Posted by: Patricia Salkin | November 11, 2012

NY Appellate Court Finds Town Adequately Reviewed Environmental Impacts of its Adult Student Housing Law

Various petitioners challenged the Town of Ramapo’s enactment of the Adult Student Housing Law (hereinafter “ASHL”).  Several villages and petitioners challenged this provision, but many were dismissed from the action for lack of standing.  Two petitioners remained and were granted a preliminary injunction, but the injunction expired because the petitioners failed to post an undertaking.  The petitioners appealed to the Appellate Division, Second Department and moved for an injunction.  The court denied the motion, and later on appeal reinstated the cause of action against the ASHL and a party intending to use the “Nike Site” under the ASHL.  On remand, the Supreme Court, Rockland County found the negative declaration issued under SEQRA for the ASHL was not arbitrary and capricious, but also found that the review of the Nike Site’s permit application was inadequate and remanded the matter back to the Town for a more exacting review of environmental impacts.  Following this ruling all the parties appealed.  Mosdos, the Nike Site, applicant appealed the determination and also claimed a vested right to the building permit.  The Town appealed the Nike Site ruling, and also moved to vacate a temporary restraining order prohibiting the issuance of permits to the Nike Site.  Lastly, the petitioners appealed the validity of the ASHL.  The Second Department reversed the Supreme Court’s determination that the Nike Site’s environmental review was inadequate, vacated the temporary restraining order, but otherwise affirmed the decision of the Supreme Court.  This opinion was issued with a sister opinion, captioned 2011-06019, which was addressed in yesterday’s post.

The Town adopted the ASHL to address housing concerns created by adult students attending postsecondary institutes of higher learning.  The ASHL was, in its final form, adopted within a comprehensive zoning plan.  This plan permitted adult student housing as a conditional use in residential zone districts, as an accessory to an approved educational facility.  The petitioners challenged the ASHL, claiming more traffic would be generated than the Town had computed during the environmental review under SEQRA.  The petitioners also claimed that the ASHL itself was faulty, as it did not require that the adult student residents attend the on-site school.  Rather, the wording of the ASHL would permit the students to travel to other off-site schools, causing increased traffic.  During the review process of the ASHL provisions, the Town undertook an environmental review and made a negative declaration.  In rendering this decision, the Town relied on traffic studies submitted by an engineering consultant employed by the owner of the Nike Site.

Mosdos applied for a building permit to construct adult student housing on the Nike Site.  A negative declaration was rendered by the Town under SEQRA.  After construction began, a preliminary injunction was issued, but the injunction was lifted when an undertaking was not posted.  The petitioners appealed, seeking injunctive relief.  While the first appeal was pending, the construction was 99% complete.  On remand from the Second Department, the Supreme Court remanded the Nike Site permit application to the Town.  On the second Appeal to the Second Department, Mosdos claimed a vested right in the construction permit.  The court denied this branch of Mosdos’ appeal, stating “these petitioners put Mosdos on notice that construction was undertaken at its own risk.”

Next, the court addressed the Town’s negative declaration concerning the Nike Site permit.  In review of the negative declaration, the court had to determine whether it “was affected by an error of law, arbitrary and capricious, or an abuse of discretion.”  The Supreme Court determined that the Town’s review of the impacts to traffic and community character were inadequate.  On appeal, the Second Department found the application and environmental review addressed both of these concerns.  The Town had found that the housing on the Nike Site would not detrimentally increase traffic, and the plan included mitigating features as well.  Furthermore, the court found that the traffic issues raised by the petitioners were speculative.  The court also found that Town adequately reviewed the impact on community character, as the permit application provided for vegetative buffers around the new student housing.

Addressing the ASHL itself, the Second Department found that the Town’s environmental review satisfied the requirements of SEQRA.  The Town had conducted a full environmental review of the ASHL, including environmental impact statements, and final supplemental environmental impact statements.  Thus, the court denied the petitioners’ appeal.

Village of Chestnut Ridge v. Town of Ramapo, 2012 WL 4901070 (NY AD 2nd Dep’t, 10/17/ 2012).

The opinion can be accessed here.

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