Riverkeeper's comments regarding proposed zoning changes in Carmel

June 3, 2002

By Facsimile (845) 628-6836  and Regular Mail

The Honorable Members of the

 Carmel Town Board

Town of Carmel

60 McAlpin Avenue

Mahopac, NY  10541

                        Re:       Proposed Amendment to Chapter 63 of the Carmel Zoning Code

To The Honorable Members of the Carmel Town Board:

Riverkeeper, a nonprofit organization dedicated to protecting the ecological integrity of the Hudson River, its tributaries, and the New York City Watershed, submits these comments on the proposed amendments to sections 63-11E(6) and 63-11E(7) (the "Proposed Amendments") of the Zoning Code of the Town of Carmel (the "Zoning Code").   Riverkeeper respectfully advises the Carmel Town Board that inasmuch as the Proposed Amendments, which would affect more than 13,000 acres of developable land, could potentially significantly impact the environment, the Board must prepare an Environmental Impact Statement ("EIS") to study the Amendments before the Board can take any action on them in order to comply with the New York State Environmental Quality Review Act ("SEQRA").  In addition, the Proposed Amendments contravene the goal of New York State cluster zoning law, which is to preserve the natural qualities of open space.

Overview

  Initially, declaring that the Proposed Amendments would have no significant effect on the environment (i.e., issuing a "Negative Declaration"), would be in error, particularly in light of the erroneous factual information and irrationally optimistic assumptions in the Environmental Assessment Form ("EAF") before the Board.^[1]  Moreover, by considering the Proposed Amendments in a vacuum - and, in particular, without considering, even conceptually, the proposed "Links" project - the Town Board is engaging in segmentation of the environmental review of the Proposed Amendments, which would be improper under SEQRA here. 

The Proposed Amendments also would contravene the stated purpose of New York State's cluster development law of "preserv[ing] the natural and scenic qualities of open lands."  See N.Y. Town L. § 278(2)(b).  The intensive landscaping -- including massive clearcutting of trees, regrading, rock and vegetation removal, and heavy pesticide use -- associated with golf course development hardly preserves the natural qualities of open lands.  Amending the the Town Zoning Code to permit golf courses to serve as open space for clustering purposes would violate State Law.      

1.                  A Negative Declaration For The Proposed

Amendments Would Violate SEQRA

            Before the Town Board can pass on the Proposed Amendments, it must, as SEQRA requires, take a "hard look" at the potential environmental impacts associated with this action.  Here, the Town Board needs an EIS in order to accomplish this hard look.  Under SEQRA, zoning amendments such as the instant ones are presumed to "likely have a significant effect on the environment."  6 N.Y.C.R.R. § 617.4(a); see also 6 N.Y.C.R.R. § 617.4(b)(2) (establishing as a Type I action "the adoption of changes in the allowable uses within any zoning district, affecting 25 or more acres of the district").    This presumption cannot be avoided by relying on inaccurate information or overly sanguine assumptions, particularly where it affects more than 500 times the 25 acre threshold that make zoning changes Type 1 actions under SEQRA. 

A.  SEQRA Establishes A Low Threshold Triggering

      The Requirement of an EIS for Type I Actions

Because the Proposed Amendments constitute a Type I action, SEQRA carries a presumption that the action will require an EIS.  "It is well settled that, where a Type I action is involved, there is a relatively low threshold that must be met to require the issuance of a positive declaration under SEQRA," which, in turn, requires the preparation of an EIS.  In re Scenic Hudson, Inc. v. Town of Fishkill Town Board, 258 A.D.2d 654, 685 N.Y.S.2d 777, 779 (2d Dept. 1999); see also Eggert v. Town Board of Westfield, 217 A.D.2d 975, 630 N.Y.S.2d 179, 180 (4^th Dept. 1995), leave to appeal denied, 86 N.Y.2d 710, 635 N.Y.S.2d 947 (1995); Kirk-Astor Drive Neighborhood Ass'n v. Town Board of Pittsford, 106 A.D.2d 868, 483 N.Y.S.2d 526, 529 (4^th Dept. 1984), appeal dismissed, 66 N.Y.2d 896, 498 N.Y.S.2d 791 (1995).  Indeed, SEQRA specifically establishes that "a Type I action carries with it the presumption that it is likely to have a significant effect on the environment and may require an EIS."  6 N.Y.C.R.R. § 617.4(a); see also S.P.A.C.E. v. Hurley, __ A.D.2d __, 739 N.Y.S.2d 164, 166 (2d Dept. 2002); Eggert, 630 N.Y.S.2d at 180.

