Application by petitioner Lowe's Home Centers, Inc. ("Lowe's"), pursuant to CPLR Article 78, to compel the Town Board of the Town of Oyster Bay and Oyster Bay Department of Environmental Resources (referred to collectively as "respondent Board") to make a written determination concerning the adequacy of the Draft Environmental Impact Statement ("DEIS") submitted by petitioner to respondent Board and to comply with the procedures and time frames set forth in the State Environmental Quality Review Act ("SEQRA") and its implementing regulations pursuant to 6 NYCRR 617 et seq. and § 110-3 et seq. of the Town of Oyster Bay Code of Ordinances is granted as hereinafter provided.

This dispute arises from the efforts of petitioner Lowe's to obtain a special use permit and site plan approval for the construction of a 136,999 square foot home improvement retail store with an adjoining 31,709 square foot outdoor garden center in a "LI" (Light Industrial) District on premises located at 300 Robbins Lane, Syosset, New York, described as section 12, block A, lots 889 and 1124 on the land and tax map of Nassau County. The proposed [*2]building will replace an existing 203,326 square foot office building of which 33,000 square feet will remain. The premises will be the subject of a two lot subdivision separating the Lowe's retail building and the remaining office building. Pursuant to the Code of the Town of Oyster Bay, a special use permit is required in order to allow retail use in a "LI" District zoned for light industry (§ 246-5.2) as well as site plan approval (§ 246-6.2.1).

In support of its petition for mandamus petitioner contends that, from the time the environmental review began, respondent Board has neglected to follow the procedure set forth in SEQRA. In this regard, petitioner alleges that respondent ignored mandatory time frames in issuing a positive declaration that the proposal would have a potentially significant impact on the environment more than 45 days after the petitioner submitted the Environmental Assessment Form ("EAF") and in issuing a final scope for the DEIS more than 84 days beyond the time set forth in SEQRA. Respondent Board maintains that petitioner's applications were processed with reasonable due diligence and dispatch and some of the delay was the result of petitioner's own inaction or slow response.

Initially, the Court agrees with the respondent Board that, contrary to petitioner's assertion, it was not required under SEQRA to issue a determination of significance within twenty days of petitioner's submission of an EAF on August 20, 2004. This was so because the proposed action required coordinated review and designation of an entity as "lead agency," defined as the governmental entity "principally responsible for carrying out, funding or approving the proposed action." Environmental Conservation Law § 8-0111[6]. A determination of significance could not be rendered until the lead agency was established. 6 NYCRR 617.6[b][2] and [3].

Petitioner's efforts began in or about August 27, 2004 when, in compliance with SEQRA, Lowe's submitted applications to the respondent Board for the required special [*3]use permit and site plan approval. This was followed by the submission, on August 30, 2004, of an EAF to the Town of Oyster Bay Department of Environmental Resources. After the Town Board assumed lead agency status on or about October 13, 2004, the process continued as follows:

December 14, 2004:Respondent Board officially adopted a positive declaration:i.e., the proposed use would have a potentially significant impact on the environment requiring a DEIS to be prepared.

December 27, 2004:Petitioner submitted a draft scoping document ^[FN1] in connection with the DEIS to the Department of Environmental Resources.

February 9, 2005:Public scoping session was held by Town of Oyster Bay Town Environmental Quality Review Division ("TEQR Division") to allow the public to comment on the scope of issues to be included in DEIS.

May 20, 2005:TEQR Division distributed the final scoping document to involved agencies and interested parties addressing issues including, inter alia, land use, zoning, community character, traffic, noise, etc.

February 24, 2006:Petitioner submitted the DEIS addressing issues identified in the final scoping document.

Although pursuant to 6 NYCRR 617.9[2] the lead agency (here the respondent Board) was required, within 45 days of receipt of the DEIS (i.e., by April 10, 2006) to determine whether to accept it as adequate with respect to scope and content for the purpose of commencing public review, no such determination had been made some ten months after submission. This failure to act has prompted petitioner Lowe's to commence this proceeding to compel respondent Board to make a written determination with respect to petitioner's DEIS, and to fully comply with the procedures and time frames set forth in SEQRA in completing its review of petitioner's applications.

