Petitioners Citizens for Aquifer Protection & Employment, by its Treasurer, Jamie Dangler, (hereinafter sometimes "CAPE"), and Mary A. Miner and Marie A. Kautz commenced this Article 78 proceeding to vacate the March 6, 2007 determination of respondents Town of Cortlandville and the Cortlandville Town Board granting approval of a planned unit development application submitted by respondent Wal-Mart Stores East, L.P.

In lieu of answering, respondent Wal-Mart Stores East, L.P. ("Wal-Mart") moves to dismiss with prejudice said Petition with objections in point of law pursuant to CPLR 7804(f).

Similarly, respondents Town of Cortlandville and the Cortlandville Town Board submit a pre-answer motion to dismiss petitioners' Article 78 and motion for declaratory judgment.

The court heard oral argument from counsel on June 22, 2007.

The court need not repeat in detail the entire two-plus year history of this matter since it is sufficiently set forth in the parties' papers and record. Briefly, however, Wal-Mart proposes to construct a 200,000 square foot retail "supercenter" store with two out parcels for future commercial use on 33.7 acres of real property located at the corner of Bennie Road and Route 13 in the Town of Cortlandville, approximately 1000 feet south of an existing Wal-Mart store. The proposed site is located near the Otter Creek/Dry Creek Aquifer ("Aquifer") which has been designated as a "sole source aquifer" by the United States Environmental Protection Agency and a "primary aquifer" by the New York State Department of Environmental Conservation.

In February 2005, Wal-Mart submitted a planned unit development ("PUD") application to the Town. On March 2, 2005, the Town Board declared its intent to act as SEQRA lead agency. On or about December 12, 2005, Wal-Mart submitted a proposed DEIS to the Town Board for review. On February 1, 2006, the Town Board accepted the DEIS for purposes of commencing public review and also referred Wal-Mart's PUD application to the Town of Cortlandville Planning Board ("Planning Board") and the Cortland County Planning Board.

On December 6, 2006, after accepting Wal-Mart's FEIS, the Town Board adopted a SEQRA Findings Statement concluding the project would not pose any significant adverse environmental impacts that could not be mitigated to the point of insignificance (Return B [40-44]).^[FN1] On the same date, the Town Board also referred the PUD application to the Planning Board for comment. On December 19, 2006, the Planning Board voted on a motion for a positive recommendation regarding the PUD application, but was unable to make a recommendation due to a tied vote. However, the Planning Board immediately and unanimously passed a second motion to advise the Town Board "[t]hat they are unable to arrive at a recommendation to the Town Board for the proposed Planned Unit Development designation because a vote on [the] motion ended up [tied]" (Return B [56]; Town Code § 178-57 [c]). On [*2]March 6, 2007, the Town Board approved Wal-Mart's PUD application for a commercial PUD.

As of the date this matter was argued before the court, the Planning Board was still in the process of reviewing the site plan in accordance with Article XI of the Town Code. Additionally, the aquifer protection permit application process is still underway.

The court will divide the issues raised by respondents' motions into three subjects: standing; failure to state a cause of action; and constitutionality of the Town Code. The court will first address the procedural issue of standing before turning to the merits of the substantive arguments, namely failure to state a cause of action and constitutionality of the Town Code.

I.Standing

A petitioner challenging SEQRA compliance bears the burden of establishing standing to bring the action (Society of Plastics Industry, Inc. v County of Suffolk, 77 NY2d 761, 769 [1991]). "To qualify for standing to raise a SEQRA challenge, a party must demonstrate that it will suffer an injury that is environmental and not solely economic in nature [citation omitted]" (Mobil Oil Corp. v Syracuse Indus. Development Agency, 76 NY2d 428, 433 [1990]). However, a showing of direct environmental injury is unnecessary where:

[a]n owner's interest in the project may be so substantial and its connection to it so direct or intimate as to give it standing without the necessity of demonstrating the likelihood of resultant environmental harm. For even though such an owner cannot presently demonstrate an adverse environmental effect, it nevertheless has a legally cognizable interest in being assured that the decision makers, before proceeding, have considered all of the potential environmental consequences, taken the required "hard look", and made the necessary "reasoned elaboration" of the basis for their determination.

