New York Zoning And Municipal Law Blog

Articles Posted in Environmental Law

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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…”.

The Court remitted the matter for the Town to either review the entire project or to make findings pursuant to 6 NYCRR 617.3(g)(1) that such a review is not necessary to be fully protective of the environment.

-Steven Silverberg

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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:

“…we did not say that the Town’s independent review includes the ability to now gather additional environmental impact information beyond the full SEQRA record. Rather, in conducting its own jurisdictional review of the environmental impact of the project, the Town is required by the overall policy goals of SEQRA and the specific regulations governing findings made by “involved agencies” to rely on the fully developed SEQRA record in making the findings that will provide a rationale for its zoning determinations.”

The Court went on to reject the Town’s claim that it’s zoning procedures gave it authority to gather additional environmental information holding instead:

“…the EIS ‘fully evaluates the potential environmental effects, assesses mitigation measures, and considers alternatives to the proposed action’ (Matter of Coca-Cola Bottling Co. of N.Y. v Board of Estimate of City of N.Y., 72 NY2d at 680, citing ECL 8-0109 [4], [2]). While the Town maintains its jurisdiction over the zoning determinations and, as we have previously held, its SEQRA findings may differ from DEC’s findings (see 101 AD3d at 1508; Matter of Albany-Greene Sanitation v Town of New Baltimore Zoning Bd. of Appeals, 263 AD2d 644, 646 [1999], lv denied 94 NY2d 752 [1999]), the Town “must rely upon the [final EIS] as the basis for [its] review of the environmental impacts that [it is] required to consider in connection with subsequent permit applications” (Matter of Guido v Town of Ulster Town Bd., 74 AD3d 1536, 1537 [2010], citing 6 NYCRR 617.6 [b] [3] [iii]).”

Therefore the Court ordered that the Town must make its own findings based upon the record developed by the DEC.

In the related Article 78 the Court found the Town had been justified in rescinding its previous determination that Plaintiff’s zoning application had been complete. Therefore, the mere rescission did not make the issue ripe for review. Noting its findings in the DJ Action, the Court found the argument that the rescission would automatically result in a further costly environmental review is speculative and is therefore not ripe for review.

“…at this stage of the proceeding, the Town Board has merely rescinded its resolution in response to our prior decision vacating the preliminary injunction (see Troy Sand & Gravel Co., Inc. v Town of Nassau, 101 AD3d at 1506-1507), and we have now held in the declaratory judgment action that the Town’s determination of the proposed quarry’s environmental impact must necessarily be based on the environmental impact statement record (Troy Sand & Gravel Co., Inc. v Town of Nassau, AD3d at ). Accordingly, any harm to petitioner at this stage is merely speculative, may be ameliorated by further proceedings and is insufficient to warrant judicial review (see Matter of New York State Inspection, Sec. & Law Enforcement Empls., Dist. Council 82, AFSCME, AFL-CIO v Cuomo, 64 NY2d 233, 240 [1984]; Matter of Adirondack Council, Inc. v Adirondack Park Agency, 92 AD3d 188, 191 [2012]; Matter of Wal-Mart Stores v Campbell, 238 AD2d 831, 832-833 [1997]).”

Steven Silverberg

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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…”.

-Steven Silverberg

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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:

“… the Board found the Project ‘to be a whole action and not part of any long-range plan,’ and that any future applications for such expansion constituted ‘a necessarily speculative or hypothetical plan at this time.’… Nor is there any evidence in the Record that the addition reflected in the site plan was actually the first phase of a larger, unified project. Therefore, the Board’s failure to consider the potential environmental impacts from the construction of four additional floors did not constitute impermissible segmentation.”

The Court also rejected several other claims made by the Petitioners.

This matter was handled for the hospital by our partner, Katherine Zalantis.

-Steven Silverberg

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The appellate division sustained a SEQRA negative declaration, but nonetheless reversed the grant of a special permit for failure to address all the criteria required for the issuance of a special permit. In the Matter of Frigault v. Town of Richfield Planning Board, the Court found that the Board took a hard look at potential environmental issues prior to issuing a negative declaration and complied with the Open Meetings Law. However, it failed to address each of the standards required for issuing a special permit.

