May 31, 2015

Town Violated SEQRA by Segmenting Review of Drainage From Larger Project

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

February 22, 2015

Involved Agency Limited to SEQRA Record Developed by Lead Agency

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.

" 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

March 30, 2014

SEQRA Challenge Not Ripe Absent Approvals

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

February 27, 2014

Court Finds DEIS Unnecssary for Type I Action

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

June 27, 2013

Special Permit For Wind Farm Reversed Even Though Board Complied With SEQRA

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

February 7, 2013

Court Finds Improper Segmentation of SEQRA Review

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

October 23, 2012

Court of Appeals Requires Supplemental Environmental Impact Statement

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

August 26, 2012

Neighbors Have Standing to Challenge SEQRA Determination

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

June 28, 2012

Court of Appeals Upholds SEQRA Negative Declaration for Rezoning

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

April 26, 2012

Court Reverses Dismissal of SEQRA Challenge By Adjoining Municipality

The dismissal of a challenge, by an adjoining Village, to a Town's rezoning of a parcel in the Town was modified by allowing challenges to the SEQRA determination and the claim of a lack of compliance with General Municipal Law § 239-m to proceed. In Village of Pomona v. Town of Ramapo, the Appellate Divisions upheld the dismissal of of a cause of action claiming failure to comply with General Municipal Law §239-nn, which requires notice to abutting municipalities, holding that the statute does not create a separate right of action. The Court also upheld dismissal of the claim that the zoning enactment failed to comply with the Town's comprehensive plan noting:

"we held in Matter of Village of Chestnut Ridge v Town of Ramapo (45 AD3d 74), villages 'have no interest in [a] Town Board's compliance with . . . its comprehensive plan,' since, unlike individuals who reside within the Town, '[villages] are beyond the bounds of the mutuality of restriction and benefit that underlies the comprehensive plan requirement....'"

However, the Court found that, contrary to the arguments made by the Defendants, the Village did have standing to bring other challenges to the Town's actions:

"'[T]he right of a municipality to challenge the acts of its neighbors must be determined on the basis of the same rules of standing that apply to litigants generally... Community character is specifically protected by SEQRA '... 'The power to define the community character is a unique prerogative of a municipality acting in its governmental capacity . . . 'Substantial development in an adjoining municipality can have a significant detrimental impact on the character of a community . . . thereby limiting the ability of the affected municipality to determine its community character'" (citations omitted).

In further holding that the Village had a right to contest the SEQRA determination leading up to the challenged actions, the court held:

"'The unique nature of a municipality's environmental interests . . . requires that the inquiry into its environmental standing not be a mechanical one, particularly in light of the established preference that the issues presented by land use disputes be decided on the merits . . . rather than by a heavy-handed approach to standing'...the Village did not have to show, in opposition to the motions, that the proposed development 'would be visible from any particular Pomona neighborhoods' or that 'the plans call for clear-cutting and/or a lack of plantings or other visual barriers,' and the Village did not have to explain in further detail how the significant increase in density would specifically affect the character of the community...."

Finally, on the issue of bringing a challenge under General Municipal Law 239-m the Court found:

"the Village has standing to assert the fourth cause of action. The purpose of General Municipal Law § 239-m, which governs the review process by a county planning agency of a municipality's proposed planning and zoning actions, is to 'bring pertinent inter-community and county-wide planning, zoning, site plan and subdivision considerations to the attention of neighboring municipalities and agencies having jurisdiction' (General Municipal Law § 239-l[2]) and by so doing to facilitate regional review of land use proposals that may be of regional concern' (Matter of Village of Chestnut Ridge v Town of Ramapo, 45 AD3d at 88-89). 'Because [an] adjoining municipalit[y] necessarily [has] the same interest [as individual neighbors] in the regional review that General Municipal Law § 239-m requires, the Village[ ] also [has] standing to assert such claims'."

- Steven Silverberg

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

December 26, 2011

Court Orders Town To Complete SEQRA Process

The Appellate Division directed that the Town of Oyster Bay file a Final Environmental Impact Statement (FEIS) and take final action upon a special permit application by Costco. In the Matter of Costco Wholesale Corporation, v. Town Board of the Town of Oyster Bay, the Appellate Division affirmed the lower court judgment directing that the Town "complete environmental review of the petitioners' proposal to develop a retail store, and to take final action upon the petitioners' applications for a special use permit and site plan."

This case involves an application for site plan and a special permit that has been going on since 2001. In 2003 the Town denied the application and thereafter the Supreme Court remitted the matter for the Town to comply with SEQRA. The Town then issued a positive declaration, a Draft Environmental Impact Statement (DEIS) was prepared and a hearing held in January 2007, with the public comment period being closed on January 31, 2007. Costco made three submissions of a proposed FEIS, the last being in April 2009 and then started this Article 78 proceeding, seeking to compel the Town to complete the SEQRA process and make a decision on the special permit and site plan applications.

In upholding the lower court's direction that the Town complete SEQRA and issue a determination on the applications, the Court held:

"Contrary to the Town's contentions, the Supreme Court properly determined that the Town's failure to act pursuant to the applicable local code provision (see Code of the Town of Oyster Bay § 110-9 [I]), as well as the applicable SEQRA provision (see 6 NYCRR 617.9[a][5]) requiring it to "prepare or cause to be prepared and . . . file a final EIS, within 45 calendar days after the close of any hearing or within 60 calendar days after the filing of the draft EIS, whichever occurs later," warranted mandamus relief (id.; see Matter of Mamaroneck Beach & Yacht Club, Inc. v Fraioli, 24 AD3d 669, 671; Matter of 2433 Knapp St. Rest. Bar v Department of Consumer Affairs of City of N.Y., 150 AD2d 464, 465)."

-Steven M. Silverberg

December 15, 2010

Local Law Adopted in Violation of SEQRA

The Appellate Division found that a local law amending certain land use regulations was void as it was adopted without taking the required “hard Look” under the State environmental Quality Review Act SEQRA. In Matter of Prand Corp v. Town Board of the Town of East Hampton, the court found that, in this case, the issuance of a negative declaration after review of only a short form EAF did not constitute a “hard look’ and affirmed the lower court’s voiding of the local law for failure to comply with SEQRA.

