downloadIn Matter of Ranco Sand & Stone Corp. v. Vecchio, 124 A.D.3d 73 (2nd Dept. 2014), the Appellate Division, Second Department, recently held that the issuance of a positive declaration under the New York State Environmental Quality Review Act (“SEQRA”) did not constitute a matter ripe for judicial review, but rather was merely a preliminary step in the decision-making process.  This decision appears to conflict with the Court of Appeals’ decision in Matter of Gordon v. Rush, 100 N.Y.2d 236 (2003), which held that a lead agency’s issuance of a positive declaration requiring a property owner to  prepare and submit a draft environmental impact statement (“DEIS”) can immediately be challenged in court as arbitrary or capricious before a final determination on the underlying application is made.

In Rush, the Court ruled that an Article 78 proceeding challenging a lead agency’s issuance of a positive declaration was ripe for judicial consideration because that determination represented the agency’s “definitive position on the issue” that inflicted “an actual, concrete injury.” The Court added that a ripeness determination also required a finding that the apparent harm inflicted by the action could not be “prevented or significantly ameliorated by further administrative action or by steps available to the complaining party.”

Applying this test, the Court of Appeals found that the issuance of a positive declaration was ripe for judicial review because that determination imposed an obligation on the property owner to prepare and submit a DEIS, which was deemed to be an “actual, concrete injury” because the preparation of a DEIS is likely to cause the petitioner to incur “considerable time and expense.”  Moreover, the Court found that this injury could not be prevented or ameliorated by further administrative action.

In Ranco, the Appellate Division made the very same findings, but concluded that neither was determinative.  Instead, the Court highlighted a number of factors that it found distinguished this case from Rush, such as that Ranco had not already been subject to a coordinated SEQRA review process and a negative declaration indicating that a DEIS is not warranted had not previously been issued.  In light of these distinguishing factors, the Court concluded that the issue of whether a positive declaration is a final determination that is ripe for review must be determined on a case-by-case basis.

Despite the Appellate Division’s attempts to distinguish the two cases, the Ranco decision seems to fly in the face of the Court of Appeals’ rationale in Rush.  Moreover, unless the Second Department itself, or the Court of Appeals, ultimately rejects Ranco, it places applicants who believe that the issuance of a positive declaration is unwarranted in the unfortunate position of having to first incur the cost of preparing a DEIS, which can cost $100,000 or more, before they can challenge the positive declaration itself.  The practical effect of Ranco is that due process to challenge certain SEQRA wrongs may now come with a significant price tag.