(Har Enterprises v Town of Brookhaven, 74 NY2d 524 [1989]).

A.Miner and Kautz

Wal-Mart argues that Miner and Kautz do not allege that they have been, or will, "in fact" be injured by the Town's approval of Wal-Mart's PUD application noting the generalized nature of Miner and Kautz' complaints about traffic safety and levels, potential noise and visual impacts and potential impact to the aquifer. For instance, Wal-Mart insists that because Miner and Kautz live more than 1/3 mile away from the proposed site buffered by trees and other residents (who have not participated in this suit) they cannot distinguish their harm from the harm suffered from the community in general. Stated another way, Wal-Mart argues that Miner's and Kautz's mere proximity to the proposed Project is insufficient to carry their burden on standing.

In opposition, Miner and Kautz argue that their homes receive water from the aquifer and if it is compromised they will be forced to find an alternate water supply. Further, petitioners argue that the Town's own Findings Statement confirmed that there will be an adverse noise [*3]impact resulting from the proposed Project and that the increased noise and traffic volumes will distract from the quiet enjoyment of their homes. Petitioners argue that "[t]hey will suffer noise and aesthetic quality of life impacts that are quantitatively and qualitatively different from the community at large" (Petitioner's Memorandum of Law, p 11). Additionally, Miner and Kautz aver that they access their homes by way of the two-lane Bennie Road east and uphill to Walden Oaks Boulevard.

First, petitioners' allegations regarding the aquifer suffice to grant them standing since "[a] direct impact on one's drinking water supply is a concern that is plainly within the zone of interest that SEQRA is designed to protect [citation omitted], and entitles petitioner to assurance that respondents have complied with SEQRA" [citations omitted] (Many v Village of Sharon Springs Bd. of Trustees, 218 AD2d 845, 845-846 [1995]). Additionally, the court notes that the PUD plan includes a proposal for Bennie Road to be realigned which would require Miner and Kautz to drive through the proposed Wal-Mart supercenter to get to and from Route 13 from their homes. This court finds the proposed realignment of Bennie Road is also sufficient to grant standing to Miner and Kautz.

B.Cape's standing

Wal-Mart objects to Cape's failure to show that any specific member of its group sustained special damage different from the general community. In view of the court's determination that Miner and Kautz have standing, then it necessarily follows that Cape - of which Miner and Kautz are both members - has standing in this matter as well (Petition, ¶ ¶ 12 & 13).

As such, respondents' motions to dismiss the petition based upon the lack of standing of petitioners is denied.^[FN2]

II.Failure to State a Cause of Action

The proper standard of review for SEQRA matters is whether the agency determination was arbitrary or capricious or failed, as a matter of law, to take a "hard look" at relevant areas of environmental concern (Jackson v New York Urban Dev. Corp., 67 NY2d 400, 416 [1986]; Environmental Conservation Law [ECL 8-0101 et seq.]). Thus, the court's function is not "[t]o weigh the desirability of any action or choose among alternatives, but to assure that the agency [*4]itself has satisfied SEQRA, procedurally and substantively" (Jackson, 67 NY2d at 417). More specifically, the limited issue for review is "[w]hether 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 (Id.). Additionally, SEQRA is to be construed in light of the rule of reason meaning the agency may focus on those impacts that can be reasonably anticipated not every eventuality (Nevill v Koch, 173 AD2d 323,325 [1991]). Moreover, the court "[m]ust resolve reasonable doubts in favor of the administrative findings and decisions [citations omitted]" (Town of Henrietta v Dept of Env Conservation, 76 AD2d 215, 224 [1980]).

Petitioners allege that the Town Board failed to comply with SEQRA because the FEIS fails to identify and mitigate adverse environmental impacts to the maximum extent practicable relating to the following concerns:

1.Adverse impacts to aquifer:

a.from stormwater run-off;

b.from lawn and garden center run-off;

c.from paved areas;

d.from changes in the "Smith Corona" purge wells; and

e.from construction erosion and sedimentation.

2.Adverse impacts to endangered species.

