A recent decision from the Nassau County Supreme Court, Healy v. Town of Hempstead Board of Appeals, overturned a municipal determination that granted special zoning exceptions and variances to a Greek Orthodox Church located in Merrick, New York. The church wanted to construct a two-story cultural center and related parking next to the church. It applied to the Town of Hempstead Board of Appeals (“Board of Appeals”) for the special exceptions and variances.

Residents in the area opposed the application, claiming the construction would adversely affect the environment. After the Board of Appeals granted the application, the residents sued, claiming that: (1) the hearing was defective; (2) the negative declaration issued under the State Environmental Quality Review Act (“SEQRA”) was arbitrary, capricious, an abuse of discretion and affected by an error of law; (3) the Board of Appeals gave excessive deference to the Religious Land Use and Institutional Persons Act; and (4) one member of the Board of Appeals had a conflict of interest.

The Court rejected all of the asserted grounds for reversal except the SEQRA review.  The Court found no defect in the Board of Appeals hearing. It noted that a zoning board of appeals can conduct informal hearings, is not required to use the rules of evidence at such hearings, and is not required to swear in witnesses or cross-examine them. The hearing that was conducted lasted 12 hours, included 16 witnesses in support of the church’s application and 24 witnesses in opposition, and expert testimony.

As to the supposed conflict of interest, one member of the Board of Appeals was the sister-in-law of an attorney who used to represent the church and the managing partner of that lawyer’s law firm was currently the campaign manager for the board member’s estranged husband. The Court rejected that ground, noting that the residents failed to demonstrate that the board member had any pecuniary or material interest in the outcome of the application and she did not cast the deciding vote as the decision was unanimous.

Unfortunately for the church and the Board of Appeals, the Court found the SEQRA review to be woefully inadequate. The Board of Appeals completed a Short Environmental Assessment Form, which identified two concerns – the proposed application would result in a change in the use and intensity of the land and would change the character or quality of the existing neighborhood. The Board of Appeals declared the application an unlisted action under SEQRA. The Board of Appeals adopted a one paragraph resolution declaring that the cultural center would not have a significant effect on the environment. The resolution did not contain any rationale, explanation or articulation of the basis for the SEQRA determination. The Court found this did not meet SEQRA’s “hard look” or “reasoned elaboration” requirements. The Court also ruled that the zoning determination cannot be used as the rationale for the SEQRA determination. As a result, the Court vacated the Board of Appeals decision.

 

In SEQRA parlance, a “Negative Declaration of Environmental Significance”, or “Neg. Dec.”, is a lead agency’s finding that the proposed Type I or Unlisted Action under review will not result in any significant adverse environmental impacts. An applicant whose project receives a Neg. Dec. is spared the (often) considerable time and expense of preparing an environmental impact statement (EIS) and the gauntlet of procedural steps that follow a positive declaration. However, a Neg. Dec. must be accompanied by a “reasoned elaboration” of the bases for the determination along with references to supporting documentation in the record. A Neg. Dec. which lacks a reasoned elaboration is invalid on its face, see, e.g., New York City Coal. to End Lead Poisoning, Inc. v. Vallone, 100 N.Y.2d 337 (2003), and reviewing courts will not conduct an independent search of the record to discern the lead agency’s rationale and salvage the determination. See, e.g., Matter of Healy, 2018 N.Y. Slip Op. 28261, — N.Y.S.3d —- (Sup. Ct. Nassau Co. 2018) (wherein the court commended the lead agency on a thorough SEQRA review, but was constrained nonetheless to set aside the agency’s negative declaration because it did not contain a written reasoned elaboration).

