Posted On: August 25, 2010

N.Y. DEC Issues Updated SEQRA Handbook

The New York Department of Environmental Conservation (DEC) has issued a new SEQRA Handbook. The Handbook was first issued in 1982 and then updated in 1992. The SEQRA regulations were revised in 1996, but no update of the Handbook followed. Now it has finally been updated. Its purpose is described by the DEC as follows:

"The SEQR Handbook provides agencies, project sponsors, and the public with a practical reference guide to the procedures prescribed by the State Environmental Quality Review Act (SEQR)--Article 8 of the Environmental Conservation Law. It addresses common questions that arise during the process of applying SEQR. The Handbook also attempts to address the needs of individuals who have varying degrees of experience with SEQR. Topics range from an introduction to the basic SEQR process to discussions of important procedural and substantive details."

-Steven Silverberg

Posted On: August 16, 2010

Court Finds Westchester Town Violated RLUIPA and Overturns SEQRA Findings

In a 206 page decision, the U.S. District Court for the Southern District of New York found the Town of Greenburgh had violated the Religious Land Use and Institutionalized Persons Act (RLUIPA) when it refused to grant a church permission to build a new building, for what the court termed “contrived” reasons. In Fortress Bible Church v. Feiner, the Court found, contrary to the claim of the Town, that the State Environmental Quality Review Act (SEQRA) constitutes an individualized assessment of a land use application, that the review falls within the RLUIPA definition of land use regulation as the application of SEQRA “can limit or restrict a claimant’s use or development of land” and that the actions of the Town in issuing findings pursuant to SEQRA, which limited the use of the Church’s property, constitute a “substantial burden” on religious exercise under RLUIPA.

The Court was no doubt brought to this conclusion in large part by its finding that the “majority” of the Town’s witnesses were lacking in credibility. The Court went so far as to find “not only the admitted destruction of probative evidence, but the existence of evidence relevant to the issues before this Court that Defendants never produced to Plaintiffs. Outrageously, Defendants attempted to enter such previously undisclosed documents into evidence during trial.” The Court therefore held “that the conduct of Defendants warrants both an adverse inference based on spoliation of evidence and sanctions.”

The Court reviewed the history of RLUIPA and its purpose to “protect against inter alia ‘subtle forms of discrimination.’” It then went on to note that under RLUIPA, once a plaintiff demonstrates that conduct in implementing a land use regulation imposes a substantial burden upon religious exercise, the burden shifts to the defendant to demonstrate that the burden imposed is “in furtherance of a compelling governmental interest and is the least restrictive means of furthering that compelling governmental interest.” The Court found that the activities at issue fall within the jurisdiction of RLUIPA noting that a number of courts have held that construction of a church implicates interstate commerce. It further found that since the activities of the church will support missionary efforts that too implicate interstate and international commerce.

In reviewing the record, the Court noted that initially the Town’s then planning commissioner indicated he thought the Town could issue a conditioned negative declaration under SEQRA which would provide for implementation of certain mitigation measures to address traffic concerns. By doing this it would not have been necessary to undertake further environmental review. But during a meeting in July 2000 the Court found that the Town Supervisor said that half the issue was traffic and the other half was the tax exempt status of the Church. The Supervisor then suggested that the Church either donate a fire truck or make some other payment to the Town in lieu of taxes. In fact, the Court noted that the Supervisor testified that the tax exempt status of the Church was “hampering or hindering” the approval. The Court also noted testimony by the then planning commissioner that he was instructed by at least one member of the Town Board to “help stop the project or kill the project” as the council person did not want another church in the Town. The Church refused to make a “donation” to the Town.

Thereafter, the Town Board, as lead agency under SEQRA, issued a positive declaration requiring the preparation of a Draft Environmental Impact Statement (DEIS), although the Court found that it was not warranted as the Church had “mitigated all identified potential adverse impacts.”

“The Court finds that the Town used the SEQRA process and the issuance of a Positive Declaration punitively because of the Church’s refusal to make a significant donation of value or monetary payment to the Town because of certain Town Board members’ desire to delay the project and increase the expense of the SEQRA process for the Church.”

The Court then went through a review of the lengthy SEQRA process which included the Town’s firing and hiring multiple consultants, the fees charged for the review by the multiple consultants and the Town’s decision to take over the preparation of the FEIS after it had been started by the Church. As for the FEIS prepared by the Town, the Court stated the “FEIS written by the Town is replete with errors, gratuitous comments and revisions intended to cast the project in the worst light possible.” Subsequently, the Town Board adopted a SEQRA findings statement which the Court also found to be unsupported by the record.