3.Adverse impacts from flooding.

4.Adverse impacts to traffic.

5.Adverse impacts from noise.

The core of petitioners arguments is that the Town Board has not followed a key requirement of SEQRA that it "act and choose alternatives", but rather has elected to defer decision on matter items until a later unspecified time. Stated another way, petitioners accuse the Town Board of taking a "don't worry we'll fix it later" approach. Petitioners also rely on the reports of their retained experts including Matthew W. Becker, PhD (regarding hydrogeologic issues); Carpenter Environmental Associates (regarding stormwater management plan); and Frederic Floss, PhD (regarding economic analysis).

Respondents contend that the Town Board satisfied the hard look standard and that petitioners' allegations are nothing more than mere disagreements with the Town Board's ultimate determinations, rather than genuine claims that the Town Board wholly failed to consider any of these issues.

Initially, the court acknowledges that the Town review here spanned over two years which involved, but was not limited to, the following actions:

—The Town engineer, Clough Harbour & Associates LLP ("CHA"), prepared a draft SEQRA scoping document (Return B [18 & 19]).

—Town Board and CHA spent several months reviewing and critiquing Wal-Mart's proposed DEIS (Return B [22]).

—Town Board held 3+ day public hearing and accepted public written comments (Return B [23 & 26]).

—Town Engineer submits letter to Town Board with comments on DEIS (Return B [32]).

—Town Board and CHA reviewed and critiqued Wal-Mart's proposed FEIS (Return B [37 & 42]).

—Town Board requested supplemental review by CHA regarding public comments (Return B [58 & 59]).

The court also notes the report of the Town Engineer CHA dated February 20, 2007 (Return B [59]) which investigated the concern of whether the groundwater beneath the proposed project site flows toward the municipal water supply. Said report from CHA as Town Engineer warrants restatement here in full:

Since it is impossible to conclude that no water occurring beneath the proposed Wal-Mart Site will reach the municipal water supply, a number of measures to reduce the potential threat posed by this development to the aquifer have been proposed by Wal-Mart. The details of these proposed mitigation measures have been detailed in the Final Environmental Impact Statement (FEIS) and the Findings Statement, and include:

1.The stormwater management system includes two treatment systems, a water quality basin and a sand filter system prior to the stormwater being sent to the infiltration basins to recharge the aquifer.

2.The elimination of the Tire Lube Express (TLE).

3.Enclosure of the Garden Center. The interior Garden Center's floor drains are proposed to be connected directly to the sanitary sewer, so that there will be no distinction between the sanitary discharge and the storm drain system in this area of the store.

4.The groundwater quality in the overburden aquifer beneath the Site will be monitored by a series of groundwater monitoring wells.

5.Operational controls including, but are not limited to, the maintenance of petroleum products and hazardous substances in small quantity containers within the enclosed store to reduce the likelihood of a release, implementation of a stormwater pollution prevention plan (SWPPP), implementation of the stormwater system maintenance plan, the Spill Response Plan, and Spill Prevention Control and Countermeasures (SPCC) Plan.

6.Installation of heated sidewalks at the front of the store; usage of sand [*5]rather than salt in the main parking fields; limitation of the use of salt to intersections and pedestrian access points, except during severe weather events (e.g. ice storms); and reduction of overall salt usage in order to minimize impacts on the Aquifer.

7.The use of pesticides, herbicides and/or artificial fertilizers will be to the minimum required to maintain the landscaping and lawns and would follow any ordinance monitoring the use and application of these substances established by the Town and County. The Applicant will also attempt to use organic and biodegradable pesticides, herbicides and fertilizers unless it is determined to be infeasible or found to be ineffective. Finally, the application of pesticides, herbicides, fungicides or chemical fertilizers at the Site will only include chemicals approved by the NYSDEC and will be applied by a person licensed by the NYSDEC, which will greatly reduce the likelihood over excessive application rates.

These monitoring and mitigation measures demonstrate the Applicant's intent to minimize potential risks to the aquifer beneath the proposed Wal-Mart site. While it is not possible to eliminate all risk to the aquifer, the Findings Statement has indicated that the Applicant has minimized these risks to the greatest extent practical.

