BY LEGAL LARRY
Last week, an appeals court in Brooklyn may have had the final say regarding an extremely controversial development in the Town of Ramapo. The Appellate Division, Second Department in Brooklyn, New York gave what might be the last word in denying the claims of The Villages of Chestnut Ridge, Montebello, Pomona and Wesley Hills regarding a religious development site located on Grandview Avenue in the unincorporated section of Ramapo.
The villages challenged the enactment by the Town of Ramapo of zoning provisions known as the Adult Student Housing Law permitting the erection and maintenance of multi-family housing for adult married students, pursuant to special permit, in residential zones located in unincorporated areas of the Town. The villages’ challenges focused primarily upon the facts that Adult Student Housing Law was adopted by the Town Board of the Town of Ramapo after the issuance of a negative declaration under New York State Environmental Quality Review Act (“SEQRA”) and that the site plan was approved by the Planning Board of the Town of Ramapo after the issuance of a negative declaration adopted under SEQRA. A negative declaration is a written determination by a lead agency that the implementation of the action as proposed will not result in any significant adverse environmental impacts.
The subject parcel known as “Nike Site” was purchased in 1997 the predecessor-in-interest to the current owner Mosdos Chofetz Chaim, Inc. Prior to the enactment of the adult student housing law, the owner applied for site plan approval to use the Nike Site as a religious school and community center, with dormitories consisting of 44 units in the 12 pre-existing residential buildings. On July 3, 2003, the County of Rockland Department of Planning disapproved the project, citing a letter dated July 3, 2003, from the Village of New Hempstead, which described the project as a “housing development” for persons of a particular faith, and citing concerns relating to traffic and community character.
In support of a revised site plan, and in response to traffic concerns, the owner submitted a Traffic Impact Study prepared by an engineering consultant, which concluded that the project “will not result in a significant negative impact on the area roadways.” The study noted that there was a problematic unsignalled intersection at Grandview Avenue and Union Road/New Hempstead Road, which was currently operating at the highest level of delay, “level F,” during the morning peak hour, and would continue to operate at level F during the morning peak hour whether or not the project was built. However, the additional traffic generated from the Nike Site project at this particular intersection was estimated at 16 vehicles during the morning peak hour and 16 vehicles during the evening peak hour, or 1.5 percent of the total, which was less than the expected normal growth of 2 percent per year. In November 2004, the Traffic Impact Study was updated with respect to the Grandview Avenue and Union Road/New Hempstead Road intersection, to note that overall traffic volume was similar to traffic volume documented in the original study, and that the project would not have a detrimental impact on the intersections that were evaluated.
On November 30, 2004, after a public hearing, the Town Planning Board adopted a negative declaration which characterized the Nike Site plan as an “unlisted” action for purposes of review under SEQRA. The negative declaration cited the traffic impact studies, which indicated that “the proposed housing will not have a detrimental impact on Grandview Avenue or the other intersections evaluated,” and stated that “by its nature as a self contained educational facility, traffic is minimized.” The negative declaration further noted that “to facilitate circulation along Grandview Avenue, a barrier separated, off road, bus stop has been proposed to allow traffic to continue while buses load and unload.” With respect to community character, the negative declaration stated that the site plan provided for six-to-eight-foot-long plantings along the front and rear lot lines, and layers of Norway spruces along the side yards, to isolate the site from its neighbors. On the frontage along Grandview Avenue, the site plan provided for a decorative metal fence between two stone pillars.
The villages sued challenging the findings made by the Town Board and the Town Planning Board. In 2005, the Supreme Court dismissed the proceeding insofar as asserted on behalf of the Villages of Chestnut Ridge, the Village of Montebello, the Village of Pomona and the Village of Wesley Hills on the ground that the villages lacked the capacity to sue, and the villages lacked legal standing. On an initial appeal, the appellate court in Brooklyn reinstated the claims by the respective villages.
In deciding the current appeal, the appellate court found that it could not substitute it judgment in place of the town’s. The appeals court held that judicial review of a lead agency’s negative declaration is limited to 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.'” Upon judicial review, a court is not free to substitute its judgment for that of the agency on substantive matters.”
In its decision, the appeals court found that the Town Planning Board was not required to accept the opinions of the villages’ experts over those of its own consultants. Generalized objections or speculative environmental consequences are insufficient to challenge the Town’s environmental review, according to the appeals court. The appeals court found that the trial judge committed legal error in setting aside the negative declaration with respect to the Nike Site plan. A decision to appeal further to the New York Court of Appeals (New York State’s highest appeals court) has not been made according to the villages’ attorneys.
Documents obtained by way of Freedom of Information disclose that the Town of Ramapo has spent more than $1.7 million in defending the various lawsuits regarding the Nike Site. The amount spent by the villages is likely around the same figures. The Rockland County Times will continue to cover the events surrounding this controversial development and report on any new developments.