In Vill. of Ballston Spa v. City of Saratoga Springs, 163 A.D.3d 1220, — N.Y.S.3d —- (Decided July 12, 2018), the Third Department struck a careful balance between SEQRA’s rigid “strict compliance” standard and consideration for practical mistakes that sometimes occur when a lead agency moves through the SEQRA process on a particular application. In 2017, the City of Saratoga Springs sought to condemn a stretch of land adjacent to a heavily-trafficked road for the creation of a new pedestrian/bicycle trail. The City Council, as lead agency, classified the project as a Type I Action and completed parts 1 and 2 of a full Environmental Assessment Form (EAF).

Eventually, the City Council adopted a resolution finding that the project would not result in any significant adverse environmental impacts and issued a negative declaration. It was then brought to the Council’s attention that its resolution did not include information explaining the basis for the determination. Two months later, the Council adopted a supplemental resolution reaffirming its Neg. Dec. for the project. This time, the resolution included specific information addressing each potential environmental impact identified in part 2 of the EAF and the Council’s rationale for why those issues would not result in any significant adverse environmental impacts. Opponents of the project challenged the Neg. Dec. contending that the supplemental resolution was not a permitted action under SEQRA.

On Appeal, the Appellate Division found that the City complied with SEQRA’s procedural requirements. In doing so, the Court expressly rejected the petitioners’ argument that the supplemental resolution would have been proper only under one of the enumerated situations set forth in 6 NYCRR 617.7(e) and (f) of the SEQRA regulations, which govern the amendment and rescission of negative declarations. The Court held that while 6 NYCRR 617.7(e) and (f) dictate a lead agency’s response to certain developments following the adoption of a Neg. Dec., those provisions are not exhaustive and do not preclude a lead agency from correcting a mistake in process under other circumstances.

Of particular relevance for the Court were the facts that the Council had conducted an earnest review of the relevant environmental issues; held another public meeting to discuss the contents of the supplemental resolution, and took additional procedural steps before reaffirming its negative declaration for the project. The supplemental resolution was also adopted before the Council took final action to approve the project. The Court observed that, as a practical matter, nullification of the Neg. Dec. would only have resulted in a redundant SEQRA process that would have undoubtedly reached the same conclusion. Thus, the Court ruled that the supplemental resolution was a proper means to correct the omission of the reasoned elaboration from the original Neg. Dec.

The Third Department’s decision in Ballston Spa lends itself to the proposition that a lead agency can, at times, correct the fatal defect of omitting a reasoned elaboration from a negative declaration.  This is not to say, however, that any writing presented after the adoption of a Neg. Dec. will be sufficient.  In Matter of Dawley v. Whitetail 414, LLC, 130 A.D.3d 1570, 14 N.Y.S.3d 854 (4th Dept. 2015) (cited in contrast in Ballston Spa), the Fourth Department ruled that a written attachment presented after the adoption of a negative declaration could not serve as a reasoned elaboration where the respondent town board, serving as the lead agency, never reviewed the attachment and never voted to have it included as a supplement to its negative declaration. See, also, Rochester Eastside Residents for Appropriate Dev., Inc. v. City of Rochester, 150 A.D.3d 1678, 54 N.Y.S.3d 484 (4th Dept. 2017) (also cited in Ballston Spa) holding that a document containing the purported reasoning for the lead agency’s determination, prepared subsequent to the issuance of the negative, did not fulfill the statutory mandate. It is therefore uncertain how another court might rule if presented with a similar set of facts.  Careful and thorough drafting continues to be the best hope of insulating a negative declaration from legal challenge.

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

Earlier this year, the Third Department handed down a surprising upset in the eminent domain arena.  See, Matter of Adirondack Historical Association v Village of Lake Placid, 161 A.D.3d 1256 [3d Dept 2018]The Appellate Division nullified the condemnation because the Village of Lake Placid failed to consider the environmental impact of its use of eminent domain to acquire two vacant parcels of land for the purpose of constructing a parking garage.  The Village’s achilles heel was its failure to take the requisite “hard look” at traffic under the State Environmental Quality Review Act (SEQRA).

