Posted On: March 22, 2012

Court Of Appeals Finds EPA Is Not An "Agency" for Purposes of Exemption of Communications From Disclosure Under FOIL

The New York Court of Appeals issued a decision today finding that the inter-agency/intra-agency exemption under the Freedom of Information Law (FOIL) does not apply to Federal Agency communications with State Agencies. The case of Matter of Town of Waterford v New York State DEC, was extensively discussed in a post on this Blog when the Appellate Division (77 A.D.3d 224 (3rd Dept. 2010)) held that such communications could be exempt. Today's decision reverses that holding.

The Court noted that while there is an exemption for "pre-decisional inter-agency or intra-agency materials" (Public Officers Law § 87(2)(g)) the term agency has a specific definition and under FOIL

"'[a]gency' means any state or municipal department, board, bureau, division, commission, committee, public authority, public corporation, council, office or other governmental entity performing a governmental or proprietary function for the state or any one or more municipalities thereof, except the judiciary or the state legislature' (Public Officers Law § 86 [3])"

The Court thus concluded that the EPA, as a Federal Agency, is not included within the definition of agency for purposes of FOIL and therefore does not fall within the exemption. In addressing the Town's arguments that there have been cases where the intra-agency exemption has been applied to outside parties, the Court drew a clear distinction:

"We have held that the purpose of the intra-agency exception is to allow individuals within an agency to exchange their views freely, as part of the deliberative process, without the concern that those ideas will become public (see Matter of New York Times Co. v City of N.Y. Fire Dept., 4 NY3d 477, 488 [2005]; Matter of Xerox Corp. v Town of Webster (65 NY2d 131, 132 [1985]). In Xerox, we determined that real estate appraisal reports prepared by a private consulting firm at the agency's request were exempt from disclosure as intra-agency material (see 65 NY2d at 133). We observed that '[i]t would make little sense to protect the deliberative process when such reports are prepared by agency employees yet deny this protection when reports are prepared for the same purpose by outside consultants retained by agencies' (Xerox, 65 NY2d at 133)."

While the court noted that the DEC and EPA were working in a collaborative manner on the particular matter at issue, this was not the same as an outside consultant, as the EPA was not retained by the DEC and was not an employee or agent of DEC.

-Steven M. Silverberg

Posted On: March 19, 2012

Court Reverses Denial of Special Permit

While upholding the denial of some area variances and a special permit, finding the evidence in the record supported that determination, the Appellate Division also reversed the denial of a special permit for a refuse enclosure, as well as a variance for placement of a sign. In Matter of White Castle Sys., Inc. v Board of Zoning Appeals of Town of Hempstead, the Court noted:

"'Unlike a variance which gives permission to an owner to use property in a manner inconsistent with a local zoning ordinance, a special exception gives permission to use property in a way that is consistent with the zoning ordinance, although not necessarily allowed as of right'.... Thus, the burden of proof on an owner seeking a special exception is lighter than that on an owner seeking a variance. The owner is required only to show compliance with legislatively imposed conditions pertaining to the intended use.... 'Failure to comply with any condition upon a special exception, however, is sufficient ground for denial of the exception'."(citations omitted)

Here the Court found that the denial of the special permit was not supported by the record and the matter was remanded for the zoning board to grant the special permit with appropriate conditions.

-Steven M. Silverberg

Posted On: March 1, 2012

Court Finds "Reasoned Elaboration" In EAF Supports SEQRA Negative Declaration

The Appellate Division held that where an EAF identified either neutral or beneficial effects from a proposed zoning amendment a town board, acting as a lead agency, properly issued a negative declaration. In Matter of Matter of Gabrielli v Town of New Paltz, the Court noted that even though the zoning amendment was a SEQRA Type I action there was no need to prepare a DEIS.

However, in what appears to be somewhat of a departure from the standard for the findings of a lead agency to contain a "reasoned elaboration" supporting the negative declaration, the Court found:

"The negative declarations – adopted by resolutions of the Town Board – satisfied the requirement for "a written form containing a reasoned elaboration" for the determination and references to supporting documentation (6 NYCRR 617.7 [b] [4]). Although the resolutions themselves do not contain sufficient elaboration, they specifically refer to the EAF [FN1]. The EAF here consists of more than just checked boxes; the expanded additional comments on the EAF constitute a reasoned elaboration for the areas identified as potentially being affected by the floodplain laws (compare Matter of Troy Sand & Gravel Co., Inc. v Town of Nassau, 82 AD3d at 1379; Matter of Bauer v County of Tompkins, 57 AD3d 1151, 1153 [2008]). Because those comments relate to beneficial impacts, with no adverse impacts having been raised, the Town Board complied with its obligations under SEQRA."

-Steven M. Silverberg