This is a Niagara County Supreme Court case originally assigned to Justice Ralph A. Boniello, III, who filed a written recusal order on December 20, 2010 [CR:2386 ^[FN1]] at the request of the Petitioner/Plaintiff ^[FN2]. Eighth Judicial District Administrative Judge Paula L. Feroleto assigned this Court, as an acting supreme court justice, to handle this lawsuit by administrative order entered December 21, 2010 [CR:2402].

This action was commenced by the Petitioner filing her verified petition/complaint on November 15, 2010 [CR:4]. Action was joined by the Respondents/Defendants ^[FN3] upon filing their [*2]respective verified answers on December 6, 2010 [CR:110, 189, 238, 637 and 1550]. Petitioner filed a verified amendment to the petition/complaint on December 13, 2010 [CR:2189], to which the Respondents duly responded with their verified answers on December 17, 2010 [CR:2212, 2263, 2287, 2294 and 2308] and the Petitioner replied on December 20, 2010 [CR:2351]. In all, Petitioner advanced ten separate claims against the Respondents, each of which will be addressed infra.

All parties filed multiple legal briefs. Oral argument was conducted on December 22, 2010.

All of these papers and arguments, written and oral, have been thoroughly reviewed and considered by this Court in reaching this decision.

This Court notes, at the outset, that the Fourth Department has repeatedly admonished that where, as here, issues of law are limited to whether a determination was affected by an error of law, arbitrary and capricious, an abuse of discretion, or irrational, the issues are subject to review only pursuant to CPLR Article 78 and not by way of declaratory judgment [Legacy at Fairways, LLC v. McAdoo, 67 AD3d 1460, 888 NYS2d 450 [4th Dept 2009]). This action is, hence, properly only a proceeding pursuant to CPLR Article 78 [Potter v. Town Board of Town of Aurora, 60 AD3d 1333, 1334, 875 NYS2d 414, 415 [4th Dept 2009]).

As originally filed, this lawsuit also included two additional agencies as respondents, AES Somerset, LLC and AES Eastern Energy, LP. By stipulated agreement of the parties, these AES respondents were released from this lawsuit by an order of this Court entered on December 24, 2010 [CR:2410].

The property is immediately adjacent to the AES coal fired power plant. The subject [*3]property is owned by AES but had heretofore been zoned for agricultural use and used to raise soybeans [CR:685, 688, 689 and 966-997].

Verizon's data center would be constructed on approximately one hundred acres with data processing equipment stored in three main buildings linked through an above-ground walkway [CR:689-690 and 696].

Support infrastructure includes an administrative building, two electric substations and back-up generators. The design also includes parking spaces for approximately 200 employees, a security station and storm water basins [CR:994].

On the property along Lake Road is a cobblestone home and barns known as the Babcock House. This facility houses the Town's Historical Society [CR:1000 and 2173]. Plans call for those structures to be maintained. There would be a substantial set-back between the development and Lake Road (at least 200 feet) and the plan calls for ten foot berms along the east, south and west sides of the project to reduce the visual impact from the road [CR:841 and 1008-1009].

The entire area around the steep bluff and rocky beach that fronts Lake Ontario is left untouched in the development plans. The proposal calls for open space, successional growth woodlands, and storm water detention basins [CR:842 and 1253]. The data center would be positioned at least 1000 feet from the shoreline and would have no significant impact on the natural protective features or result in coastline erosion [CR:842].

Although the project could eventually employ as many as 200 people, their work hours would be staggered over a 24 hour a day basis and Lake Road and the surrounding roadways are sufficient to handle the increased traffic [CR:1012]^[FN5].

Although the Petitioner has gone to great lengths to portray the rustic charm of the neighborhood surrounding the proposed development [see CR:2435], the actual conditions are otherwise. Approximately a quarter mile down Lake Road to the west of the subject property is the large Mayer Brothers apple processing plant. It has been zoned for industrial uses [CR:1039, 1040, 2169 and 2171].

Approximately 1000 feet to the east of the Petitioner's property is another large industrial zone. It is on this property that the railroad tracks and power transmission lines leading to and from the AES power plant are located [CR:1039 and 1042].

Without a doubt, the complex that dominates the landscape around the subject property is the AES Eastern Energy Power Plant. The AES coal-fired power plant occupies 1800 acres immediately adjacent to the subject property, generates 675 megawatts of electricity and currently employs between two and three hundred persons [CR:688]. The AES plant is zoned as a Planned Unit Development and that is the designation granted to the subject parcel by the Zoning Board of Appeals [CR:1039 and 1491-1494].

Petitioner, Mary Ann Rizzo, is the owner of a 117 acre parcel zoned for agricultural uses [CR:7]. The property is situated immediately across Lake Road to the south of the subject property [CR:2119]. She has owned the property for approximately 40 years [CR:2123].

The Petitioner resides on Lebrun Road in the Town of Amherst, approximately twenty-five miles away [CR:658]. There are two structures on the Somerset property: (1) a dilapidated shack that is located on Lake Road and (2) a garage type structure in the interior that is used to store farm equipment [CR:2123-2124, 658, 661 and 662]. Ms. Rizzo claims that she has [*4]recently expended $60,000 to remodel the second floor of the second structure but has provided no documentary evidence to support that claim [CR:2124]. There is no certificate of occupancy for either structure [CR:658]. Ms. Rizzo has provided documentary evidence to show that she has leased out her property for approximately $2,700 per year to a local farmer to grow crops [CR:2124-2125].

Brief Chronology of the Project

The Town Supervisor first learned of the project in July, 2010 [CR:653]. Verizon submitted a proposal to rezone the property from Agricultural to Planned Unit Development on September 14, 2010 [CR:689]. Also submitted at that time were a development plan, waterfront assessment form, agricultural data statement and an Environmental Assessment Form [CR:691 and 702].

At the Town Board's meeting on September 14, 2010, Advanced Design Group (ADG) was appointed to act as a consultant and Town Engineer on the project because the Town's usual engineer had assisted Verizon and had a conflict of interest [CR:723]. Kristin Savard, an engineer with ADG has filed an affidavit that describes her role in the SEQRA review process and explains that she prepared parts 2 and 3 of the Environmental Assessment Form [CR:646-649].

On September 14, 2010, the Town Board also decided to act as SEQRA lead agency and took steps to make the appropriate agency notifications [CR:724]. On September 15, 2010, the Planning Board reviewed the proposal and passed a resolution recommending rezoning as a Planned Unit Development [CR:730].

On October 8, 2010, counsel for Verizon submitted a 60 page "Analysis of Environmental Impacts" to the Town [CR:825 and 827-887]. On that day, counsel for Verizon also submitted a proposal for a site plan review to the Town's Planning Board noting that the PUD plan would require variances with respect to parking and height restrictions [CR:901-913].

The Town Board held the first of two public hearings on the proposal on October 12, 2010 [CR:933-937]. The Town Planning Board met to review the project on October 13, 2010 and discussed at length various aspects of the proposal [CR:940-950].

Verizon submitted a more detailed "Analysis of Environmental Impacts" on October 18, 2010. This second report totaled 312 pages [CR:315-626]^[FN6].

The Town conducted a second public hearing on the project on October 19, 2010 [CR:1314-1328]. The Petitioner, her family members and her attorney, appeared at the public hearing to ask questions and interpose objections [CR:1318, 1321 and 1324-1327].

