Petitioner seeks a judgment, pursuant to CPLR Article 78, [*2]nullifying and invalidating four determinations made by the respondent Village of Rhinebeck Zoning Board of Appeals, specifically: (1) a determination made on or about November 21, 2013 granting a one year extension for an area variance for the front yard at 46, 44 and 40(rear) West Market Street, Village of Rhinebeck (the challenged extension determination); (2) a determination made on or about January 16, 2014 granting an area variance for the front yard at 46, 44 and 40 (rear) West Market Street, Village of Rhinebeck; (3) a determination made on or about January 21, 2014 granting site plan approval and special permit approval for a proposed 50-room lodging facility with accessory uses at 46, 44 and 40 (rear) West Market Street, Village of Rhinebeck (the challenged site plan and special permit determination); and, (4) a determination made on or about January 21, 2014 adopting a State Environmental Quality Review Act (SEQRA) Statement of Consistency for the proposed 50-room lodging facility with accessory uses (the challenged SEQRA determination).

Upon the foregoing papers, the amended petition is decided as follows:

By way of background, petitioner has commenced this Article 78 proceeding challenging a series of environmental and land use approvals granted by the respondent Village of Rhinebeck Zoning Board of Appeals and respondent Village of Rhinebeck Planning Board for a hotel with a restaurant and spa proposed by respondent Rhinebeck Village Place, LLC on property owned by Mirbeau of Rhinebeck, LLC. The Mirbeau property is adjacent to the petitioner's property. Petitioner's property contains the Beekman Arms Inn and Restaurant.In the instant case, it is undisputed that the petitioner's property and the subject property are adjacent to each other. The proximity allegations as set forth in the second amended petition are sufficient to establish standing prima facie (see Matter of John John, LLC v. Planning Bd. of Town of Brookhaven, 15 AD3d 486 [2nd Dept 2005]). In response to the prima facie demonstration of standing in the amended petition, the respondents contend that the petitioner's motives are to avoid business competition and the petitioner's contentions with respect to traffic and environmental concerns are without merit. The presence of an economic motive for bringing a proceeding will not defeat standing if the adjacent property owner also has alleged concerns which are within the zone of interest to be protected (see Matter of Duke & Benedict v Town of Southeast, 253 AD2d 877 [2nd Dept 1998]). Here, the petitioner alleges that by reason of proximity, it will suffer adverse impacts based upon the traffic/parking impact the proposed wine bistro/spa/lodging facility will bring to the area. Accordingly, this Court finds that the petitioner is within the zone of interest to be protected and has standing to proceed.

Local zoning boards have broad discretion and judicial review of their actions is limited to determining whether the action taken by the zoning board was illegal, arbitrary, or an abuse of discretion (see Matter of Ifrah v. Utschig, 98 NY2d 304 [2002]; Matter of Filipowski v. Zoning Bd. of Appeals of Vil. of Greenwood Lake, 38 AD3d 545 [2nd Dept 2007]; Matter of Mann v. Zoning Bd. of Appeals of Town of E. Hampton, 34 AD3d 588 [2nd Dept 2006]; Matter of DiPaci v. Zoning Bd. of Appeals Vil. of Upper Nyack, 4 AD3d 354 [2nd Dept 2004]). A determination should be sustained upon judicial review if it was not illegal, had a rational basis, and was not arbitrary and capricious (see Matter of Sasso v. Osgood, 86 NY2d 374 [1995]; Matter of Filipowski v. Zoning Bd. of Appeals of Vil. of Greenwood, 38 AD3d 545 [2nd Dept 2007]; Matter of Pietrzak & Pfau Assoc., LLC v. Zoning Bd. of Appeals of Town of Wallkill, 34 AD3d 818 [2nd Dept 2006]; Matter of Pasceri v. Gabriele, 29 AD3d 805 [2nd Dept 2006]). The courts may not weigh the evidence or reject the choice made by the zoning board where the evidence is conflicting and room for choice exists (see Matter of Calvi v. Zoning Bd. Of Appeals of City of Yonkers, 238 AD2d 417 [2nd Dept 1997]).

