30b8f7d055a9be9d4bf8c358cf5ed8a8In its recent decision in Troy Sand & Gravel Co., Inc. v. Town of Nassau, 125 A.D.3d 1170, __N.Y.S2d__, 2015 WL 685968 (3d Dept. 2015) the Appellate Division, Third Department held that the Town of Nassau, having zoning authority with respect to a special permit and site plan review over a proposed mining operation could not gather additional information regarding the environmental impacts of a proposed quarry.  The critical facts leading to the Court’s holding were that the New York State Department of Environmental Conservation (“DEC”) had already conducted a complete environmental review pursuant to the State Environmental Quality Review Act (“SEQRA”) in connection with its review of a mining permit for the same applicant, and the Town had participated in the SEQRA review as an “involved agency.”[1]

The Court’s determination in Troy Sand & Gravel Co., Inc. clarifies the language of its earlier decision in 2012 wherein it stated that although the Town is bound by DEC’s SEQRA findings and it may not repeat the SEQRA process, it nevertheless retains the authority to make an independent review of the plaintiff’s application for a special permit in accordance with the criteria and standards set forth in the zoning code.  See, Troy Sand & Gravel Co., Inc. v. Town of Nassau, 101 A.D.3d 1505, 1508, 957 N.Y.S.2d 444 (3d Dept. 2012).  The Town relied upon the 2012 decision to rescind its prior determination that the permit application was complete so that it could consider whether the SEQRA record was adequate to allow for the Town’s own review under the environmental standards of its zoning law and whether additional environmental review was needed.

In the 2015 decision, the Court rejected the Town’s attempt at a second bite at environmental review, holding that any further gathering of information on environmental factors would be outside the existing SEQRA record and that such review would “vitiate the efficiency and coordination goals of SEQRA.”  2015 WL 685968 at *3.  In sum, as an involved agency in the prior SEQRA review conducted by the DEC, the Town must rely on the fully developed SEQRA record, in which the Town had “extensive involvement.”  Id.  And while the Town maintains its jurisdiction over zoning determinations, it must rely on the final environmental impact as its basis for review of environmental impacts, rather than conduct its own further environmental review.

[1] For SEQRA purposes, an involved agency is one that has jurisdiction by law to fund, approve or directly undertake an action.  See, 6 NYCRR 617.2(s).  Normally an agency becomes aware of its involvement when it receives an application or is contacted by another involved agency as part of a coordinated review.  From “The SEQR Handbook: Third Edition,” 2010.