After a Public Hearing of approximately 90 minutes, the Town Board, by roll call vote, unanimously voted a negative declaration of significant adverse impact on the environment under SEQRA [CR:1328]. Accompanying the negative declaration, the Town Board also adopted a lengthy resolution that described the project, set forth the factors that it relied upon and elaborated a list of environmental issues that were considered in making its determination [CR:1328-1334 and 1339-1346]. [*5]

Also at the October 19, 2010 meeting, the Town Board approved the rezoning of the Project location to a Planned Unit Development [CR:1334-1337].

The Town Planning Board met to review site plans for the proposal on October 27, 2010 [CR:1423-1432].

Finally, on November 1, 2010, there was a joint Public Hearing of the Town's Planning Board and Zoning Board of Appeals. Representatives of the Petitioner appeared to object to approval of the site plan and the granting of the area variances [CR:1482-1491 and 1500-1505]. Counsel for Petitioner submitted an eleven-page letter setting forth specific objections and concerns [CR:1462-1472]. At the conclusion of the Hearing, the Planning Board approved the site plan and the ZBA granted the area variances [CR:1491-1494 and 1505-1509].

The Petitioner commenced this action on November 15, 2010 [CR:2152]. The Petitioner's claims are summarized in Section II-C of this opinion.

Petitioner's Claims — An Overview

The Petitioner advances ten enumerated claims essentially challenging the propriety of determinations made by various municipal agencies relating to this Verizon project proposal. Some of these claims concern actions allegedly taken prior to the issuance of the SEQRA negative declaration, while others pertain to actions subsequently taken. It is the Petitioner's argument that the Town of Somerset took "hardly a look" at the potential environmental consequences of this project, rather than the requisite "hard look" mandated by SEQRA and ultimately failed to give a "reasoned elaboration" for its negative determination.

The heart of this lawsuit, advanced in Claims One and Two, is Petitioner's contention that the lead agency failed to consider properly energy and noise as potential adverse environmental consequences of the Verizon project.

It is her position that the lead agency - indeed, all of the municipalities - rushed their approvals with scant consideration of the potential environmental impacts of the project in an effort to secure a large-scale economic development. In the process, Petitioner asserts that the Town of Somerset, as lead agency, failed to assess those environmental issues as required by SEQRA and, instead, merely adopted the application documents tendered by Verizon and rubber-stamped the claims made therein. With respect to SEQRA, Petitioner finally asserts that the negative declaration failed to enunciate the specific reasons and analysis for the Town Board's conclusion that no adverse environmental impacts exist requiring an FEIS.

In the remaining claims contained in the petition and amended petition, Ms. Rizzo takes issue with administrative funding decisions made by the Niagara County IDA in approving Verizon's application for various types of financial assistance; complains of an improper failure of the lead agency to refer the Verizon project to, and obtain resultant action by, the Niagara County Planning Board pursuant to General Municipal Law §§239-m (2) and (3); asserts that the Somerset Town Zoning Board of Appeals failed to engage in the requisite balancing test for the area variance granted in conjunction with this project; disagrees with the Somerset Town Planning Board's approval of a site plan allegedly in non-compliance with the town's zoning laws; objects to the Somerset Town Board's use of the "PUD" classification in conjunction with this project; and argues that the Somerset Town Board failed to comply with the procedural requirements of their own town zoning ordinances.

"While highly particular in setting out the various requirements, SEQRA contains no provision regarding judicial review... Had the Legislature intended that every person or every citizen have the right to sue to compel SEQRA compliance - thus assuring above all else that the EIS process would be scrupulously followed, irrespective of the source of the challenge - it could easily have so provided; it did not." (Id at page 770/783.) "By rejecting the proposed open door policy, the Legislature made clear that some limitation on standing to challenge administrative action was appropriate. The unanswered question is what that limitation should be."

(Id. at pages 771/783.)

The Court of Appeals then went on to answer that question and articulated the appropriate test to determine standing in a SEQRA action:

"In land use matters especially, we have long imposed the limitation that the plaintiff, for standing purposes, must show that it would suffer direct harm, injury that is in some way different from that of the public at large... This requirement applies whether the challenge to governmental action is based on a SEQRA violation or other grounds."

(Id. at pages 774/785-6.)

Recently the Court of Appeals revisited the issue of required proof of unique and special harm in Save the Pine Bush, Inc. v. Common Council of the City of Albany, 13 NY3d 297, 890 NYS2d 405 [2009] with respect to groups. Even there, however, the Court admonished that:

"...we do not suggest that standing in environmental cases is automatic, or can be met by perfunctory allegations of harm. Plaintiffs must not only allege, but if the issue is disputed must prove, that their injury is real and different from the injury most members of the public face. Standing requirements 'are not mere pleading requirements but rather an indispensable part of the plaintiff's case' and therefore each element must be supported in the same way as any other matter on which the plaintiff bears the burden of proof."

[*7](Save the Pine Bush, Inc., supra at pages 306/410.)

Respondents' challenge to Petitioner's standing in this case is a serious one. This Court is mindful of the fact that Ms. Rizzo does not reside or regularly abide at the subject property. It is apparent from the credible evidence in this record that while Petitioner's family has owned the essentially vacant and clearly unoccupied land for approximately forty years, her actual physical presence on that property is quite negligible. While, through her attorney, the Petitioner advances a claim of having recently invested over $60,000 to renovate the alleged living quarters above the equipment storage garage, there is no satisfactory documentary proof of this claim in the record. It is, in fact, a somewhat dubious claim, given the scant usage of the land (rented out to a tenant farmer for less than $3,000 per year) and the utterly dilapidated shack

[CR:661, 2444] — itself an environmental eyesore that in its own way contributes to the character of the community — which the Petitioner has apparently permitted to remain on her land for many years. It is apparently claimed that the money was invested in a garage where farm equipment is stored with some living space above [CR:662]. Petitioner concedes no certificate of occupancy for this structure [CR:658, 2444-5]. There is no claim, let alone credible evidence, in this record of any diminution of property value that might be anticipated should the Verizon computer data center be constructed across the street. (Confer Kastan v. Town of Gardiner Town Board, 25 Misc 3d 1225(A), 906 NYS2d 773 [Sup Ct 2009].) Indeed, common sense might suggest that such an event may be at least as likely to increase the value of Petitioner's property as to decrease it.

In short, the Respondents have made powerful factual arguments, which the Petitioner has done little to counter, strongly suggesting both that Respondents have overcome whatever presumption of standing may be created by mere ownership of a nearby property and that this Petitioner has no more real interest in this matter than any other member of the Public. (Confer Bolton v. Town of South Bristol Planning Board, 38 AD3d 1307, 832 NYS2d 729 [4th Dept 2007]; Noslen Corporation v. Ontario County Board of Supervisors, 295 AD2d 924, 744 NYS2d 737 [4th Dept 2002] and Save Our Main Street Buildings v. Greene County Legislature, 293 AD2d 907, 740 NYS2d 715 [3rd Dept 2002].)

However, after carefully considering all of the standing cases in light of the legislative purpose behind SEQRA, this Court concludes that Petitioner here has demonstrated barely sufficient legal standing and has minimally sustained her burden so as to challenge these SEQRA violations. In reaching that determination, this Court has been particularly mindful of those cases (especially those emanating from the Fourth Department) which suggest that SEQRA standing concepts should be liberally applied so as to favor, rather than disfavor, standing so that a judgment on the merits can be reached. (See, for example, Ecumenical Task Force of the Niagara Frontier, Inc. v. Love Canal Area Revitalization Agency, 179 AD2d 261, 583 NYS2d 859 [4th Dept 1992] and LaDelfa v. Village of Mt. Morris, 213 AD2d 1024, 625 NYS2d 117 [4th Dept 1995].)