The petitioner first seeks to challenge respondent Village of Rhinebeck Zoning Board of Appeals (ZBA)'s determination made on or about November 21, 2013 granting a one year extension for an area variance for the front yard at 46, 44 and 40 (rear) West Market Street, Village of Rhinebeck. Petitioner alleges that the ZBA adopted a one year extension of an area variance in violation of Section 120-51(L) of the Village of Rhinebeck Zoning Law. In [*3]relevant part, this section reads: "the granting of area and use variances shall automatically lapse and expire if the applicant fails to exercise the variance or fails to obtain any necessary building permits within one year of the date the decision is filed." Petitioner alleges that a one year extension of the area variance was issued on October 24, 2012 and thus, automatically lapsed and expired on October 24, 2013 when respondent Mirbeau failed to either exercise the variance or obtain building permits. Upon a search of the entirety of the record, it is clear that the respondent Mirbeau failed to exercise the variance or obtain building permits on or before October 24, 2013. The Court notes that zoning boards have authority to issue variances, including the authority to modify previously imposed time limitations if an application for an extension is made while the variance is still valid (see 420 Tenants Corp. v. EBM Long Beach, LLC, 41 AD3d 641 [2nd Dept 2007]). Here, the petitioner established that the respondent Mirbeau failed to seek an extension of the setback variance while the variance was still valid. Accordingly, the challenged extension determination made by respondent ZBA on November 21, 2013 which granted a one year extension for an area variance for the front yard at 46, 44 and 40(rear) West Market Street, Village of Rhinebeck is hereby nullified and invalidated.

Respondent Rhinebeck Village Place, LLC, in an exercise of caution and with knowledge of the within petition, appeared before the ZBA on January 16, 2014 and applied for a "new" variance requesting that the building be placed three hundred and six (306) feet from the front yard of the property, i.e. the same area variance previously granted for the front yard at 46, 44 and 40 (rear) West Market Street, Village of Rhinebeck. The ZBA granted the variance on the aforestated date. Petitioner now challenges this determination alleging that the ZBA improperly designated the variance application as Type II under SEQRA. Petitioner contends that the challenged variance is not a Type II Action, but rather it is part of a larger action consisting of all of the approvals required for the Rhinebeck Village Place Project (a Type I Action). 6 NYCRR §617.5(c)(12) clearly states that the granting of individual setback and lot line variances are Type II actions, which is not subject to SEQRA review. Looking further to the SEQRA Handbook, section (c)(12) "covers all variances for setback and lot line requirements" and the term individual denotes "one project on one lot" (New York State Department of Environmental Conservation, http://www.dec.ny.gov/permits/39800.html [accessed August 28, 2014]). Accordingly, the second branch of the petition, seeking nullification and invalidation of the ZBA's determination of January 16, 2014, is denied.

The third branch of the petition seeks nullification of the [*4]determination made by the respondent Village of Rhinebeck Planning Board (the planning board) on or about January 21, 2014 which granted site plan approval for a proposed 50-room lodging facility with accessory uses at 46, 44 and 40 (Rear) West Market Street, Village of Rhinebeck (the challenged site plan determination). The fourth branch of the petition seeks invalidation of the planning board's grant of a special use permit approval for the proposed spa located at 46, 44 and 40 (Rear) West Market Street, Village of Rhinebeck.

In the interest of judicial economy, the Court will address these branches of the petition simultaneously. Petitioner alleges that the challenged site plan and special permit determination must be invalidated and nullified in the absence of a valid precedential environmental review; and in the absence of dimensional zoning compliance.

Petitioner alleges that the respondent planning board

In reviewing administrative proceedings in general and SEQRA determinations in particular, the Court is limited to considering whether a 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 (see Chinese Staff & Workers Assn. v. City of New York, 68 NY2d 359 [1986]). It is not the role of the courts to weigh the desirability of any action or choose among alternatives, but to assure that the planning board has satisfied SEQRA, procedurally and substantively (see Jackson v. New York State Urban Dev. Corp., 67 NY2d 400 [1986]).

