New York Zoning and Municipal Law Blog

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.”

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).”

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.

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.”

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.

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.

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)."

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.