Accordingly this Court finds that the Petitioner has minimally sustained her burden of showing injury to maintain a SEQRA claim that is beyond that from the public at large with respect to the issues of traffic, aesthetics and the character of the neighborhood or surrounding community.

No Standing to Maintain Claims Against the Niagara County Industrial Development Agency [*8]

It is Petitioner's position that General Municipal Law §916-a confers standing upon any owner of real property situated in the County of Niagara to maintain a claim against the Niagara County Industrial Development Agency [CR:2515/2]. This Court disagrees with that interpretation. Having reviewed the case law, with one caveat, this Court now concludes that the Petitioner has demonstrated no standing, either as a landowner or as a taxpayer, to bring an action challenging the administrative funding decisions of the IDA. (See Defreestville Area Neighborhood Association, Inc. v. Planning Board of the Town of North Greenbush, 16 AD3d 715, 718, 790 NYS2d 737, 741 [3rd Dept 2005] and Kadish v. Roosevelt Raceway Associates, LP, 183 AD2d 874, 584 NYS2d 592 [2nd Dept 1992].

The caveat mentioned is the fact that, indirectly, the IDA may remain susceptible to litigation challenging funding actually rendered to a project that fails to comply with SEQRA. Thus, if this Court now (or an appellate court in the future) ultimately concludes that SEQRA was violated, this Court's ruling now may not block renewed litigation against the IDA in this matter.

No Standing to Maintain Claims Against the New York Power Authority

This Court reaches a similar conclusion with respect to the Petitioner's lack of standing to pursue its claims against Respondent New York Power Authority (technically contained in Claim Two). With the exception of the SEQRA claim, the Petitioner has stated no claim against the Power Authority that is capable of reversing its decision to allocate 25 megawatts of hydropower to the proposed development as an economic incentive [CR:587-590]. With a similar caveat, this action against that Respondent is dismissed. (See Consolidated Edison Company of New York, Inc. v. Power Authority of the State of New York, 177 Misc 2d 234, 238, 675 NYS2d 765, 768 [Sup Ct 1998]; Advanced Refractory Technologies, Inc. v. Power Authority of the State of New York, 171 AD2d 1031, 568 NYS2d 986 [4th Dept 1991]; Cohalan v. Dyson, 123 Misc 2d 997, 1000-1001, 474 NYS2d 1014, 1017 [Sup Ct 1984] and Willmott v. Dyson, 123 Misc 2d 1002, 1005, 474 NYS2d 1018, 1021 [Sup Ct 1984].)

IV.

SEQRA

Introduction

SEQRA was enacted in 1975 and became effective on September 1, 1976 (Environmental Conservation Law, Article 8 {"ECL"}). Its primary purpose was to inject environmental considerations directly into governmental decision-making so that legislators at all levels of government are required to factor environmental issues meaningfully into their legislative actions. (Coca-Cola Bottling Company of New York v. Board of Estimate of the City of New York, 72 NY2d 674, 679, 536 NYS2d 33, 35 [1988] and Akpan v. Koch, 75 NY2d 561, 569, 555 NYS2d 16, 19 [1990].)

SEQRA does not mandate that environmental concerns trump all other legislative considerations and objectives, but rather dictates that none of those other legitimate matters are to be resolved without also considering the environmental repercussions - and avoiding or [*9]ameliorating them whenever possible. (Ziemba v. City of Troy, 10 Misc 3d 581, 582-3, 802 NYS2d 586, 588 [Sup Ct 2005], reversed on other grounds at Ziemba v. City of Troy, 37 AD3d 68, 827 NYS2d 322 [3rd Dept 2006].) SEQRA strives to strike a balance between social and economic goals and concerns about the environment by requiring governmental agencies to engage in a systematic balancing analysis in every instance. (WEOK Broadcasting Corporation v. Planning Board of the Town of Lloyd, 79 NY2d 373, 380, 583 NYS2d 170, 173 [1992].)

SEQRA establishes certain procedures that governmental agencies must follow. Essentially, those procedures require government to make an initial determination as to whether the proposed project might have a significant impact on the environment. (Merson v. McNally, 90 NY2d 742, 665 NYS2d 605 [1997].) Projects which meet certain criteria set forth in 6 NYCRR 617.4 are presumptively considered to have significant environmental impacts. These are termed "Type I" projects. Chinese Staff and Workers' Association v. Burden, 27 Misc 3d 1219(A), 910 NYS2d 761 [Sup Ct 2010].}

The parties in this lawsuit all agree that the proposed development in the Town of Somerset is a Type I project. As a result, a full environmental impact statement ("FEIS") is "presumed" to be necessary. An EIS is preferred, but it is not a per-se requirement (Cathedral Church of Saint John the Divine v. Dormitory Authority of the State of New York, 224 AD2d 95, 645 NYS2d 637 [3rd Dept 1996]). The presumption may be overcome if the lead agency takes the appropriate steps (Chinese Staff and Workers' Association, supra, citing Friends of Port Chester Parks v. Logan, 305 AD2d 676, 760 NYS2d 214 [2nd Dept 2003] and Village of Tarrytown v. Planning Board of Village of Sleepy Hollow, 292 AD2d 617, 741 NYS2d 44 [2nd Dept 2002]).

In order to overcome the presumption, the government must properly identify the potential adverse environmental impacts, take a hard look at all of the evidence concerning them, conclude that — under the circumstances of that project — there really are no adverse impacts, and articulate in a written statement (called a negative declaration) a reasoned elaboration supporting that determination. (See Merson, supra; Spitzer v. Farrell, 100 NY2d 186, 761 NYS2d 137 [2003] and Mobil Oil Corporation v. City of Syracuse Industrial Development Agency, 224 AD2d 15, 21-2, 646 NYS2d 741, 747-8 [4th Dept 1996].)

Court's Role in Reviewing SEQRA Claims

This Court must review the lead agency's determination in issuing its negative declaration to decide whether that 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 (Merson, supra). It is not the role of the court to weigh the desirability of the proposed action, choose among alternatives, resolve disagreements among experts, or substitute its judgment for that of the agency. (Har Enterprises v. Town of Brookhaven, 74 NY2d 524, 529, 549 NYS2d 638, 641 [1989]; Akpan, supra at pages 569-71/19-21; Neville v. Koch, 79 NY2d 416, 424-5, 583 NYS2d 802, 806 [1992]; Kahn, supra at pages 574/585 and Merson, supra at pages 752/610.)

Therefore, the only role of this Court is to determine whether the Somerset Town Board made its decision in compliance with SEQRA; not to second-guess Somerset's determination, which can only be annulled if it was arbitrary, capricious or unsupported by substantial evidence.Hard Look

[*10]A "hard look" is where the lead agency has the benefit of a properly completed FEAF/DEIS identifying the potential relevant areas of environmental concern and articulating reasons why such potential concerns do not actually create adverse environmental impacts. (See Dunk v. City of Watertown, 11 AD3d 1024, 784 NYS2d 753 [4th Dept 2004]; Forman v. Trustees of State University of New York, 303 AD2d 1019, 757 NYS2d 180 [4th Dept 2003] and Hallenbeck v. Onondaga County Resource Recovery Agency, 225 AD2d 1036, 639 NYS2d 627 [4th Dept 1996]. Also confer Hartford/North Bailey Homeowners Association v. Zoning Board of Appeals of the Town of Amherst, 63 AD3d 1721, 881 NYS2d 265 [4th Dept 2009].)

