In this hybrid proceeding, pursuant to Article 78 of the CPLR, and action, seeking declaratory and injunctive relief, the Petitioners/Plaintiffs ^[FN1] include an unincorporated community group focused on promoting the historical role the Shinnecock Canal has played in the area and for protection of the environmental, social and economic characteristics of the area. Three individual Petitioners/Plaintiffs are both members of Shinnecock Neighbors and own property near the canal and the rezoned property. One of the Petitioners/Plaintiffs is a professional artist and uses the canal.

On January 13, 2015, the Respondent/Defendant, Town Board of the Town of Southampton [Town]^[FN2] , adopted Local Law No. 1 of 2015, amended the Town's zoning code by adding a new section that created the Canoe Place Inn, and the Canal and Eastern Properties Maritime Planned Development District. The law rezoned three parcels of property owned by Defendants R Squared Development LLC, R Squared INV HB LLC and Canal Properties, LLC, so as to permit the rehabilitation of the Canoe Place Inn ^[FN3] [CPI] for use as an inn, catering facility and restaurant, as well as the development of both a 37 unit luxury waterfront townhouse community and a wastewater treatment facility for the community, and a Permeable Reactive Barrier [PRB] to be installed along the eastern and southern site boundaries to treat nitrogen generated on-site from up gradient areas.

The Petitioners/Plaintiffs claim that the rezoning in not in conformity with the Town's Comprehensive Plan [Plan]. The Plan envisions the Shinnecock Canal as a facility for water-dependent businesses. The Town argues, inter alia, that inn and catering with a restaurant and [*2]cottage units are water-enhanced uses, and the townhouses will enhance the tourist nature of the area. The application for rezoning provides for a passive public access to the water along the property frontage of the Shinnecock Canal based upon securing a viewing/fishing platform and existing floating dock. The Final Environmental Impact Statement [FEIS] notes that the rehabilitation of the CP I is in conformity with the goals of the Plan, and enhances an underutilized area. The Petitioners/Plaintiffs also urge that the rezoning is not rational, and should be declared void, due to the failure to comply with SEQRA. This argument includes utilizing a water treatment system that should be reviewed by the NYSDEC.^[FN4]

In addressing the contention that the Local Law violates the Plan, the Petitioners urge that the Shinnecock Canal is a maritime center according to the South Shore Estuary Reserve Comprehensive Management Plan that classifies the area so that it is developed with and has concentration of water-dependent commercial and industrial use. The Plan lists the property as a Resort Waterfront Business and Motel Business. The crux of the Petitioners' position is that allowing residential use along the canal fails to comply with the Comprehensive Management Plan. As the Second Department has held, "Town Law § 272—a(11) provides that where, ..., a town has adopted a formal comprehensive plan, the town's zoning decisions must be consistent with that plan. Compliance with the statutory requirement is measured, however, in light of the long-standing principle that one who challenges such a legislative act bears a heavy burden. " 'If the validity of the legislative classification for zoning purposes be fairly debatable, the legislative judgment must be allowed to control' " (Shepard v. Village of Skaneateles, 300 NY 115, 118, 89 N.E.2d 619, quoting Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 388, 47 S. Ct. 114, 71 L.Ed. 303; see De Sena v. Gulde, 24 AD2d 165, 169, 265 N.Y.S.2d 239). Thus, where the [*3]Plaintiff fails to establish a clear conflict with the comprehensive plan, the zoning classification must be upheld." Bergstol v. Town of Monroe, 15 AD3d 324, 325. [some cites omitted]. Here, the Town determined that the change "has been structured to accomplish the findings, purpose and long term goals established by the Town Board as part of [the Plan]. Said districts are intended to provide flexible residential and/or commercial development with predominantly water-dependent or water-enhanced uses, while maximizing the preservation of natural vegetation and resources. Clustering, open-space preservation, water access and the most efficient utilization of the of the waterfront, transportation systems, utilities and public services are to be achieved through a MPDD designation." The Town does concede that the "proposed townhouses are not considered water enhanced" but maintains that they will enhance the tourist nature of the area. If the townhouses were the only change, it would clearly conflict with the comprehensive plan.^[FN5] However, the change must be determined in toto. See Matter of Gernatt Asphalt Prods. v. Town of Sardinia, 87 NY2d 668, 685; Asian Americans for Equality v. Koch, 72 NY2d 121. In providing the deference required for such action by the municipality, the Petitioners have failed to establish that the Local Law, in toto, is in clear conflict with the Plan. Restuccio v. City of Oswego, 114 AD3d 1191; Bergami v. Town Bd. of Town of Rotterdam, 97 AD3d 1018. Consequently, this basis to annul the determination of the Town must be rejected.