In 2005 the town had adopted a comprehensive plan. Thereafter, there was a proposal to implement certain amendments and the town created a committee to undertake a review and make recommendations as to possible changes in the regulations. The committee made recommendations to modify the regulations by requiring, in certain zones, that more land would be set aside for open space in subdivisions and for relaxing land clearing regulations in those subdivisions. The town board, as lead agency, adopted a SEQRA negative declaration after reviewing a short form EAF. It then adopted the recommended zoning amendments.

In upholding the lower court, the Appellate Division noted the limited scope of judicial review but found:
“Here, a review of the EAF reveals that Local Law No. 25, particularly the more liberal land-clearing allowances permitted thereby, implicates several of the criteria used to determine if a proposed action will have a significant adverse impact on the environment, including, inter alia: (1) a substantial increase in the potential for soil erosion, flooding and drainage problems; (2) the removal of large quantities of vegetation; (3) substantial interference with natural resources in the area; (4) the creation of a material conflict with the community's comprehensive plan; (5) impairment of the existing character of the community; and (6) a substantial increase in the intensity of the land use (see 6 NYCRR 617.7[c][1]).”

-Steven Silverberg

August 25, 2010

N.Y. DEC Issues Updated SEQRA Handbook

The New York Department of Environmental Conservation (DEC) has issued a new SEQRA Handbook. The Handbook was first issued in 1982 and then updated in 1992. The SEQRA regulations were revised in 1996, but no update of the Handbook followed. Now it has finally been updated. Its purpose is described by the DEC as follows:

"The SEQR Handbook provides agencies, project sponsors, and the public with a practical reference guide to the procedures prescribed by the State Environmental Quality Review Act (SEQR)--Article 8 of the Environmental Conservation Law. It addresses common questions that arise during the process of applying SEQR. The Handbook also attempts to address the needs of individuals who have varying degrees of experience with SEQR. Topics range from an introduction to the basic SEQR process to discussions of important procedural and substantive details."

-Steven Silverberg

August 16, 2010

Court Finds Westchester Town Violated RLUIPA and Overturns SEQRA Findings

In a 206 page decision, the U.S. District Court for the Southern District of New York found the Town of Greenburgh had violated the Religious Land Use and Institutionalized Persons Act (RLUIPA) when it refused to grant a church permission to build a new building, for what the court termed “contrived” reasons. In Fortress Bible Church v. Feiner, the Court found, contrary to the claim of the Town, that the State Environmental Quality Review Act (SEQRA) constitutes an individualized assessment of a land use application, that the review falls within the RLUIPA definition of land use regulation as the application of SEQRA “can limit or restrict a claimant’s use or development of land” and that the actions of the Town in issuing findings pursuant to SEQRA, which limited the use of the Church’s property, constitute a “substantial burden” on religious exercise under RLUIPA.

The Court was no doubt brought to this conclusion in large part by its finding that the “majority” of the Town’s witnesses were lacking in credibility. The Court went so far as to find “not only the admitted destruction of probative evidence, but the existence of evidence relevant to the issues before this Court that Defendants never produced to Plaintiffs. Outrageously, Defendants attempted to enter such previously undisclosed documents into evidence during trial.” The Court therefore held “that the conduct of Defendants warrants both an adverse inference based on spoliation of evidence and sanctions.”

The Court reviewed the history of RLUIPA and its purpose to “protect against inter alia ‘subtle forms of discrimination.’” It then went on to note that under RLUIPA, once a plaintiff demonstrates that conduct in implementing a land use regulation imposes a substantial burden upon religious exercise, the burden shifts to the defendant to demonstrate that the burden imposed is “in furtherance of a compelling governmental interest and is the least restrictive means of furthering that compelling governmental interest.” The Court found that the activities at issue fall within the jurisdiction of RLUIPA noting that a number of courts have held that construction of a church implicates interstate commerce. It further found that since the activities of the church will support missionary efforts that too implicate interstate and international commerce.

In reviewing the record, the Court noted that initially the Town’s then planning commissioner indicated he thought the Town could issue a conditioned negative declaration under SEQRA which would provide for implementation of certain mitigation measures to address traffic concerns. By doing this it would not have been necessary to undertake further environmental review. But during a meeting in July 2000 the Court found that the Town Supervisor said that half the issue was traffic and the other half was the tax exempt status of the Church. The Supervisor then suggested that the Church either donate a fire truck or make some other payment to the Town in lieu of taxes. In fact, the Court noted that the Supervisor testified that the tax exempt status of the Church was “hampering or hindering” the approval. The Court also noted testimony by the then planning commissioner that he was instructed by at least one member of the Town Board to “help stop the project or kill the project” as the council person did not want another church in the Town. The Church refused to make a “donation” to the Town.

Thereafter, the Town Board, as lead agency under SEQRA, issued a positive declaration requiring the preparation of a Draft Environmental Impact Statement (DEIS), although the Court found that it was not warranted as the Church had “mitigated all identified potential adverse impacts.”

“The Court finds that the Town used the SEQRA process and the issuance of a Positive Declaration punitively because of the Church’s refusal to make a significant donation of value or monetary payment to the Town because of certain Town Board members’ desire to delay the project and increase the expense of the SEQRA process for the Church.”

The Court then went through a review of the lengthy SEQRA process which included the Town’s firing and hiring multiple consultants, the fees charged for the review by the multiple consultants and the Town’s decision to take over the preparation of the FEIS after it had been started by the Church. As for the FEIS prepared by the Town, the Court stated the “FEIS written by the Town is replete with errors, gratuitous comments and revisions intended to cast the project in the worst light possible.” Subsequently, the Town Board adopted a SEQRA findings statement which the Court also found to be unsupported by the record.

In concluding that the facilities at issue will be devoted to religious purposes, the court found that the facilities will either be devoted to religious practice and education “or are inextricably integrated with the Church’s ability to provide religious education and practice…” Then in determining that the actions of the Town constitute a substantial burden on religious practice, the Court rejected the claims by the Town that the Church could have addressed the concerns of the Town and ultimately received approval of a scaled back project. First, the Court noted that the Church had already agreed to every mitigation measure proposed by the Town and that the Town’s own findings statement concluded “no mitigation is possible.” But the Court went on to note:

“While the Town’s past treatment of the Church’s application strongly suggests that the
Town would not act in good faith in considering a modified proposal, the Court need look no
further than the admissions of Town Board members themselves to be certain that the Town would not act in good faith….Given the overwhelming evidence of Defendants’ intentional delay, hostility, and bias toward the Church’s application, the Court finds that any purported willingness by the Town Board to consider a modified proposal is insincere. Under such circumstances, the Church is not required to file a modified application and the Court finds that the Church’s religious exercise was substantially burdened by the Town’s arbitrary and unlawful denial of its application.”

