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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