After six years and vigorous public comment, the New York State Department of Environmental Conservation (DEC) has adopted substantive amendments to the implementing regulations of the State Environmental Quality Review Act (SEQRA). The new regulations take effect on January 1, 2019 and will apply to all pending and future actions for which a determination of significance has not been made prior to the effective date.

The changes to the SEQRA regulations affect both substantive and procedural aspects of the SEQRA process. Of particular note are the changes to:  the list of Type I Actions (projects that carry a strong presumption of significant adverse environmental impact and typically result in the preparation of an Environmental Impact Statement [EIS]); the List of Type II Actions (projects that the DEC has pre-determined to not result in significant adverse environmental impacts and are exempt from environmental review); “scoping” (the procedural step which identifies the adverse environmental impacts to be studied in an EIS, and which will now be a mandatory step in the SEQRA process), and clarification on the requirements for preparing a Draft EIS (DEIS).

The amendments affecting Type I Actions (6 NYCRR §617.4) can be described generally as altering the thresholds which trigger certain Type I designations.

  • In cities, towns and villages having a population of 150,000 persons or less, the following are now Type I Actions:
    • The addition of 200 units or more that will connect to existing community or public water or sewerage systems. The threshold was previously 250 units.
    • The addition of parking for 500 vehicles or more.
  • In cities, towns and villages having a population of 150,001 persons or more, the following are now Type I Actions:
    • The addition of 500 units or more that will connect to existing community or public water or sewerage systems. The threshold was previously 1,000 units.
    • The addition of parking for 1,000 vehicles or more.

Long Island communities will be particularly interested in both of these thresholds. While the island is home to nearly 100 villages that will be subject to the lower threshold applied to municipalities of 150,000 persons or less, it is also the home to the Towns of Babylon, Brookhaven, Hempstead, Huntington, Islip, and Oyster Bay, all of which have populations in excess of 150,001 persons, according to recent census data. Projects in those town which have a large residential component (and are located outside of incorporated villages) will need to be mindful of the 500-unit threshold.

    • The amended SEQRA regulations preserve a limitation on the Type I designation for the creation of new residential units. As in the old SEQRA regulations, the number of new units alone is not the only factor in determining whether a Type I designation is appropriate. The project must also tie in to an existing community or public water or sewerage system. Thus, a project that proposes its own water and sewerage facilities will not necessarily trigger a Type I designation, even if the number of proposed units exceeds the numeric threshold.
  • Any Unlisted Action which exceeds 25% of any Type I threshold and which is located wholly or partially in, or contiguous to, a place or district that has been listed or has been determined to be eligible for listing on either the National or State Register of Historic Places is a Type I Action. This revision is something of a double-edged sword for developers in that while a project will no longer be Type I solely because of its proximity to a historic site—because the project must now also exceed 25% of some other Type I threshold under §617.4—the requirement that “eligible” sites also be considered increases the possibility that a project is located near a site capable of triggering a Type I designation.

The amendments affecting Type II Actions (6 NYCRR §617.5) add several new categories of actions that are exempt from environmental review going forward. They include:

