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

548
CA 15-01862
PRESENT: WHALEN, P.J., SMITH, LINDLEY, NEMOYER, AND SCUDDER, JJ.


IN THE MATTER OF WELLSVILLE CITIZENS FOR
RESPONSIBLE DEVELOPMENT, INC.,
PETITIONER-APPELLANT,

                    V                              MEMORANDUM AND ORDER

WAL-MART STORES, INC., WAL-MART REAL ESTATE
BUSINESS TRUST, WAL-MART STORES EAST, LP, TOWN
OF WELLSVILLE, TOWN BOARD OF TOWN OF WELLSVILLE,
DEAN ARNOLD, IN HIS OFFICIAL CAPACITY AS HIGHWAY
SUPERINTENDENT OF TOWN OF WELLSVILLE,
RESPONDENTS-RESPONDENTS,
VILLAGE OF WELLSVILLE, ET AL., RESPONDENTS.


PARKER R. MACKAY, KENMORE, FOR PETITIONER-APPELLANT.

MANATT, PHELPS & PHILLIPS, LLP, NEW YORK CITY (KENNETH D. FRIEDMAN OF
COUNSEL), FOR RESPONDENTS-RESPONDENTS WAL-MART STORES, INC., WAL-MART
REAL ESTATE BUSINESS TRUST, AND WAL-MART STORES EAST, LP.

LAW OFFICES OF HUTTER & FINN, WELLSVILLE (MICHAEL B. FINN OF COUNSEL),
FOR RESPONDENTS-RESPONDENTS TOWN OF WELLSVILLE, TOWN BOARD OF TOWN OF
WELLSVILLE, AND DEAN ARNOLD, IN HIS OFFICIAL CAPACITY AS HIGHWAY
SUPERINTENDENT OF TOWN OF WELLSVILLE.


     Appeal from a judgment (denominated order) of the Supreme Court,
Allegany County (Terrence M. Parker, A.J.), entered June 12, 2015 in a
CPLR article 78 proceeding. The judgment denied the petition.

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

     Memorandum: Petitioner commenced this CPLR article 78 proceeding
seeking to annul the resolution of respondent Town Board of Town of
Wellsville (Town Board) adopting a negative declaration pursuant to
the State Environmental Quality Review Act ([SEQRA] ECL article 8)
with respect to the proposed construction of a Wal-Mart Supercenter
(hereafter, project) in respondent Town of Wellsville (Town). We
agree with petitioner that the Town Board failed to take the requisite
hard look at the impact of the project on wildlife, the community
character of respondent Village of Wellsville (Village) and surface
water, and thus that Supreme Court erred in denying the petition.
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                                                         CA 15-01862

     “Judicial review of a lead agency’s SEQRA determination is
limited to whether the determination was made in accordance with
lawful procedure and whether, substantively, the determination was
affected by an error of law or was arbitrary and capricious or an
abuse of discretion” (Matter of Eisenhauer v County of Jefferson, 122
AD3d 1312, 1313 [internal quotation marks omitted]; see Matter of New
York City Coalition to End Lead Poisoning v Vallone, 100 NY2d 337,
348). In determining whether the substantive requirements of SEQRA
were met, the scope of judicial review is “limited to whether the lead
agency . . . 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 Mombaccus Excavating, Inc. v Town of
Rochester, N.Y., 89 AD3d 1209, 1210, lv denied 18 NY3d 808 [internal
quotation marks omitted]). However, “where a lead agency has failed
to comply with SEQRA’s mandates, the negative declaration must be
nullified” (Vallone, 100 NY2d at 348).

     We initially reject petitioner’s two contentions based on alleged
procedural violations. First, we reject petitioner’s contention that
the Town Board improperly failed to complete part 3 of the
environmental assessment form (EAF). As long as the factors set forth
in part 3 of the EAF are addressed by the lead agency in its
environmental review of the project, there is no need to complete part
3, or to nullify the negative declaration if the lead agency fails to
do so (see Matter of Residents Against Wal-Mart v Planning Bd. of Town
of Greece, 60 AD3d 1343, 1344, lv denied 12 NY3d 715). Here, because
the Town Board addressed each of the potentially moderate-to-large
impacts identified in part 2 of the EAF, the negative declaration need
not be annulled because of the Town Board’s failure to fill out the
EAF part 3 form. We also reject petitioner’s contention that the Town
Board’s failure to notify the Planning Board of the Town of Wellsville
before assuming lead agency status requires nullification of the
negative declaration. Under the circumstances of this case, any
failure of the Town Board in that regard was “inconsequential” (Matter
of King v County of Monroe [appeal No. 2], 255 AD2d 1003, 1004, lv
denied 93 NY2d 801).