The lower court found the Town had violated the Open Meetings Law and therefore annulled the SEQRA negative declaration and the special permit. In modifying the determination of the lower court, the appellate division held:

“the Board’s negative declaration was issued in compliance with SEQRA. The Board engaged in a lengthy SEQRA review process, which included hiring an outside consulting firm and conducting no less than 11 Board meetings between the time the permit application was filed in March 2011 and the issuance of the negative declaration in November 2011. The full EAF was replete with studies on environmental issues, including the project’s impact on bats and birds, “shadow flicker,” noise, cultural resources and visual effect, and the Board afforded members of the public an opportunity to voice their concerns with respect to the project. In addition, the Board received input as to the project’s environmental impacts from various state agencies, including the Office of Parks, Recreation and Historic Preservation, the Department of Environmental Conservation, the Department of Transportation, and the Department of Agriculture and Markets.”

The claimed Open Meetings Law violation was raised because the crowd attending the public hearing was too large for the meeting room. as a result, the meeting was removed to a larger space, a block away, and a notice was posted on the door to advise any late comers of the relocated meeting. The appellate division disagreed with the lower court finding that this violated the law.

“Here, when it became clear that the space in the Town Hall was not large enough for the number of people who wished to attend the meeting, the Board notified everyone present – including the media – that the meeting was being relocated, and took steps to make certain that anyone arriving late would be aware of the change. In our view, the Board’s efforts in relocating the meeting were aimed at accommodating the large crowd and ensuring public access, and were entirely reasonable under the circumstances….”

However, the Court still reversed the issuance of the special permit as the Board did not address each of the standards contained in the local code that must be met before a permit maybe granted.

“Town of Richfield Ordinance § 7.3 (e) provides that special use permits may only be granted if each of eight enumerated conditions are met. While the Board’s resolution granting the special use permit states that it “considered and addressed each of the matters referred to in [the ordinance],” the resolution itself does not provide any explanation or elaboration thereof. Instead, the resolution refers to the document issued by the Board explaining its rationale for the negative declaration under SEQRA. Indeed, some of the issues relevant to the negative declaration under SEQRA and to the special use permit overlap. However, the Board’s explanation of its rationale for the negative declaration does not directly address each of the conditions set forth in the ordinance. We are, therefore, unable to undertake intelligent review of whether the Board’s determination that the project complied with the ordinance was rational and supported by substantial evidence….”

In addition, the Court found that all the proper notices were not issued prior to taking action.

-Steven M. Silverberg

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The Appellate Division found that the issuance of a SEQRA negative declaration, permitting extension of a sewer district to serve a proposed development, constituted improper segmentation under SEQRA. In Matter of Town of Blooming Grove v. County of Orange, the County had entered into an agreement to sell property for development, subject to the County ensuring that there was adequate sewer capacity to service the site.

The property in question is located in three municipalities. Municipal boards in two of those towns declared themselves co-lead agencies under SEQRA, for the purpose of reviewing the proposed development and issued a positive declaration, requiring preparation of an environmental impact statement. Meanwhile the municipalities in which the project is located declined to guarantee sewer service to the site.

While the SEQRA review was pending, the County determined to allow the extension of a County Sewer District (“OCSD”) to serve the property. The County declared itself lead agency for purposes of the proposed OCSD extension, prepared a short form EAF and issued a negative declaration. Thereafter, the County approved the extension.