The second petition ground alleges that the Town action was irrational. The Petitioners claim that Local Law rezoning which involves "the means of trading the rehabilitation of a private catering business and incorporating an unproven water treatment technology for water traveling to an impaired water body for the eradication of zoning that supports primary industries in the Shinnecock Canal area for 37-3 bedroom residential townhouses that will forcefully pump their wastewater into another neighborhood is not rational." It is axiomatic that "zoning ordinances and amendments enjoy strong presumption of constitutionality, and burden rests on party attacking them to overcome that presumption beyond reasonable doubt." Asian Americans for Equality v. Koch, supra at 131. "The analysis follows traditional due process rules: if the zoning ordinance is adopted for a legitimate governmental purpose and there is a " 'reasonable relation between the end sought to be achieved by the regulation and the means used to achieve that end,' " it will be upheld." Id. [quote omitted]. Here, the Town found public benefits in the zoning change including the rehabilitation of the CPI (which was in poor condition), providing a new public access easement, a monetary contribution for the Shinnecock Canal Part, roadway safety improvements and the installation of sidewalks along the property. Petitioners' argument focuses on the benefit of the rehabilitation of the inn, while the rationality of the determination must be viewed in totality. The potential benefits the Town determined existed provide a legitimate governmental interest and the Local Law provides a rational nexus to obtain the governmental interest. Consequently, the determination must be determined valid under this challenged basis.

The third issue raised in the petition involves the failure of the respondents to undertake their requirement under the State Environmental Quality Review Act (SEQRA). " SEQRA insures that agency decision-makers—enlightened by public comment where appropriate—will identify and focus attention on any environmental impact of proposed action, [*4]that they will balance those consequences against other relevant social and economic considerations, minimize adverse environmental effects to the maximum extent practicable, and then articulate the bases for their choices." Jackson v. New York State Urban Development Corp., 67 NY2d 400, 414-15. Judicial review requires a "review the record to determine whether the agency identified the relevant areas of environmental concern, took a "hard look" at them, and made a "reasoned elaboration" of the basis for its determination. Court review, while supervisory only, insures that the agencies will honor their mandate regarding environmental protection by complying strictly with prescribed procedures and giving reasoned consideration to all pertinent issues revealed in the process." Id. at 417.^[FN6]

The SEQRA process was initiated on February 23, 2012, with the formal application. The Town was determined to be the lead agency. A Draft Environmental Impact Statement [DEIS] was submitted, reviewed, revised and public hearings were held. On May 7, 2014, a [FEIS] was submitted to the Town and the Town issued comments and forwarded parts of the statement to appropriate entities for review. On October 16, 2014, the Town accepted the FEIS and thereafter held public hearings. In January 2015, the Town adopted the FEIS.

The Petitioners raise numerous issues with the FEIS and its adoption. Two issues involve a new, on-site septic tank/leaching pool system to be installed on the CPI site. "The proposed design flow of this new system will be 67% less than the grandfathered flow recognized for CPI, providing a reduction in nitrogen recharged to the groundwater beneath this site." Also, a Permeable Reactive Barrier [PRB] will be installed along part of the borders of the CPI property. "This feature will remove nitrogen from the new on-site sanitary system as well as non-project wastewater" and "will remove nitrogen in groundwater emanating from off-site, up gradient locations as it passes beneath the site and through [the system]." Petitioners claim that the Town "relied on faulty and seriously deficient information for the proposed permeable reactive barrier to be installed at the borders of the CPI property. As to water use at the CPI, the developers misrepresented that they had Suffolk County Department of Health Services [SCDHS] approval for a grandfathered water usage level of 20,000 gallons of water per day when they did not and the Town" failed to determine the accuracy and thereafter take a "hard look" at the data.

