                           State of New York
                    Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: February 19, 2015                    518921
________________________________

TROY SAND & GRAVEL COMPANY,
   INC., et al.,
                    Appellants,
      v                                      MEMORANDUM AND ORDER

TOWN OF NASSAU et al.,
                    Respondents.
________________________________


Calendar Date:    January 9, 2015

Before:    McCarthy, J.P., Rose, Egan Jr. and Devine, JJ.

                              __________


      Tuczinski, Cavalier & Gilchrist, PC, Albany (Andrew W.
Gilchrist of counsel), for appellants.

      Joseph M. Catalano, Rensselaerville (Bruce S. Huttner of
Donohue, Sabo, Varley & Huttner, LLP, Albany, of counsel), for
respondents.

      Underberg & Kessler, LLP, Buffalo (Edward P. Yankelunas of
counsel), for New York State Builders Association, amicus curiae.

      Couch White, LLP, Albany (Adam J. Schultz of counsel), for
New York State Construction Materials Association, Inc. and
another, amici curiae.

                              __________


Rose, J.

      Appeal from an order of the Supreme Court (Connolly, J.),
entered October 21, 2013 in Rensselaer County, which, among other
things, granted defendants' cross motion for summary judgment
dismissing the complaint.
                              -2-                518921

       In 2003, plaintiff Troy Sand & Gravel Company, Inc.
applied for a mining permit from the Department of Environmental
Conservation (hereinafter DEC) to operate a quarry in the Town of
Nassau, Rensselaer County. Plaintiff also applied for a special
use permit and site plan approval from defendant Town of Nassau.
As lead agency for the coordinated State Environmental Quality
Review Act (hereinafter SEQRA) process, DEC issued a positive
declaration and Troy Sand prepared a draft environmental impact
statement (hereinafter EIS) in 2006. After a public hearing and
comment period, Troy Sand prepared a final EIS in 2007 and,
shortly thereafter, DEC issued its SEQRA findings approving the
project and granting the mining permit. DEC's findings were then
unsuccessfully challenged by the Town in a proceeding that did
not reach this Court, and the parties have since engaged in
related litigation that has brought the matter before us on three
prior occasions (see Matter of Troy Sand & Gravel Co., Inc. v
Town of Nassau, 89 AD3d 1178 [2011], lv dismissed 18 NY3d 920
[2012]; Matter of Troy Sand & Gravel Co., Inc. v Town of Nassau,
82 AD3d 1377 [2011]; Matter of Troy Sand & Gravel Co., Inc. v
Town of Nassau, 80 AD3d 199 [2010]).

      In 2011, plaintiffs commenced this declaratory judgment
action seeking, among other things, a declaration that the Town
was bound by DEC's SEQRA findings. Supreme Court (Lynch, J.)
granted a preliminary injunction that precluded the Town from
conducting its own review of the environmental impact of the
proposed quarry as part of its zoning determination. We then
reversed that order and vacated the preliminary injunction (101
AD3d 1505 [2012]). Relying upon our decision, defendant Town
Board of the Town of Nassau rescinded its prior determination
that the permit application was complete in order to consider
whether the SEQRA record was adequate to permit its own review
under the environmental standards of its zoning law and whether
any additional environmental information was needed to conduct
its own jurisdictional review. Plaintiffs thereafter commenced a
separate CPLR article 78 proceeding seeking to annul the
rescission resolution.1 They also sought summary judgment in


    1
        Supreme Court denied plaintiffs' motion to consolidate
the CPLR article 78 proceeding with this action and dismissed the
                              -3-                518921

this action declaring, as relevant here, that the Town must base
its environmental impact findings on the EIS record developed as
part of the coordinated SEQRA process. Defendants cross-moved
for summary judgment dismissing the complaint. Supreme Court
denied plaintiffs' motion and granted the cross motion, finding
that, based upon its reading of our 2012 decision vacating the
preliminary injunction, plaintiffs were not entitled to, among
other things, a declaration limiting defendants to consideration
of the SEQRA record in making their environmental impact findings
as part of their own jurisdictional review. Plaintiffs appeal
and we reverse.

