Articles Posted in Environmental Law

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In a decision that reiterated the need for there to be other than economic impacts to a property owner to serve as a basis for challenging the environmental review of a local law or ordinance, the Appellate Division affirmed the lower court dismissal of a challenge to a zoning amendment. In the case, Matter of 1160 Mamaroneck Avenue Corp. v City of White Plains, the Appellate Division Second Department upheld the lower court decision dismissing the challenge to an amendment of the local zoning regulations and modified the lower court decision by affirmatively stating that the local law is valid.

Petitioner/Plaintiff (hereafter “Petitioner”) in this hybrid proceeding owns property in a residential district of the City of White Plains.  Petitioner maintains a non-conforming use on its property consisting of a nursery. As part of the nonconforming use, Petitioner processes various materials such as soil, wood chips and mulch.  The City undertook a review of those uses which included a proposed amendment to the City’s zoning regulations. The amendment was subject to review under the State Environmental Quality Review Act   (SEQRA) as a Type I action. After conducting an environmental review, the City issued a negative declaration. The City Council “upon determining that processing activities had various harmful effects that were incompatible within residential districts, adopted amendments to the City’s zoning ordinance (hereinafter the zoning amendments) which ban processing activities by nurseries located within a residential district.”

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The Appellate Division restated the requirement that all interested parties must be named in an action challenging a site plan approval and that a property owner and prospective developer are not necessarily united in interest. In Matter of Mensch v Planning Bd. of the Vil. of Warwick, the Court found that the failure of the Petitioner/Plaintiffs (“Petitioners”) to name the owners in the original Petition/Complaint was not cured by the filing of an amended pleading, subsequent to the passage of the thirty day statute of limitations.

The developer, 116 Elm Street Realty LLC (“the Developer”), sought permission to develop a parcel owned by Frank D. Petrucci, Lynn Crane, and Glenn Petrucci (“the Owners”). The Village Planning Board conducted a SEQRA review and issued a negative declaration. Thereafter, the Planning Board granted site plan approval to the Developer, permitting construction of a restaurant/catering facility on the property at issue. The Petitioners, who own property that borders the  site in question, then brought this hybrid Article 78/Declaratory Judgment Action, challenging the actions of the Planning Board, seeking a determination from the Building Inspector that the approval was for a use not permitted in the Zoning Code and a declaration that the use was not permitted. Initially, Petitioners failed to name the Owners  of the property. When Petitioners filed an amended Petition/Complaint, it was filed and served subsequent to the expiration of the statute of limitations. The lower court dismissed the case.

In upholding the lower court decision, the Appellate Division held:

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After a seven year saga, the Appellate Division overturned the rezoning of a parcel which would have permitted a multi family development in the Town of Ramapo. In Matter of Youngewirth v. Town of Ramapo Town Board, the Appellate Division reversed the lower court, finding the review under the State Environmental Quality Review Act (SEQRA) was inadequate, thus requiring it to overturn the comprehensive plan amendment and the zoning that would have implemented that comprehensive plan change.

In discussing the SEQRA review the Court held:

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Construction of a replacement water tank by the local water district was found to be a SEQRA Type II Action and not subject to the zoning of the Village in which the property is locted.  In Incorporated Village of Munsey Park v. Manhasset-Lakeville Water District, the Court held the Water District (Defendant) properly determined its replacement water tank was not subject to local zoning and the project was a Type II Action that did not require any environmental review.

Since 1929, the Defendant had maintained a water tank on property it owned in the Village. In 2014 it was determined the tank needed to be replaced. The proposed replacement tank would have a 250,000 gallon greater capacity and would be shorter and squatter than the existing tank. The Defendant determined it did not require zoning review by the Village and the tank would be a SEQRA Type II Action as it constituted a replacement in kind. The Village commenced this action claiming that local zoning applied and that an environmental review is required.

The Court agreed with the Defendant holding:

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The New York State  Department of Environmental Conservation (DEC) has proposed the first major changes in the implementing regulations for the State Environmental Quality Review Act (SEQRA) in two decades.  The proposed amended regulations, if adopted, will bring about a number of procedural changes intended to streamline the SEQRA process.

 Most significant is the increase in “Type II Actions” that are exempt from environmental review. The additions to the Type II list include, among other activities:

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The Appellate Division upheld a lower court decision vacating findings issued pursuant to the State Environmental Quality Review Act ( SEQRA). In Matter of Falcon Group LTD. Liab. Co. v. Town/Village of Harrison Planning Board, the Court found that the Planning Board had failed to adopt findings based upon the full record produced in the Draft Environmental Impact Statement (DEIS) and Final Environmental Impact Statement (FEIS).