After finding that the Petitioners had standing to challenge the SEQRA determination, the Court held:

“under the circumstances of this case, the County improperly segmented the SEQRA review of the OCSD extension from the Mountco project (see 6 NYCRR 617.3[g][1]; Matter of Village of Westbury v Department of Transp. of State of N.Y., 75 NY2d 62; Matter of AC I Shore Rd., LLC v Incorporated Vil. of Great Neck, 43 AD3d 439, 442; Matter of Long Is. Pine Barrens Socy. v Town Bd. of Town of Riverhead, 290 AD2d 448, 448). Contrary to the appellants’ contentions, the record establishes that the Mountco project and the OCSD extension are part of an integrated and cumulative development plan sharing a common purpose (see Matter of East End Prop. Co # 1, LLC v Kessel, 46 AD3d 817, 823; cf. Matter of Friends of Stanford Home v Town of Niskayuna, 50 AD3d 1289). Since the Town of Chester and the Planning Board of the Town of Blooming Grove, as co-lead agencies of the Mountco project, had already issued a positive declaration, the County was prohibited from issuing a subsequent determination (see 6 NYCRR 617.6[b][3][iii]; Matter of Gordon v Rush, 299 AD2d 20, 29, affd 100 NY2d 236; Matter of Incorporated Vil. of Poquott v Cahill, 11 AD3d 536, 542).”

-Steven M. Silverberg

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The N.Y. Court of Appeals has directed the New York City School Construction Authority to prepare a Supplemental Environmental Impact Statement to detail its ongoing management of remediation measures at a brownfield site where it proposed to construct a campus for four public schools. In Matter of Bronx Committee for Toxic Free Schools v. New York City School Construction Authority, the Court held that the failure of the Authority to subject its ongoing management plan for the site to scrutiny pursuant to the State Environmental Quality Review Act (SEQRA) violated the purposes and intent of the regulations and required the preparation of a Supplemental Impact Statement.

SEQRA review by the Authority was initially challenged for failure to include in the EIS a description of the long term site management plan. The Authority did not argue that the long term plan was not an important environmental consideration but instead took the position that: “…the plan must be governed by post-remediation soil and groundwater conditions” that could not be assessed until after the site cleanup was complete. The Supreme Court therefore treated this position as an admission that the long term management should be addressed and directed that once the plan was completed that a Supplemental EIS should be prepared.

Thereafter, the Authority prepare a long term management plan that was submitted to and approved by the DEC, but no Supplemental EIS was prepared. Instead, the Authority to moved to renew and reargue asserting that the preparation of the long term plan and sign-off by DEC were sufficient and no further SEQRA review was necessary. The lower courts disagreed with the Authority’s position.

In affirming the lower courts the Court of Appeals noted:

“We do not view this case as a dispute over how much detail must be included in an EIS, or over whether events occurring after the EIS was filed were significant enough to call for a supplement. If those were the issues, we would defer to any reasonable judgment made by the Authority (see Matter of Eadie v Town Bd. of N. Greenbush, 7 NY3d 306, 318-319 [2006]; Webster Assoc. v Town of Webster, 59 NY2d 220, 227-229 [1983]). But the Authority does not assert that, in its judgment, the maintenance and monitoring measures were relatively minor details that the public did not need to know about. The Authority has not disputed petitioners’ showing that these measures were “essential” to protecting the site’s occupants from dangerous contaminants.

The Authority seems instead to be arguing that it should not have to describe the long-term maintenance and monitoring measures in a supplemental EIS because (1) it reasonably chose not to decide on those measures before its EIS was filed and (2) it adequately described them in the site management plan approved by the DEC as part of the Brownfield Program. Both of these arguments lack merit. ”

The Court noted that while, without deciding, it appears the conclusion to postpone preparing the long term management plan was reasonable it “…does not mean, however, that mitigation measures of undisputed importance may escape the SEQRA process.”

The Court concluded:

“Nor does the submission of the site management plan to the DEC, or the approval of that plan as part of the Brownfield process, justify short-circuiting SEQRA review. The Brownfield Program and SEQRA serve related but distinct purposes. SEQRA is designed to assure that the main environmental concerns, and the measures taken to mitigate them, are described in a publicly filed document identified as an EIS, as to which the public has a statutorily-required period for review and comment. We understand the Authority’s view that, as to this project, it has already done enough public outreach and considered enough public comments, but SEQRA requires it to take this one step more.”

