Appeal from a judgment (denominated order and judgment) of the Supreme Court, Monroe County (Ann Marie Taddeo, J.), entered October 18, 2007 in a proceeding pursuant to CPLR article 78. The judgment granted the motion of respondent Town of Chili Planning Board to dismiss the petition.
It is hereby ordered that the judgment so appealed from is affirmed without costs.
Memorandum: Petitioners appeal from a judgment dismissing their petition pursuant to CPLR article 78 seeking to annul the determination of respondent Town of Chili Planning Board (Planning Board) granting the applications of respondent Metálico Rochester, Inc. (Metálico) with respect to, inter alia, the installation of a metal shredder on the site of its scrap metal processing facility. According to the petition, that facility is located in proximity to the Rochester International Airport, and the traffic pattern for a specified runway “will take aircraft using this runway directly over [the facility] at low altitude.” The record of the public hearing before the Planning Board establishes that Metalico’s representative advised the Planning Board that explosions can occur in the event that gasoline enters the shredder and is ignited by sparks created by the milling process. The representative further explained, however, that water mist is sprayed into the shredder to “try to consume the oxygen and therefore limit the amount of explosions,” and he stated that “[it] has worked out very, very successfully.” Metálico provided an environmental assessment form (EAF), and the Town of Chili’s Fire Marshal recommended, inter alia, that the Planning Board require Metálico to install a fire suppression system in the shredder and require that water mains provide service to the shredder and to hydrants on Metálico’s property. The Fire Marshal concluded that, if his recommendations were accepted, “we will have an excellent operation at [Metálico] without nagging concerns.” Thereafter, the Planning Board voted to table Metálico ’s application pending a type I review pursuant to article 8 of the Environmental Conservation Law (State Environmental Quality Review Act [SEQRA]), for which it would be the lead agency.
During the course of the SEQRA review, Metálico advised the Planning Board that, because explosions require oxygen in order to occur, Metálico will inject a water and soap solution into the shredder. In addition, explosions are prevented because gasoline tanks are drained from vehicles before processing. Metálico advised the Planning Board that vehicles comprise only approximately 25% of the material processed at the facility. Also as part of the SEQRA review, the Monroe County Department of Planning and Development informed the Planning Board by letter that the application had been reviewed “for airport considerations and has been granted airport approval with conditions based on the fact that the new recycling plant equipment will not exceed a height of 49 feet.” Petitioner Rochester Air Center, LLC, through its owner, advised the Planning Board by letter that it was concerned about the risk that periodic explosions would pose to air traffic using the specified runway that required aircraft to fly over the Metálico facility at a relatively low altitude. The Planning Board also received a letter from LaBella Associates, P.C. stating that the metal shredder posed numerous environmental and safety risks, including the risks of explosions and the ejection of material or shrapnel that could impact air traffic safety. Those two letters were not discussed at the public hearing.
The Planning Board hired FES Associates to conduct an environmental review, and in part 2 of the EAF that FES Associates prepared noted that there were “small to moderate” potential environmental impacts, including the “risk of explosion or release of hazardous substances.” The risk to aircraft was not specifically addressed in the EAF or at the public hearing. The Planning Board adopted the recommendation of FES Associates that the project would not have a significant impact on the environment and therefore issued a negative declaration (see generally ECL 8-0109 [8]).
It is well settled that “[a] court’s authority to examine a SEQRA review ... is limited to reviewing whether the determination was made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion” (Matter of Gernatt Asphalt Prods. v Town of Sardinia, 87 NY2d 668, 688 [1996]). Contrary to petitioners’ contention, the Planning 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” (id. [internal quotation marks omitted]). We are cognizant that the Planning Board’s determination did not address the precise concern raised by petitioners, i.e., that an explosion may affect air traffic. Nevertheless, viewing the determination of the Planning Board “ ‘in light of a rule of reason,’ ” we conclude that Supreme Court properly dismissed the petition (id.).
All concur except Smith and Pine, JJ., who dissent and vote to reverse in accordance with the following memorandum.