The Eminent Domain Procedure Law (“EDPL”) is New York’s comprehensive law dictating the procedures that must be followed by the state, municipalities and other entities with the power of eminent domain before any condemnation may take place.  EDPL §207 deals with a judicial challenge to the proposed condemnation after the completion  of the determination.  Within 30 days, an aggrieved party must file a petition in the Appellate Division (not the Supreme Court) where the proposed condemnation is to take place.  EDPL §207(C) further limits the scope of review to, among other things, whether the condemnor’s determination and findings were made in accordance Article 8 of the Environmental Conservation Law (“ECL” aka “SEQRA”).

Here, the acquisition of land by the Village was considered an Unlisted Action, and a short Environmental Assessment Form (“EAF”) was prepared.  As a result, the Village Board was required to review the EAF and the criteria contained in SEQRA to identify the relevant areas of environmental concern.  Pursuant to SEQRA, the Village must thoroughly analyze the identified relevant areas of environmental concern to determine if the action may have a significant adverse impact on the environment, and set forth its determination of significance in a written form containing a reasoned elaboration (6 NYCRR 617.7 [b] ).  Any adverse change in traffic levels, such as the case with developing a parking garage, is a potential area of environmental concern.

During both the public hearing and the written comment period, concerns regarding increased traffic congestion and other potential traffic impacts associated with the proposed condemnation were repeatedly voiced.  Yet, according to the Appellate Division, the record is devoid of any evidence that the Village Board took the requisite hard look at these potential traffic impacts.  Indeed, the only proof of the Village Board’s hard look is the conclusory statement in its resolution that “[t]here is no significant environmental impact that could not be mitigated with reasonable measures.”

In light of this, the Court held that given the Village Board’s failure to set forth a reasoned elaboration for its conclusion that the identified traffic concerns were not significant, the SEQRA findings and determinations made in connection with the condemnation of the subject property were vacated.  Accordingly, the petitioners blocked the Village from seizing the two parcels of land through eminent domain.

This decision reinforces the importance of municipalities taking the “hard look” under SEQRA when contemplating the powerful tool of eminent domain.

 

 

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!

 

 

 

 

 

An application was made for a site plan to the Planning Board of the City of Poughkeepsie for a 24 two-bedroom unit condominium complex in four buildings on a 3.4 acre parcel adjacent to an historic district.   The site had existing mature trees on the perimeter of the property, some of which were proposed to be cut down and replaced with new trees.   On April 19, 2011, the City of Poughkeepsie Planning Board issued a negative declaration pursuant to the New York State Environmental Quality Review Act (“SEQRA”). The Historic Southside Neighborhood Association appealed the determination in an Article 78 Proceeding to the Dutchess County Supreme Court seeking an order annulling the negative declaration and directing the Planning Board to issue a positive declaration and proceed with an Environmental Impact Statement (“EIS”). See Jeanette Peterson as President of the Historic Southside Neighborhood Assn. v. Planning Board of the City of Poughkeepsie et al., Index No. 3511/2011, September 2, 2015.

The Supreme Court stated the standard in reviewing the negative declaration issued by the Planning Board was limited to “whether the agency identified the relevant areas of environmental concerns took a hard look at them, and made a reasonable elaboration of the grounds for its determination.” The Supreme Court found that the Planning Board took the requisite “hard look” at the potential impacts of the proposed project on the bordering historic district during a 20 month review period. The Court found that the Planning Board’s reliance on the New York State Office of Parks, Recreation and Historic Preservation (“OPRHP”) which issued three letters concluding that it did not perceive any substantial impact to the neighboring historic district was reasonable. The Supreme Court upheld the negative declaration and dismissed the proceeding. The Historic Southside Neighborhood Association appealed the matter to the Appellate Division.

In its decision dated July 5, 2018, the Appellate Division, Second Department, in the Matter of Jeannette Peterson, etc., v. Planning Board of the City of Poughkeepsie, et al., 2018 N.Y. Slip. Op. 05049, reversed the Supreme Courts determination. Regarding the impact to the historic district the Appellate Division found the Planning Board’s reliance on the OPRHP insufficient stating that 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.”

