Articles Posted in Environmental Law

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The appellate division sustained a SEQRA negative declaration, but nonetheless reversed the grant of a special permit for failure to address all the criteria required for the issuance of a special permit. In the Matter of Frigault v. Town of Richfield Planning Board, the Court found that the Board took a hard look at potential environmental issues prior to issuing a negative declaration and complied with the Open Meetings Law. However, it failed to address each of the standards required for issuing a special permit.

The lower court found the Town had violated the Open Meetings Law and therefore annulled the SEQRA negative declaration and the special permit. In modifying the determination of the lower court, the appellate division held:

“the Board’s negative declaration was issued in compliance with SEQRA. The Board engaged in a lengthy SEQRA review process, which included hiring an outside consulting firm and conducting no less than 11 Board meetings between the time the permit application was filed in March 2011 and the issuance of the negative declaration in November 2011. The full EAF was replete with studies on environmental issues, including the project’s impact on bats and birds, “shadow flicker,” noise, cultural resources and visual effect, and the Board afforded members of the public an opportunity to voice their concerns with respect to the project. In addition, the Board received input as to the project’s environmental impacts from various state agencies, including the Office of Parks, Recreation and Historic Preservation, the Department of Environmental Conservation, the Department of Transportation, and the Department of Agriculture and Markets.”

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The Appellate Division found that the issuance of a SEQRA negative declaration, permitting extension of a sewer district to serve a proposed development, constituted improper segmentation under SEQRA. In Matter of Town of Blooming Grove v. County of Orange, the County had entered into an agreement to sell property for development, subject to the County ensuring that there was adequate sewer capacity to service the site.

The property in question is located in three municipalities. Municipal boards in two of those towns declared themselves co-lead agencies under SEQRA, for the purpose of reviewing the proposed development and issued a positive declaration, requiring preparation of an environmental impact statement. Meanwhile the municipalities in which the project is located declined to guarantee sewer service to the site.

While the SEQRA review was pending, the County determined to allow the extension of a County Sewer District (“OCSD”) to serve the property. The County declared itself lead agency for purposes of the proposed OCSD extension, prepared a short form EAF and issued a negative declaration. Thereafter, the County approved the extension.

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The N.Y. Court of Appeals has directed the New York City School Construction Authority to prepare a Supplemental Environmental Impact Statement to detail its ongoing management of remediation measures at a brownfield site where it proposed to construct a campus for four public schools. In Matter of Bronx Committee for Toxic Free Schools v. New York City School Construction Authority, the Court held that the failure of the Authority to subject its ongoing management plan for the site to scrutiny pursuant to the State Environmental Quality Review Act (SEQRA) violated the purposes and intent of the regulations and required the preparation of a Supplemental Impact Statement.

SEQRA review by the Authority was initially challenged for failure to include in the EIS a description of the long term site management plan. The Authority did not argue that the long term plan was not an important environmental consideration but instead took the position that: “…the plan must be governed by post-remediation soil and groundwater conditions” that could not be assessed until after the site cleanup was complete. The Supreme Court therefore treated this position as an admission that the long term management should be addressed and directed that once the plan was completed that a Supplemental EIS should be prepared.

Thereafter, the Authority prepare a long term management plan that was submitted to and approved by the DEC, but no Supplemental EIS was prepared. Instead, the Authority to moved to renew and reargue asserting that the preparation of the long term plan and sign-off by DEC were sufficient and no further SEQRA review was necessary. The lower courts disagreed with the Authority’s position.

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The Appellate Division reversed a lower court holding that neighbors of the controversial Patrick Farm development in the Town of Ramapo lacked standing to challenge the approval of changes to the Town’s comprehensive plan and zoning ordinance. In Matter of Shapiro v. Town of Ramapo, the Appellate Division Upheld dismissal of the challenge to the Town’s transfer of the site to a developer but reinstated the causes of action challenging the zoning amendments and the SEQRA review.

Holding the claim that the Town illegally transferred park land to the developer is time barred the Court noted the action was commenced in 2010 to challenge the 2001 transfer of the property, well outside the six year statute of limitations. However, the Court found the lower court erred when it held that the Petitioners, who live “across the street” from the proposed development, lacked standing.

The Court stated:

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The New York Court of Appeals upheld the determination by the New York City Department of City Planning to issue a negative declaration under the State Environmental Quality Review Act (SEQRA) for a rezoning of a portion of Brooklyn. In Matter of Chinese Staff and Workers Association v. Burden, the Court found that the issuance of the negative declaration by the Department of Planning did not abuse it’s discretion.

The Court noted:

“:An agency’s “initial determination under . . . SEQRA and CEQR is whether an EIS [environmental impact statement] is required, which in turn depends on whether an action may or will not have a significant effect on the environment” (Chinese Staff & Workers Assn. v City of New York, 68 NY2d 359, 364 [1986]). “In making its initial determination, the agency will study many of the same concerns that must be assessed in an EIS, including both long- and short-term environmental effects” (Farrell, 100 NY2d at 190). Where an agency determines that an EIS is not required, it will issue a “negative declaration” (id.). “Although the threshold triggering an EIS is relatively low, a negative declaration is properly issued when the agency has made a thorough investigation of the problems involved and reasonably exercised its discretion” (id. [internal quotation marks and brackets omitted]).”