Here, the Town Board recognizes that the Proposed Amendments constitute a Type I action under SEQRA.  See Town Board's Notice of Intent to Declare Lead Agency (declaring that "the Town Board has determined that the action is a Type I under the SEQR regulations").  Accordingly, the presumption under SEQRA is that the Proposed Amendments are likely to have a significant effect on the environment.  Indeed, as the Board recognizes in its EAF, the Proposed Amendments potentially affect more than 13,000 acres of developable land in Carmel, which is more than 500 times the 25 acre threshold that makes proposed zoning amendments Type 1 actions under SEQRA.  The only logical inference is that these Amendments have at least the potential for significant environmental impacts, which is sufficient to require the preparation of an EIS.  See Silvercup Studios, Inc. v. NYPA, 285 A.D.2d 598, 729 N.Y.S.2d 47, 49 (2d Dept. 2001) (" 'Because the operative word triggering the requirement of an EIS is 'may', there is a relatively low threshold for the preparation of an EIS.' " (citations omitted)).   

B.     SEQRA's Presumption That An EIS Is Required

Cannot Be Overcome By Erroneous Information

Or Irrationally Optimistic Assumptions 

In order to undertake SEQRA's requisite "hard look" at the potential environmental consequences of the Proposed Amendments, the Town Board must rely on and use accurate information.  Unfortunately, the Board's EAF appears to contain crucial inaccuracies and unfounded assumptions, which would effectively nullify the Negative Declaration.

Specifically, while the Town Board's EAF recognizes that the "site" affected by the Proposed Amendments is the entire approximately 13,305 acres of available developable land in the Town of Carmel, (EAF, Part 1, ¶ A), the EAF nevertheless incredibly denies that the Proposed Amendments would even potentially impact land use, water, agricultural land resources, aesthetic sources, and, perhaps most dubiously, open space and recreation.  (EAF, Part 2.)  The EAF contains cursory "no" responses to the following questions of environmental concern:

-                          "Will the proposed action result in a physical change to the project site?" 

-                          "Will [the] proposed action affect any water body designated as protected?"

-                          "Will the Proposed Action affect agricultural land resources?"

-                          "Will [the] proposed action affect aesthetic resources?"

-                          "Will [the] Proposed Action affect the quantity or quality of existing or future open spaces or recreational opportunities?"

(EAF, Part 2.)  These summary negative responses fly in the face of the fact that the Proposed Amendments will alter the Zoning Code, and so necessarily contemplate physical changes to the more than 13,000 acres of developable land in Carmel.  There can be no denying that physical changes to this land will have ramifications for protected wetlands and waterbodies, agricultural lands, aesthetic resources, and open space and recreational opportunities in Carmel. 

The terse "no" answers in the EAF simply ignore the essential import of SEQRA's designation as a Type I action "the adoption of changes in the allowable uses within any zoning district, affecting 25 or more acres of the district."  See 6 N.Y.C.R.R. § 617.4(b)(2); see also Doremus v. Town of Oyster Bay, 274 A.D.2d 390, 711 N.Y.S.2d 443, 446 (2d Dept. 2000) (holding that rezoning of 81 acre parcel "constituted an action which may have a significant effect on the environment and for which a DEIS and an FEIS were required," and affirming lower court's annulment of rezoning because "[t]he Town Board made no effort to meet its obligation to identify the adverse environmental effects of the rezoning.").  As the SEQRA Type I presumption indicates, a zoning change of the magnitude contemplated here will almost inevitably entail potentially significant environmental consequences. 

             Moreover, the simple "no" answers in the EAF defy common sense.  For example, the Proposed Amendments specifically contemplate the privatization of open space and would permit golf courses to qualify as open space for the purposes of cluster development.  As such, the Proposed Amendments clearly could "affect the quantity or quality of existing or future open spaces or recreational opportunities" in Carmel, as the EAF contemplates.  See also 6 N.Y.C.R.R. § 617.7(c)(viii) (establishing that substantial changes in the use of "open space or recreational resources" is an indicator of environmental significance).  It is likely that a zoning change affecting more than 13,000 acres of land and allowing for golf courses will involve wetland destruction, tree clearing, and pesticide and fertilizer application.  These impacts are of great concern in a phosphorous-impaired Watershed that serves as an unfiltered water supply for more than nine million New Yorkers.  In addition, areas in the Town of Carmel already suffer from contaminated groundwater wells; the Proposed Amendments could potentially exacerbate this problem.  These impacts, among others, must be considered and mitigated in an EIS.