Additionally, the Court reviewed the Planning Board’s determination regarding the potential impacts to vegetation or fauna cited in the negative declaration which stated that the proposed action would not result in the “removal or destruction of large quantities of vegetation or fauna.” However, the Environmental Assessment Form relied upon by the Planning Board noted the reduction of the 3.4 acre parcel’s forestation from 2.75 acres to 0.3 acres. The Court stated, “[i]n the context of this project, the level of deforestation is significant.”

Therefore, the Appellate Division found that the proposed action may have significant adverse environmental impacts upon one or more areas of environmental concern and determined that the Planning Board’s negative declaration was arbitrary and capricious. The matter was remitted to the Planning Board for the preparation of an Environmental Impact Statement.

In 2012, the New York State Department of Environmental Conservation (NYSDEC) proposed sweeping changes to its State Environmental Quality Review Act (SEQRA) regulations. These proposed changes were not adopted. Rather, five years later, in February 2017, the NYSDEC issued proposed amendments to the SEQRA regulations and a draft generic environmental impact statement, (GEIS), in which it set forth its rationale and objectives for the proposed amendments. We wrote about this development in an April 3, 2017 blog post.

The NYSDEC did not enact the 2017 proposed regulations. Instead, more than one year later, on April 4, 2018, the NYSDEC released revised proposed amendments to the SEQRA regulations and a revised draft GEIS, in which it addressed approximately 250 comments it received in 2017. At the same time, the NYSDEC released proposed revisions to Part 1 of the Short Environmental Assessment (EAS) Form and to Parts 1 and 2 of the Full EAS Form. The 2018 revised proposed amendments made refinements to the existing regulations, in particular to Type II actions. A Type II action does not require SEQRA review. The NYSDEC is accepting comments through May 4, 2018 on these revised proposed amendments.

Here’s a brief summary of the 2018 revised proposed amendments to the SEQRA regulations.

The existing SEQRA regulations note that each agency can adopt its own list of Type II actions and is not bound by a list of Type II actions adopted by another agency. [6 NYCRR § 617.5(b)] The revised proposed amendment to that provision will add a clarifying sentence that explains that an action that is “identified as a Type II action in an agency’s procedures” does not require it to “be treated as a Type II action by any other involved agency not identifying it as a Type II action in its procedures.”

Other proposed changes will indicate that the following are not subject to SEQRA review.

  • “retrofit of an existing structure and its appurtenant areas to incorporate green infrastructure”
  • “installation of telecommunication cables in existing highway or utility rights of way utilizing trenchless burial or aerial placement on existing poles”
  • “installation of solar arrays where such installation involves 25 acres or less of physical alterations” on closed sanitary landfills, certain brownfield sites that have received certificates of completion (COCs), or certain inactive hazardous waste sites that have received full liability releases or COCs

Another change will indicate that the installation of solar arrays on an existing structure is not subject to SEQRA review if the structure is not listed on the Register of Historic Places, is not located in a listed historical district, or has not been determined by the Commissioner of Parks, Recreation and Historic Preservation to be eligible for such listings.

Another proposed change will indicate that the reuse of a residential or commercial structure, or of a mixed use residential/commercial structure, where the use is a permitted use or is permitted by special use permit and does not meet or exceed criteria contained in 6 NYCRR § 617.4, is not subject to SEQRA review. In addition, a recommendation of a county or regional planning board pursuant to General Municipal Law §§ 239-m or 239-n, an agency’s acquisition of or dedication of 25 acres or less as parkland, or the sale of real property by public auction, is not subject to SEQRA review. And, the construction and operation of an anaerobic digester, under certain conditions, will also be added to actions that are not subject to SEQRA review.