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The dismissal of a challenge, by an adjoining Village, to a Town’s rezoning of a parcel in the Town was modified by allowing challenges to the SEQRA determination and the claim of a lack of compliance with General Municipal Law § 239-m to proceed. In Village of Pomona v. Town of Ramapo, the Appellate Divisions upheld the dismissal of of a cause of action claiming failure to comply with General Municipal Law §239-nn, which requires notice to abutting municipalities, holding that the statute does not create a separate right of action. The Court also upheld dismissal of the claim that the zoning enactment failed to comply with the Town’s comprehensive plan noting:

“we held in Matter of Village of Chestnut Ridge v Town of Ramapo (45 AD3d 74), villages ‘have no interest in [a] Town Board’s compliance with . . . its comprehensive plan,’ since, unlike individuals who reside within the Town, ‘[villages] are beyond the bounds of the mutuality of restriction and benefit that underlies the comprehensive plan requirement….'”

However, the Court found that, contrary to the arguments made by the Defendants, the Village did have standing to bring other challenges to the Town’s actions:

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The Appellate Division held that where an EAF identified either neutral or beneficial effects from a proposed zoning amendment a town board, acting as a lead agency, properly issued a negative declaration. In Matter of Matter of Gabrielli v Town of New Paltz, the Court noted that even though the zoning amendment was a SEQRA Type I action there was no need to prepare a DEIS.

However, in what appears to be somewhat of a departure from the standard for the findings of a lead agency to contain a “reasoned elaboration” supporting the negative declaration, the Court found:

“The negative declarations – adopted by resolutions of the Town Board – satisfied the requirement for “a written form containing a reasoned elaboration” for the determination and references to supporting documentation (6 NYCRR 617.7 [b] [4]). Although the resolutions themselves do not contain sufficient elaboration, they specifically refer to the EAF [FN1]. The EAF here consists of more than just checked boxes; the expanded additional comments on the EAF constitute a reasoned elaboration for the areas identified as potentially being affected by the floodplain laws (compare Matter of Troy Sand & Gravel Co., Inc. v Town of Nassau, 82 AD3d at 1379; Matter of Bauer v County of Tompkins, 57 AD3d 1151, 1153 [2008]). Because those comments relate to beneficial impacts, with no adverse impacts having been raised, the Town Board complied with its obligations under SEQRA.”

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The Appellate Division directed that the Town of Oyster Bay file a Final Environmental Impact Statement (FEIS) and take final action upon a special permit application by Costco. In the Matter of Costco Wholesale Corporation, v. Town Board of the Town of Oyster Bay, the Appellate Division affirmed the lower court judgment directing that the Town “complete environmental review of the petitioners’ proposal to develop a retail store, and to take final action upon the petitioners’ applications for a special use permit and site plan.”

This case involves an application for site plan and a special permit that has been going on since 2001. In 2003 the Town denied the application and thereafter the Supreme Court remitted the matter for the Town to comply with SEQRA. The Town then issued a positive declaration, a Draft Environmental Impact Statement (DEIS) was prepared and a hearing held in January 2007, with the public comment period being closed on January 31, 2007. Costco made three submissions of a proposed FEIS, the last being in April 2009 and then started this Article 78 proceeding, seeking to compel the Town to complete the SEQRA process and make a decision on the special permit and site plan applications.

In upholding the lower court’s direction that the Town complete SEQRA and issue a determination on the applications, the Court held:

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The New York Department of Environmental Conservation (DEC) has issued a new SEQRA Handbook. The Handbook was first issued in 1982 and then updated in 1992. The SEQRA regulations were revised in 1996, but no update of the Handbook followed. Now it has finally been updated. Its purpose is described by the DEC as follows:

“The SEQR Handbook provides agencies, project sponsors, and the public with a practical reference guide to the procedures prescribed by the State Environmental Quality Review Act (SEQR)–Article 8 of the Environmental Conservation Law. It addresses common questions that arise during the process of applying SEQR. The Handbook also attempts to address the needs of individuals who have varying degrees of experience with SEQR. Topics range from an introduction to the basic SEQR process to discussions of important procedural and substantive details.”

-Steven Silverberg

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In a 206 page decision, the U.S. District Court for the Southern District of New York found the Town of Greenburgh had violated the Religious Land Use and Institutionalized Persons Act (RLUIPA) when it refused to grant a church permission to build a new building, for what the court termed “contrived” reasons. In Fortress Bible Church v. Feiner, the Court found, contrary to the claim of the Town, that the State Environmental Quality Review Act (SEQRA) constitutes an individualized assessment of a land use application, that the review falls within the RLUIPA definition of land use regulation as the application of SEQRA “can limit or restrict a claimant’s use or development of land” and that the actions of the Town in issuing findings pursuant to SEQRA, which limited the use of the Church’s property, constitute a “substantial burden” on religious exercise under RLUIPA.

The Court was no doubt brought to this conclusion in large part by its finding that the “majority” of the Town’s witnesses were lacking in credibility. The Court went so far as to find “not only the admitted destruction of probative evidence, but the existence of evidence relevant to the issues before this Court that Defendants never produced to Plaintiffs. Outrageously, Defendants attempted to enter such previously undisclosed documents into evidence during trial.” The Court therefore held “that the conduct of Defendants warrants both an adverse inference based on spoliation of evidence and sanctions.”

The Court reviewed the history of RLUIPA and its purpose to “protect against inter alia ‘subtle forms of discrimination.'” It then went on to note that under RLUIPA, once a plaintiff demonstrates that conduct in implementing a land use regulation imposes a substantial burden upon religious exercise, the burden shifts to the defendant to demonstrate that the burden imposed is “in furtherance of a compelling governmental interest and is the least restrictive means of furthering that compelling governmental interest.” The Court found that the activities at issue fall within the jurisdiction of RLUIPA noting that a number of courts have held that construction of a church implicates interstate commerce. It further found that since the activities of the church will support missionary efforts that too implicate interstate and international commerce.

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