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Involved Agency Limited to SEQRA Record Developed by Lead Agency

An involved agency, while making its own SEQRA findings, is limited to the record developed by the lead agency. In a pair of related cases, Troy Sand & Gravel,Co. Inc v. Town of Nassau (“the DJ Action”) and Matter of Troy Sand & Gravel, Co. Inc., (“the Article 78”) the Appellate Division reversed the lower court’s granting of summary judgment to the Town based upon a misinterpretation of the Appellate Division’s previous ruling.

These cases have a lengthy history, as outlined by the Court in the DJ Action. The NY DEC, as lead agency, conducted a full environmental review of the Plaintiff’s proposed mining operation. The Town Board, as an involved agency, participated in the SEQRA review by the DEC. In a previous proceeding the Court held the Town was correct in seeking to make its own SEQRA findings with respect the zoning approvals required from the Town.

However, in the current DJ Action the lower court found that the Town could further develop the environmental record.The Court reversed noting:

“…we did not say that the Town’s independent review includes the ability to now gather additional environmental impact information beyond the full SEQRA record. Rather, in conducting its own jurisdictional review of the environmental impact of the project, the Town is required by the overall policy goals of SEQRA and the specific regulations governing findings made by “involved agencies” to rely on the fully developed SEQRA record in making the findings that will provide a rationale for its zoning determinations.”

The Court went on to reject the Town’s claim that it’s zoning procedures gave it authority to gather additional environmental information holding instead:

“…the EIS ‘fully evaluates the potential environmental effects, assesses mitigation measures, and considers alternatives to the proposed action’ (Matter of Coca-Cola Bottling Co. of N.Y. v Board of Estimate of City of N.Y., 72 NY2d at 680, citing ECL 8-0109 [4], [2]). While the Town maintains its jurisdiction over the zoning determinations and, as we have previously held, its SEQRA findings may differ from DEC’s findings (see 101 AD3d at 1508; Matter of Albany-Greene Sanitation v Town of New Baltimore Zoning Bd. of Appeals, 263 AD2d 644, 646 [1999], lv denied 94 NY2d 752 [1999]), the Town “must rely upon the [final EIS] as the basis for [its] review of the environmental impacts that [it is] required to consider in connection with subsequent permit applications” (Matter of Guido v Town of Ulster Town Bd., 74 AD3d 1536, 1537 [2010], citing 6 NYCRR 617.6 [b] [3] [iii]).”

Therefore the Court ordered that the Town must make its own findings based upon the record developed by the DEC.

In the related Article 78 the Court found the Town had been justified in rescinding its previous determination that Plaintiff’s zoning application had been complete. Therefore, the mere rescission did not make the issue ripe for review. Noting its findings in the DJ Action, the Court found the argument that the rescission would automatically result in a further costly environmental review is speculative and is therefore not ripe for review.

“…at this stage of the proceeding, the Town Board has merely rescinded its resolution in response to our prior decision vacating the preliminary injunction (see Troy Sand & Gravel Co., Inc. v Town of Nassau, 101 AD3d at 1506-1507), and we have now held in the declaratory judgment action that the Town’s determination of the proposed quarry’s environmental impact must necessarily be based on the environmental impact statement record (Troy Sand & Gravel Co., Inc. v Town of Nassau, AD3d at ). Accordingly, any harm to petitioner at this stage is merely speculative, may be ameliorated by further proceedings and is insufficient to warrant judicial review (see Matter of New York State Inspection, Sec. & Law Enforcement Empls., Dist. Council 82, AFSCME, AFL-CIO v Cuomo, 64 NY2d 233, 240 [1984]; Matter of Adirondack Council, Inc. v Adirondack Park Agency, 92 AD3d 188, 191 [2012]; Matter of Wal-Mart Stores v Campbell, 238 AD2d 831, 832-833 [1997]).”

Steven Silverberg