The revised proposed amendments also contain some refinements to the DEIS process. Of particular interest to Long Islanders is a proposed insert to 6 NYCRR § 617.9. The insert will apply to proposed actions that are in or involve resources of Nassau or Suffolk Counties. Such DEIS will have to include “measures to avoid or reduce an action’s environmental impacts and vulnerability from the effects of climate change such as sea level rise and flooding.”

One other proposed insert, to 6 NYCRR § 617.12, will be of concern to municipal agencies. That insert requires the lead agency to publish or cause to be published on a publicly available and free website the draft and final scopes and the draft and final environmental impact statements. These documents must remain on the website for at least one year after the later of (1) all permits having been issued, or (2) the action being funded or undertaken.

Stay tuned to see when, or if, the NYSDEC finally enacts the proposed changes to the SEQRA regulations.

On December 12, 2017, the New York State Court of Appeals issued a joint decision on the appeal of two Article 78 proceedings challenging the same proposed development. The two appeals, Friends of P.S. 163 v Jewish Home Lifecare and New York State Department of Health and Wright v New York State Department of Health, sought to annul a decision of the New York State Department of Health (NYSDOH), approving the construction of a 414-bed residential facility for elderly and disabled individuals on the Upper West Side of Manhattan.  The NYSDOH was designated as the lead agency under the State Environmental Quality Review Act (“SEQRA”).   One set of petitioners were the parents of children attending a public elementary school located next door to the facility’s proposed location. The other set of petitioners were tenants living in apartment buildings that surround the facility’s proposed location.

Petitioners complained that the NYSDOH’s SEQRA review was procedurally and substantively flawed and did not adequately address the risks of exposure to hazardous materials, in particular, lead-contaminated soil and airborne lead, as well as exposure to construction noise. In affirming the Appellate Division, which had reversed the decision of the Supreme Court, the Court of Appeals dismissed both challenges and upheld the NYSDOH’s decision.

The Court of Appeals went through an extensive analysis of what the NYSDOH did prior to issuing its SEQRA Findings Statement. This included: (1) a Phase I environmental site assessment that did not identify any recognized environmental conditions; (2) a Phase II environmental site assessment that included 38 soil samples taken from areas within the footprint of the proposed facility and nearby locations outside the footprint and also included groundwater samples; (3) scoping for the draft environmental impact statement (DEIS); (4) preparation of the DEIS; (5) two public hearings on the DEIS; (6) preparation and filing of the final environmental impact statement (FEIS); and (7) preparation and adoption of the SEQRA Findings Statement.

The Court of Appeals noted that the sampling detected levels of lead in the soil that were typical of sites containing urban fill and were below the restricted residential soil cleanup objectives used by the New York State Department of Environmental Conservation. In addition, the NYSDOH determined that certain mitigative measures would be required to handle, monitor and contain the lead-contaminated soil during construction. As to potential levels of airborne lead dust, the NYSDOH determined that using certain monitoring and mitigation measures during construction would ensure that concentrations of airborne lead dust would not exceed the national ambient air quality standards. As to noise, the NYSDOH conducted modeling to assess potential impacts and assess abatement techniques to control noise. It also relied upon New York City’s Environmental Quality Review Technical Manual to minimize the exceedance of certain decibel limits during construction.

Some of the mitigation measures imposed by the NYSDOH in its SEQRA Findings Statement for the lead-contaminated soil included: (1) extensive construction health and safety plans; (2) a remedial action plan; (3) requiring tarps on trucks; (4) requiring wetting soil during excavation and loading onto the trucks; (5) requiring proper off-site disposal of the soil; (6) vehicle inspections; (7) real-time monitoring of dust levels; and (8) requiring soil vapor barriers for the cellar and sidewalls of the new facility.  The noise-related impacts would be controlled by: (1) ten-foot sound barriers, which would be increased to sixteen feet for classrooms closest to the construction; (2) interior acoustic windows in classrooms facing the construction site; (3) window air conditioning units for certain classrooms; and (4) prohibiting noisy construction activities during the school’s annual testing periods.

