact prepared in conjunction with the enactment of the DOZ and as such, anticipated the proposed development of the area, that GEIS by its own terms left issues outstanding which may appear to relate to and be relevant to the Proposed Plan. See, Matter of Doremus v. Town of Oyster Bay, 274 AD2d 390, 393 [2d Dept 2000] ["The Town Board made no effort to meet its obligation to identify the adverse environmental effects of the rezoning but merely concluded that the 1985 FEIS, which warranted denial of the 1985 rezoning application, established that the 1996 rezoning application was environmentally acceptable [citations omitted]). Finally, “[I]t cannot be said that ‘the facts are so fully presented in the papers of the respective parties that it is clear that no dispute as to the facts exists and no prejudice will result from the failure to require an answer (citations omitted)’” (Matter of Youngewirth v. Town of Ramapo Town Bd., 98 AD3d 678, 681 [2d Dept 2012], quoting Matter of Nassau BOCES Cent. Council of Teachers v. Board of Coop. Educ. Servs. of Nassau County, 63 NY2d 100, 101 [1984]). The Respondents’ motions for an order pursuant to CPLR 3211 (a) (1) and/or (7) dismissing the Petition are denied. The Respondents are directed to file and serve their respective answers in accordance with CPLR 7804 (f) within thirty (30) days. Accordingly, it is hereby ORDERED, that a determination of the Petition (Motion Seq. #1) is held in abeyance until Respondents submit answers in accordance with this Decision; and it is further ORDERED, that the Respondent, Church’s motion (Seq. #2) is DENIED, and it is further ORDERED, that the Respondents, Pettus, as Chairperson, Leroy Brown, as Member, Rashid Walker, as Member, Marcia P. Turner, as Member, and Rev. Lynnwood E. Deans, as Member, Constituting the Planning Board of the Incorporated Village of Hempstead, the Planning Board, and the Incorporated Village of Hempstead motion (Seq. #3) is DENIED. Any relief requested not specifically addressed herein is denied. This constitutes the Decision and Order of this Court. Dated: January 13, 2023
