New York Zoning And Municipal Law Blog

Articles Posted in SEQRA

Published on:

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).”

Continue reading →

Published on:

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…”.

Published on:

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:

Published on:

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…”.

Published on:

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:

Published on:

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.”

Published on:

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.

Published on:

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.

Published on:

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:

Published on:

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]).”