(Return, B [59]).

In view of the foregoing, the court finds that the Town Board properly followed the procedural mandates of SEQRA over a two year review process by, among other things, assuming lead agency status; issuing a positive declaration; determining the application to be a Type I Action; reviewing the DEIS and FEIS, consulting with the Town's engineer, CHA, conducting scoping sessions and public hearings; responding to concerns raised by petitioners' experts and the public; conducting environmental hearings on the DEIS; referring the PUD application to the Town and County Planning Boards; making additional submissions to the Town and County Planning Boards after site plan modifications based upon public comments; FEIS review; review of Findings Statement; and conducting public hearing on the PUD application. In sum, the court finds that the Town complied with both the procedural and substantive hard look SEQRA standards and, as such, respondents motions to dismiss for failure to state a cause of action must be granted.

III.Constitutionality of Article XI of the Town Code

Petitioners argue that Town Code Article XI "Planned Unit Development" found in Chapter 178 "Zoning" is unconstitutional because it takes site plan review authority away from the Planning Board and gives it to the Town Board. The subject of petitioners' argument is Town Code § 178-60 which states "[t]he Town Planning board shall review and approve site plans but shall not permit substantial alteration of the approved preliminary development [by the Town Board]." Petitioners assert that Town Code § 178-60 violates the Planning Board's [*6]exclusive jurisdiction over site plan review as set forth in New York Constitution (Article 3, section 1), Town Law § 274-a, and Town Code, Article XIII ("Site Plan Approval"). Respondents argue that the Town Code is proper and constitutional in all respects.

It is well-settled that the adoption of a zoning ordinance is a legislative action which triggers "[a] strong presumption of constitutionality and the burden rests on the party attacking them to overcome that presumption beyond a reasonable doubt" (Asian Americans for Equality v Koch, 72 NY2d 121, 131 [1988]; McMinn v Town of Oyster Bay, 66 NY2d 544, 548 [1985]).

Town Law § 274-a (2)( a) permits a town board, when acting pursuant to a local zoning ordinance, to authorize a planning board to approve the establishment of enumerated uses upon determining compliance with the requisite conditions. Town Law § 261 grants to town boards the general authority to regulate the use of the land within their respective town boundaries for the purpose of promoting the health, safety, morals or the general welfare of the community. Town Law § 261-c permits a town legislative body to enact procedures and requirements for the establishment and mapping of planned unit development zoning districts. Town Code Article XI ("Planned Unit Development") sets forth such procedures and requirements for PUD districts in conformance with these legislative acts by establishing that the Town Board's approval of a PUD application will "become the basis for all future subdivisions and site plan approval" only after which the Planning Board conducts a site plan review subject to those substantive restrictions, if any (Town Code § 178-60 (A) & (B); Wickwire Affidivit, ¶ 23).

In view of the foregoing, the court finds that Town Code Article XI is constitutional and valid inasmuch as it properly delineates the jurisdictional boundaries between the Town Board and the Planning Board for PUD applications in keeping with the legislative scheme of the Town Law and Town Code.

Parenthetically, the court also notes that on January 10, 1997 the Planning Board voted on a motion to recommend to the Town Board that this PUD application be approved. The vote resulted in a tie. The record reflects that the Planning Board discussed the options as set forth in Town Code § 178-57 (C)(4) that the tie equated to no recommendation (Return B [56], p 2). Immediately thereafter, the Planning Board unanimously passed a motion to advise the Town Board "[t]hat they are unable to arrive at a recommendation to the Town Board for the proposed Planned Unit Development designation because a vote on [the] motion ended up [tied]" (Return B [56], p 3). In other words, contrary to petitioners' attempts to paint the Town Board as stripping the Planning Board of review authority, it was the Planning Board itself that returned this matter to the Town Board.

For the reasons stated, respondents' motions dismissing the petition are GRANTED in their entirety.

The foregoing constitutes an order of the court. [*7]

It is so ordered.

Dated: August 9, 2007

Binghamton, New York

s/ Ferris D. Lebous

Hon. Ferris D. Lebous

Justice, Supreme Court