Initially, the Court noted that judicial review of lead agency SEQRA findings is limited, but the findings must still be based upon the facts.

“While an agency’s ultimate conclusion is within the discretion of the agency, it must be based upon factual evidence in the record and not generalized, speculative community objections (see Matter of WEOK Broadcasting Corp. v Planning Bd. of Town Lloyd, 79 NY2d at 384-385).”

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The Appellate Division granted a petition challenging condemnation of property on the grounds that the Town segmented the review of the project in violation of the State Environmental Quality Review Act (SEQRA). In Matter of J. Owens Building Co., Inc. V. Town of Clarkstown the Court held the proposed condemnation of a parcel, to be used in order to aid drainage for a larger project, improperly failed to consider the environmental impacts of the entire project before making environmental findings.

Noting that the overall project was not hypothetical or speculative the Court stated:

“The respondents sought to acquire the petitioners’ property for the purpose of, among other things, drainage and storm water management improvements (hereinafter the drainage plan) in connection with a larger project known as the West Nyack Downtown Revitalization Project. The record reflects that the drainage plan ‘is a key component to the overall revitalization plans for the Hamlet’ of West Nyack. Even though the drainage plan was part of the larger revitalization project, the Town Board, acting as the lead agency, studied only the potential impact of the drainage plan during its SEQRA review. However, under SEQRA, the Town Board was obligated to consider the environmental concerns raised by the entire project…”.

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An involved agency, while making its own SEQRA findings, is limited to the record developed by the lead agency. In a pair of related cases, Troy Sand & Gravel,Co. Inc v. Town of Nassau (“the DJ Action”) and Matter of Troy Sand & Gravel, Co. Inc., (“the Article 78”) the Appellate Division reversed the lower court’s granting of summary judgment to the Town based upon a misinterpretation of the Appellate Division’s previous ruling.

These cases have a lengthy history, as outlined by the Court in the DJ Action. The NY DEC, as lead agency, conducted a full environmental review of the Plaintiff’s proposed mining operation. The Town Board, as an involved agency, participated in the SEQRA review by the DEC. In a previous proceeding the Court held the Town was correct in seeking to make its own SEQRA findings with respect the zoning approvals required from the Town.

However, in the current DJ Action the lower court found that the Town could further develop the environmental record.The Court reversed noting:

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The Appellate Division dismissed a challenge to SEQRA Findings where no approvals had actually be granted. In the Matter of Patel v.Board of Trustee of Village of Muttontown, the Court found the ” position taken by an agency is not definitive and the injury is not actual or concrete if the injury purportedly inflicted by the agency could be prevented, significantly ameliorated, or rendered moot by further administrative action or by steps available to the complaining party…”.

In this case the applicant was seeking special permit and site plan approval. The SEQRA Findings were issued, but no approvals were granted for the special permit or site plan.

“Here, the issuance of a SEQRA findings statement did not inflict injury in the absence of an actual determination of the subject applications for a special use permit and site-plan approval and, thus, the challenge to the adoption of the findings statement is not ripe for adjudication…”.

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The N.Y. State Supreme Court found that an extensive review of environmental issues was sufficient to meet the requirements of SEQRA without preparation of an environmental impact statement. In Matter of Magat v. the Village of Bronxville Planning Board, the judge of the environmental claims part of the New York Supreme Court in Westchester County dismissed the petition brought to challenge the site plan and special permit approval for the expansion of a local hospital.

The Petitioners claimed, among other things, that the Planning Board failed to take a hard look at environmental issues, as mandated by SEQRA, due to the failure to require preparation of a Draft Environmental Impact Statement (DEIS). Yet, the Court noted the level of study, the public participation in the process and the fact that the plan was modified as a result of input from the Village’s boards, as well as the public (including the Petitioners) demonstrated that the required “hard look” was applied to this application, negating the need for a DEIS.

Petitioners further claimed that by constructing a foundation that could support additional floors in the future there was an improper segmentation of the SEQRA review. The Court found that there was no evidence that the hospital had any plan to construct additional floor and cited a communication from the hospital stating this fact, as well as the need to do the construction in a manner that did not preclude an application for future expansion, should the need arise. Citing the Planning Board’s negative declaration the Court found:

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