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