In analyzing the effect of the denial, the Court noted that the Plaintiff has the burden of proving that there is a substantial burden by demonstrating that the actions denying the construction of the church building were arbitrary and capricious and there is no readily available alternative. The Court held that the Church had demonstrated a nexus between the denial and its religious exercise through testimony which proved that the Church currently lacks adequate facilities and the inability to construct the new building interferes with its religious practices. The Court held that the actions of the Town in issuing the SEQRA findings lacked validity and concluded that neither the use of the Church’s current facilities nor a further application to the Town provided a “satisfactory alternative.” The Court further held that even were the Town willing to give fair consideration to another proposal the time and expense that would be incurred are not “quick, reliable and financially feasible.”

Next the Court turned to what constitutes a compelling government interest in the context of RLUIPA, noting that the Supreme Court has held that such interests are those which “protect public health, safety and welfare.” The Town had argued that the proposed project implicated compelling government interest because (1) it impacted traffic, (2) provided inadequate parking, (3) violated the Town’s steep slope ordinance, (4) created retaining walls that were a public nuisance, (5) impacts police and fire resources and (6) “created concerns among the project’s neighbors.”

In a detailed analysis of each of these “interests” the Court concluded: “this Court finds that Defendants have not demonstrated any compelling governmental interests sufficient to justify the Town’s denial of the Church’s SEQRA application. To the contrary, the evidence presented at trial established that Defendants’ purported concerns were contrived for the sole purpose of rationalizing the Town’s denial of the SEQRA application.”

After determining that the Church had established a substantial burden and the Town had failed to demonstrate a compelling government interest the Court declined to address the other RLUIPA claims raised by the Church. The Court also addressed the constitutional issues raised by the Town and concluded that the application of RLUIPA is constitutional under the commerce clause because of the impact on interstate commerce. The Court rejected the other constitutional claims of the Town based upon the holding in the Westchester Day School case decided by the Second Circuit after the trial of this case.

On the issue of liability pursuant to 42 USC 1983 the Court held:

(1) The Town Board and the members of the Town Board are liable in their official capacity; and
(2) It considered the claims of individual liability against the Supervisor to be withdrawn

The Court also concluded that the Plaintiffs First Amendment Free Exercise rights were violated and that other similarly situated applicants were treated differently without rational justification, thus demonstrating a violation of Plaintiffs’ Fourteenth Amendment right to equal protection. The Court also found equivalent violations of the New York Constitution.

In fashioning relief, the Court annulled the positive declaration and SEQRA findings statement and ordered that the site plan be processed without further SEQRA review. The Court further ordered that all approvals be granted within sixty days (site plan, variances etc.) with reasonable and customary conditions and that within ninety days a building permit shall be issued. Defendants were enjoined from taking any action “that unreasonably delays or interferes with any of the foregoing directives.”

The Court did however conclude that RLUIPA is ambiguous on the issue of whether relief can include damages and therefore concluded there can be no monetary damages under RLUIPA. However, it did conclude that there are compensatory damages available under 42 U.S.C. 1983 and instructed Plaintiffs to submit information on increased construction costs, attorneys’ fees, consultants’ fees and other potential compensatory damages. Finally, the Court sanctioned the Defendants $10,000 for their discovery violations.

Thank you to Nick Ward-Willis, Esq., one of the attorneys representing the Plaintiffs, for bringing this decision to our attention.

-Steven Silverberg

August 11, 2010

Court Upholds SEQRA Determination and Subdivision for 850,000 Square Foot Shopping Center

The Appellate Division upheld two lower court decisions which dismissed challenges to the SEQRA findings, site plan and subdivision approval for a shopping center in the Town of Newburgh. In Matter of Save Open Space v. Planning Bd. Of the Town of Newburgh the court noted judicial review is limited to finding whether an action is arbitrary, an error of law or was taken in violation of lawful procedure.

In this case there was an application for site plan approval for a shopping center. The planning board completed a full environmental review, which included a Draft Environmental Impact Statement (DEIS), public hearings and a Final Environmental Impact Statement (FEIS) as well an Environmental Findings Statement (EFS). However, after the FEIS was submitted, but before the EFS was issued, the applicant submitted an application to subdivide the property into four lots to allow for separate ownership. The application was rejected as incomplete and thereafter the planning board did issue its EFS.

The applicant subsequently resubmitted its subdivision application. Shortly thereafter the planning board granted site plan but not subdivision approval. The next step taken by the planning board was to issue an amended EFS in which it found that the subdivision would not have any significant adverse environmental impacts. After holding a public hearing on the subdivision the planning board granted preliminary and final subdivision approval.

The petitioner brought two proceedings, the first challenging the EFS and the site plan approval and in the second challenging the preliminary and final subdivision approval. The lower court dismissed both cases and the Appellate Division affirmed.

Addressing the SEQRA issues the Court found that the planning board had considered a “reasonable range of feasible alternatives.” The Court then went on to state that the planning board was not required to consider the alternatives proffered by the petitioners. “Consideration of a smaller scale alternative is permissive, not mandatory and alternatives are to be considered in light of the developer’s objectives (see 6 NYCRR 617. 9[b][5][v]).”

Finally, the court held that the separate consideration of the subdivision was not segmentation under SEQRA , as the subdivision made no physical change to the development and conditions imposed on the subdivision ensured that the requirements of the site plan would be observed.

-Steven Silverberg

October 27, 2009

New York Court of Appeals Expands Criteria for Standing to Bring a SEQRA Challenge

The New York Court of Appeals has held that a person who can demonstrate greater enjoyment of a natural resource than the general public has standing under the State Environmental Quality Review Act (SEQRA) to challenge an action by a governmental entity which may threaten such a natural resource. In Matter of Save the Pine Bush v Common Council of the City of Albany, the Court held that both the individual petitioners and the organization had standing to challenge an action that allegedly threatened certain endangered species within the Pine Bush area. However, the Court also found that Petitioners had failed to prove their case on the merits as the City had examined the major potential impacts and the City "was not required to scrutinize every possible environmental issue, and the failure of the City's environmental impact statement (EIS) to discuss the possible impact of rezoning on certain rare species was therefore not a fatal flaw."

