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

617
CA 16-02043
PRESENT: WHALEN, P.J., SMITH, CENTRA, PERADOTTO, AND SCUDDER, JJ.


IN THE MATTER OF MARGARET WOOSTER, CLAYTON S.
"JAY" BURNEY, JR., LYNDA K. STEPHENS AND JAMES E.
CARR, PETITIONERS-APPELLANTS-RESPONDENTS,

                    V                               MEMORANDUM AND ORDER

QUEEN CITY LANDING, LLC,
RESPONDENT-RESPONDENT-APPELLANT,
CITY OF BUFFALO PLANNING BOARD AND CITY OF
BUFFALO COMMON COUNCIL, RESPONDENTS-RESPONDENTS.
(PROCEEDING NO. 1.)
-----------------------------------------------------
IN THE MATTER OF BUFFALO NIAGARA RIVERKEEPER, INC.,
PETITIONER-APPELLANT-RESPONDENT,

                    V

CITY OF BUFFALO, RESPONDENT-RESPONDENT,
AND QUEEN CITY LANDING, LLC,
RESPONDENT-RESPONDENT-APPELLANT.
(PROCEEDING NO. 2.)
(APPEAL NO. 1.)


ARTHUR J. GIACALONE, BUFFALO, AND LIPPES & LIPPES, FOR
PETITIONERS-APPELLANTS-RESPONDENTS.

HOPKINS SORGI & ROMANOWSKI PLLC, BUFFALO (MARC A. ROMANOWSKI OF
COUNSEL), AND DUKE HOLZMAN PHOTIADIS & GRESENS LLP, FOR
RESPONDENT-RESPONDENT-APPELLANT.

TIMOTHY A. BALL, CORPORATION COUNSEL, BUFFALO (JESSICA M. LAZARIN OF
COUNSEL), FOR RESPONDENTS-RESPONDENTS.


     Appeals and cross appeal from a judgment (denominated order and
judgment) of the Supreme Court, Erie County (Donna M. Siwek, J.),
entered October 11, 2016 in these proceedings pursuant to CPLR article
78. The judgment denied the motions of respondents to dismiss the
petition and amended petition for lack of standing, and granted the
motions of respondents to dismiss the petition in proceeding No. 2 and
the amended petition in proceeding No. 1, except insofar as it alleged
that respondents violated the performance bond provisions of General
City Law §§ 27-a (7) and 33 (8) (a).

     It is hereby ORDERED that the judgment so appealed from is
                                 -2-                           617
                                                         CA 16-02043

unanimously affirmed without costs.

     Memorandum: Petitioners Margaret Wooster, Clayton S. “Jay”
Burney, Jr., Lynda K. Stephens, and James E. Carr (collectively,
Wooster petitioners) and Buffalo Niagara Riverkeeper, Inc.
(Riverkeeper) commenced these CPLR article 78 proceedings seeking,
among other things, to annul the negative declaration issued by
respondent City of Buffalo Planning Board (Planning Board) under the
State Environmental Quality Review Act ([SEQRA] ECL art 8) with
respect to the proposed construction of Queen City Landing (project)
in Buffalo’s Outer Harbor area. Respondent Queen City Landing, LLC
(QCL), the developer of the project, plans to construct a mixed-use
facility that will include a 23-story tower containing nearly 200
residential units. In appeal No. 1, petitioners appeal and QCL cross-
appeals from a judgment that denied respondents’ motions to dismiss
Riverkeeper’s petition and the Wooster petitioners’ amended petition
for lack of standing, and granted respondents’ motions to dismiss the
petition and amended petition except insofar as the Wooster
petitioners claimed that respondents violated the performance bond
provisions of General City Law §§ 27-a (7) and 33 (8) (a). In appeal
No. 2, the Wooster petitioners appeal from a judgment that granted
those parts of respondents’ motions to dismiss the Wooster
petitioners’ performance bond claim. We affirm in both appeals.

