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COURT FINDS DEIS AMENDMENT VIOLATED SEQRA

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.