Articles Posted in Environmental Law

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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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In a comprehensive review of the capacity and standing of one municipality to sue another over local zoning, the Appellate Division, Second Department, in Matter of Village of Chestnut Ridge v. Town of Ramapo, held that villages have the capacity to sue a town over a local law enacting a zoning amendment. Yet the Court also found their standing is limited to SEQRA and General Municipal Law compliance rather than the local law’s consistency with a comprehensive plan.

The Town had adopted a zoning amendment by local law which permitted adult student housing. The law applied to four parcels of land near or adjacent to the boundary of four Villages located in the Town. The four villages and two individuals commenced a combined Article 78/declaratory judgment action challenging the local law, and subsequent actions which incorporated the local law. The lower court dismissed the action on a cross motion by the Town finding lack of capacity to sue and/or lack of standing on each of the causes of action. The Appellate Division modified.

First, the Court noted that Village Law specifically authorizes Villages to sue and be sued. The Town had argued that Town Law Section 264 provides that a village may not challenge a Town’s zoning in court. The Court distinguished a zoning amendment adopted pursuant to Town Law from a case such as this with a local law enacting a zoning regulation under Municipal Home Rule Law. The court found that Municipal Home Rule Law did not similarly restrict a challenge by a village.

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Construction within the New York City Watershed located in Putnam County is regulated, in part, by the New York City Department of Environmental Protection (DEP). The New York Court of Appeals, in Nilsson v Dept. of Environmental Protection, limited the authority of DEP to regulate storm water runoff when reviewing a request for a variance from the fill requirements for the subsurface sewage treatment systems (SSTS) of a residence within the watershed.

The Court found that the DEP could not “extend its jurisdiction to otherwise unregulated sources of degradation or contamination.” The Court also found that the DEP could not require the applicant to prove hardship by evidence of projected financial hardship when the submissions by the applicant demonstrated that it would be impossible to construct any residence without the variances. Therefore the Court found that where there was a hardship claimed of impossibility of building a residence on the parcel “there is little more to be said.”

However, the Court remitted the matter to the Supreme Court. During the review process DEP had asked for information concerning the applicant’s real estate holdings in the immediate area, which the applicant refused to provide. The Court agreed with the Appellate Division’s finding that such a request was over broad. Yet, the Court did find that it was reasonable to request information about ownership of contiguous lots, which might allow the applicant to minimize any hardship. As a result the Court directed that there be further proceedings on that issue.

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The Appellate Division found that a condemnation proceeding under the Eminent Domain Law in order to enhance a golf course and for other recreational purposes was proper in the case Matter of Rocky Point Realty v Town of Brookhaven. The Court found that review of a condemnation proceeding is limited to four issues: “whether (1) the proceeding was in conformity with the federal and state constitutions, (2) the proposed acquisition was within the condemnor’s statutory jurisdiction or authority, (3) the condemnor’s determinations and findings were made in accordance with procedures set forth in EDPL article 2 and SEQRA, and (4) a public use, benefit or purpose will be served by the proposed acquisition…”.

The property owner’s contention that EDPL 202, which requires that the purpose of the hearing conducted by the Town be stated in the notice, also mandates a description of every aspect of the project and its implementation was rejected by the Court. It was held that the proposed condemnation would serve a legitimate public purpose by enhancing recreation in the Town and therefore met the test of being a “public use”.

Finally, the Court noted that the Town complied with SEQRA. It found that, as the EAF failed to identify any potential adverse impacts and the petitioner failed to identify any significant potential for environmental harm, the Town took the requisite hard look and properly issued a negative declaration.

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A Court has ruled that the issuance of a demolition permit is not an “action” within the meaning of the State Environmental Quality Review Act (“SEQRA”) that requires review under SEQRA. In Matter of Ziemba v. City of Troy, the Appellate Division, Third Department, held that the discretion to be exercised in issuing a demolition permit under the Troy Code “is limited to a narrow set of criteria that is unrelated to the environmental concerns that would be raised in an EIS”.

The SEQRA regulations provide that purely ministerial acts requiring no exercise of discretion are exempt from review under SEQRA. The Court concluded the real inquiry in determining if an action is exempt from SEQRA review is whether the factors to be considered by the permitting agency could trigger issues that would be raised in an environmental impact statement (“EIS”). The Court found SEQRA requires a determination of whether “the underlying regulatory scheme invests the authorizing agency with discretion to act or refuse to act based upon the type of information contained in an EIS”. Therefore, the Court found that an action for which an agency has discretion that is narrowly circumscribed by factors that do not bear any relationship to information that may be contained in an EIS is not an action requiring review under SEQRA.

Here the Court analyzed the nature of the discretion of the permitting authority in issuing a demolition permit under the City of Troy Code and concluded that the discretion to be exercised did not involve issues that would be reviewed by an EIS. Accordingly, the permit could not be denied on SEQRA grounds.

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The Planning Board of the Town of Southeast was required to prepare a Supplemental Environmental Impact Statement (SEIS) pursuant to SEQRA, despite the board’s belief that a SEIS was not necessary, according to a recent Appellate Division Second Department decision.

The question presented in Riverkeeper v. Planning Board of Town of Southeast arose as a result of a developer’s 1988 subdivision application. The Board approved a final environmental impact statement (FEIS) for the project in 1991 and in 1997 the NYCDEP was granted authority over applications affecting the New York City watershed. The Army Corps of Engineers then determined that there were more acres of wetlands than previously thought on the site. The developer applied for subdivision approval in 2001 submitting an altered plat reducing the number of building lots, reduced the acreage of disturbed wetlands and proposing additional storm water detention basins. The petitioners in this suit then commenced a proceeding seeking final review of the subdivision approval and to compel the Board to prepare a second SEIS analyzing the changes to the project.