  • Retrofitting an existing structure and its appurtenant areas with green infrastructure. While the phrase “green infrastructure” might evoke any number of green practices or technologies that have come to the forefront of eco-conscious design, the revised SEQRA regulations narrowly define the term as “practices that manage storm water through infiltration, evapo-transpiration and reuse…” The definition then includes an exclusive list of the specific practices that constitute “green infrastructure” for purposes of Type II exemption. Thus, the exemption is narrower than it would appear at first blush.
  • Installation of telecommunications cables in existing highway or utility rights of way and utilizing trenchless burial or aerial placement on existing poles. Notably, the exemption is limited to telecommunications “cables” and, therefore, does not include small cells, “nodes” or Distributed Antenna Systems (DAS), which have become prevalent in the telecommunications industry. Prior iterations of the Type II amendments did include co-location of telecommunications antennas as a new exempt category; however, that exemption was removed in response to public comment.
  • Installation of a solar array involving 25 acres or less of physical alteration and located on: a closed landfill; a commercial or industrial brownfield site or Environmental Restoration Project site that has received a certificate of completion; an inactive hazardous waste site (under certain conditions); or already disturbed area located within a publicly-owned wastewater treatment facility or an industrial zoned site.
  • Installation of a solar array on any existing structure, provided the structure is not listed on the Federal or State Register of Historic Places; determined to be eligible for listing on the historic registers; or within a district that has either been listed or determined to be eligible to be listed on the historic registers.
  • Reuse of a residential or commercial structure, or a mixed use residential and commercial structure, for a use which is permitted under applicable zoning, including uses by special permit, provided the reuse does not trigger any Type I threshold. Critics of this particular exemption argued that local zoning laws are often outdated; and as a result, the exemption may prevent environmental review of a use that, while legally permissible, is nonetheless out of touch with the present character of the district in which it is located. The DEC has countered that in almost all situations, a given project will be subject to some form of discretionary review, during which impacts of concern can be vetted and mitigated. Additionally, because the exemption encourages the reuse of structures, it will also reduce the use of virgin building materials and the creation of construction and demolition debris, which are deposited in landfills.

Under the current regulations, Scoping (6 NYCRR §617.8) is an optional step in the SEQRA process. However, as of January 1, 2019, scoping will be mandatory for “all” EISs, except for Supplement EISs prepared pursuant to 6 NYCRR §617.9(a)(7). Incidentally, lead agencies will no longer have the option of accepting a proposed DEIS in lieu of an environmental assessment form because submission of a DEIS must now be preceded by a scoping session and the lead agency’s acceptance of a final, written scoping document. Opponents of this change have argued that, for some projects receiving a positive declaration, the environmental assessment forms will be sufficient to identify the environmental impacts requiring study in an EIS. Therefore, for those projects, mandatory scoping prior to preparation of a DEIS will result in unnecessary delay of the SEQRA process and added expense for the project sponsor.

The amendments affecting DEIS preparation (6 NYCRR §617.9) seek to clarify the requirements for a complete DEIS and avoid undue delay of the SEQRA process while the sponsor, lead agency and public debate the adequacy of a DEIS’ contents. The regulations provide that a DEIS is complete when it: (1) meets the requirements of the written final scope and sections 617.8(g) and 617.9(b) of the SEQRA regulations; and (2) “provides the public and involved agencies with the necessary information to evaluate project impacts, alternatives, and mitigation measures.” In addition, the regulations mandate that the completeness of a resubmitted DEIS be evaluated solely based on a list of written deficiencies provided by the lead agency during its review of the prior version of the DEIS (with some exceptions). Time will tell whether these particular amendments will have their desired effect of streamlining the DEIS phase of the SEQRA process. Reasonable minds may yet disagree on whether a DEIS “provides the public and involved agencies with the necessary information to evaluate project impacts, alternatives, and mitigation measures.”

The 2018 SEQRA amendment contains additional changes, including additional Type II categories not discussed here and new publication requirements for SEQRA materials. A complete copy of the 2018 SEQRA amendment and related materials can be found on the DEC website at: https://www.dec.ny.gov/permits/83389.html.

If you have questions regarding SEQRA regulations, please contact me at pbutler@farrellfritz.com.

See also, related SEQRA topics written by blog-colleague Charlotte A. Biblow, by clicking here & here!

 

 

 

 

 

In Matter of Save America’s Clocks, Inc. v. City of New York, the majority of a divided 3-2 Appellate Division, First Department, panel attempted to clarify the authority of the New York City Landmarks Preservation Commission (LPC) under the New York City Landmarks Preservation and Historic Districts Law (“Landmarks Law”).  The majority ruled that the LPC may require a private owner of property purchased subject to a prior interior landmark designation to preserve the historic character and operation of the interior landmark and to continue to permit at least minimal public access to it.