The degree of detail required in assessing the potential environmental concerns raised in any given project will vary with the circumstances and the nature of that project (Kahn, supra at pages 574/586; Akpan, supra at pages 570/20; Valley Realty Development Co., Inc. v. Town of Tully, 187 AD2d 963, 590 NYS2d 375 [4th Dept 1992] and Brander v. Town of Warren Town Board, 18 Misc 3d 477, 481, 847 NYS2d 450, 454 [Sup Ct 2007]). The determination of what constitutes a "hard look" in any give case requires that the reviewing court employ reasonableness and common sense, tailoring the intensity of the "hard look" to the complexity of the environmental problems actually existing in the project under consideration (Town of Henrietta v. Department of Environmental Conservation of the State of New York, 76 AD2d 215, 224, 430 NYS2d 440, 447-8 [4th Dept 1980]). In other words, as quaintly phrased in Tuck-It-Away Associates, LP v. City of New York, 10/2/2008 NYLJ 27, col. 1 [Sup Ct 2008], the "hard look" need only be a "hard enough look" to comply with SEQRA.

Not only must the lead agency take their hard enough look at the environmental concerns raised, but in reaching their determination that no such actual adverse environmental impacts exist in the project, the agency is required to file a written negative declaration [6 NYCRR 617.7 (b)]. They must further produce, in the record before the reviewing court, a "reasoned elaboration" supporting their determination. [6 NYCRR 617.7 (b) (4).]

Reasoned Elaboration

There must actually be material in the record which the reviewing court can examine to determine whether sufficient information was present to sustain an agency's negative declaration (Asma v. Curcione, 31 AD2d 883, 298 NYS2d 286 [4th Dept 1969]). In considering whether such record contains substantial evidence supportive of the agency decision, the court need only determine whether the record contains sufficient evidence to support the rationality of the agency's determination. If it does, the reviewing court should not disturb that decision (League for the Handicapped, Inc. v. Springville Griffith Institute Central School District, 66 AD3d 1398, 886 NYS2d 523 [4th Dept 2009]).

The lead agency in reaching its decision, and the court in reviewing the record to determine sufficiency of the "hard look", are both entitled to utilize the input of qualified experts, whether employed by the agency, applicant or anyone else. (See League, supra; and Port of Oswego Authority v. Grannis, 70 AD3d 1101, 1103, 897 NYS2d 736, 738 [3rd Dept 2010]. Also consider Perrin v. Bayville Village Board, 70 AD3d 835, 838, 894 NYS2d 131, 134 [2nd Dept 2010] where the court found an agency's reliance upon an expert, whose fees were ultimately reimbursed by the applicant, to be permissible.)

An agency's negative declaration cannot consist of merely conclusory statements without any supportive documentation in the record (Tonery v. Planning Board of Town of Hamlin, 256 AD2d 1097, 682 NYS2d 776 [4th Dept 1999]). Such non-conclusory affirmative statements evidencing the requisite "reasoned elaboration" must appear in the negative [*11]declaration and any supporting documentation (New York City Coalition to End Lead Poisoning, Inc. v. Vallone, 100 NY2d 337, 763 NYS2d 530 [2003} and Baker v. Village of Elmsford, 70 AD3d 181, 891 NYS2d 133 [2nd Dept 2009].)

Applying these rules to the record in this case, this Court concludes that the lead agency here did, in fact, include a written statement of sufficient particularity to enable this Court to see and review the degree of its reasoned elaboration. Passed contemporaneously with the negative declaration itself was a seventeen-point Somerset Town Board resolution that addresses the alleged environmental impacts and, in reliance on the extensive examination of those points (including expert studies) explaining why such were, in fact, in this case really not indicative of any adverse environmental impact associated with the Verizon computer data center project.

The eight-page resolution, passed unanimously by the Town Board, notes that the Board reviewed the Analysis of Environmental Impact, site development plans, wetland, waterfront, agricultural data and a noise study prior to making its determination [CR:1340-1341]. The Board noted that the proposal was a Type I action under SEQRA but that it conformed with the Town's Comprehensive Plan to position economic development in the area around the AES power plant, the Town's largest industrial site [CR:1341].

The Board, in its resolution, noted that sensitive area around the lakeshore bluffs and the cobblestone property would be maintained [CR:132].

The resolution then listed seventeen areas of potential environmental concern such as water quality, air quality and waste disposal and found that there was no significant adverse environmental impact from the proposed development [CR:1343-1346].

The Court notes that the Board's findings supporting its negative declaration were the type of detailed and documented elaboration that the law requires. For example, the Board did not simply address the issue of traffic once the facility was operational but addressed the sensitive issue of construction traffic as well [CR:1344, 1346].

At oral argument, counsel for the Petitioner advanced two areas of environmental concern that were allegedly given short shrift by the Board in making its negative declaration: noise and energy.

This Court finds that the Board took a hard look at both issues before making its determination and properly set forth the basis for its negative declaration in making its finding [CR:1344-1345].

The Board considered the Noise Impact Survey and properly concluded that there would be no significant adverse environmental impacts from the construction or operation of the data center [CR:1279-1294].

With respect to energy, the Court again notes that the proper use of energy was at the very heart of this proposal [CR:1013-1014]. The data center is bordered to the east by the AES power generating plant and power required by the facility would be coordinated through AES [CR:940-941].

There is simply nothing in the record to support the Petitioner's contention, advanced during oral argument, that the construction of the data center would also require the construction of new power transmission lines [CR:2504-2505 and 2481].

For all of these reasons, this Court finds that the Town Board, in its October 19, 2010 negative declaration, engaged in the requisite hard look, set forth its conclusions in a reasoned elaboration and that there was nothing in the Board's decision that can be found to be arbitrary, capricious or unsupported by substantial evidence. [*12]

With respect to the Town Board's October 19, 2010, decision, the Petitioner seeks to have this Court treat its vote of a negative declaration as the Board's only pronouncement on the subject. In other words, Petitioner invites this Court to ignore the resolution that was passed as part of the negative declaration [CR:1328-1334 and 1339-1346].

With no resolution, there would be no basis to conclude that the Board took the requisite hard look or gave a reasoned elaboration of the basis for its decision, the Petitioner's argument goes. The first reason why the resolution lacks authenticity, the Petitioner claims, is because it was not read out loud into the record that evening. Even the Petitioner admitted at oral argument that there was no requirement that the resolution be orally read out loud at the October 19, 2010 meeting [CR:2502-2503].

This Court finds no merit in this argument. Whether read out loud or not, there is nothing that suggests that the resolution did not represent the actual opinion of the Board.

The Petitioner's second criticism of the resolution is that it contains language that was suggested or supplied by the attorney for Verizon [CR:2504]. Counsel for Respondent Verizon had admitted that he drafted proposed language and submitted it to the Town's attorneys before the vote [CR:2487]. The Petitioner has offered similar criticism with respect to the Zoning Board of Appeals' resolution adopted on November 1, 2010 (see Part V of this decision at page 28). This Court takes a similar dim view of this objection and rejects any suggestion that the resolution should be ignored or discredited for that reason.

The statements of the Town Board members at the October 19, 2010 meeting [CR:1327-1328] and the vote on the resolution itself [CR:1328] leave no doubt that the resolution represented the considered opinion of the Town Board. The Board had not delegated to anyone else its ultimate decision with respect to the negative declaration. (See Coca-Cola Bottling Co. v. Board of Estimate, 72 NY2d 674, 682, 536 NYS2d 33 [1988] and Penfield Panorama Area v. Town of Penfield Planning Board, 253 AD2d 342, 688 NYS2d 848 [4th Dept 1999].)