In their Article 78 proceedings, petitioners contended that the NYSDOH used flawed assessment methodologies, relied upon outdated standards, failed to adequately mitigate environmental damage of the proposed construction, and failed to adequately consider alternative mitigation measures. In particular, petitioners asserted that the developer should have been required to install central air conditioning in the school and tent the excavation.

Petitioners initially prevailed, getting the Supreme Court to annul and vacate the NYSDOH approval. That was a short-lived victory, as the Appellate Division reversed and dismissed the two proceedings, finding that the trial court has inappropriately substituted its judgment for the expertize of the NYSDOH. The Appellate Division granted leave to appeal and the Court of Appeals affirmed the appellate court.

The Court of Appeals noted that the court’s role in reviewing the lead agency’s decision under SEQRA is limited to determining whether the decision was made in accordance with lawful procedure, and whether substantively the decision was affected by an error of law, was arbitrary and capricious or an abuse of discretion. The Court of Appeals further noted that a reviewing court is not supposed to weigh the desirability of the action or choose among the alternatives.   Rather, it is limited to determining whether the agency took a “hard look” at relevant areas of environmental concern and made a “reasoned elaboration” for the grounds of its decision. Using those standards, the Court of Appeals found that the NYSDOH had relied upon the appropriate standards, had carefully considered the potential environmental harm and acted within its authority in choosing among the alternatives, further noting the wide latitude given to agencies in conducting SEQRA reviews.

In 2009, Scenic Development, LLC (“Scenic”) sought a zone change for the property formerly known as the “Patrick Farm” located in the Town of Ramapo to permit the development of multi-family housing. In three determinations adopted January 25, 2010, the Town Board resolved to (i) approve a findings statement pursuant to the State Environmental Quality Review Act (“SEQRA”) for the proposed zone change, (ii) amend the Comprehensive Plan to allow for the zone change, and (iii) approve the zone change. The Town’s determinations have led to a series of cases challenging these decisions, with three recent decisions discussed below.

Scenic purchased the property in 2001.  The underlying zoning of the property was R-80 when Scenic purchased the property and was subsequently changed to R-40, or one house per 40,000 square feet, when the Town adopted its 2004 Comprehensive Plan. In 2009, when it sought the zone change, Scenic proposed to build 479 housing units on 197 acres of the former farm along the Route 202/306 corridor outside Pomona. Therefore, the zone change would have dramatically increased the density permitted on the property.

Although the project still has not come to fruition, with some additional environmental review as discussed below, the project may still be viable.

Youngewirth v. Town Board of Ramapo

In Matter of Youngewirth v. Town of Ramapo Town Board et al., decided November 8, 2017, the Appellate Division, Second Department reversed the Supreme Court’s, May 8, 2013 determination which denied the petition and dismissed the proceeding. The appellate court annulled the determinations of the Town Board and remitted the matter back to the Town Board for further proceedings consistent with the decision. Specifically, the Court found that the Town Board did not take the requisite “hard look” pursuant to SEQRA because of its (i) failure to review the environmental impact of the proposed development in close proximity to the existing Columbia Natural Gas Pipeline, (ii) failure to consider the combined impact of the development and pipeline on the environment, (iii) failure to list Columbia Gas as an “interested agency” pursuant to SEQRA, and (iv) failure to make a “reasoned elaboration” for the basis of its determination regarding this issue by not mentioning the potential impacts in its FEIS or findings statement.

The Court, however, sided with the Town on petitioner’s claim that the zone change was in conflict with the Comprehensive Plan and found that petitioner failed to establish a clear conflict with the Comprehensive Plan. The Court also found that petitioner failed to establish that the zone change constituted impermissible spot zoning. The Court further noted that requiring a certain number of affordable housing units was consistent with the Comprehensive Plan and was a reasonable condition related to and incidental to the property. However, because the Court found that the approval for the findings statement pursuant to SEQRA was required prior to amending the Comprehensive Plan or granting the proposed zone change, the annulment of the resolution approving the SEQRA findings statement required the annulment of the determinations regarding the Comprehensive Plan and proposed zone change.   Ultimately, the Court remitted the matter back to the Town Board for preparation of a Supplemental Environmental Impact Statement (“SEIS”) to consider the issues related to the gas pipeline.