The FEIS provides, inter alia, that a" PRB will be installed along portions of the down gradient (southern and eastern) borders of the property (see Figure 1-1). This feature will remove nitrogen from the new on-site sanitary system as well as non-project wastewater such as storm water, and will also remove nitrogen in groundwater emanating from off-site, up gradient locations as it passes beneath the site and through the PRB. In this way, the quality of groundwater that outflows to Shinnecock Canal and Shinnecock Bay will be improved over existing conditions, thus a positive benefit on the quality of marine surface waters." "The [*5]wastewater generated on this site will be handled by use of a new, on-site septic tank/leaching pool system; in addition, in order to provide further nitrogen reduction in groundwater beneath this site, a PRB is proposed to be installed along a portion of the down gradient (southern and eastern) borders of this property. This feature will remove nitrogen from the new on-site sanitary system and storm water, and will also remove nitrogen in groundwater emanating from up gradient off-site locations as it passes beneath the site and through the PRB. In this way, the quality of groundwater that outflows to Shinnecock Canal and Shinnecock Bay will be improved, thus benefitting the quality of marine surface waters. The proposed PRB will be installed below the ground surface, located in groundwater (see Appendix M-2 for detailed information on the design of the PRB system). The area below the ground surface but above groundwater is referred to as the vadose or unsaturated zone. At the CPI Property, groundwater in the area of the PRB is located approximately 10 feet below the ground surface. Existing and proposed landscape vegetation grows in the vadose unsaturated zone and would not survive if the roots were in groundwater. Landscape vegetation receives its needed nutrients and water for growth from atmospheric deposition (rain and wet and dry deposition of nutrients) and irrigation/fertilizers. The PRB removes only nutrients from water that passes through it, and water that passes through the PRB is not reachable by landscape vegetation. Consequently, the vegetation on land above the PRB will not be affected by the PRB." As part of the FEIS, the Master Plan Report, Wastewater Management System & Nitrex TM RB Nitrogen Removal, Canoe Place Inn submitted by Lombardo Associates, Inc. provides that "Depending on site testing results and Nitrex TM PRB final design, the entire CPI project, including the Canal-Eastern Property, may have no net nitrogen discharge, that is essentially 100% nitrogen reduction. In other words, this means that the CPI Property and Canal-Eastern properties development are projected to remove more nitrogen discharging into Shinnecock Bay and Peconic Estuary than if the sites were undeveloped and in pristine condition. It is not unreasonable that site data and final design will result in 150+/-% of the CPI project nitrogen discharges to be removed —which is equivalent to no nitrogen discharge from the CPI project and removal of all nitrogen discharges from at least 33 homes." Furthermore, "at this groundwater travel time, the Nitrex TM treatment systems would remove an estimated 150% of Total Project Nitrogen Discharges." ^[FN7] The Town notes that, [*6]contrary to the Petitioners' argument, the PRB is not new technology [see Nelson & Pope report]. This report does note that there should be an Operations and Maintenance Plan to determine when substrate replenishment is necessary and that there is a lack of clarity as to the appropriate response to any diminution in performance of the technology. This latter issue raised by the Town's own expert does raise a concern.^[FN8] However, in a SEQRA review "not every conceivable environmental impact, mitigating measure or alternative must be identified and addressed before the substantive dictates of SEQRA are satisfied." Matter of Saratoga Lake Protection & Improvement Dist. v. Department of Pub. Works of City of Saratoga Springs, 46 AD3d 979. The Town did provide that the applicant shall develop an acceptable monitoring program for the PRB as part of site plan review and a covenant shall be required by the Planning Board to ensure continued maintenance and viability. Therefore, the Planning Board will be required to undertake a "hard look" at the maintenance and viability. With this issue still to be addressed, the Town did identify the environmental issues involved and undertook the hard look required for the PRB. Joel v. Village of Woodbury, 138 AD3d 1008.

