Articles Posted in Environmental Law

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The New York Court of Appeals has held that a person who can demonstrate greater enjoyment of a natural resource than the general public has standing under the State Environmental Quality Review Act (SEQRA) to challenge an action by a governmental entity which may threaten such a natural resource. In Matter of Save the Pine Bush v Common Council of the City of Albany, the Court held that both the individual petitioners and the organization had standing to challenge an action that allegedly threatened certain endangered species within the Pine Bush area. However, the Court also found that Petitioners had failed to prove their case on the merits as the City had examined the major potential impacts and the City “was not required to scrutinize every possible environmental issue, and the failure of the City’s environmental impact statement (EIS) to discuss the possible impact of rezoning on certain rare species was therefore not a fatal flaw.”

The project at issue involved a rezoning for a proposed hotel that would not be in a protected area but is near a protected area which is habitat for the Karner Blue butterfly. The draft scope of the proposed EIS included examination of the potential impacts on the Karner Blue butterfly but no other plant or animal species. In response to the draft scope a number of comments were submitted. Among the comments was one from the New York DEC which discussed the Karner Blue and pointed out that the Karner Blue is in a habitat which is known to support four other “rare or unusual species…Frosted Elfin butterfly, the Hognosed Snake, the Worm Snake and the Eastern Spadefoot Toad.” The DEC asked that the investigation encompass those species as well.

The DEIS was prepared and included a discussion of the Karner Blue butterfly, including a report by a biologist who stated that repeated visits to the site failed to disclose any Karner Blue butterflies at the site. There was no mention of the other species raised in the DEC comments. The DEIS was commented upon by a number of agencies including the DEC. Other than what the court characterized as brief comments on the Frosted Elfin butterfly and a reference to the Adder’s Mouth Orchid (which had not been mentioned previously) there was no mention of the other species previously raised by the DEC.

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In a case involving a challenge to site plan approval for a Wal-Mart, the Appellate Division Fourth Department found a number of challenges to procedural/technical oversights by the planning board to be insufficient to cause the court to overturn the approval. In Matter of Residents Against Wal-Mart v. Planning Board of Town of Greece, the court found that the granting of site plan approval by the planning board was not arbitrary and capricious.

The decision lacks a great deal of detail but in a series of findings the court held: (1) the failure of the planning board to complete parts 2 and 3 of the SEQRA EAF was not fatal, because the planning board discussed “the factors set forth in parts 2 and 3 of the full EAF;” (2) the planning board complied with the referral requirements of General Municipal Law sections 239-m and 239-n, because there was no “substantial difference” between the materials submitted to the county department of planning and those used by the planning board for “final action on the application;” and (3) there was no error in issuing a conditional negative declaration for a Type I action under SEQRA, as “the conditions were not imposed in an attempt to avoid a determination that the project has a significant adverse environmental impact” and it was used only to address “aesthetic aspects of the project.”

Interestingly, the court made these findings after determining that the lower court was correct in holding that the owners of the property at issue were necessary parties and that the lower court was in error in dismissing the matter “without summoning those property owners.”

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In Matter of Oyster Bay Associates Limited Partnership v. Town Board of Town of Oyster Bay the Second Department upheld the denial of a special permit. This case has a seven year litigation history with multiple decisions by the Supreme Court and Appellate Division addressing the SEQRA review for a proposed 860,000 square foot mall and an alternate proposal for a 750,000 square foot mall.

The Town had an environmental review committee (TEQR Commission) review the proposal and issue findings under SEQRA recommending approval of the 860,000 square foot mall. The Town Board subsequently directed the TEQR Commission to rescind its findings which was done. Thereafter new SEQRA findings were issued and the application was denied. On appeal the courts remanded the matter for further consideration of a proposal to reduce the mall to 750,000 square feet. The Town then undertook the additional review and, based upon information it identified post-FEIS, directed the applicant to prepare a SEIS and submit plans for a 750,000 square foot mall. Instead the petitioner sued to compel the Town to adopt the original favorable TEQR findings.

In this most recent incarnation, the Appellate Division upheld the Town’s actions noting: “the Town Board properly identified the post-FEIS submissions which supported its deviation from the TEQR Commission’s SEQRA findings. The Town Board demonstrated that the post-FEIS submissions identified areas such as traffic impacts, impacts on existing retail facilities, and impacts on residential real estate values in the surrounding area which supported its determination.” Further holding that “the Supreme Court erred in determining that the Town Board’s request that the petitioners prepare an SEIS was arbitrary and capricious. The Town Board, as the lead agency, “may require a supplemental EIS, limited to the specific significant adverse environmental impacts not addressed or inadequately addressed in the EIS that arise from: (a) changes proposed for the project; or (b) newly discovered information; or (c) a change in circumstances related to the project” (6 NYCRR 617.9 [a] [7] [i]; Matter of Riverkeeper, Inc. v Planning Bd. of Town of Southeast, 9 NY3d at 231).”