The case involved a 19th Century building in lower Manhattan and, in particular, the clocktower atop the building’s western end, which houses a purely mechanical tower clock with a mechanism similar to London’s “Big Ben.” A room on the building’s fourteenth floor has an interior spiral staircase that leads up to a landing housing the clock’s pendulum, and then to the clocktower’s machine room, where the clock mechanism sits.  Above the mechanism is the clock’s 5,000 pound bell.

New York City owned the building from 1968 until 2013, and used it to house courts and city government offices.  During that time, the LPC designated the exterior of the building a landmark, as well as 10 interior spaces of the building as interior landmarks, including the clocktower gallery, the clocktower machinery room, and the “No. 4 Striking Tower Clock.”  The City conveyed the building to a private developer in December 2013, by a deed that expressly provided that the conveyance was subject to the landmark designation.

Shortly thereafter, the new owner submitted an application for a certificate of appropriateness (COA) to the LPC, seeking permission to refurbish the building’s exterior and interior and to modify some of the landmarked interior spaces. Among other things, the application requested permission to convert the clocktower into a triplex private apartment, to disconnect the clock from its mechanism, and to electrify the clock.

The LPC held a public hearing on the owner’s application. There, the LPC’s counsel advised the commissioners that the LPC did not have the power under the Landmarks Law to require “interior-designated spaces to remain public” and “to require that [the clock] mechanism remain operable.” The LPC then approved the COA.

After various individuals and organizations challenged the LPC’s decision in an article 78 proceeding, a decision by Supreme Court, New York County, partially annulled the COA to the extent that it allowed work inside the clocktower that would completely eliminate public access and allowed work that would convert the clock from a mechanical to an electrical system of operation.  The decision was appealed to the Appellate Division, First Department.

Over the dissent of two justices, a majority of the panel affirmed the Supreme Court’s decision after finding that LPC’s determination was irrational and affected by an error of law because it was based on the erroneous advice of its counsel that caused a misunderstanding of LPC’s authority under the Landmarks Law.  The court concluded that, contrary to the legal advice it received, the LPC has the authority under the Landmarks Law to regulate the clock mechanism because it effectuates the Landmarks Law’s statutory purposes and because the law’s language “clearly gives the LPC authority to require the owner to run the clock by its still functioning mechanism and to deny the request to electrify it.”

The court reasoned that the LPC had designated the building’s fourteenth floor interior, including the clocktower machinery room and the clock machinery, as an interior landmark because the clock’s mechanism “represents an element of the city’s cultural and economic history and contributes to the building’s historical value,” and because maintaining it “would promote pride in the ‘accomplishments of the past’ and advance the [Landmarks Law’s] statutory purposes.”

Moreover, the court said, the LPC’s approval of the clock mechanism proposal was not rational. In the court’s view, the building’s “majestic clock, and its historically significant functioning mechanism, is a perfect example of the very reason the Landmarks Law exists,” because, as provided in Section 25-301(b), the “protection, . . . perpetuation, and use of [objects] of special character or special historical or aesthetic interest or value is a public necessity.”

The court also examined whether the LPC has the authority to retain public access to the clocktower, and ruled that, under the Landmarks Law, the LPC may reject a COA that would cause a designated interior to be inaccessible to the public, and may require the owner to continue to provide at least some degree of public access.  The court reasoned that the statutory purposes of the Landmarks Law would be thwarted if the public was denied access to the clocktower and the opportunity to view its historic mechanism.

Whether the First Department’s decision will be the final word on this issue remains to be seen as the sharp division in the panel makes it likely that the case will make its way up to the Court of Appeals.  For now, however, the decision means that the Landmarks Law permits the LPC to require the private owner of property purchased subject to a prior interior landmark designation to preserve the historic character and operation of the interior landmark and to continue to permit at least minimal public access to it.