The following numbered papers read on this application by petitioners for a preliminary injunction enjoining respondents from constructing a synthetic turf field, motion by respondents to dismiss, and cross motion by petitioners to amend. PAPERS NUMBERED Order to Show Cause-Verified Petition-Exhibits EF 1-11, 13-22 Notice of Motion-Affidavits-Exhibits EF 23-30 Notice of Cross-Motion-Affidavit-Exhibits EF 31-33 Answering Affidavits-Exhibits EF 34-40 Replying EF 41-46 Stipulation EF 47 For a Judgment Pursuant to Article 78 of the CPLR, Upon the foregoing cited papers, and after Microsoft Teams conference, it is ordered that the Article 78 petition for a preliminary injunction (Seq. 1) is resolved and denied pursuant to the parties’ stipulation dated November 17, 2020, and thus only respondents’ motion to dismiss and petitioners’ cross motion to amend the petition remain, and are consolidated for disposition, and determined as follows: Petitioners are several property owners that reside in the City of Glen Cove (“City”), whose properties either adjoin or are in close proximity with the property owned by respondent Friends Academy (“Academy”), a private school located in the City at 270 Duck Pond Road, Glen Cove, New York (the “Premises”). On April 12, 2019, the Academy filed an application (“Application”) with the City’s Planning Board (“Planning Board”) for approval of an amendment to a previously approved site plan to allow for improvements to the school’s existing athletic field (“Athletic Field”). The Athletic Field has existed at the same location on the Premises since at least 1974, and is used for soccer games and other sporting events. The Academy sought to, among other things, resurface the Athletic Field with synthetic turf, enlarge the bleachers, install fencing, pave an access area, and install drainage. The Academy initially also sought to add permanent lighting, but later withdrew this portion of its Application. On November 19, 2019, the Planning Board held a public hearing, during which the Academy presented the Application. Petitioners’ counsel and several neighbors raised objections to the Application. At the conclusion of the hearing, the Planning Board orally voted to conditionally approve the application but did not issue a final determination at that time. Petitioners contend that they were unsure if a written decision would follow, and thus out of an abundance of caution so as not to miss the deadline to challenge the Planning Board’s oral decision, commenced this proceeding to reverse and nullify it. On December 17, 2019, the court granted petitioners’ application to the extent of temporarily restraining respondents from proceeding with any construction under the Application pursuant to the parties’ stipulation of the same date. Thereafter, on July 7, 2020, the Planning Board issued its written Resolution (“Resolution”) granting the Academy’s Application. Acknowledging that the Resolution was the final determination of the Planning Board, petitioners withdrew their initial petition and filed an amended verified petition seeking to reverse and nullify both the Planning Board’s oral decision and Resolution. Petitioners allege that the Planning Board arbitrarily and capriciously granted the Academy’s Application and also determined that the action was a Type II action under the State Environmental Quality Review Act (“SEQRA”). Respondents now move to dismiss and petitioners cross-move for leave to file the amended petition. As a threshold issue, respondents contend that petitioners improperly commenced this special proceeding before a final determination was made, then improperly filed an amended petition without leave of court, and now improperly seek leave to file the amended petition instead of commencing a new proceeding. It is well-settled that in order to challenge an administrative determination, it must be final and binding upon the petitioner (see Matter of E. Ramapo Cent. School Dist. v. King, 29 NY3d 938,939 [2017]), and that an Article 78 proceeding based on a non-final vote by a planning board is properly dismissed as premature (see Trident Realty L.P. v. Planning Bd. of Inc. Vil. of E. Hampton, 248 AD2d 545 [1998]). Here, petitioners prematurely filed their first petition prior to a final determination by the Planning Board. However, given the circumstances of this case, and recognizing that after the Resolution was filed, petitioners withdrew their petition, filed an amended petition which was substantially the same as the original petition, and sought leave of court for same, the Court in its discretion and in the interests of justice, will permit the amended petition (see CPLR 3025[b]; CPLR 7804[d]; CPLR 402; Hendricks v. Annucci, 179 AD3d 1232, 1234 [2020]). In considering the amended petition, it is well-settled that a local planning board has broad discretion in deciding site plan applications, and judicial review is limited to determining whether the board’s action was illegal, arbitrary, or an abuse of discretion (see Fairway Manor, Inc. v. Bertinelli, 81 AD3d 821, 822-23 [2011]). Educational institutions enjoy special treatment with respect to residential zoning ordinances due to the social, recreational, athletic, and other accessory uses that are reasonably associated with their educational purpose (Town of Islip v. Dowling Coll., 275 AD2d 366, 367 [2000]). Additionally, “judicial review of a SEQRA determination is limited to determining whether the challenged determination was affected by an error of law or was arbitrary and capricious, an abuse of discretion, or was the product of a violation of lawful procedure” (Vill. of Tarrytown v. Planning Bd. of Vill. of Sleepy Hollow, 292 AD2d 617, 619 [2002]). Petitioners first and foremost challenge the Planning Board’s determination that the improvements sought under the Application are a Type II action under SEQRA, meaning that they “have been determined not to have a significant impact on the environment or are otherwise precluded from environmental review” under SEQRA (see 6 NYCRR §617.5). In making its determination, the Planning Board held that the