Papers considered: 1. Notice of Petition dated December 1, 2023; Verified Petition dated December 1, 2023; Affirmation of Anthony R. Bjelke, Esq., in Support dated December 1, 2023, with Exhibits A-G; Affidavit of Michael Privitera, dated December 15, 2023, with Exhibits A-C; and Memorandum of Law in Support dated December 13, 2023. 2. Answer in Special Proceeding of Respondent, Town of Livingston Planning Board, dated January 3, 2024; Affidavit of Martin Nayowith in Opposition, dated January 10, 2024; Affidavit of Patrice O. Perry, dated January 9, 2024; Affirmation of Andrew B. Howard, Esq., in Opposition, dated January 15, 2024, with Exhibits A-B; Record of Proceedings; and Memorandum of Law in Opposition. 3. Verified Answer of Respondents, Mark Steir (s/h/a Stier) and Vosburgh Orchards, LLC, dated January 16, 2024; Affidavit of Mark Steir in Opposition, dated January 16, 2024; and Memorandum of Law in Opposition. 4. Reply Memorandum of Law. For A Judgment pursuant to CPLR Article 78 Richard Mott, J.S.C. DECISION/ORDER The history of this matter is fully described in this court’s Decision/Order dated March 12, 2024. Briefly, this is an Article 78 proceeding challenging the determination of Respondent, Town of Livingston Planning Board, (“Planning Board”), which modified the Special Use Permit of Vosburgh Orchards, LLC, (“Vosburgh Brewing”), allowing an increase from 2 to 8 special events per year and seasonal outdoor live music on Sunday afternoons from 2:00 PM to 5:00 PM. Petitioner’s First Cause of Action alleges the Planning Board acted in excess of its jurisdiction by overruling the Code Enforcement Officer’s determination that Vosburgh Brewing’s use of the property constitutes a “Commercial Event Venue”, as that term is defined in Town of Livingston Zoning Code §4.7. Pursuant to the March 12, 2024, Decision/Order, an evidentiary hearing was held to determine whether the Town Code Enforcement Officer had made such determination in a Notice of Zoning Violation or otherwise. At the hearing, the Code Enforcement Officer testified that no such determination had been made. As no such determination was made, there was no requirement for an interpretation by or an appeal to the Zoning Board of Appeals. Thus, the Court hereby dismisses Privitera’s First Cause of Action. DISCUSSION/SEQRA COMPLIANCE Petitioner’s Second Cause of Action contends that Respondent, Planning Board, violated the State Environmental Quality Review Act (“SEQRA”) by failing to take the requisite “hard look” at the identified potential environmental impacts of modifying Vosburgh Brewing’s existing Special Use Permit to allow additional events. Pursuant to SEQRA, the “lead agency” must identify the relevant areas of environmental concern, take a “hard look” at them, and give a reasoned elaboration for its determination. See, Riverkeeper, Inc. v. Planning Bd. of the Town of Southeast, 9 NY3d 219, 232 (2007). Privitera contends that hundreds, if not thousands, of additional people have been and will continue to visit Vosburgh Brewing for the special events and Sunday afternoon music sessions with significant traffic impacts on County Route 19. He faults the Planning Board for merely assuming, without requiring a traffic impact assessment, that the traffic impacts would be negligible. Privitera also contends the Planning Board should have required a noise impact study. In assessing compliance with the substantive mandates of SEQRA, the Court is tasked with reviewing the record to determine whether the Planning Board, as the lead 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 Jackson v. New York State Urban Dev. Corp., 67 NY2d 400, 417, 494 NE2d 429, 503 NYS2d 298 [1986]; see Matter of Gernatt Asphalt Prods. v. Town of Sardinia, 87 NY2d 668, 688, 664 NE2d 1226, 642 NYS2d 164 [1996]; Matter of WEOK Broadcasting Corp. v. Planning Bd. of Town of Lloyd, 79 NY2d 373, 381, 592 NE2d 778, 583 NYS2d 170 [1992]; Matter of City of Mechanicville v. Town of Halfmoon, 23 AD3d 897, 900, 805 NYS2d 666 [2005]). “Literal compliance with both the letter and spirit of SEQRA is required and substantial compliance will not suffice” (Matter of Board of Coop. Educ. Servs. of Albany-Schoharie-Schenectady-Saratoga Counties v. Town of Colonie, 268 AD2d 838, 840 [3d Dept., 2000]; see Matter of Dawley v. Whitetail 414, LLC, 130 AD3d 1570, 1571, [4th Dept., 2015]); Matter of Adirondack Historical Assn. v. Village of Lake Placid/Lake Placid Vil., Inc., 161 A.D.3d 1256, 1258-1259 [3d Dept., 2018]). Here, a short form Environmental Assessment Form (SEAF) was utilized. See, 6 NYCRR 617.6(a)(3). Accordingly, the Planning Board was required to “review the EAF, the criteria contained in the regulations [6 NYCRR 617.7 (c)] and any other supporting information to identify the relevant areas of