With respect to the water usage, the Petitioners claim that CPI has an unsubstantiated claim that permissible grandfathered water usage of 20,000 gallons per day was approved by the Suffolk County Department of Health Services. The Petitioners claim that since the CPI was closed and maintenance discontinued, the amount of water usage could not utilized for Sanitary Wastewater Disposal. The FEIS provides that for the CPI Property " As discussed in Section 1.3.5.1 of the Draft EIS, the Population Density Equivalent on the CPI Property is 3,582 gpd (based on 5.97 acres x 600 gpd/acre). However, the Draft EIS identifies the grandfathered flow for the property as 20,000 gpd based on the previous uses. Because the Revised Plan is anticipated to generate a total of 10,175 gpd of hydraulic flow (see Table 1-6a), this is significantly less than the grandfathered flow; therefore, a new Suffolk County-approved conventional subsurface sewage disposal system is proposed." Moreover, appendix Q of FEIS [Materials in Support of Discussion on Grandfathered Flow, SCDHS] does not clarify whether the grandfathered flow could be utilized, only providing guidelines dated 2005. Although the Respondents indicates that the sanitary flow was 6600 gpd, the issue should have been clear for the Town's to undertake a hard look. However, noted in the required permits is SCSC Article 4 (water supply system design) review/approval and SCSC Article 6 (sanitary system) review/approval. The issue of whether the water usage will be grandfathered will be determined by SCDHS. The data provided the Town was sufficient for it to undertake a hard look at the water usage issue with the understanding that the data may be rejected by SCDHS. The Petitioners claim also that the Town failed to undertake a hard look at the traffic impacts of the Local Law. The FEIS provides for public road improvements to be provided as part of the Revised Plan conceptually include:

• removing the ramp from southbound North Shore Road to westbound Montauk Highway ($80,000);

• regrading this area to more smoothly transition the land surface between the Canal Property and Montauk Highway ($30,000);

• landscaping ($40,000)and installation of a public parking area and walkway to the proposed viewing platform;

• realigning North Shore Road to create a "T"- intersection with Montauk Highway ($580,000); and

• make minor improvements to Montauk Highway and remove the westbound Montauk Highway to northbound North Shore Road ($170,000);

• With "soft costs" (i.e., mapping, permitting, survey, inspection services) of $170,000, the applicant estimates the total cost of these improvements at $1.07 million.

The DEIS included a Traffic Impact Study by Nelson & Pope which concluded that the construction of the proposed project will not significantly impact the operation of the study intersections. ^[FN9] The Petitioners cite studies and the Planning Boards resolution that the traffic impacts appear significant and that "traffic improvements should be identified that will increase the level of service and decrease the rate of accidents and implementation should be proposed as a public benefit of the development." [Southampton Planning Board Resolution].^[FN10] The SEQRA findings are derived from sufficient data from which the Town performed a hard look at the traffic studies and accepted those submitted as part of the DEIS with modification in the FEIS. The Town identified relevant concerns and elaborate on the reasons for its conclusions. Chinese Staff & Workers Assn. v. City of New York, 68 NY2d 359. It is not the province of the judiciary to second-guess thoughtful agency decision making and "it is not for a reviewing court to duplicate these efforts." Riverkeeper, Inc. v. Planning Bd. of Town of Southeast, 9 NY3d 219. Therefore, the SEQRA review must be sustained on this issue.^[FN11]

The Petitioners argue that the SEQRA review failed in two additional aspects. First, the Petitioners claim that a cumulative impact study was required for the other twenty-one Planned Development District. There are times when separate projects are intertwined such that their impact should not be isolated in order to properly review the environmental issues. Matter of Village of Westbury v. Department of Transp. of State of NY, 75 NY2d 62. Usually "projects should be considered together when they are integrated components of a larger plan, dependent [*7]upon one another and sharing a common purpose." Friends of Stanford Home v. Town of Niskayuna, 50 AD3d 1289. Here, there is no common purpose among the PDDs requiring a cumulative review.^[FN12] See Residents for Reasonable Development v. City of New York, 128 AD3d 609. Consequently, there is was no need for a cumulative impact statement.