     Addressing first the cross appeal in appeal No. 1, we reject
QCL’s contention that petitioners do not have standing to challenge
the SEQRA determination. The allegations in the affidavits of
petitioners Wooster, Burney and Carr, read in the context of the
amended petition (see Matter of Sierra Club v Village of Painted Post,
26 NY3d 301, 311 n 4), establish that they engage in “repeated, not
rare or isolated use” of the Outer Harbor for recreation, study and
enjoyment, thereby showing that the threatened environmental and
ecological harm to that area, which includes aquatic and terrestrial
wildlife habitats and two nature preserves, “will affect them
differently from ‘the public at large’ ” (Matter of Save the Pine
Bush, Inc. v Common Council of City of Albany, 13 NY3d 297, 305; see
Matter of Long Is. Pine Barrens Socy., Inc. v Central Pine Barrens
Joint Planning & Policy Commn., 113 AD3d 853, 856). Contrary to QCL’s
contention, the alleged injuries are “ ‘real and different from the
injur[ies] most members of the public face’ ” (Sierra Club, 26 NY3d at
311, quoting Save the Pine Bush, Inc., 13 NY3d at 306). Furthermore,
the threatened environmental and ecological harm to the area caused by
the development of the project falls within the zone of interests
sought to be protected by SEQRA (see Society of Plastics Indus. v
County of Suffolk, 77 NY2d 761, 773; Long Is. Pine Barrens Socy.,
Inc., 113 AD3d at 856). Inasmuch as at least one of the Wooster
petitioners has standing, it is not necessary to address QCL’s
challenges to any other individual petitioner (see Matter of Humane
Socy. of U.S. v Empire State Dev. Corp., 53 AD3d 1013, 1017 n 2, lv
denied 12 NY3d 701; see also Saratoga County Chamber of Commerce v
Pataki, 100 NY2d 801, 813, cert denied 540 US 1017). Contrary to
QCL’s further contention, Supreme Court properly concluded that
Riverkeeper, through the affidavits of its members, met the
requirements to establish organizational standing (see generally
                                 -3-                           617
                                                         CA 16-02043

Society of Plastics Indus., 77 NY2d at 775; Long Is. Pine Barrens
Socy., Inc., 113 AD3d at 856).

     On the merits, however, we conclude that the court properly
dismissed the petition and amended petition. Contrary to petitioners’
contention in appeal No. 1, the Planning Board was properly designated
as the lead agency (see generally 6 NYCRR 617.2 [u]; Matter of Coca-
Cola Bottling Co. of N.Y. v Board of Estimate of City of N.Y., 72 NY2d
674, 680). There is a conflict between that part of the Buffalo City
Code providing that respondent City of Buffalo Common Council (Common
Council) had an “[a]utomatic designation of lead agency” for actions
that, like this project, are undertaken within the Buffalo Coastal
Special Review District (Buffalo City Code § 168-7 [A] [2] [d]), and
that part of the Buffalo City Code automatically designating the
Planning Board as lead agency for actions undertaken for subdivision
developments and site plan review (see § 168-7 [A] [1] [a], [b]).
Although arguably either the Common Council or the Planning Board
could have been designated as the lead agency, the Planning Board had
oversight of subdivision approval and site plan review, and was
responsible for preparing a report of recommendations to the Common
Council on QCL’s application for a “restricted use permit” describing
“considerations involving air and water quality, coastal management,
flood hazards and environmental impact of the proposed uses” (§ 511-67
[A] [4]; see § 511-55 [C]). Under these circumstances, the Planning
Board was properly designated lead agency (see Matter of Schodack
Concerned Citizens v Town Bd. of Town of Schodack, 148 AD2d 130, 134,
lv denied 75 NY2d 701; cf. Matter of Price v Common Council of City of
Buffalo, 3 Misc 3d 625, 629-632; see also ECL § 8-0111 [6]).

     Contrary to petitioners’ further contention, the court properly
concluded that the Planning Board did not abdicate its
responsibilities as lead agency. Although members of the strategic
planning department from respondent City of Buffalo (City) filled out
part of the full environmental assessment form and prepared the
negative declaration, the Planning Board was entitled to rely on the
information provided by such experts, and the record establishes that
it “fully retained and exercised its role as the lead agency assessing
the environmental impact of the [project]” (Akpan v Koch, 75 NY2d 561,
575; see Matter of Mombaccus Excavating, Inc. v Town of Rochester,
N.Y., 89 AD3d 1209, 1211-1212, lv denied 18 NY3d 808). We reject
petitioners’ contention that the Planning Board improperly deferred
its review of site contamination to other agencies (cf. Matter of
Penfield Panorama Area Community v Town of Penfield Planning Bd., 253
AD2d 342, 349-350).