Respondent counters that the Town Board, and the TEQR Division in particular, executed their responsibilities under both SEQRA and TEQR Law (§ 110-8.B of the Code of the Town of Oyster Bay) with reasonable due diligence and dispatch. Respondent asserts that in 2004 it voluntarily engaged in pre-application meetings with petitioner and its consultants to discuss SEQRA's procedural requirements, and reviewed and commented upon a preliminary draft scoping document prepared on petitioner's behalf. According to respondent Board, such meetings are not required under SEQRA but are [*4]provided as a courtesy to expedite the review process in those cases in which applicants are willing to pay for the time expended by Town of Oyster Bay consultants in connection with such meetings. The payments are drawn from a project-specific environmental trust fund account, funded by the applicant under the TEQR Law.

Moreover, respondent Board maintains that contrary to petitioner's description, the review/approval process was a complex, multi-step process involving numerous exchanges of correspondence and meetings between the TEQR Division and petitioner, and the various consultants on both sides, from the time the draft scoping document was submitted on or about December 27, 2004 until the issuance of the final scoping document on or about May 20, 2005. Petitioner's resistance in acceding to the Town of Oyster Bay's request that the DEIS include a reasonably broad range of alternatives was, according to respondent Board, the overriding factor in any delay that might have occurred in finalizing the scoping document. The delay leading up to the finalization of the scoping document, however, is not the major issue in this proceeding. Rather, the issue is the delay after submission of the DEIS on February 24, 2006.

The primary purpose of SEQRA is to inject environmental considerations directly into the governmental decision-making process, thereby insuring that "agency decision makers enlightened by public comment where appropriate will identify and focus attention on any environmental impact of proposed action, that they will [*5]balance those consequences against other relevant social and economic considerations, minimize adverse environmental effects to the maximum extent practicable, and then articulate the bases for their choices." Matter of Jackson v New York State Urban Dev. Corp., 67 NY2d 400, 414-415 (1986). The procedures necessary to fulfill SEQRA review are carefully detailed in the statute and its implementing regulations. Environmental Conservation Law § 8-0101-8-0117; 6 NYCRR 617; City Council of City of Watervliet v Town Board of Colonie, 3 NY3d 508, 515 [2004]. Literal compliance with SEQRA is required; substantial compliance is insufficient to discharge an agency's responsibility under the Act (Matter of Merson v McNally, 90 NY2d 742, 750 [1997]), because "departures from SERQA's procedural mechanisms thwart the purposes of the statute." Matter of King v Saratoga County Bd. of Supervisors, 89 NY2d 341, 347 (1996).

The heart of SEQRA is the environmental impact statement process, which requires that an EIS be prepared regarding any proposed action that may have a significant effect on the environment. The purpose of an EIS is to examine the identified potentially significant environmental impacts which may result from a project. Matter of Coca-Cola Bottling Co. v Board of Estimate, 72 NY2d 674, 680 [1988]. To arrive at its determination of significance, the lead agency must identify "the relevant areas of environmental concern" and take a "hard look" at them. Kahn v Pasnik, 90 NY2d 569, 574 [1997]. The agency must set forth a reasoned elaboration for its determination.

While the respondent Board may well have gone beyond the minimum requirements in discharging its duties under foregoing law by participating in the [*6]preapplication meetings, and in reviewing and commenting on the draft scoping document and the range of alternatives to be addressed in the DEIS, that is not, as noted above, the issue before the Court.

This proceeding sounds in mandamus to compel. Such an Article 78 proceeding may lie in the absence of a final determination where the relief sought is to compel performance by a governmental unit or agency of a duty it must perform by law, provided that the right to relief is clear, the duty at issue is mandatory and that it does not involve the respondent's exercise of discretion. Matter of Hamptons Hosp. and Med. Center v. Moore, 52 NY2d 88, 96 [1981]. This would include any failure to perform an act in accord with a time period established by statute, be it local or state law. Matter of Mamaroneck Beach and Yacht Club, Inc. v. Fraioli, 24 AD3d 669 (2d Dept. 2005); see also, Matter of DiMattina v. Town of Huntington, 233 AD2d 393 (2d Dept. 1996).

In the instant case, the sole relief sought is to compel compliance with the time periods established by SEQRA, and it is apparent that the petitioner is entitled to that relief. The respondent Board does offer an explanation for its failure to make a written determination as to the adequacy of the petitioner's DEIS within 45 days of its submission on February 24, 2006, as required by 6 NYCRR 617.9(a)(2). That section provides that:

"(2) The lead agency will use the final written scope, if any, and the standards contained in this section to determine whether to accept the draft EIS as adequate with respect to[*7] its scope and content for the purpose of commencing public review. This determination must be made in accordance with the standards in this section within 45 days of receipt of the draft EIS.