Thus, while it is true that an extensive record, alone, does not satisfy SEQRA requirements, since that law further requires some affirmative and reviewable action by the lead agency articulating what in that record they relied upon (MYC New York Marina, LLC v. Town Board of the Town of East Hampton, 17 Misc 3d 751, 842 NYS2d 899 [Sup Ct 2007]), here the contemporaneous resolution supplies that further element.

In this case, the administrative record available to this Court for review is full and complete and shows that the Petitioner has failed to demonstrate that this record is insufficient (Save Easton Environment v. Marsh, 234 AD2d 616, 650 NYS2d 860 [3rd Dept 1996]). The record as a whole in this case satisfies this Court that the Somerset Town Board followed the critical procedural steps mandated by SEQRA and did take a hard look at the claimed environmental impacts about which the Petitioner objects.

The resultant investigation, reflected in the record, supports their reasoned and rational determination that no adverse environmental impacts actually exist in this project (Sutton Area Community v. Board of Estimate of City of New York, 78 NY2d 945, 573 NYS2d 638 [1991]).

Remaining SEQRA Issues

Finally, this Court believes it is necessary to address two additional concerns raised by the Petitioner: the speed of this process and the size of this project.

[*13]A Rush to Judgment: "Verizon Time"

The Petitioner objects to the speed with which this project was handled — the so-called "Verizon time" complaint. SEQRA contemplates the importance of preventing the process from unduly delaying consideration of the project proposal and, itself, admonishes all agencies to act expeditiously so as to create "minimum procedural and administrative delay" by expediting "all SEQR proceedings in the interest of prompt review" [6 NYCRR 617.3 (h)]. Lead agencies are likewise instructed to expedite SEQRA matters with minimal delay in the interest of prompt review (Mobil Oil Corporation, supra}. The importance of prompt action is further confirmed by the deadlines imposed (thirty days or less) for the required coordinated agency reviews [6 NYCRR 617.6 (b)(3)].

When the First Department ruled that three days notice of an amended FEIS prior to the agency's determinative vote violated SEQRA and was too short, mandating nullification of that vote because it prevented the requisite hard look (Sutton Area Community v. Board of Estimate of the City of New York, 165 AD2d 456, 568 NYS2d 35 [1st Dept 1991]), that holding was promptly reversed by the Court of Appeals just three months later (Sutton Area Community v. Board of Estimate of the City of New York, 78 NY2d 945, 573 NYS2d 638 [1991]).

The Court of Appeals has also stated that the speed with which an agency resolves a SEQRA matter is not dispositive of the issue whether a sufficient hard look was given to the environmental concerns (Gernatt Asphalt Products, Inc. v. Town of Sardinia, 87 NY2d 668 689, 642 NYS2d 164, 177 [1996]). The Fourth Department recently echoed that same thought (Jones v. Town of Carroll, 57 AD3d 1376, 1379, 873 NYS2d 391, 394 [4th Dept 2008], reversed on other grounds at 15 NY3d 139, 905 NYS2d 551 [2010]).

This Court does note that there is a salutary effect to SEQRA litigation, in this and all such matters. Just as publicity and exposure is one of the core objectives of SEQRA itself, litigation — with all its corresponding media attention — heightens public awareness to a degree surpassing even that which the SEQRA procedures alone can accomplish. Litigation also serves to slow down the process and further develop discovery of documents. In that very process, one would imagine that if any real environmental impacts of a negative and substantial nature actually existed, other members of the public would begin voicing such concerns. At least, one would reasonably assume, the Petitioner would be motivated enough to produce tangible evidence of the actual existence of such problems, complete with objective and independent expert substantiation. Nothing of that nature surfaced throughout this entire litigation. (Confer Croton Watershed Clean Water Coalition, Inc. v. Planning Board of the Town of Southeast, 2 Misc 3d 1010(A), 784 NYS2d 919 [Sup Ct 2004].) This is comforting further confirmation that the Somerset Town Board, in conjunction with all of their interested additional involved agencies, got this analysis right. This is not a project with obvious negative — even catastrophic — environmental impacts, like those involved in NYC Coalition to End Lead Poisoning, supra (lead paint killing children), Miller v. City of Lockport, 210 AD2d 955, 620 NYS2d 680 [4th Dept 1994] (municipal solid waste storage and disposal system) or Long Island Pine Barrens Society, Inc. v. Planning Board of the Town of Brookhaven, 80 NY2d 500, 591 NYS2d 982 [1992] (involving the integrity of the sole drinking water aquifer for the entire population of Long Island). The Verizon multi-billion dollar state-of-the-art data computer center really does appear to be an environmentally benign project, whose economic potential far outweighs any inconvenience occasioned to this lone Petitioner who has had difficulty articulating any credible environmental concerns.

[*14]The Size of Project Does Not Determine Outcome

Petitioner has also suggested that the sheer size of this project mandates use of an FEIS and precludes use of a negative declaration. That contention is mistaken. Courts have often upheld negative declarations on large projects. {See e.g. Cathedral Church of Saint John the Divine, supra (13-story addition to nursing home complex); Merson, supra (80-acre mining project); Citizens Against Sprawl-Mart v. Planning Board of City of Niagara Falls, 8 AD3d 1052, 778 NYS2d 394 [4th Dept 2004](53-acre Wal-Mart shopping center); Schweichler, DDS v. Village of Caledonia, 45 AD3d 1281, 845 NYS2d 901 [4th Dept 2007](sizeable multi-family housing project); Hartford/North Bailey Homeowners Association, supra (large Wal-Mart retail shopping supercenter); League for the Handicapped, Inc., supra (large transportation bus center near private school facility) and Chinese Staff and Workers' Association v. Burden, 27 Misc 3d 1219(A), 910 NYS2d 761 [Sup Ct 2010](128-block retail/residential development zone in Brooklyn).}

Clearly, it is not the size of a project that determines the SEQRA outcome, but rather the existence and extent of any significant adverse environmental impacts associated with the project.

With respect to the height variances, Petitioner objects to the haste of the ZBA decision, and claims that the decision of the ZBA lacked a rational basis and was not supported by substantial evidence. Petitioner also claims that the variances should have been the subject of five separate votes and that there is an insufficient record for the reviewing court to make a determination of the grounds for the ZBA's decision [CR:26-27 and 2554-2555].

Determination of area variances are governed by Town Law §267-b (3) which requires a balancing test to weigh the benefit to the applicant versus the detriment to the health, safety and welfare of the neighborhood or community. The factors to be considered in granting an area variance, long the subject of judicial decisions, were codified in 1992 in 267-b (3) (b) of the Town Law:

"In making its determination, the zoning board of appeals shall take into consideration the benefit to the applicant if the variance is granted, as weighed against the detriment to the health, safety and welfare of the neighborhood or community by such grant. In making such determination the board shall also consider:

(1) whether an undesirable change will be produced in the character of the neighborhood or a detriment to nearby properties will be created by the granting of the area variance;

(2) whether the benefit sought by the applicant can be achieved by some method, feasible for the applicant to pursue, other than an area variance; [*15]

(3) whether the requested area variance is substantial;

(4) whether the proposed variance will have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district; and

(5) whether the alleged difficulty was self-created, which consideration shall be relevant to the decision of the board of appeals, but shall not necessarily preclude the granting of the area variance."

As noted in Sasso v. Osgood, 86 NY2d 374, 633 NYS2d 259 [1995], an area variance granted under Town Law §267-b (3) requires the Zoning Board to engage in a "balancing test" weighing the benefit to the applicant versus the detriment to the health, safety and welfare of the neighborhood or community.