The Town Board must correct its EAF, issue a Positive Declaration, and commission an EIS if it wishes to proceed with its consideration of the Proposed Amendments. 

2.                  The Board Is Improperly Segmenting Its Review.  

Like the proposed zoning amendment at issue in Brew v. Hess, which concerned the rezoning of approximately 41 acres, "it is quite clear that the rezoning involved here is but the first step in the process of developing the property" at issue.  124 A.D.2d 962, 508 N.Y.S.2d 712, 715 (3d Dept. 1986).  In Brew, the Court rejected the Board's argument that it need only consider the environmental impacts of the contemplated development project underlying the proposed zoning amendment when a specific application for the development was made.  Id.

   Here, even though the Proposed Amendments may be applicable to other developable lands in Carmel, it is clear that they are primarily geared towards facilitating the proposed Links project.  As such, the Board is required at this juncture to take the requisite "hard look" at the "potential environmental concerns associated with the project, at least on a conceptual basis":

The Board is not restricted to a myopic consideration of a proposed zoning change, but should identify at the rezoning stage potential environmental concerns associated with the project, at least on a conceptual basis.

Brew, 508 N.Y.S.2d at 715; see also Eggert, 630 N.Y.S.2d 179 at 180-81 ("To comply with SEQRA, the Town Board must consider the environmental concerns that are reasonably likely to result from, or are dependent upon, the amendments." (emphasis added)); Kirk-Astor Drive Neighborhood Ass'n, 483 N.Y.S.2d at 528 ("In sum, even though environmental review may be required at the time application is made for specific site plan approvals (see 6 NYCRR 617.2[b]), the town board must identify at the rezoning stage the relevant areas of environmental review associated with the project." (emphasis added)).  Segmenting the Board's review of the Proposed Amendments from environmental review of the contemplated Links project is impermissible under SEQRA.

            "Considering only a part or segment of an action is contrary to the intent of SEQR." 6 N.Y.C.R.R. § 617.3(g).  Impermissible "segmentation" involves "the division of the environmental review of an action such that various activities or stages are addressed under [SEQRA] as though they were independent, unrelated activities, needing individual determinations of significance."  6 N.Y.C.R.R. § 617.2(ag).^[2]  By segmenting its review of the Proposed Amendments from the Links proposal, the Board would be violating SEQRA.

            When dealing with a similar zoning change geared toward a specific project, the Second Department recently annulled a Board's SEQRA analysis because it constituted impermissible segmentation.  Citizens Concerned for the Harlem Valley Environment. V. Town Board of Amenia, 264 A.D.2d 394, 694 N.Y.S.2d 108, 109 (2d Dept. 1999), leave to appeal denied, 94 N.Y.2d 759, 705 N.Y.S.2d 5 (2000).  The Court there held that "[t]he rezoning at issue was an integral part of the [underlying project] that would have obvious potential environmental impacts."  Id.  As such, "[t]he Town Board was obligated to consider these environmental concerns at the time of the rezoning and it failed to do so."  Id.  The Court voided the Board's SEQRA determination on the zoning code change because it "was not made in accordance with lawful procedure as set forth in SEQRA."  Id.  

As the Brew Court noted, thorough review at this stage is required because the "essential purpose of SEQRA is to incorporate environmental considerations into the governmental decision-making process at the earliest possible time."  508 N.Y.S.2d at 715; see also Citizens Concerned for the Harlem Valley Environment, 694 N.Y.S.2d at 109 ("It is well settled that 'SEQRA's goal [is] to incorporate environmental considerations into the decisionmaking process at the earliest possible opportunity."), quoting Neville v. Koch, 79 N.Y.2d 416, 583 N.Y.S.2d 802, 806 (1992).