– Steven M. Silverberg

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The Appellate Division reversed a lower court holding that neighbors of the controversial Patrick Farm development in the Town of Ramapo lacked standing to challenge the approval of changes to the Town’s comprehensive plan and zoning ordinance. In Matter of Shapiro v. Town of Ramapo, the Appellate Division Upheld dismissal of the challenge to the Town’s transfer of the site to a developer but reinstated the causes of action challenging the zoning amendments and the SEQRA review.

Holding the claim that the Town illegally transferred park land to the developer is time barred the Court noted the action was commenced in 2010 to challenge the 2001 transfer of the property, well outside the six year statute of limitations. However, the Court found the lower court erred when it held that the Petitioners, who live “across the street” from the proposed development, lacked standing.

The Court stated:

“the petitioners live in close proximity to the portion of the site that is the subject of the challenged determinations, they did not need to show actual injury or special damage to establish standing (see Matter of Gernatt Asphalt Prods. v Town of Sardinia, 87 NY2d 668, 687; Matter of Sun-Brite Car Wash v Board of Zoning & Appeals of Town of N. Hempstead, 69 NY2d 406, 409-410, 413-414; Matter of Village of Chestnut Ridge v Town of Ramapo, 45 AD3d 74, 89-90; Matter of Ontario Hgts. Homeowners Assn. v Town of Oswego Planning Bd., 77 AD3d 1465, 1466). Further, the injuries alleged by the petitioners fell within the zone of interests to be protected by SEQRA (see Matter of Gernatt Asphalt Prods. v Town of Sardinia, 87 NY2d at 687; Society of Plastics Indus. v County of Suffolk, 77 NY2d 761, 772-775; Matter of Bloodgood v Town of Huntington, 58 AD3d 619, 621; Matter of Village of Chestnut Ridge v Town of Ramapo, 45 AD3d at 94).”

The Court also reversed the finding by the lower court on the motion to dismiss that there was no merit to the Petitioners’ claims. Noting that the decision was made on a pre-answer motion, before either an answer or record of proceedings had been submitted to the court below, the Appellate Division held:

“Moreover, it was error for the Supreme Court to reach the merits of the petitioners’ SEQRA claims prior to service of the respondents’ answers and the filing of the full administrative record (see CPLR 7804[e], [f]). On the appellate record before us, it cannot be said that “the facts are so fully presented in the papers of the respective parties that it is clear that no dispute as to the facts exists and no prejudice will result from the failure to require an answer” (Matter of Nassau BOCES Cent. Council of Teachers v Board of Coop. Educ. Servs. of Nassau County, 63 NY2d 100, 101…”

-Steven Silverberg

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The New York Court of Appeals upheld the determination by the New York City Department of City Planning to issue a negative declaration under the State Environmental Quality Review Act (SEQRA) for a rezoning of a portion of Brooklyn. In Matter of Chinese Staff and Workers Association v. Burden, the Court found that the issuance of the negative declaration by the Department of Planning did not abuse it’s discretion.

The Court noted:

“:An agency’s “initial determination under . . . SEQRA and CEQR is whether an EIS [environmental impact statement] is required, which in turn depends on whether an action may or will not have a significant effect on the environment” (Chinese Staff & Workers Assn. v City of New York, 68 NY2d 359, 364 [1986]). “In making its initial determination, the agency will study many of the same concerns that must be assessed in an EIS, including both long- and short-term environmental effects” (Farrell, 100 NY2d at 190). Where an agency determines that an EIS is not required, it will issue a “negative declaration” (id.). “Although the threshold triggering an EIS is relatively low, a negative declaration is properly issued when the agency has made a thorough investigation of the problems involved and reasonably exercised its discretion” (id. [internal quotation marks and brackets omitted]).”

The Court Conluded “the DCP neither abused its discretion nor was arbitrary or capricious when it issued a negative declaration determining that the proposed rezoning in this case would have no significant adverse effect on the environment. In its EAS, DCP identified the relevant areas of environmental concern, took a hard look at them and made a reasoned elaboration of the basis for its determination.”

-Steven Silverberg