Area variances must also be supported by substantial evidence. (See Sasso, id. at 384 and Coco v. City of Rochester ZBA, 236 AD2d 826, 653 NYS2d 769 [4th Dept 1997]. Also confer Farrell v. Johnson, 266 AD2d 873, 697 NYS2d 900 [4th Dept 1999].)

A Zoning Board's §267-b (3) determination is administrative or quasi-legislative — it is not a judicial hearing — and the reviewing court is limited to determining whether the record contains sufficient evidence to support the rationality of the Board's decision (Sasso, supra at384 n2).

Ordinarily, the Zoning Board should delineate its findings in order to provide a basis for the Court's subsequent review (Syracuse Aggregate Corporation v. Weise, 51 NY2D 278, 434 NYS2D 150 [1980]).

This Court's role is limited to determining whether the record reveals illegality, arbitrariness or an abuse of discretion (Conte v. Norfolk ZBA, 261 AD2d 734, 689 NYS2d 735 [3rd Dept 1999]).

The determination of the ZBA is entitled to great deference by the reviewing court and must be sustained where it has a rational basis and is supported by substantial evidence (Farrell, supra).

This Court also notes that the Zoning Board of Appeals is entitled to consider the character of the immediate neighborhood in granting an area variance (Children's Hospital of Buffalo v. ZBA, 181 AD2d 1056, 582 NYS2d 317 [4th Dept 1992] and Hanna v. Crossley, 40 AD2d 577, 334 NYS2d 443 [4th Dept 1972]).

Uses that result in imperceptible changes to the character of a neighborhood and do not produce undesirable results are generally permitted {Lodge Hotel v. Town of Erwin ZBA, 43 AD3d 1447, 843 NYS2d 744 [4th Dept 2007] (height variance)}.

Turning to the Town of Somerset's Zoning Board of Appeals decision in this case, this Court finds it hard to accept Petitioner's argument that the ZBA did not fully consider the height requirements of the project buildings. The raison d`etre behind the entire proposal was to construct buildings that took advantage of the region's cold climate and cool lake breezes to naturally reduce the power utilization needed to operate the computers at the data centers [CR:840, 941 and 1487]. The potential for fresh air cooling appears to have been a principal motivating force behind the selection of the site in the Town of Somerset [CR:962-963 and 1486-1487].

Secondly, the ZBA was conscious of the character of the neighborhood or community where the area variances were granted. The modest increases from 50 to 65 feet requested by the applicant were quite literally dwarfed by the smokestack rising hundreds of feet at the next-door [*16]AES power generator, a facility that dominates the landscape of Northeastern Niagara County [CR:2171 and 2173].

The Court also rejects as unfounded the allegation that the Zoning Board gave little thought or consideration to the request for area variances. For Petitioner's counsel to claim, as he did at oral argument, that the Zoning Board's decision was the result of only "four minutes of deliberation" [CR:2555] is just a plain distortion of the record.

In point of fact, the record before this Court shows that the application for the area variance was submitted to the ZBA on October 15, 2010 [CR:956]. At a meeting of the ZBA on October 26, 2010, it was announced that there would be a public hearing on the request for area variances on November 1, 2010, and that it would be a joint meeting with the Town's Planning Board [CR:1408].

Counsel for Mrs. Rizzo appeared at the November 1, 2010 meeting and hand delivered an eleven-page letter [CR:1462-1472]. Counsel's letter noted a number of objections and specifically challenged the granting of the area variances [CR:1462]. The November 1, 2010 letter then turned to the balancing test imposed by Town Law §267-b (3) and then devoted eight pages to the considerations listed in the statute urging the ZBA to deny the area variances [CR:1465-1472].

The minutes of the November 1, 2010 meeting of the Planning Board and Zoning Board of Appeals are found in the record at pages 1481-1509. The general public hearing and citizen comments commenced at 7:30 p.m. and the Zoning Board of Appeals specific comment period started at 8:40 p.m. [CR:1483, 1500].

Counsel for the Petitioner spoke extensively at the November 1, 2010 meeting making general objections to the project placement, project design and specific objections to the proposed height variances ]CR:1487-1488 and 1500-1504]. The public comments were concluded at 9:15 p.m. A vote was taken. The vote was unanimous and the meeting was adjourned at 9:20 p.m. [CR:1505-1509].

With respect to the Zoning Board's vote and resolution, the Petitioner has interposed two objections. The first is that an area variance for each separate structure should have been the subject of a separate vote. Petitioner concedes that there is no case law to support this particular objection [CR:2560].

While this Court can conceive of a situation where a zoning board would be required to conduct a series of separate votes for each structure, this is not one of them. The project has been repeatedly described as a unified set of buildings that attempt to achieve a "campus-like setting" [CR:1488, see also Conceptual and Massing View Drawing CR:975]. It is inconceivable to this Court that the Zoning Board would have granted a variance for one or two of the structures and not for all five.

In any event, the vote of the zoning board was rational, supported by substantial evidence and not illegal, arbitrary, capricious or an abuse of discretion. (See Conte, supra.)

Petitioner's last attack on the Zoning Board's granting of the area variance seeks to have this Court make a distinction between the vote of the ZBA [CR:1505] from the resolution it adopted as part of its vote [CR:1506-1509 and 1521-1525].

Apparently the Petitioner believes that if this Court were to ignore the text of the ZBA's resolution, the area variance would fail because there would not be a proper delineation of the Board's engagement in the balancing test required under Town Law §267-b (3). (See Syracuse Aggregate Corporation, supra.)

At oral argument, Petitioner's counsel conceded that the resolution was adopted by the [*17]ZBA at its meeting on November 1, 2010 [CR:2576].^[FN7]

The Petitioner's challenge to the resolution on this issue must be denied. In a matter of this complexity, there is nothing wrong with a zoning board relying on external documents, even those supplied by a developer, to make sure that they "get it right." There is no evidence that the ZBA was subject to undue influence or surrendered its judgment to that of another in making their ultimate decision. (See Coca-Cola Bottling Co., supra and Penfield Panorama Area, supra.)

As noted above, counsel for Petitioner devoted eight pages of his eleven page letter to his analysis of the balancing test under §267-b (3) and one suspects that he did so in the hope that the ZBA would utilize his language and his arguments from his letter if it had decided to deny the area variance. How this differs from Verizon's submission escapes this Court.

In conclusion, this Court finds that the ZBA engaged in proper balancing under Town Law §267-b (3), that its decision was supported by substantial evidence, that the Board properly delineated its findings and there is no evidence of illegality, arbitrariness or an abuse of discretion.

The Planning Board began to consider the project at its meeting on September 15, 2010 [CR:721-726]. Detailed site plans were not submitted to the Town until October 8, 2010 [CR:901-913]. The site plans were discussed on October 13, [CR:939-949] October 27, [CR:1424-1432] and November 1, 2010 [CR:1480]. It was at the November 1, 2010 public hearing and meeting that the plans were discussed and ultimately approved.

Objections and concerns were raised at all meetings, including those proffered by the Petitioner and her attorney on October 27th and November 1, 2010 [CR:1431, 1487-1489]. After a meeting of approximately 90 minutes on November 1st, the site plan was approved and the property was rezoned as a planned unit development [CR:1491-1500, 1519, 1514, 1515-1520].

Petitioner argues, first of all, that procedurally, there has not been compliance with 45 day rule set forth in the Town's Zoning Ordinance:

§ 205-57.3. Site Plan review procedures.

