WEOK Broadcasting Corp. v. Planning Board

OPINION OF THE COURT

Yesawich, Jr., J.

Petitioner submitted a request to respondent for site plan approval to build an AM radio transmitter facility in Ulster County. The facility, to consist of five radio transmission towers not exceeding 245 feet in height, is a permitted use under the local zoning laws. Nevertheless, respondent, concerned about potential aesthetic impairment, issued a State Environmental Quality Review Act (ECL art 8) (hereinafter SEQRA) positive declaration statement which directed petitioner to consider the towers’ visual impact from various locations, one of which was a national historic landmark in Dutchess County, the Franklin D. Roosevelt residence.

Petitioner submitted a comprehensive draft environmental impact statement (hereinafter EIS) which included an analysis, prepared by landscape architects, of the proposed towers’ visual impact on these sites. This study revealed there would be minor visual impact from six identified viewpoints, moderate visual impact from one, and no visual impact fropi the remaining two (the Mid-Hudson Bridge and Roosevelt’s his*580toric home). Thereafter, respondent retained an independent consultant to critique the draft EIS. This consultant noted that petitioner had "prepared an in depth analysis which utilized a professional and thorough methodology to objectively assess the visual impact of [the proposed] project”. She cautioned, however, that "subjective judgments are inextricably involved in any visual assessment”.

In the final EIS, petitioner addressed the specific instances of subjectivity identified by the consultant as well as other negative public comments. Respondent disagreed with petitioner’s visibility assessment and denied site plan approval. It neglected, however, to articulate any sound aesthetic basis for denying petitioner’s application despite having previously approved a single 400-foot-high radio transmission tower located atop a nearby hill; a special permit was required and granted allowing the erection of this much taller, more visible tower which can be seen from the Roosevelt site.

This CPLR article 78 proceeding was commenced by petitioner to annul respondent’s determination. It is alleged that the decision was arbitrary, not supported by substantial evidence and contrary to respondent’s earlier holding. Scenic Hudson, Inc., a nonprofit environmental organization dedicated to the preservation of the Hudson River valley, submitted an amicus curiae brief in support of respondent’s position. Supreme Court agreed with petitioner and granted the petition. Respondent has appealed. We agree with Supreme Court that the petition should be granted.

A threshold issue is whether SEQRA has any application when the proposed use is one specifically permitted by local zoning ordinances.1 The question presented is not whether the proposed use comports with local zoning ordinances, in which event the issue should not be resolved by SEQRA analysis (see, Gerrard, Ruzow, Weinberg, Environmental Impact Review in New York § 8.14, at 8-55), but, given the proposed use’s conformance with local zoning ordinances, whether SEQRA review was still necessary.

SEQRA’s fundamental policy is to inject environmental considerations directly into governmental decision-making at the earliest possible time so that agencies conduct their affairs *581in a manner which will protect the environment (Matter of Coca-Cola Bottling Co. v Board of Estimate, 72 NY2d 674, 679; see, ECL 8-0103 [8]). To accomplish this goal, all agencies must determine whether those actions they fund, undertake or approve may significantly affect the environment (6 NYCRR 617.1 [c]). With respect to zoning ordinances in particular, the Legislature specifically intended that they be interpreted and administered in accordance with SEQRA’s declared policies (see, ECL 8-0103 [6]). SEQRA neither preempts nor interferes with local zoning ordinances (ECL 8-0103 [6]; see, Matter of Town of Poughkeepsie v Flacke, 84 AD2d 1, 5, lv denied 57 NY2d 602); rather, it establishes an analytical process to assure careful, defensible land use decisions (Damsky, SEQRA and Zoning Law’s Requirement of a Comprehensive Plan, 46 Alb L Rev 1292, 1297 [1982]). Consequently, an agency is not precluded from subjecting an action to SEQRA review simply because the proposed project is specifically permitted by the applicable zoning ordinances (see, Matter of Jaffee v RCI Corp., 119 AD2d 854, 856, lv denied 68 NY2d 607).

As in all SEQRA review situations, however, the agency must identify the relevant environmental concerns, analyze them closely and reasonably elaborate the basis for its decision (Matter of Jackson v New York State Urban Dev. Corp., 67 NY2d 400, 417). Court review is limited to ensuring that this three-step process was employed and that the ensuing decision is supported by substantial evidence (supra).

It is acknowledged by both parties that respondent denied petitioner’s application for aesthetic reasons alone.2 While petitioner’s ElSes demonstrated that it minimized negative visual impacts to the greatest extent practical, respondent failed to furnish any rationale for completely disregarding petitioner’s comprehensive and extensive visual impact analysis, which its own independent consultant regarded as "comprehensive and thorough” (see, Society of Plastics Indus. v County of Suffolk, 154 AD2d 179, 182, lv granted 76 NY2d 705). For example, respondent determined that the towers may be visible from the Roosevelt homestead. The draft EIS, however, informed that there was no visual impact, an observation with which respondent’s consultant did not disagree. Moreover, the State’s Deputy Commissioner of Historic Pres*582ervation opined that "the project will have No Adverse Effect upon [Roosevelt’s homestead]”.

Similarly, in denying petitioner’s application, respondent found that the height of the screening trees was not sufficiently documented, that the impact analysis assumed optimal conditions, that there was no direct financial benefit to be derived from the towers’ construction and that the lighting required by the towers would be objectionable.3 Respondent ignored petitioner’s responses to these criticisms, which were specifically addressed in the comment section of the final EIS. As the only apparent grounds for denying petitioner’s application consisted of generalized community objections, which are contrary to the data provided, respondent’s determination lacks a substantial evidence basis in the record (see, Matter of Veysey v Zoning Bd. of Appeals, 154 AD2d 819, 820-821, lv denied 75 NY2d 708; see also, e.g., Matter of Dodson v Planning Bd., 163 AD2d 804, 807). An agency SEQRA decision which, as here, is unsupported by empirical or experimental data, scientific authority, or other explanatory basis is simply unacceptable (Matter of Tehan v Scrivani, 97 AD2d 769, 771). To conclude otherwise is to invest a reviewing agency with unfettered discretion to deny a specifically permitted use because of the emotional objection of irate community members. Adopting such a principle would be improvident; it would quite likely encourage reviewing agencies to develop that certain convenience of vision that community displeasure can inspire and makes further harmonious permitted special land use development virtually impossible.

Our finding that respondent’s determination cannot stand makes it unnecessary to confront the parties’ remaining argument.

. Respondent argues that petitioner’s proposed plan is not a use permitted by the local zoning ordinances because the towers would require lighting (see, 1984 Zoning Ordinance of Town of Lloyd § 100-13). For purposes of this argument only, we have assumed a conforming use.

. Inasmuch as petitioner accepts respondent’s underlying premise that negative aesthetic impacts alone may serve as the basis for a SEQRA denial, we see no need, though urged in the amicus curiae brief, to examine the merits of that premise.

. Nonconformance with applicable zoning regulations is not an appropriate basis for SEQRA denial (cf., Matter of Town of Poughkeepsie v Flacke, 84 AD2d 1, supra).