On January 21, 2014 the planning board adopted a SEQRA Statement of Consistency which, after reviewing the plans, documents and comments concerning the project, essentially adopted the original Negative Declaration of July 7, 2009. A negative declaration is a written determination by a lead agency that the implementation of the action as proposed will not result in any significant adverse environmental impacts (see 6 NYCRR §617.2[y]; Matter of Village of Chestnut Ridge v. Town of Ramapo, 99 AD3d 918 [2nd Dept 2012] leave to appeal dismissed in part by 20 NY3d 1034). The Negative Declaration states as follows:

"Rhinebeck Village Place is a 36 unit residential condominium building that will include finished one and two bedroom dwelling units...The amenities for guests include a residents' lounge, fitness room, receptionist, a reserved parking space found in the garage level, storage units for each dwelling unit in the garage level, elevators, common waste and recycling rooms, and exterior gardens and an entertainment deck."

And

"the proposed action will not result in any significant adverse environmental impacts, including long-term, direct, indirect or cumulative impacts, and that an Environmental Impact Statement will not be prepared."

The project, as currently set forth, involves the construction of a single three story lodging facility, located on a single building lot, accommodating 50 guest rooms, together with amenities for the guests which include a health and wellness spa, a wine bistro, a meeting room, site improvements and parking.

In addressing this branch of the petition, it is acknowledged that 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 (see Har Enters. v. Brookhaven, 74 NY2d 524 [1989]), rather, it is the Court's role to assure that the agency itself has satisfied SEQRA, procedurally and substantively (see Jackson v. New York State Urban Dev. Corp., 67 NY2d 400 [1986]).

The planning board's action in adopting the July 7, 2009 Negative Declaration fails to comply with the procedural requirements of SEQRA. Specifically, the Court finds that the respondent planning board has failed to properly issue a determination of significance in relation to the current project or amend its previous negative declaration pursuant to 6 NYCRR §617.7(e). The planning board was presented with significant documentation concerning the change in use for the project site from a 36 unit residential facility to a commercial facility providing lodging, a wine bistro and meeting rooms. While the Court recognizes that the mere circumstance that modifications may have been made to a proposal is an insufficient basis to nullify a negative declaration otherwise properly issued in a Type I action, the within petition and supporting documentation indicate that the proposal as set forth on September 23, 2013 amounts to much more than just a mere modification of the previous proposal (compare Matter of Merson v. McNally, 90 NY2d 742 [1997]). Evidenced throughout the documents as submitted by the parties is the need for a determination of significance by the planning board. Edward A. Kellogg of Rhinebeck Village Place, LLC states in his proposal to the planning board that he requests that the planning board "declare itself Lead Agency for the purposes of SEQRA and schedule a Public Hearing." Moreover, submitted with aforementioned proposal is a SEQRA Full Environmental Assessment Form dated September 24, 2013 which indicates that site plan approval and a special permit are sought [*5]for the development of a new 50 room lodging facility. Additionally, the documents indicate that consultants were hired to provide new information concerning the traffic impact, parking and sewage flow/water consumption of the new facility.

Literal compliance with both the letter and spirit of SEQRA is required and substantial compliance will not suffice (see Board of Co-op. Educational Services of Albany-Schoharie-Schenectady-Saratoga Counties v. Town of Colonie, 268 AD2d 838 [3rd Dept 2000]). As the planning board has failed to issue a determination of significance concerning the current proposal of Rhinebeck Village Place, LLC, the petition must be granted to the extent that the Statement of Consistency and the Reaffirmation of the Statement of Consistency are nullified and invalidated. This matter is remanded to the planning board so that it may comply with 6 NYCRR §617.7, by issuing a determination of significance in relation to the current project as proposed by Rhinebeck Village Place, LLC or amending its previous negative determination of July 7, 2009 to denote the significant change to the project.

The foregoing constitutes the decision, order and judgment of the Court.

HON. JAMES D. PAGONES, A.J.S.C.

RICHARD J. OLSON, ESQ.

JOHN R. MARVIN, ESQ.