A. Staff evaluation. An application for site plan review must be complete as specified in this section and submitted to the Code Enforcement Officer at least 45 days prior to the Planning Board meeting to provide adequate opportunity for review, distribution of notices and advertisement of SEQRA public hearing, if necessary. The Code Enforcement Officer is [*18]responsible for coordination of the review and may include the Town Engineer, Highway Superintendent and such other agencies in the review process, as appropriate, to advise the Planning Board.

There is no question that the site plans were not submitted 45 days before the November 1st approval as required by the Code, but only 24 days before, on October 8, 2010.

The Respondent, Verizon, argues initially that the "if necessary" language in the Code is permissive and that the ordinance allows the Planning Board to act on less than 45 days. This Court believes that the phrase "if necessary" only modifies the last portion of the sentence relating to the possibility of a SEQRA public hearing. Moreover, the Code states that the site plan be submitted "at least" 45 days before the Planning Board approval.

The Petitioner argues that the violation of the "45 Day" rule is illustrative of the Town's "rush to judgment" in this matter and that the final site plan approval should be voided because of the failure to comply with the 45 Day Rule.

Citing no cases with respect to zoning ordinances, Petitioner argues that there should be SEQRA-like compliance to the procedures set down in this zoning ordinance.

In this regard, she cites NYC Coalition To End Lead Poisoning, supra and King v. Saratoga, 89 NY2d 341, 653 NYS2d 233 [1966], both cases that relate to Article 8 of the Environmental Conservation Law, not zoning laws and ordinances.

This Court disagrees. There was substantial compliance with the law and the Town's zoning ordinance and the case law does not support Petitioner's claim in this area.

In Violet Realty, Inc. v. City of Buffalo Planning Board, 20 AD3d 901, 798 NYS2d 283 [4th Dept 2005] the Fourth Department noted that a judicial review of a zoning board's decision was limited to whether those actions were "illegal, arbitrary and capricious or irrational on the record before the board or an abuse of discretion. (East Coast Properties v. Oneida Planning Board, 167 AD2d 641, 562 NYS2d 864 [3rd Dept 1990].)

It also appears to be clear to this Court that the 45 Day Rule for submission of the site plan to the Code Enforcement Officer is for the benefit of the Town, not for any potential aggrieved party. Thus, this is a provision that can be construed as "directory" and for the benefit of the Town and is not enforceable against the Town by those who claim to be affected or aggrieved by it. (Town of Lima v. Robert Slocum Enterprises, 38 AD2d 503, 331 NYS2d 51 [4th Dept 1972]. See also Northern Operating Corp. v. Town of Ramapo, 26 NY2d 404, 311 NYS2d 286 [1970].)

In any event, there is substantial evidence to conclude that there was a rational basis for the Planning Board's ultimate site plan approval in the record that included two public hearings on October 27 and November 1, 2010. There was a great deal of give and take between the developers and Town officials on the specifics of the plan between October 8 and November 1, 2010 [CR:1424-1432; CR:1483-1490]. Input was sought and obtained from objectants, including the Petitioner, members of her family and her attorney at the October 27 and November 1, 2010 meetings. That included Mr. Giacalone's 11-page letter that detailed most of the objections that are the subject of this Article 78 proceeding [CR:1462-1472].

If the purpose of the rule was to enable participation and feedback from the code enforcement officer, the record shows there was plenty of that [CR:1430]. This Court has also considered the affidavit of Randall C. Hildebrant, the Code Enforcement Officer for the Town of Somerset [CR:2280-2284]. It is noted that Petitioner has neither commented upon nor contradicted the contents of the Hildebrant affidavit. [*19]

In the Hildebrant affidavit, he states that he worked closely and collaboratively with both the Town Board and Planning Board [CR:2281]. This Court finds that there is no evidence to contradict Mr. Hildebrant's assertion that he coordinated the site plan review process with the Town Engineer. He provided extensive guidance and feedback to the Planning Board and the Board had more than an adequate opportunity to review the site plans [CR:2283]. Thus, there was substantial compliance with the purpose of §205-57.3 of the Town's Zoning Ordinance, even if the strict 45 day time period was not followed.

Since the Planning Board decision had a "rational basis" in the record any perceived deficiencies do not invalidate its ultimate determination to grant the rezoning from an agricultural district to a Planned Unit Development. (Fuss v. Town of Hannibal Planning Board, 295 AD2d 921, 744 NYS2d 111 [4th Dept 2002] and Committee to Preserve Brighton Beach v. Council of the City of New York, 214 AD2d 335, 625 NYS2d 134 [1st Dept 1995].)

The Town can only approve a site plan that conforms with the zoning ordinance. The Petitioner in her seventh claim contends that this proposal violated the ordinance in four ways:

(a)Minimum 25% Open Space for PUD [Section 205-55(C)(5)].

(b)Use Limitation in a PUD - No Single Use Constituting More than 25% of Development Area [Section 205-55(C)(9)].

(c)Use Limitation - Storage of Hazardous Materials or Any Material Which Would Increase the Risk of Fire Hazard Prohibited in a PUD District [Section 205-55(C)(9)(b)].

(d)Multi-Use Neighborhood Designed as Cohesive Development and Planned as a Consolidated Entity [Section 205-55(A)(2)]. (Petition, CR:28).

Those challenges to the PUD designation will be discussed herein. This Court finds that the approval of the site plan by the Town was rational, factual and considered. This Court describes above at Part VI of this opinion the site plan approval process from September 15 to November 1, 2010.

With respect to the Petitioner's four specific objections, the Court notes that although she has raised many valid concerns in her brief, minimum open space for PUD and limitations on single use for PUD are not two of them. They are resolved by a simple matter of arithmetic for one and logic for the other. This Court fails to see any merit to Petitioner's arguments here.

Thus, §205-55 (C) (5) of the Town's Zoning Ordinance requires that there shall be a minimum of 25% open space for the entire PUD district not connected with any developmental activity [CR:617].

The entire parcel is 179 acres. Twenty-five percent of 179 is 44.75. The plans [*20]submitted by the developer show that 67 acres will be developed [CR:892]. That leaves 112 acres of undeveloped property. That is approximately 62%, well more than the twenty-five percent required. This challenge must simply fail.

Similarly, the Town's PUD Law §205-55 in pertinent part states as follows:

(9) Use limitation. No single use as provided for in the allowable districts of this section shall constitute more than 25% of the allowable development area of the site without review and approval of the Planning Board. Additionally, the following uses shall be prohibited in the PUD District:

(a) Uses that produce earth jarring, vibration or noise beyond the structure within which the use is contained.

(b) The storage, sale, distribution or use of hazardous materials or their by-products; or the storage of any material which would increase the risk of fire hazard to adjoining buildings. [CR:618.]

Unquestionably, the data center buildings which are at the heart of the project occupy more than twenty-five percent of the development. The Respondents have conceded as much [CR:292]. However, the Petitioner's argument here must fail because she ignores the latter part of the first sentence of the Zoning Ordinance that reads no single use shall exceed 25% "without the review and approval of the Planning Board" [CR 618].

Nowhere in his written submissions or at oral argument does Petitioner's counsel address this obvious legislative method of increasing the Code's use limitation. As noted earlier, this Court finds that the Planning Board engaged in an extended and considered deliberation over several sessions of the site plan rezoning to a Planned Use Development.

At those meetings, the Board was aware of the Petitioner's concern in this area. As a matter of fact, it was a topic addressed at length in Mr. Giacalone's eleven-page letter to the Board dated November 1, 2010 [CR:1463]. Nevertheless, the Planning Board concluded by a unanimous vote that the final site plan conformed with the requirements of the Town's zoning ordinance and warranted rezoning to a PUD [CR:1491-1494].