Application involved improvements that are “a mere in-kind replacement” of the existing Athletic Field (see 6 NYCRR §617.5[c][2]) that constitute “routine activities of educational institutions including expansion of existing facilities by less than 10,000 square feet of gross floor area” (see 6 NYCRR §617.5[c][10]). In reaching its determination, the Planning Board reasoned that the Athletic Field will have the same use as it has had since 1974, and that the Academy merely seeks to resurface the Athletic Field with synthetic turf which is used by 83 percent of schools in the Academy’s division. The Academy also seeks to remediate drainage issues, and install two additional small bleachers to supplement the two existing bleachers. The Planning Board specifically discounted petitioners’ characterization of the Athletic Field as a “meadow,” stating that the documentation, images, and testimony from numerous residents all support the fact that the area is currently utilized as an athletic playing field. Petitioners fail to demonstrate that this determination was affected by an error of law, was arbitrary and capricious, an abuse of discretion, or resulted from a violation of lawful procedure. Similarly, petitioners’ argument that the Athletic Field does not meet the criteria for a type II action because it takes up more than the allotted 10,000 square feet, is also without merit as the Planning Board found that the new synthetic turf will be the same size as the existing Athletic Field and the limitation does not apply to open areas such as turf fields, but only to the bleachers and other structures. The Planning Board’s determination that the Application is a type II action further has a rational basis, as it is consistent with decisions in similar cases that petitioners admit are “on point” (see Groarke v. Bd. of Educ. of Rockville Ctr. Union Free Sch. Dist., 63 AD3d 935, 936 [2009] [upgrade to athletic field by installing artificial turf, lighting, and bleachers, qualified as a type II action under SEQRA which does not require environmental review]; Crews v. Vill. Of Dobbs Fercy, 272 AD2d 540 [2000][construction of a baseball and soccer field is a type II action]). Additionally, even though the Planning Board rationally determined it was a Type II action, it nevertheless considered petitioners’ environmental concerns as demonstrated by the imposition of several conditions designed to ameliorate any potential negative impacts. Petitioners further argue that environmental review is necessary because respondents initially sought to install stadium lights on 70-foot poles, and although they later withdrew this portion of the Application, it is reasonable that they will seek this request again in the future, and thus the adverse impact of the lights must be considered. In support, petitioners argue that under “Segmentation,” all known or reasonably anticipated phases of a project must be considered together to determine the environmental impact of a project (see 6 NYCRR §617.2[a][h]). Here, however, respondents withdrew this portion of the Application and petitioner has presented nothing aside from speculation that respondents will again seek to add stadium lights, or that the Application is in some other way just “the first phase of a larger, unified project” (Vil. of Tarrytown v. Planning Bd. of Vil. of Sleepy Hollow, 292 AD2d 617,620 [2002]). Thus, the branch of the amended petition to nullify the Planning Board’s determination that the Application involves a type II action, or otherwise requiring environmental review, is denied. Petitioners next contend that the approval of the Application and SEQRA determination were made in contravention of the Open Meetings Law. Contrary to this assertion, the evidence shows that the issues surrounding the Application were discussed at a public hearing, which included a presentation by petitioners’ counsel voicing petitioners’ objections. At the conclusion of the hearing, the Planning Board announced that the Application was conditionally approved. The conditions, which were all discussed at a public hearing or required by law, were later memorialized in the Resolution. Thus, it cannot be said that the Planning Board’s process in approving the Application violated the Open Meetings Law (see Haverstraw Owners Professionals, Entrepreneurs v. Town of Ramapo Zoning Bd. of Appeals, 157 AD3d 724, 725 [2017]). Lastly, petitioners allege that the Athletic Field violates §280-55(C)(8) of the City Code which requires outdoor recreational facilities to be located a minimum distance of 100 feet from any street or lot line. Petitioners contend that the Planning Board originally denied the Application on April 16, 2019, because respondents’ proposed 70-foot stadium lights exceeded the permitted 35-foot height, and should also have denied the Application for violation of this zoning code. In determining that the Athletic Field was properly set back, the Planning Board relied upon the memorandum of the City’s Planning Consultant, which stated that the “proposed accessory facilities appear to be setback from property lines in accordance with all side and rear yard requirements.” To the extent that petitioners believed this decision was in error, their proper remedy was to appeal to the local zoning board of appeals within 60 days, which they failed to do, and thus they have not exhausted their administrative remedies (see Swantz v. Planning Bd. of Vill. of Cobleskill, 34 AD3d 1159, 1160 [2006] ["Planning boards are without power to interpret the local zoning law, as that power is vested exclusively in local code enforcement officials and the zoning board of appeals"]). Even if petitioners had properly appealed, their claim would still fail as the evidence shows that the Academy’s use of the Athletic Field “lawfully existed prior to the enactment of the zoning ordinance” (Toys R Us v. Silva, 89 NY2d 411,417 [1996]). Accordingly, it is ORDERED and ADJUDGED that respondent’s motion is granted and the amended verified petition is denied and dismissed. This constitutes the decision and judgment of the Court. Dated: February 17, 2021
