In a determination dated June 30, 2016, the Honorable Jerome C. Murphy, Supreme Court, Nassau County, annulled and vacated the Village of Bayville’s local laws amending its zoning code based on the Village’s failure to comply with the New York State Environmental Quality Review Act (“SEQRA”). See Save Bayville Now, Inc., v Incorporated Village of Bayville. The challenged local laws, adopted on June 22, 2015, authorized the occupancy of ground floor units with residential apartments in business districts, reduced the required setback from 250 feet to 50 feet for the distance that a combined business/residential use could be from a residentially-zoned parcel and defined a “residential building” as containing five units or more. Previously, residential apartments in this zoning district were only permitted on the second floor, and this type of combined business/residential use was not permitted within 250 feet of residentially-zoned property.
Petitioner, a civic association with at least two of its members residing within 100 and 150 feet of the business district, challenged the adoption of the local laws pursuant to SEQRA. The Court first explained standing in zoning cases. Relying on Matter of Sun-Brite Car Wash v Board of Zoning and Appeals of Town of N. Hempstead, 69 NY2d 406 [1987], which held that “standing principles, which are in the end matters of policy, should not be heavy-handed; in zoning litigation in particular, it is desirable that land use disputes be resolved on their own merits rather than by preclusive, restrictive standing rules.” The Bayville Court first determined that Petitioner had the requisite standing to bring the proceeding, and then went on to determine that SEQRA had not been complied with by the Village when it enacted the local laws.
The Court noted that SEQRA requires local governments to consider environmental impacts of the adoption of local laws by identifying the environmental impacts reasonably anticipated from the proposed action, taking a “hard look” at those areas of environmental concern and providing a reasoned elaboration in connection with the basis of its determination. The civic association alleged that the Village failed to sufficiently review potential impacts from the zoning amendments including traffic and parking issues, septic issues, flooding and flood plain issues, population concentration and the impact on the value of surrounding properties. The Village adopted a negative declaration in connection with the adopted local laws and determined that it would conduct specific SEQRA review in the future upon the application of specific sites within the district. Petitioner argued that this constituted segmentation of the SEQRA process and was unlawful. Segmentation is defined as the “division of the environmental review of an action such that various activities or stages are addressed under this Part as though they were independent, unrelated activities, needing individual determinations of significance.” 6 NYCRR Part 617.2(ag). SEQRA states the following with regard to segmentation:
Considering only a part or segment of an action is contrary to the intent of SEQRA. If a lead agency believes that circumstances warrant a segmented review, it must clearly state in its determination of significance, and any subsequent EIS, the supporting reasons and must demonstrate that such review is clearly no less protective of the environment. Related action should be identified and discussed to the fullest extent possible. 6 NYCRR Part 617.3(g)(1). Id.
The Court determined that the Village acknowledged the potential for “environmental damage” but failed to prepare an Environmental Impact Statement (“EIS”). An EIS provides “a means for agencies, project sponsors, and the public to systematically consider significant adverse environmental impacts, alternatives and mitigation.” 6 NYCRR Part 617.2(n). An EIS is required when the lead agency (in this case the Village) determines that “the action may include the potential for at least one significant adverse environmental impact.” 6 NYCRR Part 617.7(a)(1) (emphasis added). As a result, the Court found that “the Village’s deferred consideration of recognized potential environmental damage” rendered the Village’s adoption of the local laws amending the zoning ordinance “arbitrary, capricious, and not undertaken with regard to the applicable provisions of SEQRA.” The Court annulled and vacated the local laws.
Although not cited by the Court, it bears reminding that courts have long determined the threshold for requiring an EIS is low. See, H.O.M.E.S. v New York State Urban Dev. Corp., 69 AD2d 222, 232 [4th Dept. 1979]; Barrett v Dutchess County Legislature, 38 AD3d 651[2d Dept. 2007].) Therefore, once the Village identified “environmental damage” in connection with the proposed local laws, the preparation of an EIS was required pursuant to SEQRA.
This ruling is consistent with other recent SEQRA segmentation cases involving the adoption of local laws. In Citizens Concerned for Harlem Valley Environment v Town Board of Town of Amenia, 264 AD2d 394 [2d Dept. 1999], leave to appeal denied, 94 NY2d 759 [2000], local laws rezoning property were annulled based upon segmented SEQRA review. In that case, the appellate court determined that “the rezoning at issue was an integral part of a mining proposal that would have obvious potential environmental impacts. The Town Board was obligated to consider these environmental concerns at the time of the rezoning and it failed to do so.” See also, Scenic Hudson, Inc. v Town of Fishkill Town Bd., 258 AD2d 654 [2d Dept. 1999].