The third issue raised by Petitioner in her November 1, 2010, letter to the Planning Board [CR:1464] is the storage of hazardous materials in violation of the Town's Zoning Law §205-55 (C) (9) (b) [CR:618]. The Petitioner has established and the Respondents have agreed that the proposal does contemplate the storage of hazardous substances in the form of diesel fuel to power three back-up generators ^[FN8].

The Petitioner argues that the storage of hazardous materials is strictly prohibited by the [*21]Town's Zoning Ordinance and so the rezoning to a Planned Unit Development was illegal.

The Respondent's position is that the data center is a light-industrial use and the Town's Zoning Ordinance for industry permits the storage of materials necessary in conjunction with approved uses therein and which meet all legal, state and federal codes. Town's Zoning Law §205-40(D)(2). Verizon's argument proposes that industrial uses and related accessory uses are specifically permitted within a PUD District [Zoning Law §205-55 (A)(1)].

Since the storage of diesel fuel for back-up generators is necessary for the Data Center's operations and incidental to their principal use and would be constructed to comply with various federal, state and local laws, the Respondents urge the Court to agree with the Board's decision that the storage tanks were a permissible use within a PUD.

This Court finds that, to the extent that §§205-55 (C) (9) (b), 205-40 (D) (1) and (2) and 205-55(A) are in conflict with one another, the conflict must be resolved in favor of the applicant. (See Hess Realty Corp. v. Planning Commission, 198 AD2d 588, 589 [3rd Dept 1993]; Bonded Concrete Inc. v. ZBA, 268 AD2d 771, 774, 776 [3rd Dept 2000] and North White Auto, Inc. v. Clem, 229 AD2d 393, 394 [2nd Dept 1996].)

To the extent that the two provisions are ambiguous in their intentions, the Zoning Board's interpretation is entitled to great deference. (See Ellington Construction Corp v. ZBA New Hempstead, 77 NY2d 114, 564 NYS2d 1001 [1990] and Frishman v. Schmidt, 61 NY2d 823, 473 NYS2d 957 [1984].)

Although raised by the Petitioner at the November 1, 2010 meeting [CR:1464]the storage tank issue was not specifically discussed by the Planning Board in its minutes or addressed in the resolution adopted on November 1, 2010 [CR:1491-1494]. While specific reference by the Planning Board might have been the preferable course, this Court finds that, given the scope of the entire project, the storage tank issue was an ancillary or accessory use and may well have been considered de minimus by the Planning Board.

In any event, the Board's determination is entitled to great deference and will not be disturbed unless this Court finds it to be irrational or unreasonable (Bonded Concrete v. ZBA, supra at 771). It appears to this Court that the Planning Board decision to approve the PUD with ancillary storage tanks for emergency generators was both rational and reasonable and founded upon substantial evidence.

The burden to invalidate a zoning board decision rests on the challenger. If the board's ultimate decision, by any reasonable interpretation of the facts, is even fairly debatable, its legislative judgment must be allowed to stand (Town of Bedford v. Village of Mt. Kisco, 33 NY2d 178, 351 NYS2d 129 [1973]). Accordingly, this Court finds that it was neither irrational nor unreasonable for the Board to approve the PUD with the inclusion of the storage tanks for back-up generators as an accessory use.

The Petitioner's last challenge to the designation of the property as a Planned Use Development is that the primary purpose of the project violates the "spirit" of the Town's PUD by devoting so much of its space to its four large data centers and little to the creation of a "multi-use neighborhood" referred to in §205-55(A)(2) of the Town's Zoning Law. Counsel for the Petitioner raised this issue in this November 1, 2010 letter to the Board [CR:1464].

The Court finds that the designation of the property as a Planned Unit Development violated neither the letter nor the spirit of the Town's Zoning Ordinance. First of all, the project was consistent with the Town's Comprehensive Plan adopted in 2003 [CR:372]and the Local [*22]Waterfront Revitalization Program ("LWRP") adopted in 2005 [CR:413, 499,1324-1325 ^[FN9] and 1492].

Secondly, as demonstrated plainly in Map 9 of the Development Plan [CR:1253], there are multiple uses proposed in the development, with approximately 100 acres devoted to the data center and associated structures, 20 acres utilized by the Babcock House and historical society, 8 acres devoted to open space along the lakefront of Lake Ontario, 36 acres retained for open spaces, and approximately 16 acres set aside for potential future development as an alternative energy site.

The Court is also persuaded of the appropriateness of the PUD designation on the project location by the fact that the behemoth AES coal fire power-generating plant occupying 1800 acres, employing 200-300 people, and located right next to the subject parcel is also designated as a Planned Unit Development (Map 6, Existing Zone [CR:1039]). Both sides have conceded this fact and Respondents have argued that it is indicative of the Town's attempt to provide comprehensive planning for overall growth [CR:2598-2599].

This Court finds that the designation of the project site as a Planned Unit Development met the Town's own zoning code as outlined in its definitions and its stated objectives of providing for a consolidated, coordinated group of integrated uses with a varied type of environmental, commercial uses, economic opportunities and community facilities. (Zoning Ordinance §205-54). Specifically, the plan calls for the natural topography, soils and woodlands to be preserved near Lake Ontario. There was extensive buffering between uses. A consistent and unified architectural design had been employed throughout the planned structures. Provision has been made for extended and enhanced open space in the area around the Babcock House. The proposal furthered the goals of the Town's Comprehensive Plan.

In conclusion, the project is well-suited for rezoning to a Planned Unit Development and Petitioner's attack on the Board's decision must simply fail because she has not sustained her burden in showing that the proposal is irrational or unreasonable in any respect. The rezoning to a PUD had a rational basis and was supported by substantial evidence. (See Fuhst v. Foley, 45 NY2d 441, 410 NYS2d 56 [1978]; Fisher v. Markowitz, 166 AD2d 444, 560 NYS2d 496 [2nd Dept 1990]; Committee to Preserve Brighton Beach, supra; Kravetz v. Pleuge, 84 AD2d 422, 446 NYS2d 807 [4th Dept 1982]; Ahern v. ZBA, 158 AD2d 801, 551 NYS2d 392 [3rd Dept 1990] (defined Planned Unit Development); Miller v. Kozakiewicz, 289 AD2d 494, 735 NYS2d 176 [2nd Dept 2001] citing Asian Americans for Equality v. Koch, 72 NY2d 121, 531 NYS2d 782 [1988].)

It is this Court's conclusion that the 1994 legislative amendment, adding subdivision 239-m (3)(c), permits county planning boards to enter into agreements with local municipalities narrowing the scope of projects to be referred to the county planning board. The record demonstrates that in 1995 precisely such an authorizing agreement was entered into between the Niagara County Planning Board and the Town of Somerset.

That 1995 agreement specifically exempted from county board referral any zoning applications within 500 feet of a town boundary, any state or county road and/or the boundary of a farming operation located in an agricultural district unless such property was located immediately adjacent to a municipal boundary or park or concerned a corner lot on a state or county highway.

The lead agency properly submitted notification of the Verizon project to the Niagara County Planning Board, who determined that none of these conditions precedent applied and decided that referral to the County Planning Board was neither necessary nor desired under the terms of the 1995 agreement. Such determination was duly communicated to the lead agency.

For these reasons, this Court denies and dismisses Claim Five, and drops the Niagara County Planning Board as a respondent in this action.

NIAGARA COUNTY JUDGE and

ENTER:ACTING SUPREME COURT JUSTICE