This post was authored by Matthew Loescher, Esq.
In January 2015, respondent Primax Properties, LLC applied to respondent Town of Germantown Planning Board for subdivision and site plan approval to subdivide an existing lot of approximately 6.1 acres in the Town of Germantown, Columbia County into two lots. Respondents Paul D’Souza and Henrietta D’Souza, owners of the property, would retain one lot of approximately 4.7 acres, while the remaining lot of approximately 1.4 acres would be conveyed to Primax. Primax then intended to construct an approximately 9,000–square–foot Dollar General retail store on the site, which was a permitted use in the relevant zoning district requiring site plan approval. Petitioners Arthur M. Cady and Elizabeth M. Cawley owned certain real property that shared a common boundary with the property.
The Planning Board declared itself lead agency pursuant to the State Environmental Quality Review Act, and issued a positive declaration. Primax submitted a proposed final EIS (“FEIS”). The Planning Board held an internal meeting and voted to accept the FEIS as written. After the Planning Board revised its draft SEQRA findings statement, it unanimously voted to adopt it. Petitioners alleged that the Planning Board failed to take the requisite hard look at the visual and environmental impact of the project and acted outside of its authority by approving the building design with a 71–foot façade without submitting the matter to the Germantown Zoning Board of Appeals (“ZBA”) for a determination as to whether an area variance was necessary.
As relevant here, the Town zoning code set forth that “the length of any façade should generally not exceed 50 feet maximum horizontal dimension.” As the subject provision lacked any compulsory language, the court found this provision was deliberately phrased as a guideline, rather than as a prohibition. Thus, the Supreme Court erred in finding that the Planning Board exceeded its authority in its approval of the site plan, as the decision was rational and based upon an unambiguous reading of the Town zoning code.
The record reflected that although the façade did exceed the Town zoning code’s 50–foot guideline, the Planning Board took various actions to ensure that Primax minimized the façade’s visual and environmental disruption, including, in preparation for the second draft EIS, requiring Primax to alter the façade to include a chamfered front to reduce the visual impact. Additionally, the Planning Board underwent a nearly four-year process that involved in-depth environmental impact reports, multiple draft EISes and public hearings, which formed the basis of the FEIS and SEQRA findings statement. Accordingly, the court held that the Planning Board complied with its procedural and substantive requirements under SEQRA. The judgment of the Supreme Court was therefore reversed.
Cadyv Town of Germantown Planning Board, 2020 WL 3271676 (NYAD 3 Dept. 5/19/2020)
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