The second additional issue that the Petitioners raise is that the Town failed to take any look at the issue of water supply and fire flow as the data was not provided in sufficient time to be reviewed. The Petitioner indicates that water supply and fire flow issues was not addressed in the SEQRA review. It would seem clear that understanding water supply and fire flow issues should be reviewed as part of the environmental impact statements in order for the lead agency to take a hard look at such data. See e.g. Green Earth Farms Rockland LLC v. Town of Haverstraw Planning Bd. 45 Misc 3d 1209(A) (Rockland Ct 2014); Concord Associates, L.P. v. Town of Thompson, 41 Misc 3d 1208(A) ( Sullivan Ct. 2013). The Respondents indicate that the issue was raised before the Town by citing a response to a comment in the FEIS.^[FN13] However, the letter of H2M architects and engineers, cited by both parties, notes that the Water District "cannot meet [*8]the estimate fire flow demands on the east side of the canal without additional facilities." As noted the additional water would cross the canal. There is no evidence that the Town undertook a hard look at this issue. The Town's position that all necessary approvals will be required from the Water District neglects its obligation as the lead agency, by attempting to defer the issue. "A lead agency improperly defers its duties when it abdicates its SEQRA responsibilities to another agency or insulates itself from environmental decision making." Riverkeeper, Inc. v. Planning Bd. of Town of Southeast, 9 NY3d 219, 234. Furthermore, the Local Law provides that for fire protection, the Planning Board shall solicit comments, also deferring this important issue. "Though the SEQRA process and individual agency permitting processes are intertwined, they are two distinct avenues of environmental review. Provided that a lead agency sufficiently considers the environmental concerns addressed by particular permits, the lead agency need not await another agency's permitting decision before exercising its independent judgment on that issue." Id. Therefore, the Town should require a supplemental EIS on this limited issue and undertake the required "hard look" on this issue. 6 NYCRR 617.9 (a)(7). ^[FN14] See Matter of Coca—Cola Bottling Co. of NY v. Board of Estimate of City of NY, 72 NY2d 674.

The Plaintiff seeks to declare that the Local law violates the Gift and Loan Clause of the New York State Constitution based upon the fact that the project seeks to obtain land from Suffolk County. A request for a declaratory judgment is premature if the future event is beyond the control of the parties and may never occur. Prashker v. United States Guar. Co., 1 NY2d 584. Here, whether there is ever a transfer of the property and the nature of such transaction is not presently ascertainable for judicial review. Consequently, that part of the motion for summary judgment is granted.^[FN15] To the extent that the Plaintiffs seek injunctive relief, there is insufficient basis to grant such relief. CPLR art. 63.

Settle order granting the petition/complaint to the limited extent that the proceeding is remitted to the Town for the limited purpose of adding a supplemental EIS on the limited issue noted and thereafter complying with SEQRA, denying the petition/complaint in all other aspects, and granting summary judgment to both Respondents/Defendants except as noted on the requirement of a supplemental EIS on the limited issue and declaring the Local Law valid except [*9]to the extent that a limited supplemental EIS is required and thereafter complying with SEQRA.^[FN16]

The Court will direct the petitioners to serve a copy of this Court's order dated April 19, 2017 and the parties submissions in response to the order on the DEC and the Suffolk County Department of Health Services to inform these entities.

• Well Field # 1: located off Ponquogue Avenue, has three wells (SCTM No. 900-224-2-36.11)

• Well Field # 2: located off Old Riverhead Road East, has two wells (SCTM No. 900-227-1-7.39) The CPI and Canal Property's water supply system designs will be determined during the Site Plan review process; however, the previous and existing water use on the properties, coupled with the extensive water supply distribution system in the area, ensure that sufficient potable water supply is available. The applicant has submitted a letter to the HBWD to confirm that the district has sufficient capacity to adequately supply the CPI and Canal Properties (see Appendix R). As of the date of this FEIS, the water district's consultant, H2M is preparing a model to gauge the impact the proposed Canoe Place and Canal Properties developments will have upon the existing water system and plan accordingly. The Town received the report dated October 10, 2014 (see Appendix R) outlining the options for improvements, and concludes that a new a second water main must be installed crossing the Shinnecock Canal from west to east. Any necessary connections, meters, easements and installations will be provided to ensure adequate water supply from the existing distribution system. It is noted that the nitrate concentration in potable water to be supplied to the proposed project is 2.04 mg/l, reflective of conditions in the Magothy Aquifer, from which the HBWD draws. The corresponding value for the Upper Glacial Aquifer, into which all treated wastewater will be conveyed, is estimated to average about 3.5 mg/l. [emphasis added]. Any data involving this second water main effect on the environment is lacking in the FEIS and, a fortiori, in the ability to take the required "hard look" and provide a determination on the Local Law. [emphasis added]