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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.