State of New York
Supreme Court : County of Monroe

This opinion is uncorrected and is subject to revision in the official Reports

ANDREW V. SIRACUSE, J.

The conflict between the Cerame trust and the Town of Perinton has long since surpassed biblical proportions; well more than seven years of litigation have resulted from Mr. Cerame's desire to develop his family's land. His plans for a subdivision, resolved in part by a consent order in this court in 1995, have since been put on hold. For the past year he has, instead, attempted to find an economically manageable way of constructing a berm and noise barrier where the property adjoins Interstate 490.

The present action originated in an application to make use of rubble from a road reconstruction project in building the berm. The petitioner maintained that this was not an action subject to environmental review. The court disagreed, and in April 2002 it sent the matter back to the Town with direction to review the environmental impact of the proposed construction "as speedily as possible, so that the petitioner's application does not become moot."

Festina lente, as the Romans used to say; the Town made haste slowly. In August, after requiring hundreds of pages of documentation and after letters and engineers' statements had been repeatedly exchanged, the Commissioner of Public Works denied the application "without prejudice" because he believed he had insufficient information on the project. The petitioners appealed this decision to the Zoning Board of Appeals. According to the Town Law this body is empowered to make the decision that it determines the Commissioner should have made--in other words, it hears the matter de novo. (Contrary to the Town's argument, no case law is necessary to interpret the clear wording of the Town Law.) The Board, however, declared in a decision at the end of November that the Commissioner had not acted in an arbitrary and capricious fashion. This, of course, is the standard for judicial review of administrative actions such as the Board's. It is not the governing principle for the Board's own deliberations. The Board's determination was therefore invalid because it was affected by an error of law (CPLR 7803 [3]).

Mr. Cerame thereupon brought this combined Article 78 and declaratory judgment action, seeking both to reverse the determination and direct the Town to issue a permit while the fill is still available and to obtain compensatory and punitive damages caused by the delay. The Town has responded that it was proper to deny the application because it was still uncertain about certain environmental issues.

The court could simply remand this matter to the Zoning Board of Appeals for a proper de novo hearing, but the history of this matter gives the court little confidence in the outcome. Enough has certainly been presented to pass on the project's probable environmental impact. It is abundantly clear that most if not all of the issues raised by the Town are irrelevant to the inquiry required by SEQRA. The court, of course, cannot substitute its judgment for that of the agency (Akpan v Koch, 75 NY2d 561, 570). It can, however, remands the application to the Town with a direction as to the questions that must be considered,

The most contentious issues arise with respect to noise level and possible damage to Town roads during construction. The court has found numerous documents addressing the noise issue, but the Town appears to be requiring a cost-benefit analysis of construction noise weighed against the noise reduction resulting from the berm. The Town does not explain why the petitioner should be required to determine how effective the berm will be on his own property, which is the property affected. Nor is there any effective way of equating two months of construction noise against an undefined period of noise reduction as a result of the berm. Any berm will require that fill be brought on to the site, and thus that trucks will be used; surely the Town does not expect the petitioners to use canal boats or helicopters to ship construction debris and topsoil. At some point the Town will have to face the necessity of allowing the petitioners to do something with their land. Were it to make it impossible for the petitioners to truck any fill (or construction material) through surrounding neighborhoods the property would become valueless. The Town's position runs the risk of effecting an unconstitutional taking of the Cerame property.

The Town also raises the issue of "channelized" sound. This term seems to have first appeared in the testimony of a resident at one of the public hearings; he suggested that the existence of a noise barrier on the Cerame property might direct noise towards the unshielded adjacent property. No acoustical evidence is available either to support or dismiss this possibility, though the fact that the proposed barrier is on only one side of the highway surely makes such a result unlikely.