The project at issue involved a rezoning for a proposed hotel that would not be in a protected area but is near a protected area which is habitat for the Karner Blue butterfly. The draft scope of the proposed EIS included examination of the potential impacts on the Karner Blue butterfly but no other plant or animal species. In response to the draft scope a number of comments were submitted. Among the comments was one from the New York DEC which discussed the Karner Blue and pointed out that the Karner Blue is in a habitat which is known to support four other "rare or unusual species...Frosted Elfin butterfly, the Hognosed Snake, the Worm Snake and the Eastern Spadefoot Toad." The DEC asked that the investigation encompass those species as well.

The DEIS was prepared and included a discussion of the Karner Blue butterfly, including a report by a biologist who stated that repeated visits to the site failed to disclose any Karner Blue butterflies at the site. There was no mention of the other species raised in the DEC comments. The DEIS was commented upon by a number of agencies including the DEC. Other than what the court characterized as brief comments on the Frosted Elfin butterfly and a reference to the Adder's Mouth Orchid (which had not been mentioned previously) there was no mention of the other species previously raised by the DEC.

The report of the biologist was supplemented to respond to comments on the DEIS. He stated the Frosted Elfin butterfly is "'likely to occur in the same places as Karner blue butterflies'; that the plants on which it is known to feed 'are absent or rare in the Albany Pine Bush'; and that he observed no Frosted Elfins on the proposed hotel site. He also listed all the plants he observed growing on the site; the Adder's Mouth Orchid was not among them. Like the commenters on the DEIS, he said nothing about the Hognosed Snake, the Worm Snake or the Eastern Spadefoot Toad." Thereafter the FEIS was accepted and the zone change was approved.

Petitioners then brought this action under SEQRA. While several causes of action were dismissed, and the Petitioners did not appeal dismissal of those causes of action, on the remaining cause of action, which alleged that he City failed to take a hard look at the potential impacts on species other than the Karner Blue butterfly, both the Supreme Court and Appellate Division found Petitioners had standing and that the City had failed to take a "hard look" at the potential impacts.

The City argued that under the Court's prior holding in Society of Plastics Industry, Inc. v County of Suffolk (77 NY2d 761 [1991]) that Petitioners lacked standing because the closest of them lives half a mile from the project. Petitioners argued that the Court should either abandon or modify the holding in Society of Plastics. Instead, the majority of the Court reached the conclusion that the prior holding in Society of Plastics supported its finding of standing for the Petitioners.

In an interpretation which appears to differ from that of many courts and commentators since Society of Plastics was decided the Court stated "...Society of Plastics does not hold, or suggest, that residence close to a challenged project is an indispensable element of standing in every environmental case."

In finding that Petitioners in this case had standing the Court held "people who visit the Pine Bush, though they come from some distance away, seem much more likely to suffer adverse impact from a threat to wildlife in the Pine Bush than the actual neighbors of the proposed hotel development — the owners and occupants of the nearby office buildings and shopping malls. The neighbors may care little or nothing about whether butterflies, orchids, snakes and toads will continue to exist on or near the site. The City asks us to adopt a rule that environmental harm can be alleged only by those who own or inhabit property adjacent to, or across the street from, a project site; that rule would be arbitrary, and would mean in many cases that there would be no plaintiff with standing to sue, while there might be many who suffered real injury."

The Court went on to say: " we do not suggest that standing in environmental cases is automatic, or can be met by perfunctory allegations of harm. Plaintiffs must not only allege, but if the issue is disputed must prove, that their injury is real and different from the injury most members of the public face...while we decline to erect standing barriers that will often be insuperable, we are also conscious of the danger of making these barriers too low...Striking the right balance in these cases will often be difficult, but we believe that our rule — requiring a demonstration that a plaintiff's use of a resource is more than that of the general public — will accomplish that task better than the alternatives."

Yet, on the merits the Court held that the City had complied with the mandate of SEQRA. Pointing out that while the Karner Blue butterfly had been of major concern and impacts on its habitat had been addressed, with respect to the other species the Court found that while the "DEC did identify them in a letter commenting on the scoping checklist, it offered no particular reason to believe that the project would threaten them, and no other commenter in the SEQRA process mentioned them at all. When they were omitted from the DEIS neither DEC nor anyone else called attention to the omission....While it is essential that public agencies comply with their duties under SEQRA, some common sense in determining the extent of those duties is essential too....That it chose not to investigate some matters of doubtful relevance is an insufficient reason for prolonging the process further, and for adding to the expense. A "rule of reason" (Matter of Jackson v New York State Urban Development Corp., 67 NY2d at 417) is applicable not only to an agency's judgments about the environmental concerns it investigates, but to its decisions about which matters require investigation."

Thus, the Court's decision on the merits should serve as a warning to those challenging a review that they must do more than just raise an issue. Rather, to sustain a challenge under SEQRA they should articulate the basis for the concerns and object to any failure by a lead agency to address those concerns.

-Steven M. Silverberg

May 11, 2009

Appellate Court Discounts Procedural Missteps by Planning Board in Granting Site Plan Approval

In a case involving a challenge to site plan approval for a Wal-Mart, the Appellate Division Fourth Department found a number of challenges to procedural/technical oversights by the planning board to be insufficient to cause the court to overturn the approval. In Matter of Residents Against Wal-Mart v. Planning Board of Town of Greece, the court found that the granting of site plan approval by the planning board was not arbitrary and capricious.

The decision lacks a great deal of detail but in a series of findings the court held: (1) the failure of the planning board to complete parts 2 and 3 of the SEQRA EAF was not fatal, because the planning board discussed “the factors set forth in parts 2 and 3 of the full EAF;” (2) the planning board complied with the referral requirements of General Municipal Law sections 239-m and 239-n, because there was no “substantial difference” between the materials submitted to the county department of planning and those used by the planning board for “final action on the application;” and (3) there was no error in issuing a conditional negative declaration for a Type I action under SEQRA, as “the conditions were not imposed in an attempt to avoid a determination that the project has a significant adverse environmental impact” and it was used only to address “aesthetic aspects of the project.”

Interestingly, the court made these findings after determining that the lower court was correct in holding that the owners of the property at issue were necessary parties and that the lower court was in error in dismissing the matter “without summoning those property owners.”

