In the matter of the application of



For a judgment reversing, annulling and setting aside certain disapprovals of applications for site plan and preliminary subdivision approvals and certain findings made pursuant to the State Environmental Quality Review Act and directing that said applications be approved.




The following papers numbered 1 to 48 were read on this petition pursuant to CPLR Article 78:

Notice of Petition/Petition/Affidavits/Exhibits 1-13

Answer/Affidavits/Exhibits 14-39

Reply Affidavits 40-44

Sur-Reply Affidavit 45

Memorandum of Law 46-47

Record 48

Upon the foregoing papers filed herein, it is ORDERED that this petition is disposed of as follows:

Petitioner is the owner of a tract of land located in the Village of Hastings-on-Hudson, in a zoning district designated "Limited Industrial" which classification allows for retail uses. In April, 1995, petitioner filed with respondent, Planning Board of the Village of Hastings-on-Hudson (hereafter, "the Board"), an application for site plan, and preliminary subdivision, approval to construct on said tract of land a large supermarket. It is undisputed that petitioner's proposed use is among those permitted in a Limited Industrial district.

Upon receipt of petitioner's application the Board declared itself lead agency and ordered that an environmental impact statement be prepared, pursuant to the provisions of article 8 of the environmental conservation law (Also known as the State Environmental Quality Review Act, and referred to hereafter as "SEQRA"). Between April, 1995 and June, 1999, the Board conducted numerous public hearings, and invited and considered extensive comment from, inter alia, petitioner, neighboring municipalities and the Westchester County Planning Board as well as the public generally. This process included the consideration and formulation of scoping documents and preliminary and revised draft environmental impact statements-one submitted by petitioner and a second prepared on the Board's initiative when it found that the former was inadequate.

The Board accepted the second final statement in June, 1999. Further comment was invited and considered and in October, 1999, the Board adopted a findings statement disapproving the proposed site and subdivision plans due to significant unmitigated adverse impacts on traffic, views from abutting public by-ways, potential population patterns and the character of the surrounding community. In its resolution the board also determined that the proposed site and subdivision plans failed to satisfy several of the criteria for approval thereof as enunciated in various provision of the Village Zoning code (hereafter, "the Code").

In this special proceeding petitioner argues that the Board's determinations are arbitrary and capricious and unsupported by substantial evidence. Petitioner seeks orders of this Court setting aside, reversing and annulling said determination. The petition is denied.

Upon review of the record the Court finds that the Board took the requisite "hard look" at the proposed site and subdivision plans and complied in all respects with the mandates of the SEQRA process. Based upon said record, the Board's determination to accept the findings statement, disapproving the project, was supported by substantial evidence and was neither arbitrary or capricious, irrational nor otherwise affected by an error of law.

As petitioner argues, the Board had before it evidence and analyses-presented, for the most part, within the first final environmental impact statement, which petitioner prepared-which would have supported a determination approving the project. This is not, however, sufficient to satisfy petitioner's burden to establish that the Board's actual determination was unreasonable merely because it was contrary thereto. The Board carefully considered, and solicited comment upon, then considered again, all of the evidence and analyses submitted. The fact that the Board chose-as, of course, it was compelled to do-to rely upon certain submissions and not upon others is indicative neither of irrationality, manipulation nor pre-determination. Suffice to say, the choices which the Board did make, and the determinations which flowed therefrom, were supported by substantial evidence in the record and were reasonably and clearly elaborated in its resolution.

Each of the elements upon which the Board determined the project would have a significant adverse impact-i.e., traffic, visual, population patterns, community character, socio-economic and terrestrial and aquatic-are areas of "environmental" concern properly within the purview of the SEQRA review process. Whether, as petitioner contends, an impact upon one or another of these elements would have been sufficient, in itself, to justify the Board's determination is of no consequence. As to each element, the determination that such impact would be significant and adverse was both reasonable and well-founded and , at the least, the cumulative impact more than justified disapproval of the project.

Nor was the Board precluded from disapproving the proposed site and subdivision plans because a supermarket was a use permitted "as of right" on petitioner's property. The fact that a proposed use is not prohibited and requires no variance does not thereby bestow upon an applicant an absolute right to approval of its development plans. Indeed, where, as here, the SEQRA process results in a determination that the execution of such plans would have a significant adverse environmental impact the propriety, for zoning classification purposes, of the proposed use is all but irrelevant. Were it otherwise the SEQRA process would be reduced to an utterly futile and pointless exercise.

Furthermore, the Board also determined that the proposed plans failed to satisfy certain of the standards established for approval of such in the Code. The efficacy of this determination is not in the least diminished either by the fact that such local standards address "environmental" concerns or that the record upon which it was founded was developed as the product of a SEQRA review process; petitioner's disparagement of said determination as mere "bootstrappng" notwithstanding. Upon review of the record the Court finds that this determination, as well, was supported by substantial evidence and was neither arbitrary or capricious, irrational nor otherwise affected by an error of law. Regardless, therefore, of the rightfulness of its SEQRA determination, the Board's conclusion that the site and subdivision plans failed to satisfy the Village's own standards constituted an independent ground for disapproval of petitioner's application.

Finally, the SEQRA and Code determinations were within the Board's authority to render. Each was firmly founded upon findings relevant to issues concerning the proposed site and subdivision plans only. The court finds no indication in the record that either determination was based upon the nature of the proposed use or the product of political or community pressure. In sum, in neither instance was the Board attempting to interpret, manipulate or modify the Village's zoning laws, or otherwise usurp powers accorded to a zoning board of appeals, in the guise of a planning decision.

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

Dated: White Plains, New York

May 15, 2000



Acting Justice of the Supreme Court