In reversing the lower court decision and remitting the matter to the Planning Board for preparation of a second SEIS, the Appellate Division reasoned that the FEIS and initial SEIS were inadequate because regulations had been modified since the original determination and the Planning Board, as lead agency, deferred analysis of important aspects of the project to other involved agencies without confronting the issues. The Appellate Division found that the board did not fulfill its responsibility under SEQRA and therefore must revisit the application and prepare a SEIS.

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An appellate court dismissed five consolidated actions challenging New York City’s and the MTA’s use of eminent domain to obtain land for a project on Manhattan’s West Side. In Matter of C/S 12th Ave. LLC v. City of New York, the Appellate Division First Department upheld the City’s approval of property acquisition and easements related to the project, as well as the Determination and Findings generated by the City and the MTA. The court also held that condemnation of an entire parcel is reasonable where the project for which the parcel is sought only requires a portion of the parcel, but partial demolition of the existing structure is not feasible.

Owners of property subject to condemnation for the project, which is known as the No. 7 Subway Extension Hudson Yards Rezoning and Redevelopment Program, challenged the City’s authority to acquire their land. Petitioners’ numerous claims include arguments that the City failed to comply with requirements of the Eminent Domain Procedure Law, engaged in unconstitutional spot zoning, acted ultra vires, and failed to state an adequate public use to be served by the project.

The court held that Eminent Domain Procedure Law 204 does not require “extreme accuracy” in reference to the property to be acquired; rather the procedural requirement is satisfied when the acquiring agency sets forth the approximate location and the reasons for the location selection for the proposed project. In reaching its determination that specificity is not required, the court pointed out that the taking challenged in the EDPL claim is a temporary easement needed to construct and support portions of the project. In addition, the court reasoned, the easements were sought for structural stabilization of the subway tunnel during its construction, and precisely where the stabilization points would be required could not be determined in the planning stage of the project.

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An appellate court held that a planning board abused its discretion by amending a SEQRA draft environmental impact statement based on the board’s concern that the proposed subdivision was inconsistent with the goals of a recently implemented voluntary program giving area landowners incentives to conserve agricultural property. In Matter of Two Trees Farm, Inc. v. Planning Board of Town of Southampton the Appellate Division Second Department modified and affirmed the judgment of the Supreme Court, deleting a provision directing the planning board to approve the application for preliminary subdivision approval.

In reviewing the planning board’s action, the court noted that the board did not amend the DEIS because the statement failed to adequately address adverse environmental impacts, rather the board’s amendment was based on a concern not falling under SEQRA, and therefore the court found the amendment to be improper.

Amendments to a DEIS must address adverse environmental impacts in order to be valid. A planning board may not approve an EIS based on improper amendments to a DEIS. In Matter of Two Trees Farm the appellate court held that the court below correctly annulled the planning board’s decision to accept the final EIS and other actions subsequent to the amendment because all steps taken after the amendment were based on the improper amendment. The court further found that the Supreme Court improperly substituted its own judgment for that of the planning board when it directed the board to approve the preliminary subdivision application.

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An appellate court agreed with Silverberg Zalantis LLC that the zone changes implemented by the Village of Lake Grove did not require a full environmental impact statement before a SEQRA negative declaration could be issued. In Matter of Lake Grove Partners LLC v. Middleton, the Appellate Division Second Department upheld the lower court decision finding that the Village Board had taken a “hard look” at the potential environmental impacts from the creation of a “Business Districts Plan” and was not required to issue a draft environmental impact statement (“DEIS”) prior to issuance of a negative declaration and the approval of zoning amendments.

Lake Grove Partners LLC, the owners of property within the zone complained that the new zoning precluded development of “Big Box” stores such as Home Depot and that the Village should have prepared a DEIS to look at the potential economic impacts of precluding such stores. The Village argued that the detailed plan and reviews by its consultants was sufficient to demonstrate that the zone changes would have beneficial impacts, including the impacts upon potential traffic generation. In addition the Village found that the changes would maintain the vitality of the existing retail districts. The Court agreed with the Village, finding the Village had taken the required hard look and had provided a reasoned elaboration of the basis for the negative declaration.

The appeal was argued by Katherine Zalantis of Silverberg Zalantis LLC, who acted as co-counsel with Mark Anesh of Wilson Elser Moskowitz Edelman & Dicker LLP on the appeal.

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On March 14, 2006 the Appellate Division Second Department rejected the issuance of a Negative Declaration under SEQRA in the case Matter of Avy v. Town of Amenia. In upholding the findings of the State Supreme Court, the Appellate Division found that by approving an amendment to the local zoning ordinance, which would have allowed an automobile repair service on a lot previously zoned residential, the Amenia Town Board, as lead agency, failed to take the required “hard look” at all the potentially significant environmental impacts.

Despite the fact that the Town Board spent about a year and a half “reviewing” this proposal the Court noted that the EAF for the project identified fourteen areas of potentially large impacts including removal of 1.65 acres of vegetation, 3000 cubic yards of material, storm water runoff, odors, noise and endangered flora and fauna. While the Board held public hearings it never required more than a revised Environmental Assessment Form (EAF). The Court found the Board failed to adequately address the potential impacts on a vital aquifer, the removal of substantial vegetation and the potential impacts upon endangered flora and fauna.

In the past courts have held that an EAF can provide sufficient information to allow a negative declaration in some circumstances. Yet, the clear message here is that, when there are multiple areas of potentially large impacts, it is safer to spend a year and a half preparing and reviewing an environmental impact statement than spending a year and a half trying to avoid preparing one. At the end of the day, the requirement of a “hard look” at environmental impacts before issuing a negative declaration is still the rule.

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