WEOK Broadcasting Corp. v. Planning Board

Levine, J.

(dissenting). In our view, the application of the appropriate standard of judicial review of a lead agency determination under the State Environmental Quality Review Act (ECL art 8) (hereinafter SEQRA) requires us to uphold the disapproval of this proposed action by respondent and reverse Supreme Court’s annulment thereof. At the outset, we would flatly hold that, under the SEQRA statutes, regulations and case law, aesthetic impact is a proper and valid basis for environmental review. SEQRA contains legislative findings *583that "[t]he maintenance of a quality environment for the people of this state that at all times is * * * pleasing to the senses * * * now and in the future is a matter of statewide concern” (ECL 8-0103 [1] [emphasis supplied]). "Environment” is statutorily defined as physical conditions to be affected by a proposed action, including "objects of * * * aesthetic significance * * * and existing community or neighborhood character” (ECL 8-0105 [6]). The regulations include as one of the criteria indicating that an action will have a significant environmental effect that it causes "the impairment of the character or quality of * * * aesthetic resources” (6 NYCRR 617.11 (a) [5]). Decisional authorities also support this conclusion. The court in Matter of Holmes v Brookhaven Town Planning Bd. (137 AD2d 601, 604, lv denied 72 NY2d 807) directly held that consideration by a lead agency of adverse aesthetic effects is mandatory. The requirement of consideration of aesthetic impact is also implicit in the Court of Appeals’ holding that relevant SEQRA concerns include "the impact that a project may have on * * * existing community character, with or without a separate impact on the physical environment” (Chinese Staff & Workers Assn. v City of New York, 68 NY2d 359, 366 [emphasis supplied]).

It seems to us totally beyond dispute that the erection, in a suburban/rural area near a bluff overlooking one of the most scenic vistas of the Hudson River, of five radio transmission towers, each well over 200 feet in height, two of which will be brightly colored and illuminated with blinking red lights from dusk to dawn, will have some adverse aesthetic impact. The majority concludes, however, that respondent failed adequately to negate the findings of petitioner’s visual impact study that the adverse effect will be insignificant and, therefore, respondent’s disapproval was based purely on "generalized community objections”. The majority holds that such objections were insufficient, as a matter of law, as a basis for respondent’s disapproval of this application.

We find a number of flaws in the majority’s reasoning. First, we think its deprecation of community objections as a valid factor under SEQRA is erroneous. The case authority cited by the majority in rejecting community objection (see, e.g., Matter of Dodson v Planning Bd., 163 AD2d 804; Matter of Veysey v Zoning Bd. of Appeals, 154 AD2d 819, lv denied 75 NY2d 708) are zoning decisions having little precedential value for SEQRA purposes. Indeed, SEQRA’s procedures emphasize the requirements of advance public notice and hearings to afford *584the maximum opportunity for the expression of community environmental concerns on any proposed project (see, ECL 8-0109 [4]; 6 NYCRR 617.8 [c]; 617.9 [a]; Matter of Shawangunk Mountain Envtl. Assn. v Planning Bd., 157 AD2d 273, 276; Matter of Holmes v Brookhaven Town Planning Bd., 137 AD2d 601, supra). In rejecting community expressions of concern, the majority impliedly would require opponents of this project to submit expert opinions contradicting petitioner’s experts. We believe that this is error (see, Matter of Richland Acres Dev. Corp. v Adirondack Park Agency, 161 AD2d 1011, 1012).

Additionally, the majority clearly has usurped the functions of the lead agency here in determining the weight to be given to any particular evidence regarding the environmental significance of a proposed action and in balancing environmental, social and economic cost/benefits. These are the responsibilities of the lead agency under SEQRA, and that agency is given wide discretion in resolving such issues (see, Matter of Town of Henrietta v Department of Envtl. Conservation, 76 AD2d 215, 222). A lead agency is given considerable latitude in evaluating potential environmental effects, both short and long term (see, Akpan v Koch, 75 NY2d 561, 570). A lead agency’s decision to disapprove a project may only be annulled if it is irrational, arbitrary and capricious or unsupported by substantial evidence (Matter of Orchards Assocs. v Planning Bd., 114 AD2d 850, 852, appeal dismissed 68 NY2d 808).

Respondent’s rejection of petitioner’s visual impact study was anything but arbitrary and capricious here. Respondent’s decision expresses cogent reasons for not giving conclusive weight to the study, reasons which were not overcome by petitioner’s responses to comments on the study contained in the final environmental impact statement (hereinafter EIS). First, respondent’s consultant quite reasonably pointed out that, irrespective of the degree of professionalism with which petitioner’s visual impact study may have been conducted, "subjective judgments are inextricably involved in any visual assessment”. Second, the study’s findings of only minimal visual exposure values to views of the towers at various sensitive geographic locations were necessarily based on assumptions concerning the continuation of the status quo as to the density and height of trees obscuring the view of the radio towers, and of low population levels at some of the sites. Concerns expressed by respondent and others that these conditions would not remain the same in the long term were certainly not conclusively overcome in the responses contained *585in the final EIS. Additionally, although, as the majority points out, the State’s Deputy Commissioner of Historic Preservation expressed a lack of concern that the towers would adversely impair the scenic view across the Hudson River from the Franklin D. Roosevelt homestead in Hyde Park, Dutchess County, the superintendent of that landmark for the National Park Service expressed a contrary position and explained the basis for serious doubts as to the assurances of no visual impact over the long term in petitioner’s study. Finally, respondent found that petitioner’s proposal would afford little, if any, economic benefits to the Town of Lloyd or its residents and it cited various factors supporting that conclusion.

In short, the proposed erection of the five radio towers in petitioner’s application undeniably would have some adverse aesthetic environmental impact here. Respondent took a "hard look” at this identified environmental effect and gave a reasonable elaboration of the basis for its determination to reject the only evidence petitioner submitted that the aesthetic impact would be insignificant and that the environmental costs of the proposed project outweighed any possible benefits. Therefore, respondent fulfilled all the procedural and substantive requirements of SEQRA, and the judiciary should not second-guess respondent’s decision to disapprove the proposed action (see, Akpan v Koch, supra; Matter of Jackson v New York State Urban Dev. Corp., 67 NY2d 400, 417).

Regarding the effect of the prior approval of a 400-foot radio tower in the Town of Lloyd by respondent, as the Town Supervisor, pointed out in a memorandum supporting approval of that project, the single tower was only part of a larger plan providing for a radio station within the town and the potential creation of new jobs for town residents, plus the donation of 20 acres of "forever green” property to the town and the restriction of further development in the mountain area where the tower was to be located. Thus, on the face of the record, the facts and circumstances of the earlier project were so completely dissimilar to the instant application as to not constitute a prior precedent requiring either approval of petitioner’s application by respondent or an explanation of its reasons for reaching a different result (cf., Matter of Lafayette Stor. & Moving Corp. v Hartnett, 77 NY2d 823; Matter of Field Delivery Serv. [Roberts], 66 NY2d 516). Accordingly, we would *586reverse Supreme Court’s judgment, confirm respondent’s determination and dismiss the petition.

Mikoll and Mercure, JJ., concur with Yesawich, Jr., J.; Weiss, J. P., and Levine, J., dissent in an opinion by Levine, J.

Judgment affirmed, without costs.