April 4, 2007

Court of Appeals Interprets New York City Watershed Regulations

Construction within the New York City Watershed located in Putnam County is regulated, in part, by the New York City Department of Environmental Protection (DEP). The New York Court of Appeals, in Nilsson v Dept. of Environmental Protection, limited the authority of DEP to regulate storm water runoff when reviewing a request for a variance from the fill requirements for the subsurface sewage treatment systems (SSTS) of a residence within the watershed.

The Court found that the DEP could not “extend its jurisdiction to otherwise unregulated sources of degradation or contamination.” The Court also found that the DEP could not require the applicant to prove hardship by evidence of projected financial hardship when the submissions by the applicant demonstrated that it would be impossible to construct any residence without the variances. Therefore the Court found that where there was a hardship claimed of impossibility of building a residence on the parcel “there is little more to be said.”

However, the Court remitted the matter to the Supreme Court. During the review process DEP had asked for information concerning the applicant’s real estate holdings in the immediate area, which the applicant refused to provide. The Court agreed with the Appellate Division’s finding that such a request was over broad. Yet, the Court did find that it was reasonable to request information about ownership of contiguous lots, which might allow the applicant to minimize any hardship. As a result the Court directed that there be further proceedings on that issue.

June 5, 2006

Court Upholds New York City’s Use of Eminent Domain for Hudson Yards Project

An appellate court dismissed five consolidated actions challenging New York City’s and the MTA’s use of eminent domain to obtain land for a project on Manhattan’s West Side. In Matter of C/S 12th Ave. LLC v. City of New York, the Appellate Division First Department upheld the City’s approval of property acquisition and easements related to the project, as well as the Determination and Findings generated by the City and the MTA. The court also held that condemnation of an entire parcel is reasonable where the project for which the parcel is sought only requires a portion of the parcel, but partial demolition of the existing structure is not feasible.

Owners of property subject to condemnation for the project, which is known as the No. 7 Subway Extension Hudson Yards Rezoning and Redevelopment Program, challenged the City’s authority to acquire their land. Petitioners’ numerous claims include arguments that the City failed to comply with requirements of the Eminent Domain Procedure Law, engaged in unconstitutional spot zoning, acted ultra vires, and failed to state an adequate public use to be served by the project.

The court held that Eminent Domain Procedure Law 204 does not require “extreme accuracy” in reference to the property to be acquired; rather the procedural requirement is satisfied when the acquiring agency sets forth the approximate location and the reasons for the location selection for the proposed project. In reaching its determination that specificity is not required, the court pointed out that the taking challenged in the EDPL claim is a temporary easement needed to construct and support portions of the project. In addition, the court reasoned, the easements were sought for structural stabilization of the subway tunnel during its construction, and precisely where the stabilization points would be required could not be determined in the planning stage of the project.

Petitioners claimed their property was singled out for a use classification that differs from that of the surrounding areas in violation of the Constitution’s Equal Protection clause. In examining this claim, the court found that there was a rational relationship between the disparate treatment of the parcel and the legitimate government purposes of well-considered development, generating jobs, and increasing the tax base. The court thus upheld disparate treatment of the property and discounted petitioners’ spot zoning claim.

In reviewing petitioners’ argument that the City’s actions were ultra vires, the court held that the actions were within the scope of its authority and further found that the Hudson Yards project constitutes a public use as required by the Constitution, since it serves a public purpose, citing the broad definition of public use upheld in Kelo v. City of New London.

The court also noted because the EDPL provided an adequate mechanism allowing the property owners to seek compensation, the challengers bore the burden of proving beyond a reasonable doubt that the challenged rezoning plan destroyed the economic value of the property. The court held that petitioners did not satisfy the burden and therefore allowed the regulations to stand.

March 18, 2006

Court Rejects SEQRA Negative Declararion

On March 14, 2006 the Appellate Division Second Department rejected the issuance of a Negative Declaration under SEQRA in the case Matter of Avy v. Town of Amenia. In upholding the findings of the State Supreme Court, the Appellate Division found that by approving an amendment to the local zoning ordinance, which would have allowed an automobile repair service on a lot previously zoned residential, the Amenia Town Board, as lead agency, failed to take the required “hard look” at all the potentially significant environmental impacts.

Despite the fact that the Town Board spent about a year and a half “reviewing” this proposal the Court noted that the EAF for the project identified fourteen areas of potentially large impacts including removal of 1.65 acres of vegetation, 3000 cubic yards of material, storm water runoff, odors, noise and endangered flora and fauna. While the Board held public hearings it never required more than a revised Environmental Assessment Form (EAF). The Court found the Board failed to adequately address the potential impacts on a vital aquifer, the removal of substantial vegetation and the potential impacts upon endangered flora and fauna.

In the past courts have held that an EAF can provide sufficient information to allow a negative declaration in some circumstances. Yet, the clear message here is that, when there are multiple areas of potentially large impacts, it is safer to spend a year and a half preparing and reviewing an environmental impact statement than spending a year and a half trying to avoid preparing one. At the end of the day, the requirement of a “hard look” at environmental impacts before issuing a negative declaration is still the rule.

November 28, 2005

New York Law Requires Posting Environmental Impact Statements on the WEB

The New York State Legislature has recently passed a bill which was signed into law by the Governor requiring that, beginning February 26, 2006, municipalities must post all Environmental Impact Statements, required under SEQRA, on the world wide web. The address of all postings must be included in all notices regarding an Environmental Impact Statement.

As part of the new requirements the Environmental Impact Statement must be posted for a period of time after all permits mentioned in the Impact Statement have been issued.

The purpose of the law is to provide greater public access to these documents and to facilitate the ability of the public to comment on the project proposed in the Environmental Impact Statement.

It has been suggested that municipalities modify local regulations to require that Impact Statements be provided in digital, as well as printed, format so as to assist in posting on a publicly available web site.