        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

836
CA 15-00089
PRESENT: CENTRA, J.P., CARNI, VALENTINO, AND DEJOSEPH, JJ.


IN THE MATTER OF DESIREE DAWLEY, JAMES DAWLEY,
LYNN BARBUTO, ROBERT BARBUTO, JAMES NEARPASS,
ASTRID NEARPASS, TODD WORDEN, LAURA WORDEN,
JONATHAN MORELLI AND JANE MORELLI,
PETITIONERS-APPELLANTS,

                    V                             MEMORANDUM AND ORDER

WHITETAIL 414, LLC, WILMORITE, INC., TOWN OF
TYRE TOWN BOARD, JAMES LEONARD AND JEANNE
LEONARD, RESPONDENTS-RESPONDENTS.


HODGSON RUSS LLP, BUFFALO (DANIEL A. SPITZER OF COUNSEL), FOR
PETITIONERS-APPELLANTS.

HARRIS BEACH PLLC, PITTSFORD (JOHN A. MANCUSO OF COUNSEL), FOR
RESPONDENTS-RESPONDENTS WHITETAIL 414, LLC, WILMORITE, INC., JAMES
LEONARD AND JEANNE LEONARD.

BOND, SCHOENECK & KING, PLLC, SYRACUSE (THOMAS R. SMITH OF COUNSEL),
FOR RESPONDENT-RESPONDENT TOWN OF TYRE TOWN BOARD.


     Appeal from a judgment (denominated order and judgment) of the
Supreme Court, Seneca County (W. Patrick Falvey, A.J.), entered
September 18, 2014 in a CPLR article 78 proceeding. The judgment
dismissed the petition.

     It is hereby ORDERED that the judgment so appealed from is
reversed on the law without costs, and the petition is granted.

     Memorandum: Petitioners commenced this CPLR article 78
proceeding seeking, inter alia, to annul the negative declaration
issued by respondent Town of Tyre Town Board (Town Board) on June 12,
2014 under the State Environmental Quality Review Act ([SEQRA] ECL art
8) with respect to the proposed construction of the Lago Resort and
Casino. Respondents filed answers seeking dismissal of the petition.
Following additional written submissions and oral argument, Supreme
Court dismissed the petition. We conclude that the court erred in
doing so, and we therefore reverse.

     We agree with petitioners that the negative declaration issued on
June 12, 2014 failed to contain a written “reasoned elaboration” as
required by 6 NYCRR 617.7 (b) (4). Although the Town Board issued the
negative declaration at the June 12, 2014 meeting, the record
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                                                         CA 15-00089

establishes that special counsel for the Town of Tyre subsequently
prepared an attachment entitled “Reasons Supporting the Determination
of Significance in Part 3 of Full Environmental Assessment Form.”
According to submissions made by special counsel in support of
respondents’ answers seeking dismissal of the petition, the attachment
was prepared to “explain[] the findings made by the Town Board at the
meeting and the rationale for the Negative Declaration.” Notably, the
attachment was not provided to the members of the Town Board until
July 11, 2014. Moreover, the record establishes that the Town Board
has never passed a resolution approving and/or adopting the attachment
as part of its negative declaration. Nonetheless, respondents
contend, and the court agreed, that there was compliance with SEQRA’s
procedural mandates. We reject that contention.

     It is well settled that SEQRA’s procedural mechanisms mandate
strict compliance, and anything less will result in annulment of the
lead agency’s determination of significance (see Matter of King v
Saratoga County Bd. of Supervisors, 89 NY2d 341, 347). “[L]iteral
rather than substantial compliance with SEQRA is required” (Matter of
Badura v Guelli, 94 AD2d 972, 972; see Matter of Tupper v City of
Syracuse, 46 AD3d 1343, 1344, lv denied 10 NY3d 709). Here, 6 NYCRR
617.7 (b) (4) requires that, in making the determination of
significance, the lead agency—in this case the Town Board—must “set
forth its determination of significance in a written form containing a
reasoned elaboration and providing reference to any supporting
documentation.” We conclude that the intent of the regulation is to
focus and facilitate judicial review and, of no lesser importance, to
provide affected landowners and residents with a clear, written
explanation of the lead agency’s reasoning at the time the negative
declaration is made. We reject respondents’ contention that we should
search the entire record to discern the Town Board’s reasoning as of
June 12, 2014 in making the determination to issue the negative
declaration. “A record evincing an extensive legislative process . .
. is neither a substitute for strict compliance with SEQRA’s [written]
reasoned elaboration requirement nor sufficient to prevent annulment”
(Matter of Troy Sand & Gravel Co., Inc. v Town of Nassau, 82 AD3d
1377, 1379). We therefore reverse the judgment and grant the
petition, thereby annulling the negative declaration and vacating the
site plan approval and all related resolutions.

     In light of our determination, we do not address petitioners’
remaining contentions.

     CARNI and DEJOSEPH, JJ., concur.

     CENTRA, J.P., concurs in the following memorandum: I agree with
the majority that Supreme Court erred in dismissing the petition, but
I write separately because, in my view, a transcript of a hearing may
in certain circumstances satisfy the requirement that a lead agency
“set forth its determination of significance in a written form
containing a reasoned elaboration and providing reference to any
supporting documentation” (6 NYCRR 617.7 [b] [4]; see Matter of
Coursen v Planning Bd. of Town of Pompey, 37 AD3d 1159, 1160). Under
the circumstances of this case, however, the transcript from the June
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                                                         CA 15-00089

12, 2014 meeting did not satisfy the requirements of 6 NYCRR 617.7 (b)
(4). The transcript of the meeting shows that some of the responses
of the members of respondent Town of Tyre Town Board were equivocal,
and thus in my view the lead agency’s determination of significance is
not supported by the requisite reasoned elaboration.

     VALENTINO, J., dissents and votes to affirm in the following
memorandum: I respectfully dissent. I disagree with the majority’s
conclusion that respondent Town of Tyre Town Board (Town Board) failed
to comply strictly with SEQRA’s procedural mandates. To the contrary,
I conclude that the Town Board’s determination was made in accordance
with lawful procedure (see Akpan v Koch, 75 NY2d 561, 570; Matter of
Forman v Trustees of State Univ. of N.Y., 303 AD2d 1019, 1020) and,
thus, that Supreme Court properly dismissed the petition. I would
therefore affirm the judgment.

     The transcript from the June 12, 2014 meeting satisfied the
requirement for “a written form containing a reasoned elaboration” for
the Town Board’s determination of no significant adverse environmental
impacts (6 NYCRR 617.7 [b] [4]; see Matter of Residents Against
Wal-Mart v Planning Bd. of Town of Greece, 60 AD3d 1343, 1344, lv
denied 12 NY3d 715; Matter of Coursen v Planning Bd. of Town of
Pompey, 37 AD3d 1159, 1160). Here, the information contained in the
attachment referenced by the majority was addressed—in much the same
language—at the June 12, 2014 meeting, as were other documents created
prior to that meeting. The minutes from the June 12, 2014 meeting
establish that each of the 10 areas that were identified as having at
least one potentially moderate to large impact were discussed at
length before the Town Board members found no significant adverse
environmental impacts. In my view, those minutes demonstrate that the
Town Board “identified the relevant areas of environmental concern,
took a hard look at them, and made a reasoned elaboration of the basis
for its determination” (Matter of New York City Coalition to End Lead
Poisoning v Vallone, 100 NY2d 337, 348 [internal quotation marks
omitted]).




Entered:   July 10, 2015                        Frances E. Cafarell
                                                Clerk of the Court