April 25, 2009

The Lead Agency Has Discretion to Require A Supplemental Environmental Impact Statement

In Matter of Oyster Bay Associates Limited Partnership v. Town Board of Town of Oyster Bay the Second Department upheld the denial of a special permit. This case has a seven year litigation history with multiple decisions by the Supreme Court and Appellate Division addressing the SEQRA review for a proposed 860,000 square foot mall and an alternate proposal for a 750,000 square foot mall.

The Town had an environmental review committee (TEQR Commission) review the proposal and issue findings under SEQRA recommending approval of the 860,000 square foot mall. The Town Board subsequently directed the TEQR Commission to rescind its findings which was done. Thereafter new SEQRA findings were issued and the application was denied. On appeal the courts remanded the matter for further consideration of a proposal to reduce the mall to 750,000 square feet. The Town then undertook the additional review and, based upon information it identified post-FEIS, directed the applicant to prepare a SEIS and submit plans for a 750,000 square foot mall. Instead the petitioner sued to compel the Town to adopt the original favorable TEQR findings.

In this most recent incarnation, the Appellate Division upheld the Town’s actions noting: “the Town Board properly identified the post-FEIS submissions which supported its deviation from the TEQR Commission's SEQRA findings. The Town Board demonstrated that the post-FEIS submissions identified areas such as traffic impacts, impacts on existing retail facilities, and impacts on residential real estate values in the surrounding area which supported its determination.“ Further holding that “the Supreme Court erred in determining that the Town Board's request that the petitioners prepare an SEIS was arbitrary and capricious. The Town Board, as the lead agency, "may require a supplemental EIS, limited to the specific significant adverse environmental impacts not addressed or inadequately addressed in the EIS that arise from: (a) changes proposed for the project; or (b) newly discovered information; or (c) a change in circumstances related to the project" (6 NYCRR 617.9 [a] [7] [i]; Matter of Riverkeeper, Inc. v Planning Bd. of Town of Southeast, 9 NY3d at 231).”

March 2, 2009

Property Owners Within the Modified Zoning District Have Standing to Challenge Amendment

The Appellate Division Second Department modified a lower court decision dismissing an action challenging a zoning amendment, where the lower court had held that petitioners all lacked standing to bring the action. In Matter of Bloodgood v. Town of Huntington the court separated the petitioners into several categories in order to analyze the question of standing from the standpoint of the potential environmental harm to each of the petitioners resulting from the rezoning.

The challenge at issue was based upon an alleged failure to take a "hard look" at the environmental impacts of the amendment, as mandated by SEQRA, prior to adopting the zoning amendment. The court held that those owning property within the zoning district that was the subject of the amendment had standing and that "where the challenge is to the SEQRA review undertaken as part of a zoning enactment, the owner of property that is the subject of the rezoning need not allege the likelihood of environmental harm."

Further, the court held that the lower court erred in dismissing the complaint of a property owner whose property was located within fifty to sixty feet of the rezoned district. That property owner had alleged specific adverse impacts upon his property of traffic, sewerage, and groundwater that would result from the zone change. Therefore, the court ruled he had the requisite standing to challenge the SEQRA determination.

However, the court found that the individual petitioners who owned property that was not in close proximity to the rezoned district lacked standing and that "their allegations of environmental impact are in no way different from those of the public at large." Finally, the court found that the local civic association also lacked standing, as its standing claim is based upon the standing of its members. The civic association member upon whom the standing claim rested was one of those individuals found to lack standing himself.

February 27, 2009

Atlantic Yards Condemnation Litigation Continues

Last year we reported on the case of Goldstein v Pataki, 516 F3d 50 [2008] involving the proposed condemnation of property in Brooklyn, New York in order to build the so called Atlantic Yards Project which includes a huge residential and commercial development along with an arena for the New Jersey Nets. This week the Appellate Division, First Department (In re Develop Don't Destroy (Brooklyn) v. Urban Development Corporation) again addressed claims by property owners alleging that the State Environmental Quality Review Act (SEQRA) had not been adequately followed and that the project does not involve an appropriate public project within the meaning of the various governing statutes including the Eminent Domain Procedures Law.

In dismissing the claims the court made far reaching findings which are best recited in the court’s own words. The first claim was that the financial participation of the Empire State development Corporation (ESDC) in the project had not been properly analyzed as part of the SEQRA review findings and therefore had not been subjected to appropriate environmental scrutiny. The court disagreed that the ESDC’s financial participation was an area for environmental inquiry holding: “[a]ccordingly, where the decision, although discretionary, is governed by criteria unrelated to the environmental concerns addressed in an EIS, environmental findings based on the EIS are unnecessary as it would be pointless to mandate reliance on an EIS in the interest of informed decision-making in circumstances where the EIS is by hypothesis irrelevant to and cannot inform the decision to be made”

The Plaintiffs then argued that the lead agency failed to take a “hard look” under SEQRA at the threat of a terrorist incident, particularly with respect to the arena. The Court disagreed finding that although there may be exceptions in the case of storage of particularly dangerous materials: “SEQRA contains no provision expressly requiring an EIS to address the risk of terrorism and, indeed, it would not appear that terrorism may ordinarily be viewed as an "environmental impact of [a] proposed action" (ECL 8-0109[2][b] [emphasis added]) within the statute's purview.”

Next the Plaintiffs claimed that the lead agency did not properly determine the build year for various aspects of the project, which they claim resulted in an inadequate review of the proposal. Yet again the court disagreed noting: “the ultimate accuracy of the estimates is neither within our competence to judge nor dispositive of the issue properly before us, which is simply whether the lead agency's selection of build dates based on its independent review of the extensive construction scheduling data obtained from the project contractor may be deemed irrational or arbitrary and capricious”

The final SEQRA claim was that the lead agency did not adequately consider alternatives and specifically failed to take into account prevailing real estate trends. In perhaps its most devastating conclusion with respect to the Plaintiffs’ SEQRA claims the court held: “[t]o be sure, as the EIS discloses, there were more adverse impacts associated with the proposed project than with its less ambitious alternatives, but, on balance, there is no tenable argument that that lead agency's preference for the FCRC project, arrived at after an evidently conscientious weighing of alternatives, was not rationally and sufficiently based on the project's distinctive constellation of otherwise unattainable benefits. Certainly, the lead agency did not in this case exceed the "considerable latitude" afforded it under SEQRA to evaluate environmental effects and choose among alternatives (Jackson, 67 NY2d at 417).”