(i)If the draft EIS is determined to be inadequate, the lead agency must identify in writing the deficiencies and provide this information to the project sponsor.

(ii)The lead agency must determine whether to accept the resubmitted draft EIS within 30 days of its receipt.

Although respondent Board claims that it, and its consultants, were active participants throughout the SEQRA process, having engaged in numerous exchanges of correspondence and meetings with petitioner and its consultants, the respondent fails to offer any viable explanation for the nine-month delay that preceded the demand for action made in December, 2006.

The Court also must reject respondent's assertion that this proceeding is untimely. As such proceeding is the nature of mandamus to compel, as described above, the undisputed limitations period of four months would not begin to run until a demand for [*8]action was made and refused. Matter of Bernstein v. Industrial Commr. of State of NY, 57 AD2d 767 (1st Dept. 1977). Indeed, absent a formal rejection of a demand, this statutory limitations period does not begin to run. See, Adams v. City of New York, 271 AD2d 341 (1st Dept. 2000). Inasmuch as a formal demand was made upon respondent to make a determination with respect to the adequacy of petitioner's DEIS by way of its attorney's letter dated December 4, 2006, the instant proceeding, commenced on December 29, 2006 is timely.

The Court notes, but must reject, the respondent's assertion that the demand letter was an attempt to artificially extend the statute of limitations, which, it is claimed, began to run on April 14, 2006. On that date the Commissioner of the respondent Department of Environmental Resources wrote to petitioner's attorney "requesting" additional time to complete its review (as set forth above, action should have been taken on the DEIS by April 10), and the petitioner's demand was not made until December 4, 2006. Respondents rely on authority holding that a proceeding in mandamus to compel may be deemed untimely for laches if the petitioner unreasonably delays in making its demand for action, which should be served " no more than four months after the right to make the demand arises.' " Matter of Blue v Commissioner of Social Servs., 306 AD2d 527, 528 (2d Dept. 2003), quoting Matter of Densmore v Altar-Parish-Williamson Cent. School Dist., 265 AD2d 838, 839 (4th Dept. 1999).

However, the authority cited does not represent a change to the law that the four month statute of limitations begins to run upon a refusal to act in response to a demand therefor. Rather, as noted those cases are premised on the doctrine of laches. For example, in Blue the Second Department clearly found prejudice to the respondent's position attributable to the petitioner. In that case, the petitioner sought issuance of child support payments she asserted had been sent to respondent from her former husband, but then not forwarded [*9]to her. The respondent claimed petitioner had received the full amount, but because of her delay in bringing the proceeding could no longer locate copies of cancelled checks representing payments to her over a 14 year period. The finding of laches thus remains a matter of the circumstances of each case, and is not equivalent to an unbending statute of limitations. In the instant matter, the parties clearly were in communication throughout, including the months that followed submission of the DEIS. No prejudice to the respondent's position is shown as a result of the passage of time between April and December. Indeed, given the positions of the parties the petitioner cannot be faulted for cooperating and giving the respondent more time to act without recourse to a formal demand, at least initially.

In view of the foregoing, the Court finds that the demand letter of December 4, 2006 was not untimely, and that this action therefore is not barred under the statute of limitations, or for laches.

The only other issue worthy of comment is the purported depletion of the environmental trust account, which has been rendered moot by petitioner's payment on [*10]February 1, 2007 of $7,092.62, as per the respondent Board's request.

Accordingly, petitioner's application is granted and respondent Board (Town Board of the Town of Oyster Bay and the Oyster Bay Department of Environmental Resources) is directed to make a written determination with respect to the adequacy of petitioner's DEIS within 30 days from the date of service of a copy of this order with notice of entry thereof upon the Town Attorney of the Town of Oyster Bay, and to comply with the time frames set forth in SEQRA in completing its review of petitioner's pending special use permit and site plan applications. Matter of Mamaroneck Beach & Yacht Club, Inc. v Fraioli, supra.

The Court makes no findings of any nature with regard to the merits of the DEIS or any position with regard thereto that may later be taken by any party.

The Court will retain jurisdiction of this matter to the extent of its directions as contained herein.

This shall constitute the Decision, Order and Judgment of this Court.

E N T E R

DATED: March 19, 2007

_____________________________

HON. DANIEL PALMIERI

Acting Supreme Court Justice

TO: