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Issuance of a Demolition Permit Without Submission of a Redevelopment Plan Did Not Constitute Segmentation Under SEQRA

The Appellate Division found that issuance of a demolition permit for an historic structure, where there was no specific proposal for a redevelopment plan was not improper segmentation under SEQRA. In the Matter of Saratoga Springs Preservation Foundation v. Boff, the Court upheld the issuance of a demolition permit that was challenged on a number grounds. The Court found that the local board was not arbitrary in its reliance on the conclusions by a building official that the structure was unsafe, despite contrary expert evidence submitted by the Petitioner, who opposed the demolition.

The Court further found that in light of the uncertain real estate market, it was reasonable to accept the statement by the applicant that he had no immediate redevelopment plans and. currently was seeking only to level the site, plant grass and erect a fence. In concluding these actions did not constitute improper segmentation of the SEQRA review the Court held:

“Such division is impermissible when the environmental review of an action is divided into smaller stages in order to avoid the detailed review called for under SEQRA (see Matter of Concerned Citizens for Envt. v Zagata, 243 AD2d at 22). Conversely, segmentation is “allowed when the agency conducting environmental review clearly sets forth the reasons supporting segmentation and ‘demonstrate[s] that such review is clearly no less protective of the environment'” (Matter of Defreestville Area Neighborhoods Assn. v Town Bd. of Town of N. Greenbush, 299 AD2d 631, 634 [2002], quoting 6 NYCRR 617.3 [g] [1]; see Matter of Concerned Citizens for Envt. v Zagata, 243 AD2d at 22).

Here, during the SEQRA review process, Boff represented that he had no immediate intention of developing the property following demolition. The DRC determined that the structure was unsafe, considered Boff’s postdemolition plan of keeping the property clean and fenced and clearly explained its reasons for not requiring Boff to submit additional postdemolition plans. Moreover, any future construction plans would require DRC review and, therefore, the environment would not be less protected. Under these circumstances, we are satisfied that no impermissible segmentation occurred (see Matter of Concerned Citizens for Envt. v Zagata, 243 AD2d at 23; compare Matter of Defreestville Area Neighborhoods Assn. v Town Bd. of Town of N. Greenbush, 299 AD2d at 634-635.”

-Steven Silverberg