Currently, the Links project appears to contemplate the construction of 35 detached homes, 35 townhouses, and 30 condominiums in Carmel (the "Links Project").  (See Letter to Carmel Planning Board from John S. Marwell at 1, Dec. 7, 2001.)  As the Board is aware, the Links Project is based on the dubious premise, which will be discussed below, that a golf course can be used to satisfy the open space requirement for cluster zoning.  The Carmel Zoning Board of Appeals ("ZBA") found ambiguity in the Town Zoning Code's use of the terms "open space" and "common open space."  (See ZBA Interpretation at 3, dated June 28, 2001.)    While the ZBA resolved the ambiguity in favor of the Links Project, (see id.), lingering questions regarding the propriety of this interpretation have apparently caused this Board to address the issue.        

Inasmuch as the Proposed Amendments are designed to facilitate the Links Project, the Board must, on at least a conceptual basis, address the potential environmental impacts associated with that Project now.  See Eggert, 630 N.Y.S.2d at 181 ("To comply with SEQRA, the Town Board [is] required to address the potential environmental effects of the amendments, at least on a conceptual basis.").

3.                  The Proposed Amendments Contravene State Law Establishing

That the Purpose of Cluster Zoning Is "To Preserve The Natural

And Scenic Qualities Of Open Lands"

            In derogation of State Law, the Proposed Amendments contemplate the use of golf courses to satisfy the open space requirement for cluster zoning.  See Proposed Amendments, § 2 (stating that "the words 'non motorized' do not include golf carts").  The purpose of State Law authorizing cluster zoning, however, is "to preserve the natural and scenic qualities of open lands:"

The purpose of a cluster development shall be to enable and encourage flexibility of design and development of land in such a manner as to preserve the natural and scenic qualities of open lands.

N.Y. Town L. § 278 (2)(b); see also Friends of the Shawangunks, Inc. v. Knowlton, 64 N.Y.2d 387, 487 N.Y.S.2d 543, 547(1985) (holding that "the declared purpose" of State Law on clustering is "both 'flexibility of design and development' and the preservation of 'the natural and scenic qualities of open lands'").    The Proposed Amendments are not in harmony with this purpose.

            While a golf course might be a beautiful sight to some, it simply is not natural.  Indeed, a golf course is at odds with each and every accepted legal definition of the word "natural."  See Black's Law Dictionary at 1048 (7^th Ed. 2002);^[3] see also Letter to Planning Board from John S. Marwell, at 1, Dec. 7, 2001 (stating that the Links Project "includes the clustering of a portion of the residential density from the land being developed as a golf course in the Town of Carmel" (emphasis added)). Indeed, golf course development involves heavy landscaping, including massive clearcutting of trees, regrading, rock and vegetation removal, and heavy pesticide and fertilizer use - none of which is natural.

            Of course, the State statute's call for the preservation of open lands' "scenic qualities" must be read in conjunction with its call for the preservation of its "natural qualities."  See, e.g., Singer, Statutues and Statutory Construction § 21:14, at 179-180 (2002) ("Statutory phrases separated by the word 'and' are usually to be interpreted in the conjunctive.").  The heavily stylized landscaping imposed on land by a golf course is at odds with the Legislature's intent of preserving New York State's natural scenic qualities.    

            Similarly, the Proposed Amendments' apparent aim of permitting private ownership of open space for the purposes of operating a golf course also contradicts State Law.  State Law enables local Boards to set conditions on the ownership of open spaces used for clustering, but only so as "to assure the preservation of the natural and scenic qualities of such open lands:"

The planning board as a condition of plat approval may establish such conditions on the ownership, use and maintenance of such open lands shown on the plat as it deems necessary to assure the preservation of the natural and scenic qualities of such open lands.

 N.Y. Town L. § 278 (3)(c).  Again, golf course development does not assure the preservation of the natural qualities of open space.

            While the Board must undertake proper SEQRA review if it wishes to pursue consideration of the Proposed Amendments, ultimately such review may prove futile inasmuch as the Amendments would contravene State Law.   

Riverkeeper looks forward to working with the Honorable Board in its environmental review of the Proposed Amendments.  Please do not hesitate to contact me should you have any questions or comments with reference to the foregoing, or if I can be of assistance to you in anyway, at (914) 422-4450. 

                                                                                    Sincerely,

                                                                                    Daniel M. Richmond

                                                                                    Watershed Attorney

DMR/ota

cc: Thomas J. Costello, Esq. ((845) 228-4228)