The Plaintiffs also raised issues relating to the determination of blight for purposes of condemnation, arguing in part that the properties in question were not actually blighted. In rejecting this argument the court stated: “reinforced by a standard of review that may with great understatement be described as lenient: ‘When [the agencies to which the initial blight determination has been committed] have made their finding, not corruptly or irrationally or baselessly, there is nothing for the courts to do about it, unless every act and decision of other departments of government is subject to revision by the courts" (Kaskel v Impellitteri, 306 NY 73, 78 [1953], cert denied 347 US 934 [1954])’…. Plaintiff does not dispute with defendants as to the condition of these properties or of the whole area. He is simply opposing his opinion and his judgment to that of public officials, on a matter which must necessarily be one of opinion or judgment, that is, as to whether a specified area is so substandard or insanitary, or both, as to justify clearance and redevelopment under the law.”

Finally, the court concluded: “The issue posed is not which of the parties has more persuasively characterized the area in question, but whether there was any basis at all for the exercise by the agency of the legislatively conferred power to make a blight finding, and plainly there was.”

November 30, 2008

SEQRA Does Not Preclude a Revote on a Findings Statement

When a findings statement fails to pass, SEQRA does not preclude a reconsideration of the exact same findings statement at a later date. In the Matter of East End Property Company #1 LLC v. Town Board of the Town of Brookhaven, the Appellate Division found that there was nothing in the SEQRA regulations which precluded such reconsideration.

In a case involving the construction of a power generator various land use approvals were required. Prior to issuing the approvals the Town Board voted on a proposed SEQRA findings statement which would have permitted the project to move forward. The findings statement failed to be adopted by a 4-3 vote. The matter was kept open on the Town Board agenda during which there were additional discussions over the next few meetings of the Board. Ultimately the matter came up for a vote again and was approved with one of the members indicating his concerns had been addressed.

The challenge to the approval was initially sustained by the lower court finding that the Town Board had failed to articulate the reason for adopting the SEQRA findings. The Appellate Division found that since the findings resolution was not amended there was nothing that requires an explanation of the revote or that precluded the revote. Rather, SEQRA requires a written findings statement and the revote approved a written findings statement which complied with the mandate of SEQRA. The court noted: “the Town Board’s determination to adopt, rather than reject, the resolution to approve the SEQRA findings statement was neither arbitrary nor capricious, but was based on reasons readily apparent on the face of the record.”

The Court’s reliance on the fact that the resolution was not amended implies that had there been a modification of the findings statement some explanation would have been required. Ultimately, the decision underscores the need for findings statements to clearly articulate the reasons for actions by an administrative board.

May 13, 2008

Belated March Madness-SEQRA and Zoning Cases from March, 2008

Due to a busy litigation schedule, we fell short in reporting a number of SEQRA and zoning cases that came down during March of 2008. So we thought we would provide a brief summary of some of the cases decided by New York appellate courts during March of 2008, in case you missed them also.

Rossi v. Town Bd. of Ballston, 2008 NY Slip Op 02740 (3d Dep’t Mar. 27, 2008). SEQRA-the burden is on the party challenging a SEQRA determination to provide evidence to refute expert testimony.

Muir v. Town of Newburgh Planning Board, 2008 NY Slip Op 02596 (2d Dep’t Mar. 18, 2008). SEQRA-a full review of environmental impacts of a prior proposal that did not proceed was sufficient for a SEQRA “hard look” at a new scaled down proposal for the same site.

Allstate Properties, LLC v. Board of Zoning Appeals of Vill. of Hempstead, 2008 WL 669808; 2008 N.Y. Slip Op. 02412 (Mar. 11, 2008). Area Variances-the five part balancing test before granting an area variance.

Joann London v. Zoning Board of Appeals of Town of Huntington, 2008 WL 740523; 2008 NY Slip Op 02593 (2d Dep’t Mar. 18, 2008). Variance precedent- zoning board properly distinguished prior variance requests in denying a request for a lot area variance.

Red Hook /Gowanis Chamber of Commerce v. NYC Bd. of Standards and Appeals, 2008 WL 740514; 2008 NY Slip Op 02600 (March 18, 2008). Use Variance- what constitutes “dollars and cents” proof.

April 19, 2008

A SEQRA Review Is Not Required To Deny An Application

Occasionally, early in the process of reviewing an application, everyone on the municipal board knows that an application is not likely to be granted. Then the question occurs, do we have to require that the applicant go through a full environmental review under SEQRA before we turn down the application? This is a practical question as an environmental review can be time consuming and incredibly expensive for an applicant. On April 8, 2008, in the case Matter of Joseph Logiudice v. Southold Town Board, the Appellate Division Second Department reminded us that if the application is denied there is no action requiring a review under SEQRA.

SEQRA requires that no action by a government agency be approved without first complying with SEQRA’s obligation to take a hard look at potential significant environmental impacts and eliminating or mitigating those impacts. In upholding the denial of the application for a special permit by Logiudice, the Appellate Division noted: “ because the Board determined to deny the petitioner's application, “no action having a significant effect on the environment was undertaken,” and, as such, 'it was unnecessary for the Board, as lead agency, to comply with the requirements of the State Environmental Quality Review Act' ( Matter of Retail Prop. Trust v. Board of Zoning Appeals of Town of Hempstead, 301 A.D.2d 530, 531-532; see Matter of Cappelli Assoc. v. Meehan, 247 A.D.2d 381, 382; Matter of Wade v. Kujawski, 167 A.D.2d 409, 410)."

October 13, 2007

Resolution Approving Consideration of Cluster Development Is Not Subject to Challenge

The appellate division dismissed a challenge to a town board resolution authorizing consideration of a cluster development in the case of Maor v. Town of Ramapo Planning Board, finding it was not a “final determination” subject to review.

Toll Brothers had applied to the planning board for a subdivision and submitted a conventional subdivision plat of 51 lots. The Planning Board referred the application to the Town Board to consider authorizing the Planning Board to treat the application as a cluster development, with a maximum permitted lot count of 51 lots, under Town Law section 278. The Town Board held a public hearing and adopted a resolution authorizing the Planning Board to consider a maximum 51 lot cluster development.