     We also reject petitioners’ contention that the Planning Board
failed to comply with the requirements of SEQRA in issuing the
negative declaration. The record establishes that the Planning Board
took the requisite hard look and provided a reasoned elaboration of
the basis for its determination regarding the potential impacts of the
project on aesthetic resources and community character, particularly
with respect to the height of the building (see Matter of Frigault v
Town of Richfield Planning Bd., 107 AD3d 1347, 1350; Matter of
Schweichler v Village of Caledonia, 45 AD3d 1281, 1283, lv denied 10
                                 -4-                           617
                                                         CA 16-02043

NY3d 703); migratory birds, especially in light of the project’s
conformance with accepted governmental guidelines to mitigate bird
impacts (cf. Matter of Wellsville Citizens for Responsible Dev., Inc.
v Wal-Mart Stores, Inc., 140 AD3d 1767, 1769; see generally Matter of
Granger Group v Town of Taghkanic, 77 AD3d 1137, 1142-1143, lv denied
16 NY3d 781; Matter of East End Prop. Co. #1, LLC v Kessel, 46 AD3d
817, 822, lv denied 10 NY3d 926); and traffic (see Wellsville Citizens
for Responsible Dev., Inc., 140 AD3d at 1768-1769; Matter of Schaller
v Town of New Paltz Zoning Bd. of Appeals, 108 AD3d 821, 823). The
Planning Board’s consideration of the contaminant remediation and
stormwater management components of the project, which would minimize
pollutants running off into the lake, supports its determination that
“[n]o other potentially significant impacts to plants or animals were
identified,” which would include impacts on aquatic wildlife.
Furthermore, to the extent that the project’s potential impacts on
aquatic wildlife were not specifically discussed in the negative
declaration, it is well established that “ ‘the lead agency need not
consider every conceivable [environmental] impact’ ” (Matter of
Ellsworth v Town of Malta, 16 AD3d 948, 950; see Save the Pine Bush,
Inc., 13 NY3d at 307; Matter of Jackson v New York State Urban Dev.
Corp., 67 NY2d 400, 417). The record thus establishes that the
Planning Board complied with the requirements of SEQRA in issuing the
negative declaration and, contrary to petitioners’ further contention,
we conclude that the “designation as a type I action does not, per se,
necessitate the filing of an environmental impact statement . . . ,
nor was one required here” (Matter of Mombaccus Excavating, Inc., 89
AD3d at 1211).

     Petitioners also contend that the rezoning of the project site
from industrial to commercial use was arbitrary and capricious because
QCL unreasonably delayed for eight years before complying with the
June 2008 conditional rezoning resolution that provided that the
rezoning would not be effective until QCL filed a certified copy of
the resolution with the Erie County Clerk’s Office. We reject that
contention. Here, the resolution did not specify a time for
compliance, and QCL has not sought nor received an open-ended
exemption from the condition (cf. Matter of Gjerlow v Graap, 43 AD3d
1165, 1168). Rather, in conjunction with its present plan for the
project, QCL complied with the condition by filing a certified copy of
the resolution with the Erie County Clerk in April 2016. Petitioners’
contention provides no basis upon which to conclude that the rezoning
was affected by an error of law, was arbitrary and capricious, or an
abuse of discretion (see generally CPLR 7803 [3]).

     We further conclude that, contrary to petitioners’ contention,
the Common Council’s issuance of the restricted use permit to QCL,
which is entitled to great deference, has a rational basis, is not
arbitrary and capricious, and is supported by substantial evidence
(see Buffalo City Code § 511-55; see also §§ 511-41 [A]; 511-67 [A],
[C]; see generally Matter of North Shore F.C.P., Inc. v Mammina, 22
AD3d 759, 759-760). Petitioners also contend that the restricted use
permit for a 23-story building violated the City’s “Green Code,” i.e.,
the Unified Development Ordinance (UDO), which was enacted during the
                                 -5-                           617
                                                         CA 16-02043

pendency of this appeal, and provides that the project is situated in
a zone that does not permit towers and has a maximum building height
of six stories. We reject that contention. The ordinance provides
that where, as here, a previously granted approval was lawfully issued
prior to the effective date of the UDO, the action authorized thereby
may be undertaken.

     Finally, contrary to the contention of the Wooster petitioners in
appeal No. 2, we conclude that the court properly dismissed their
claim that respondents violated the performance bond provisions of
General City Law §§ 27-a (7) and 33 (8) (a).




Entered:   May 5, 2017                          Frances E. Cafarell
                                                Clerk of the Court