In concluding that the facilities at issue will be devoted to religious purposes, the court found that the facilities will either be devoted to religious practice and education “or are inextricably integrated with the Church’s ability to provide religious education and practice…” Then in determining that the actions of the Town constitute a substantial burden on religious practice, the Court rejected the claims by the Town that the Church could have addressed the concerns of the Town and ultimately received approval of a scaled back project. First, the Court noted that the Church had already agreed to every mitigation measure proposed by the Town and that the Town’s own findings statement concluded “no mitigation is possible.” But the Court went on to note:

“While the Town’s past treatment of the Church’s application strongly suggests that the
Town would not act in good faith in considering a modified proposal, the Court need look no
further than the admissions of Town Board members themselves to be certain that the Town would not act in good faith….Given the overwhelming evidence of Defendants’ intentional delay, hostility, and bias toward the Church’s application, the Court finds that any purported willingness by the Town Board to consider a modified proposal is insincere. Under such circumstances, the Church is not required to file a modified application and the Court finds that the Church’s religious exercise was substantially burdened by the Town’s arbitrary and unlawful denial of its application.”

In analyzing the effect of the denial, the Court noted that the Plaintiff has the burden of proving that there is a substantial burden by demonstrating that the actions denying the construction of the church building were arbitrary and capricious and there is no readily available alternative. The Court held that the Church had demonstrated a nexus between the denial and its religious exercise through testimony which proved that the Church currently lacks adequate facilities and the inability to construct the new building interferes with its religious practices. The Court held that the actions of the Town in issuing the SEQRA findings lacked validity and concluded that neither the use of the Church’s current facilities nor a further application to the Town provided a “satisfactory alternative.” The Court further held that even were the Town willing to give fair consideration to another proposal the time and expense that would be incurred are not “quick, reliable and financially feasible.”

Next the Court turned to what constitutes a compelling government interest in the context of RLUIPA, noting that the Supreme Court has held that such interests are those which “protect public health, safety and welfare.” The Town had argued that the proposed project implicated compelling government interest because (1) it impacted traffic, (2) provided inadequate parking, (3) violated the Town’s steep slope ordinance, (4) created retaining walls that were a public nuisance, (5) impacts police and fire resources and (6) “created concerns among the project’s neighbors.”

In a detailed analysis of each of these “interests” the Court concluded: “this Court finds that Defendants have not demonstrated any compelling governmental interests sufficient to justify the Town’s denial of the Church’s SEQRA application. To the contrary, the evidence presented at trial established that Defendants’ purported concerns were contrived for the sole purpose of rationalizing the Town’s denial of the SEQRA application.”

After determining that the Church had established a substantial burden and the Town had failed to demonstrate a compelling government interest the Court declined to address the other RLUIPA claims raised by the Church. The Court also addressed the constitutional issues raised by the Town and concluded that the application of RLUIPA is constitutional under the commerce clause because of the impact on interstate commerce. The Court rejected the other constitutional claims of the Town based upon the holding in the Westchester Day School case decided by the Second Circuit after the trial of this case.

On the issue of liability pursuant to 42 USC 1983 the Court held:

(1) The Town Board and the members of the Town Board are liable in their official capacity; and
(2) It considered the claims of individual liability against the Supervisor to be withdrawn

The Court also concluded that the Plaintiffs First Amendment Free Exercise rights were violated and that other similarly situated applicants were treated differently without rational justification, thus demonstrating a violation of Plaintiffs’ Fourteenth Amendment right to equal protection. The Court also found equivalent violations of the New York Constitution.

In fashioning relief, the Court annulled the positive declaration and SEQRA findings statement and ordered that the site plan be processed without further SEQRA review. The Court further ordered that all approvals be granted within sixty days (site plan, variances etc.) with reasonable and customary conditions and that within ninety days a building permit shall be issued. Defendants were enjoined from taking any action “that unreasonably delays or interferes with any of the foregoing directives.”

The Court did however conclude that RLUIPA is ambiguous on the issue of whether relief can include damages and therefore concluded there can be no monetary damages under RLUIPA. However, it did conclude that there are compensatory damages available under 42 U.S.C. 1983 and instructed Plaintiffs to submit information on increased construction costs, attorneys’ fees, consultants’ fees and other potential compensatory damages. Finally, the Court sanctioned the Defendants $10,000 for their discovery violations.