The petitioners brought a challenge claiming the resolution was contrary to law and had not been subject to review under the Environmental Conservation Law (SEQRA). The Court held the “determinations were preliminary steps in the approval process for a ‘cluster development’ subdivision and, as such, were not final determinations subject to judicial review….” Therefore, contrary to the claims of the petitioners, no SEQRA review would be necessary prior to the initial step of merely permitting consideration of a subdivision as a cluster development.

August 26, 2007

Local Law Annulled Due to Improper Segmentation of SEQRA Review

The failure to analyze the environmental impacts of a sewerage diversion plan formed the basis for the Appellate Division Second Department voiding a zoning amendment in Matter of ACI Shore Rd., LLC v. Incorporated Village of Great Neck. The Village of Great Neck had proposed a zoning amendment to implement a residential Waterfront Development District in an area which had previously been an industrial zone. At the same time the Village was considering decommissioning two sewerage treatment plants in the area and diverting the sewerage to a plant 16 miles away.

The Court found that the DGEIS for the new zone included a conceptual site plan replacing the sewerage treatment plants with a mixed use development and waterfront park. Yet, except for noting generally that it was anticipated the diversion of sewerage would have beneficial impacts, the Court noted “despite the apparent interrelatedness of the redevelopment plan and sewerage diversion plan, neither the DGEIS nor the FGEIS contained any analysis of potential environmental impacts of the sewerage diversion plan.”

Therefore the Court found that the environmental review had been improperly segmented as the potential impacts of the sewerage diversion plan should have been considered and noted the “record belies” the claim by the Village that “the sewerage diversion plan was speculative, hypothetical, or not part of a larger unified plan.” Finally, the Court held that the Village failed to take a “hard look” at other potential impacts. Rather than analyzing impacts of proposed dredging and soil remediation, which were part of the overall project, the DGEIS, FGEIS and SEQRA findings statement contained no analysis of these issues.

August 19, 2007

Appellate Court Holds Adjoining Municipalities May Sue Under SEQRA To Protect Community Character

In a comprehensive review of the capacity and standing of one municipality to sue another over local zoning, the Appellate Division, Second Department, in Matter of Village of Chestnut Ridge v. Town of Ramapo, held that villages have the capacity to sue a town over a local law enacting a zoning amendment. Yet the Court also found their standing is limited to SEQRA and General Municipal Law compliance rather than the local law’s consistency with a comprehensive plan.

The Town had adopted a zoning amendment by local law which permitted adult student housing. The law applied to four parcels of land near or adjacent to the boundary of four Villages located in the Town. The four villages and two individuals commenced a combined Article 78/declaratory judgment action challenging the local law, and subsequent actions which incorporated the local law. The lower court dismissed the action on a cross motion by the Town finding lack of capacity to sue and/or lack of standing on each of the causes of action. The Appellate Division modified.

First, the Court noted that Village Law specifically authorizes Villages to sue and be sued. The Town had argued that Town Law Section 264 provides that a village may not challenge a Town’s zoning in court. The Court distinguished a zoning amendment adopted pursuant to Town Law from a case such as this with a local law enacting a zoning regulation under Municipal Home Rule Law. The court found that Municipal Home Rule Law did not similarly restrict a challenge by a village.

More importantly the Court noted that SEQRA had been adopted and implemented after both the provisions of Town Law and Municipal Home Rule Law. The Court held that an abutting municipality as an interested agency (rather than an involved agency which automatically has standing) had the same right to challenge a SEQRA determination as an individual, although the test of standing is somewhat different.

In analyzing the standing of the Villages the Court found that while mere proximity was not enough by itself to create standing, the proposed development on the border of the Villages was substantial and could have a significant detrimental impact. In this case there was a claim that the Villages share much of their infrastructure with the Town. Noting that SEQRA specifically seeks to protect community character the Court held the “power to define community character is a unique prerogative of a municipality acting in its governmental capacity”. Therefore the Court held the Villages had standing under SEQRA to challenge the Town’s actions. In addition the Court found standing to enforce General Municipal Law provisions relating to procedural requirements for adoption of local laws. But the Court found the Villages had no interest in enforcing the procedural requirements related to the adoption of the zoning under Municipal Home Rule Law or with respect to compliance with the Town’s comprehensive plan finding “they are beyond the bounds of the mutuality of restriction and benefit that underlies the comprehensive plan requirement. The matter was remitted to the lower court for a determination on the merits of the causes of action that survived.

February 4, 2007

Condemnation for Recreational Proposes Qualifies as a Public Use

The Appellate Division found that a condemnation proceeding under the Eminent Domain Law in order to enhance a golf course and for other recreational purposes was proper in the case Matter of Rocky Point Realty v Town of Brookhaven. The Court found that review of a condemnation proceeding is limited to four issues: “whether (1) the proceeding was in conformity with the federal and state constitutions, (2) the proposed acquisition was within the condemnor’s statutory jurisdiction or authority, (3) the condemnor’s determinations and findings were made in accordance with procedures set forth in EDPL article 2 and SEQRA, and (4) a public use, benefit or purpose will be served by the proposed acquisition…”.

The property owner’s contention that EDPL 202, which requires that the purpose of the hearing conducted by the Town be stated in the notice, also mandates a description of every aspect of the project and its implementation was rejected by the Court. It was held that the proposed condemnation would serve a legitimate public purpose by enhancing recreation in the Town and therefore met the test of being a “public use”.

Finally, the Court noted that the Town complied with SEQRA. It found that, as the EAF failed to identify any potential adverse impacts and the petitioner failed to identify any significant potential for environmental harm, the Town took the requisite hard look and properly issued a negative declaration.

January 4, 2007

Court Rules Demolition Permit Does Not Trigger SEQRA Review

A Court has ruled that the issuance of a demolition permit is not an “action” within the meaning of the State Environmental Quality Review Act (“SEQRA”) that requires review under SEQRA. In Matter of Ziemba v. City of Troy, the Appellate Division, Third Department, held that the discretion to be exercised in issuing a demolition permit under the Troy Code “is limited to a narrow set of criteria that is unrelated to the environmental concerns that would be raised in an EIS”.