      In our 2012 decision, we said that, although the Town is
bound by DEC's SEQRA findings and it may not repeat the SEQRA
process, it nevertheless retains the authority to make an
independent review of plaintiffs' application for a special use
permit in accord with the standards and criteria set forth in its
applicable zoning regulation (101 AD3d 1505 [2012], supra). That
regulation provides that the Town may consider, among other
things, the "health, safety, welfare, comfort and convenience of
the public," including "the environmental impact" of the proposed
quarry (Local Law No. 2 [1986] of Town of Nassau art VI [A]).
However, we did not say that the Town's independent review
includes the ability to now gather additional environmental
impact information beyond the full SEQRA record. Rather, in
conducting its own jurisdictional review of the environmental
impact of the project, the Town is required by the overall policy
goals of SEQRA and the specific regulations governing findings
made by "involved agencies" to rely on the fully developed SEQRA
record in making the findings that will provide a rationale for
its zoning determinations.


      To reach this conclusion, we begin by taking note that the
"basic purpose" of SEQRA "is to incorporate the consideration of


proceeding in a separate judgment. Plaintiffs' separate appeal
of that judgment is decided herewith (Matter of Troy Sand &
Gravel Co., Inc. v Town of Nassau,     AD3d     [decided
herewith]).
                              -4-                518921

environmental factors into the existing planning, review and
decisionmaking processes of state, regional and local government
agencies at the earliest possible time" (6 NYCRR 617.1 [c];
see Matter of City Council of City of Watervliet v Town Bd. of
Town of Colonie, 3 NY3d 508, 518 [2004]). Consistent with this
policy, the review of environmental considerations should be
carried out "as efficiently as possible" (Matter of Coca-Cola
Bottling Co. of N.Y. v Board of Estimate of City of N.Y., 72 NY2d
674, 681 [1988], citing ECL 8-0107, 8-0113 [3] [b]). Here, the
full SEQRA record, covering thousands of pages, reflects the hard
look at the proposed quarry's environmental impacts conducted by
DEC with the Town's extensive involvement.

      By virtue of the Town's jurisdictional authority over
zoning determinations, it is an "involved agency" (6 NYCRR 617.2
[s]). The relevant SEQRA regulations require involved agencies
to make a "written findings statement" either prior to or
simultaneously with any "final decision to undertake, fund,
approve or disapprove an action that has been the subject of a
final EIS" (6 NYCRR 617.11 [c]). While the Town acknowledges
that it must make such findings based on the record developed
during the SEQRA process, it nevertheless argues that its own
procedures entitle it to gather additional information regarding
the environmental impact of the proposed quarry project as part
of its review of the zoning applications. However, any such
additional information regarding environmental factors would
necessarily be outside the SEQRA record. Such a procedure would
vitiate the efficiency and coordination goals of SEQRA (see e.g.
6 NYCRR 617.6 [b] [3]). Although the Town is entitled to conduct
an independent review whereby it applies the standards and
criteria found in its zoning regulations, its review of the
environmental impact of the project is necessarily based on the
EIS record because its zoning determinations must find a
rationale in its SEQRA findings (see 6 NYCRR 617.11 [d] [3]).

      In short, the EIS "fully evaluates the potential
environmental effects, assesses mitigation measures, and
considers alternatives to the proposed action" (Matter of Coca-
Cola Bottling Co. of N.Y. v Board of Estimate of City of N.Y., 72
NY2d at 680, citing ECL 8-0109 [4], [2]). While the Town
maintains its jurisdiction over the zoning determinations and, as
                                -5-                  518921

we have previously held, its SEQRA findings may differ from DEC's
findings (see 101 AD3d at 1508; Matter of Albany-Greene
Sanitation v Town of New Baltimore Zoning Bd. of Appeals, 263
AD2d 644, 646 [1999], lv denied 94 NY2d 752 [1999]), the Town
"must rely upon the [final EIS] as the basis for [its] review of
the environmental impacts that [it is] required to consider in
connection with subsequent permit applications" (Matter of Guido
v Town of Ulster Town Bd., 74 AD3d 1536, 1537 [2010], citing 6
NYCRR 617.6 [b] [3] [iii]).2

        McCarthy, J.P., Egan Jr. and Devine, JJ., concur.



      ORDERED that the order is reversed, on the law, without
costs, defendants' cross motion denied, and plaintiffs' motion
granted to the extent that defendants must base their
determination of the environmental impact for zoning purposes on
the record developed as part of the coordinated review conducted
pursuant to the State Environmental Quality Review Act.




                               ENTER:




                               Robert D. Mayberger
                               Clerk of the Court



    2
        Contrary to the Town's argument, our decision in Matter
of Wal-Mart Stores v Planning Bd. of Town of N. Elba (238 AD2d
93, 97 [1998] [application considered under the town's zoning law
required to meet applicable nonenvironmental criteria as well as
requirements of SEQRA]) is not to the contrary.
