New York Zoning and Municipal Law Blog
The Appellate Division reversed a lower Court determination and overturned the issuance of a negative declaration issued pursuant the State Environmental Quality Review Act (SEQRA) for a proposed condominium complex. In Matter of Peterson v. Planning Board of the City of Poughkeepsie, the Court found that the Planning Board, as lead agency, had failed to take the hard look required for a SEQRA review prior to issuing a negative declaration finding there would be no significant environmental impacts from the proposed project.
The applicant sought site plan approval for development of a 3.4 acre site, in order to permit construction of a condominium complex. The two issues the court focused on were the proximity of the site to an historic neighborhood and the amount of deforestation of the site, which would result in a reduction of the portion of the site covered by vegetation from 2.75 acres to .3 acres.
The Court reiterated the rule that judicial review of SEQRA determinations does not include determining the desirability of a proposed action. However, it noted that courts must still ensure a lead agency complied with the requirements of the SEQRA regulations in issuing a negative declaration.
“Courts may review the record to determine whether the agency identified the relevant areas of environmental concern, took a hard look at them, and made a reasoned elaboration of the basis for its determination (see Matter of Chinese Staff & Workers’ Assn. v Burden, 19 NY3d 922, 924; Akpan v Koch, 75 NY2d 561, 570; Matter of Jackson v New York State Urban Dev. Corp., 67 NY2d at 417). ”
Upon reviewing the record the Court held:
“The Planning Board noted that the project would not significantly impact the adjacent Dwight Street-Hooker Avenue Historic District (hereinafter the historic district). However, in making that determination, the Planning Board merely relied upon a letter from the New York State Office of Parks, Recreations and Historic Preservation, which stated only that the proposed action would not have an adverse impact on the historic district. Such a conclusory statement fails to fulfill the reasoned elaboration requirement of SEQRA (see Matter of Troy Sand & Gravel Co., Inc. v Town of Nassau, 82 AD3d 1377...
With regard to the impact on vegetation or fauna, the EAF contemplates the reduction of the 3.4-acre parcel’s forestation from 2.75 acres to .30 acres. However, the negative declaration inexplicably stated that ‘[t]he proposed action will not result in the removal or destruction of large quantities of vegetation or fauna.’ In the context of this project, the level of deforestation is significant.”
As a result the Court remanded the matter, directing that an Environmental Impact Statement be prepared in order to address the issues identified by the Court.
“In light of the foregoing, it is clear that the proposed action may have significant adverse environmental impacts upon one or more areas of environmental concern (see 6 NYCRR 617.7[a]). Thus, the Planning Board’s issuance of a negative declaration was arbitrary and capricious. Accordingly, the matter must be remitted to the Planning Board so that an Environmental Impact Statement may be prepared (see Matter of West Branch Conservation Assn. v Planning Bd. of Town of Clarkstown, 207 AD2d 837, 841; Matter of Holmes v Brookhaven Town Planning Bd., 137 AD2d 601, 604).”