environmental concern;…thoroughly analyze the identified relevant areas of environmental concern to determine if the action may have a significant adverse impact on the environment; and…set forth its determination of significance in a written form containing a reasoned elaboration and providing reference to any supporting documentation” (6 NYCRR 617.7 [b] [2], [3], [4]). Matter of Adirondack Historical Assn. v. Village of Lake Placid/Lake Placid Vil., Inc., 161 A.D3d at 1259. An adverse change in traffic levels is such a potential area of environmental concern. Id., see 6 NYCRR 617.7(c)(1)(i). The minutes of the public hearing conducted November 1, 2023, do not reflect that traffic impacts were identified as a concern by the attendees, except as to whether the site had sufficient capacity for parking. The Planning Board was satisfied that the Site Plan had identified sufficient parking capacity. Although Privitera, as an adjoining property owner, expressed concerns about noise impacts, other neighbors of the project who spoke at the public hearing indicated that they could barely hear the music, if at all. Vosburgh Brewing advised the Planning Board that it had access to decibel-monitoring equipment and would employ same to ensure that noise levels remained within pre-determined limits. The Planning Board determined that all potential environmental impacts were small or non-existent. It determined that the requested modification to the existing Special Use Permit was simply an expansion of existing usage which did not involve any new construction. Accordingly, it issued a negative SEQRA declaration and approved the Special Use Permit modification with conditions requiring only amplified acoustic music with attendant noise monitoring. Under these circumstances, the Court finds that the negative declaration is neither arbitrary and capricious, nor affected by an error of law. The issuance of a negative declaration is rational and does not constitute an abuse of discretion. The few environmental concerns identified were given the requisite “hard look” and the Planning Board made a reasoned elaboration in reaching its negative declaration. The Court may not substitute its judgment for that of the Planning Board. Therefore, the Court dismisses Privitera’s Second Cause of Action. DISCUSSION/COUNTY PLANNING BOARD General Municipal Law §239-m requires that all zoning actions and amendments affecting real property within 500 feet of the boundary of any city, village, town or existing or proposed county or state park or road, be referred to the County Planning Commission for its review (see, GML §239-m[3][a][ii]; [3][b][i]), which has 30 days to report its recommendation to the Town (see §239-m[4]). Privitera correctly points out that Vosburgh Brewing is located directly adjacent to County Route 19 and therefore falls within the provisions of GML §239-m, requiring referral to the County Planning Board. However, the Town of Livingston, on December 14, 2000, passed Resolution # 65 which exempts certain actions from the requirement of referral to the Columbia County Planning Board where those actions are not anticipated to have any county-wide or inter-community impacts. The list of exempted actions includes item #8 thereof, “Any variance site plan review or special permit required for the expansion of an existing business or commercial use providing the expansion is located in the side or rear yard of the parcel and that the expansion does not exceed 50 percent of the existing building size.” The Planning Board determined that Vosburgh Brewing’s application fit within Exemption #8, as it did not involve an expansion of the existing building exceeding 50 percent of its current size nor an expansion in the front yard; and had no anticipated countywide or inter-community impacts. The Court finds the Planning Board’s determination that the application to modify Vosburgh Brewing’s existing Special Use Permit falls within Exemption #8 is rationally-based. The modification involves an expansion in the number of events currently allowed, rather than a physical expansion of the building. The expanded commercial usage occurs in the side/rear yard of the building without anticipated countywide effects. Accordingly, there was no need to refer the application for County Planning Board review and the Court dismisses Privitera’s Third Cause of Action. As such, it is hereby ORDERED, that the Petition is dismissed in its entirety. This shall constitute the Decision/Order of the Court. The Court is e-filing the original of this Decision/Order, relieving the parties of their obligations under CPLR §2220, regarding filing and entry of same, but that does not relieve the parties of their obligations with respect to serving same with Notice of Entry. Dated: June 5, 2024