     With respect to the substantive contentions of petitioner based
on the Town Board’s alleged failure to take a hard look at several
relevant impacts of the project, we first reject petitioner’s
contention that the Town Board failed to take a hard look at the
impact of the project on traffic. The Town Board reviewed two
extensive traffic impact studies and a supplemental traffic impact
study and, although there were modifications to the project after the
supplemental traffic impact study was approved by the New York State
Department of Transportation, the “overall result of the modifications
in their final form did not significantly change the total square
footage of building area . . . [or] the total size of parking and
landscaped areas” (Matter of Monteiro v Town of Colonie, 158 AD2d 246,
249; see Matter of Riverkeeper, Inc. v Planning Bd. of Town of
Southeast, 9 NY3d 219, 233-234). Contrary to petitioner’s further
contention, any alleged shortcomings in the Town Board’s review of
plans to provide additional access to the Supercenter via a road
called Airway Drive do not require the conclusion that the Town Board
                                 -3-                           548
                                                         CA 15-01862

failed to take a hard look at the impact of the project on traffic
(see Matter of Terrace Manor Civic Assn. v Town of N. Hempstead, 301
AD2d 534, 535).

     We agree with petitioner, however, that the Town Board failed to
take the requisite hard look at the impact of the project on wildlife,
the community character of the Village, and surface water, and that
the resolution adopting the negative declaration must therefore be
annulled. With respect to wildlife, the Town Board was apparently
made aware in March 2014 that birds listed as “threatened” and of
“special concern” by the New York State Department of Environmental
Conservation (DEC), and listed on a “watch list” by the New York
Natural Heritage Program (NHP), had been spotted on the project site.
An ecological evaluation of the project site provided to the Town
Board in August 2014, shortly before the negative declaration was
issued, further noted that the area surrounding the project site is a
habitat for “a myriad of songbirds and some raptors.” Despite that
knowledge, the Town Board, in making its determination that the
project would have no significant impact on wildlife, merely relied on
letters from NHP and the U.S. Fish and Wildlife Service indicating
that those agencies did not have any records of any endangered or
threatened species on the project site. The letter from NHP
specifically warned, however, that the information therein “should not
be substituted for on-site surveys that may be required for
environmental impact assessment.” The Town Board never undertook or
demanded any such on-site surveys. Given the information received
from the public that state-listed threatened species might be present
on the project site and the failure of the Town Board to investigate
the veracity of that information, we conclude that the Town Board
failed to take a hard look at the impact of the project on wildlife,
and the negative declaration with respect thereto was therefore
arbitrary and capricious (see Matter of Kittredge v Planning Bd. of
Town of Liberty, 57 AD3d 1336, 1337-1338; Matter of Pyramid Co. of
Watertown v Planning Bd. of Town of Watertown, 24 AD3d 1312, 1314-
1315, lv dismissed 7 NY3d 803; see generally Akpan v Koch, 75 NY2d
561, 571).

     With respect to the “community character” of the Village, we note
that SEQRA defines “environment” as “the physical conditions which
will be affected by a proposed action, including . . . existing
community or neighborhood character” (ECL 8-0105 [6]), and “require[s]
a lead agency to consider more than impacts upon the physical
environment,” including “the potential displacement of local residents
and businesses” (Chinese Staff & Workers Assn. v City of New York, 68
NY2d 359, 366). Therefore, contrary to the Town Board’s apparent
conclusion, “[a] town . . . board reviewing a big box development
should consider the impact of the development on the community
character of a neighboring village that might suffer business
displacement as a result of the approval of the big box development”
(SEQR Handbook, at 179 [3d ed 2010]; see Matter of Village of Chestnut
Ridge v Town of Ramapo, 45 AD3d 74, 94-95, lv dismissed 12 NY3d 793,
15 NY3d 817; Matter of Wal-Mart Stores v Planning Bd. of Town of N.
Elba, 238 AD2d 93, 98). Because there is no evidence in the record
before us that the Town Board even considered the impact of the
                                 -4-                           548
                                                         CA 15-01862

project on the community character of the Village, we conclude that it
failed to take a hard look at that impact, requiring annulment of the
resolution adopting the negative declaration on that ground as well.

     Finally, with respect to the impact of the project on surface
water, we conclude that the Town Board erred in failing to consider
the surface water impact of the entire project. While the Town Board
considered surface water impacts relating to the footprint of the
Supercenter and related areas, the project documents submitted to the
Town Board make clear that the reconstruction of four golf course
holes on a golf course adjacent to the project is a central part of
the project, and the DEC specifically directed that the environmental
assessment of the project include consideration of that
reconstruction. Because the surface water studies presented to the
Town Board did not include an analysis of the potential surface water
impact of the golf course reconstruction portion of the project, and
the record does not demonstrate that the Town Board otherwise
considered that impact, we conclude that the Town Board failed to
undertake the requisite hard look at the potential surface water
impact of the entire project (see Matter of Long Is. Pine Barrens
Socy. v Town Bd. of Town of Riverhead, 290 AD2d 448, 448-449, lv
denied 98 NY2d 615). Thus, annulment of the Town Board’s resolution
adopting the negative declaration also is required on that ground.




Entered:   June 17, 2016                        Frances E. Cafarell
                                                Clerk of the Court