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The Appellate Division Second Department modified a lower court decision dismissing an action challenging a zoning amendment, where the lower court had held that petitioners all lacked standing to bring the action. In Matter of Bloodgood v. Town of Huntington the court separated the petitioners into several categories in order to analyze the question of standing from the standpoint of the potential environmental harm to each of the petitioners resulting from the rezoning.

The challenge at issue was based upon an alleged failure to take a “hard look” at the environmental impacts of the amendment, as mandated by SEQRA, prior to adopting the zoning amendment. The court held that those owning property within the zoning district that was the subject of the amendment had standing and that “where the challenge is to the SEQRA review undertaken as part of a zoning enactment, the owner of property that is the subject of the rezoning need not allege the likelihood of environmental harm.”

Further, the court held that the lower court erred in dismissing the complaint of a property owner whose property was located within fifty to sixty feet of the rezoned district. That property owner had alleged specific adverse impacts upon his property of traffic, sewerage, and groundwater that would result from the zone change. Therefore, the court ruled he had the requisite standing to challenge the SEQRA determination.

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Last year we reported on the case of Goldstein v Pataki, 516 F3d 50 [2008] involving the proposed condemnation of property in Brooklyn, New York in order to build the so called Atlantic Yards Project which includes a huge residential and commercial development along with an arena for the New Jersey Nets. This week the Appellate Division, First Department (In re Develop Don’t Destroy (Brooklyn) v. Urban Development Corporation) again addressed claims by property owners alleging that the State Environmental Quality Review Act (SEQRA) had not been adequately followed and that the project does not involve an appropriate public project within the meaning of the various governing statutes including the Eminent Domain Procedures Law.

In dismissing the claims the court made far reaching findings which are best recited in the court’s own words. The first claim was that the financial participation of the Empire State development Corporation (ESDC) in the project had not been properly analyzed as part of the SEQRA review findings and therefore had not been subjected to appropriate environmental scrutiny. The court disagreed that the ESDC’s financial participation was an area for environmental inquiry holding: “[a]ccordingly, where the decision, although discretionary, is governed by criteria unrelated to the environmental concerns addressed in an EIS, environmental findings based on the EIS are unnecessary as it would be pointless to mandate reliance on an EIS in the interest of informed decision-making in circumstances where the EIS is by hypothesis irrelevant to and cannot inform the decision to be made”

The Plaintiffs then argued that the lead agency failed to take a “hard look” under SEQRA at the threat of a terrorist incident, particularly with respect to the arena. The Court disagreed finding that although there may be exceptions in the case of storage of particularly dangerous materials: “SEQRA contains no provision expressly requiring an EIS to address the risk of terrorism and, indeed, it would not appear that terrorism may ordinarily be viewed as an “environmental impact of [a] proposed action” (ECL 8-0109[2][b] [emphasis added]) within the statute’s purview.”

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When a findings statement fails to pass, SEQRA does not preclude a reconsideration of the exact same findings statement at a later date. In the Matter of East End Property Company #1 LLC v. Town Board of the Town of Brookhaven, the Appellate Division found that there was nothing in the SEQRA regulations which precluded such reconsideration.

In a case involving the construction of a power generator various land use approvals were required. Prior to issuing the approvals the Town Board voted on a proposed SEQRA findings statement which would have permitted the project to move forward. The findings statement failed to be adopted by a 4-3 vote. The matter was kept open on the Town Board agenda during which there were additional discussions over the next few meetings of the Board. Ultimately the matter came up for a vote again and was approved with one of the members indicating his concerns had been addressed.

The challenge to the approval was initially sustained by the lower court finding that the Town Board had failed to articulate the reason for adopting the SEQRA findings. The Appellate Division found that since the findings resolution was not amended there was nothing that requires an explanation of the revote or that precluded the revote. Rather, SEQRA requires a written findings statement and the revote approved a written findings statement which complied with the mandate of SEQRA. The court noted: “the Town Board’s determination to adopt, rather than reject, the resolution to approve the SEQRA findings statement was neither arbitrary nor capricious, but was based on reasons readily apparent on the face of the record.”