Thank you to Nick Ward-Willis, Esq., one of the attorneys representing the Plaintiffs, for bringing this decision to our attention.

-Steven Silverberg


Posted On: August 11, 2010

Court Upholds SEQRA Determination and Subdivision for 850,000 Square Foot Shopping Center

The Appellate Division upheld two lower court decisions which dismissed challenges to the SEQRA findings, site plan and subdivision approval for a shopping center in the Town of Newburgh. In Matter of Save Open Space v. Planning Bd. Of the Town of Newburgh the court noted judicial review is limited to finding whether an action is arbitrary, an error of law or was taken in violation of lawful procedure.

In this case there was an application for site plan approval for a shopping center. The planning board completed a full environmental review, which included a Draft Environmental Impact Statement (DEIS), public hearings and a Final Environmental Impact Statement (FEIS) as well an Environmental Findings Statement (EFS). However, after the FEIS was submitted, but before the EFS was issued, the applicant submitted an application to subdivide the property into four lots to allow for separate ownership. The application was rejected as incomplete and thereafter the planning board did issue its EFS.

The applicant subsequently resubmitted its subdivision application. Shortly thereafter the planning board granted site plan but not subdivision approval. The next step taken by the planning board was to issue an amended EFS in which it found that the subdivision would not have any significant adverse environmental impacts. After holding a public hearing on the subdivision the planning board granted preliminary and final subdivision approval.

The petitioner brought two proceedings, the first challenging the EFS and the site plan approval and in the second challenging the preliminary and final subdivision approval. The lower court dismissed both cases and the Appellate Division affirmed.

Addressing the SEQRA issues the Court found that the planning board had considered a “reasonable range of feasible alternatives.” The Court then went on to state that the planning board was not required to consider the alternatives proffered by the petitioners. “Consideration of a smaller scale alternative is permissive, not mandatory and alternatives are to be considered in light of the developer’s objectives (see 6 NYCRR 617. 9[b][5][v]).”

Finally, the court held that the separate consideration of the subdivision was not segmentation under SEQRA , as the subdivision made no physical change to the development and conditions imposed on the subdivision ensured that the requirements of the site plan would be observed.

-Steven Silverberg

Posted On: August 5, 2010

New York Legislature Amends Opening Meetings Law Requirements

The New York Legislature has adopted several amendments to portions of New York’s Open Meetings Law (sections 103 and 107 of the Public Officers Law) in order to provide for more transparency in the conduct of governmental activities, as set forth in three recently adopted chapters.

Chapter 40
took effect in April, 2010. This Chapter adds a new subsection (d) to section 103 of the Public Officers Law which states in pertinent part:
“Public bodies shall make or cause to be made all reasonable efforts to ensure that meetings are held in an appropriate facility which adequately accommodates members of the public who wish to attend such meetings.”

It will be interesting to see how some municipalities, that hold meetings in rooms slightly larger than closets but keep the door open, will address this new provision.

Chapter 43 which takes effect in April 2011, and also purports to add a new section (d) to Public Officers Law section 103, provides for permitting photographing, broadcasting, webcasting and recording by audio or video any public meeting. This is consistent with prior court decisions and goes on to provide in section 2:

“A public body may adopt rules, consistent with recommendations from the committee on open government, reasonably governing the location of equipment and personnel used to photograph, broadcast, webcast, or otherwise record a meeting so as to conduct its proceedings in an orderly manner. Such rules shall be conspicuously posted during meetings and written copies shall be provided upon request to those in attendance.”

Finally, Chapter 44 amends section 107 of the Public Officers Law. This Chapter, which became effective on June 14, 2010, deletes the previous provision which stated that if a court finds a violation of the law it can declare an action void and substitutes a provision which states that if a court finds that “a public body failed to comply with this article” the court may:

“declare that the public body violated this article and/or declare the action taken in relation to such violation void, in whole or in part, without prejudice to reconsideration in compliance with his article. If the court determines that a public body has violated this article, the court may require the members of the public body to participate in a training session concerning obligations imposed by this article conducted by the staff of the committee on open government.”

Section 107 retains the exemption from reversal if the violation is found to be only an unintentional failure to “fully comply with the notice provisions” and also exempts from reversal actions approving bond issue or notes.

-Steven Silverberg