Because of this lack of information the court conducted its own research, and has found that, according to the Federal Highway Administration,

Residents adjacent to a highway sometimes feel that their noise levels have increased substantially because of the construction of a noise barrier on the opposite side of the highway. However, field studies have shown that this is not true. *** Measurements made to quantify this reflected increase have never shown an increase of greater than 1-2 dB an increase that is not perceptible to the average human ear (Keeping the Noise Down, www.fhwa.dot.gov/environment/keepdown.htm)

During the May 2, 2002 public hearing, the applicant suggested that the Town make the pavement analysis a condition of approval. Transcript of May 2, 2002 Public hearing, page 44. During the October 28, 2002 Zoning Board of Appeals hearing, the applicant agreed to amend the application to state that they will perform the core samples that are requested, if the Town will commit to a particular route. Minutes 10/28/02 ZBA hearing, page 114. That offer stands.

There is some dispute preliminary to determining this that should be resolved by the parties. The Town claims that it has told the petitioners' engineers where it wishes core samples to be taken, while the petitioners argue that the Town has never made a commitment to a specific route. This is surely a question that can be resolved with a brief telephone call or conference. A route should be stipulated by the Town, and from that route the position for core samples can be easily determined.

The Town also appears to be unwilling to accept a bond, as offered by the petitioners. It has reservations about the ease with which it can collect on such a bond. This concern is without merit. Bonds are an accepted manner of posting security against possible damage, and the Town, whatever its reservations, is compelled to accept them.

The Commissioner also claimed that he could not make a determination of environmental significance because he lacked a "quantification of the effective zone of abatement or light impact area." The positive effect the project may have on light spill from the highway is irrelevant to the possible negative impacts it might have. So, too, is third party proof that this plan is better than all other alternatives. The scope of SEQRA review is the possible environmental effect of a particular project; while some inquiry into alternatives is proper, the petitioners do not have to show that they considered and had sound reasons for not building noise barrier walls instead. To evaluate choices in the detail requested by the Town would require applicants to do substantial environmental studies on every conceivable way of developing property. This is certainly not what the Environmental Conservation Law requires.

More speculation appears in the Commissioner's insistence that he was uncertain as to the adequacy of berm compaction and of landscaping. The petitioners' proposal for compaction, topsoil placement and planting are fully divulged in the papers, and the Town had adequate time to review them and decide if they were adequate or not. There is no reason to suspect that they will give rise to any problems.

The Commissioner claimed that other reasons for his inability to make a determination of environmental significance was the need for "certification that the material is 'clean fill' and proof that the applicant's activity is exempt from DEC regulations." The source of the material to be used is uncertain; it appears that most of the fill from the Route 31 project originally contemplated has been used, but that additional road projects this spring will give rise to similarly useful material. It is clear that the fill is not from brownfield or other possibly hazardous sites, and the Town does not explain what kind of certification is needed. Finally, the DEC is responsible for enforcing its own regulations and the Town is not to use its jurisdiction as a means to of delaying SEQRA approval.

The "rule of reason" applied to SEQRA review allows consideration of different factors for different cases. While courts may not weigh the desirability of alternatives, it is within the court's power to see if the "agency identified the relevant areas of environmental concern" (Akpan v Koch, loc. cit.) This power carries with it the authority to define which areas are in fact relevant. On its reconsideration the Board shall give no consideration to the noise level from the trucking of fill, the possible adverse effects of the berm on noise levels elsewhere, the advisability of alternate schemes, or the approval of the DEC. The applicant is not to be required to establish the effectiveness of the berm as a noise or a light barrier. Any consideration of the compaction and landscaping issues may be done on the papers presented. The route for trucking must be established as outlined above, with core sampling done as offered by the petitioners, and the Town must treat bonds as acceptable security. The issue of possible toxic impact from fill cannot be dealt with until the exact source of the fill is decided, but neither can the application be rejected on that account; it should be conditioned on certification from either DEC or DOT that the fill is proper for the intended use.

This constitutes the court's decision on the Article 78 proceeding, which it characterizes as one in certiorari. The declaratory judgment action and other claims were not addressed by either party and the court expresses no opinion as to the merits of these claims. The petitioners' counsel may prepare an order granting the petition, with costs, and setting out the above instructions.

DATED: Rochester, New York

February 6, 2003

Andrew V. Siracuse, J.S.C.

This opinion is not available for publication in any official or unofficial reports, except the New York Law Journal, without the approval of the State Reporter or the Committee on Opinions (22 NYCRR 7300.1)

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