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Due to a busy litigation schedule, we fell short in reporting a number of SEQRA and zoning cases that came down during March of 2008. So we thought we would provide a brief summary of some of the cases decided by New York appellate courts during March of 2008, in case you missed them also.

Rossi v. Town Bd. of Ballston, 2008 NY Slip Op 02740 (3d Dep’t Mar. 27, 2008). SEQRA-the burden is on the party challenging a SEQRA determination to provide evidence to refute expert testimony.

Muir v. Town of Newburgh Planning Board, 2008 NY Slip Op 02596 (2d Dep’t Mar. 18, 2008). SEQRA-a full review of environmental impacts of a prior proposal that did not proceed was sufficient for a SEQRA “hard look” at a new scaled down proposal for the same site.

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Occasionally, early in the process of reviewing an application, everyone on the municipal board knows that an application is not likely to be granted. Then the question occurs, do we have to require that the applicant go through a full environmental review under SEQRA before we turn down the application? This is a practical question as an environmental review can be time consuming and incredibly expensive for an applicant. On April 8, 2008, in the case Matter of Joseph Logiudice v. Southold Town Board, the Appellate Division Second Department reminded us that if the application is denied there is no action requiring a review under SEQRA.

SEQRA requires that no action by a government agency be approved without first complying with SEQRA’s obligation to take a hard look at potential significant environmental impacts and eliminating or mitigating those impacts. In upholding the denial of the application for a special permit by Logiudice, the Appellate Division noted: ” because the Board determined to deny the petitioner’s application, “no action having a significant effect on the environment was undertaken,” and, as such, ‘it was unnecessary for the Board, as lead agency, to comply with the requirements of the State Environmental Quality Review Act’ ( Matter of Retail Prop. Trust v. Board of Zoning Appeals of Town of Hempstead, 301 A.D.2d 530, 531-532; see Matter of Cappelli Assoc. v. Meehan, 247 A.D.2d 381, 382; Matter of Wade v. Kujawski, 167 A.D.2d 409, 410).”

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The appellate division dismissed a challenge to a town board resolution authorizing consideration of a cluster development in the case of Maor v. Town of Ramapo Planning Board, finding it was not a “final determination” subject to review.

Toll Brothers had applied to the planning board for a subdivision and submitted a conventional subdivision plat of 51 lots. The Planning Board referred the application to the Town Board to consider authorizing the Planning Board to treat the application as a cluster development, with a maximum permitted lot count of 51 lots, under Town Law section 278. The Town Board held a public hearing and adopted a resolution authorizing the Planning Board to consider a maximum 51 lot cluster development.

The petitioners brought a challenge claiming the resolution was contrary to law and had not been subject to review under the Environmental Conservation Law (SEQRA). The Court held the “determinations were preliminary steps in the approval process for a ‘cluster development’ subdivision and, as such, were not final determinations subject to judicial review….” Therefore, contrary to the claims of the petitioners, no SEQRA review would be necessary prior to the initial step of merely permitting consideration of a subdivision as a cluster development.

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The failure to analyze the environmental impacts of a sewerage diversion plan formed the basis for the Appellate Division Second Department voiding a zoning amendment in Matter of ACI Shore Rd., LLC v. Incorporated Village of Great Neck. The Village of Great Neck had proposed a zoning amendment to implement a residential Waterfront Development District in an area which had previously been an industrial zone. At the same time the Village was considering decommissioning two sewerage treatment plants in the area and diverting the sewerage to a plant 16 miles away.

The Court found that the DGEIS for the new zone included a conceptual site plan replacing the sewerage treatment plants with a mixed use development and waterfront park. Yet, except for noting generally that it was anticipated the diversion of sewerage would have beneficial impacts, the Court noted “despite the apparent interrelatedness of the redevelopment plan and sewerage diversion plan, neither the DGEIS nor the FGEIS contained any analysis of potential environmental impacts of the sewerage diversion plan.”

Therefore the Court found that the environmental review had been improperly segmented as the potential impacts of the sewerage diversion plan should have been considered and noted the “record belies” the claim by the Village that “the sewerage diversion plan was speculative, hypothetical, or not part of a larger unified plan.” Finally, the Court held that the Village failed to take a “hard look” at other potential impacts. Rather than analyzing impacts of proposed dredging and soil remediation, which were part of the overall project, the DGEIS, FGEIS and SEQRA findings statement contained no analysis of these issues.

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