The Appellate Division directed that the Town of Oyster Bay file a Final Environmental Impact Statement (FEIS) and take final action upon a special permit application by Costco. In the Matter of Costco Wholesale Corporation, v. Town Board of the Town of Oyster Bay, the Appellate Division affirmed the lower court judgment directing that the Town "complete environmental review of the petitioners' proposal to develop a retail store, and to take final action upon the petitioners' applications for a special use permit and site plan."
This case involves an application for site plan and a special permit that has been going on since 2001. In 2003 the Town denied the application and thereafter the Supreme Court remitted the matter for the Town to comply with SEQRA. The Town then issued a positive declaration, a Draft Environmental Impact Statement (DEIS) was prepared and a hearing held in January 2007, with the public comment period being closed on January 31, 2007. Costco made three submissions of a proposed FEIS, the last being in April 2009 and then started this Article 78 proceeding, seeking to compel the Town to complete the SEQRA process and make a decision on the special permit and site plan applications.
In upholding the lower court's direction that the Town complete SEQRA and issue a determination on the applications, the Court held:
"Contrary to the Town's contentions, the Supreme Court properly determined that the Town's failure to act pursuant to the applicable local code provision (see Code of the Town of Oyster Bay § 110-9 [I]), as well as the applicable SEQRA provision (see 6 NYCRR 617.9[a]) requiring it to "prepare or cause to be prepared and . . . file a final EIS, within 45 calendar days after the close of any hearing or within 60 calendar days after the filing of the draft EIS, whichever occurs later," warranted mandamus relief (id.; see Matter of Mamaroneck Beach & Yacht Club, Inc. v Fraioli, 24 AD3d 669, 671; Matter of 2433 Knapp St. Rest. Bar v Department of Consumer Affairs of City of N.Y., 150 AD2d 464, 465)."
-Steven M. Silverberg