The SEQRA regulations provide that purely ministerial acts requiring no exercise of discretion are exempt from review under SEQRA. The Court concluded the real inquiry in determining if an action is exempt from SEQRA review is whether the factors to be considered by the permitting agency could trigger issues that would be raised in an environmental impact statement (“EIS”). The Court found SEQRA requires a determination of whether “the underlying regulatory scheme invests the authorizing agency with discretion to act or refuse to act based upon the type of information contained in an EIS”. Therefore, the Court found that an action for which an agency has discretion that is narrowly circumscribed by factors that do not bear any relationship to information that may be contained in an EIS is not an action requiring review under SEQRA.

Here the Court analyzed the nature of the discretion of the permitting authority in issuing a demolition permit under the City of Troy Code and concluded that the discretion to be exercised did not involve issues that would be reviewed by an EIS. Accordingly, the permit could not be denied on SEQRA grounds.

September 13, 2006

Court Holds Planning Board Authority to Delegate SEQRA Review Responsibilities is Limited

The Planning Board of the Town of Southeast was required to prepare a Supplemental Environmental Impact Statement (SEIS) pursuant to SEQRA, despite the board’s belief that a SEIS was not necessary, according to a recent Appellate Division Second Department decision.

The question presented in Riverkeeper v. Planning Board of Town of Southeast arose as a result of a developer’s 1988 subdivision application. The Board approved a final environmental impact statement (FEIS) for the project in 1991 and in 1997 the NYCDEP was granted authority over applications affecting the New York City watershed. The Army Corps of Engineers then determined that there were more acres of wetlands than previously thought on the site. The developer applied for subdivision approval in 2001 submitting an altered plat reducing the number of building lots, reduced the acreage of disturbed wetlands and proposing additional storm water detention basins. The petitioners in this suit then commenced a proceeding seeking final review of the subdivision approval and to compel the Board to prepare a second SEIS analyzing the changes to the project.

In reversing the lower court decision and remitting the matter to the Planning Board for preparation of a second SEIS, the Appellate Division reasoned that the FEIS and initial SEIS were inadequate because regulations had been modified since the original determination and the Planning Board, as lead agency, deferred analysis of important aspects of the project to other involved agencies without confronting the issues. The Appellate Division found that the board did not fulfill its responsibility under SEQRA and therefore must revisit the application and prepare a SEIS.

The result of the majority holding in this case is that in determining elements required by SEQRA, a lead agency should be conscious of what and how much analysis it delegates to other involved agencies. In addition, the court’s opinion highlights the importance of further review where a land use application is altered after it has been submitted.

May 30, 2006


An appellate court held that a planning board abused its discretion by amending a SEQRA draft environmental impact statement based on the board’s concern that the proposed subdivision was inconsistent with the goals of a recently implemented voluntary program giving area landowners incentives to conserve agricultural property. In Matter of Two Trees Farm, Inc. v. Planning Board of Town of Southampton the Appellate Division Second Department modified and affirmed the judgment of the Supreme Court, deleting a provision directing the planning board to approve the application for preliminary subdivision approval.

In reviewing the planning board’s action, the court noted that the board did not amend the DEIS because the statement failed to adequately address adverse environmental impacts, rather the board’s amendment was based on a concern not falling under SEQRA, and therefore the court found the amendment to be improper.

Amendments to a DEIS must address adverse environmental impacts in order to be valid. A planning board may not approve an EIS based on improper amendments to a DEIS. In Matter of Two Trees Farm the appellate court held that the court below correctly annulled the planning board’s decision to accept the final EIS and other actions subsequent to the amendment because all steps taken after the amendment were based on the improper amendment. The court further found that the Supreme Court improperly substituted its own judgment for that of the planning board when it directed the board to approve the preliminary subdivision application.

May 19, 2006

Silverberg Zalantis LLP Successful in Defending SEQRA Determination

An appellate court agreed with Silverberg Zalantis LLP that the zone changes implemented by the Village of Lake Grove did not require a full environmental impact statement before a SEQRA negative declaration could be issued. In Matter of Lake Grove Partners LLC v. Middleton, the Appellate Division Second Department upheld the lower court decision finding that the Village Board had taken a “hard look” at the potential environmental impacts from the creation of a “Business Districts Plan” and was not required to issue a draft environmental impact statement (“DEIS”) prior to issuance of a negative declaration and the approval of zoning amendments.

Lake Grove Partners LLC, the owners of property within the zone complained that the new zoning precluded development of “Big Box” stores such as Home Depot and that the Village should have prepared a DEIS to look at the potential economic impacts of precluding such stores. The Village argued that the detailed plan and reviews by its consultants was sufficient to demonstrate that the zone changes would have beneficial impacts, including the impacts upon potential traffic generation. In addition the Village found that the changes would maintain the vitality of the existing retail districts. The Court agreed with the Village, finding the Village had taken the required hard look and had provided a reasoned elaboration of the basis for the negative declaration.

The appeal was argued by Katherine Zalantis of Silverberg Zalantis LLP, who acted as co-counsel with Mark Anesh of Wilson Elser Moskowitz Edelman & Dicker LLP on the appeal.

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.

February 27, 2006

New Impact Statement Requirements Go Into Effect This Week

As we noted in our November 28, 2005 post, the New York State Legislature 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.

January 2, 2006

Appellate Division Decides Trilogy of New Rochelle Zoning Challenges

The Appellate Division of the New York State Supreme Court decided a trilogy of cases on December 27, 2005 relating to a series of determinations by the City of New Rochelle Zoning Board of Appeals to permit construction of an addition to a local religious institution. The cases, Halperin v. Zoning Bd. of Appeals, Richmond v. Zoning Bd. of Appeals and Halperin v. City of New Rochelle broke little new ground but are significant in that together they cover a number of issues related to variances, the standard of review of determinations by zoning boards, the deference accorded religious uses and standards for review under SEQRA, including cumulative impacts and when a supplemental environmental impact statement is required.

Perhaps the most interesting aspect of the decisions is the holding in Halperin v. City of New Rochelle that a variance for off street parking is an area variance when the proposed uses are otherwise permitted as of right. One argument had been that a variance for off street parking was a use variance requiring the more exacting standards for the granting of use variances. Agreement by the Court with this somewhat novel contention would have made many variance requests, that are otherwise routinely granted, extremely difficult to obtain.

Another potentially significant aspect of the ruling is the Court’s view of cumulative impact review. The Court also held that SEQRA does not mandate a review of cumulative impacts of other nearby developments when those developments are unrelated and not part of a common overall development plan.

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.