Shapiro v. Ramapo Planning Board

In the related case of Matter of Shapiro v. Planning Board of Town of Ramapo et al., decided November 8, 2017, the Appellate Division, Second Department likewise annulled the Supreme Court’s determinations and remitted the matter back to the Planning Board for further review consistent with its decision.  The Planning Board approved Scenic’s three separate applications for final subdivision and site plan approval of three housing projects as part of Scenic’s proposed development of the property.  Here, petitioner alleged that a SEIS was required in connection with the SEQRA review conducted for the proposed development because the applicant, Scenic, failed to obtain a jurisdictional determination from the United States Army Corps of Engineers (“ACOE”) validating the delineation of wetlands on the property. The Court outlined that a lead agency’s determination whether to require an SEIS is discretionary. Specifically, SEQRA in section 6 NYCRR 617.9(a)(7(ii) provides, “the lead agency may require a supplemental EIS limited to the specific adverse environmental impacts not addressed or inadequately addressed in the EIS that arise from (a) changes proposed for the project, (b) newly discovered information, or (c) a change in circumstances related to the project”. Here, petitioners alleged that the Planning Board failed to consider newly discovered information having received a letter indicating that the ACOE reviewed the development plans but not the wetlands delineation. The applicant was required to obtain the ACOE’s jurisdictional wetlands delineation and the Planning Board was required to rely on the ACOE’s federal wetland delineation since wetlands were excluded in part from the yield calculations related to the proposed development. Thus the Court found that the Planning Board failed to take the requisite hard look pursuant to SEQRA and remitted the matter back to the Board for the preparation of an SEIS regarding the presence of wetlands on the property.

Village of Pomona v. Town of Ramapo

The neighboring Village of Pomona also sued the Town Board and Planning Board of Ramapo in two separate actions in which the Supreme Court denied the petitions and dismissed the proceedings. On November 8, 2017, The Appellate Division, Second Department reversed these determinations related to the Scenic proposal as well in Village of Pomona v. Town of Ramapo et al. Here, although the Court found that the Town of Ramapo adequately considered the effect of the proposed development on community character and complied with General Municipal Law §239-m(3) by providing a point-by-point response to the Village’s comments on the application, the Court determined that the lower court should have granted the Village’s petition based on the reasons stated in the Youngewirth decision referenced above.

In all, there have been approximately ten challenges over the years related to the Town of Ramapo’s approvals of Scenic’s proposed development. Although the local land preservation groups claim the recent court decisions as a total win, the Appellate Division made significant findings in support of the Town of Ramapo’s review and reversed the Supreme Court’s determinations on very specific grounds, which, if addressed correctly by the Town, could result in the multi-family development being built.

 

 

After Hurricane Sandy devastated Long Beach and its boardwalk in 2012, officials sought to reconstruct the city’s iconic esplanade. As part of the rebuild, the Long Beach City Council determined to award contracts for the construction of comfort stations along the wooden promenade, including a comfort station at Lincoln Boulevard which would be installed as a “bump-out,” extending northwardly approximately 23 feet from the boardwalk into the street’s dead-end. However, boardwalk residents living in the adjacent condominium complex were dissatisfied with the proposal and opposed construction. Their opposition culminated in the Article 78 litigation captioned Shapiro v. Torres__ A.D.3d __, Docket No. 2015-09420 (2d Dep’t 2017).

The condominium residents, as Plaintiffs-Petitioners, commenced a hybrid proceeding/action seeking review of the Council’s March 2015 determination and a judgment declaring construction of the comfort stations is a prohibited use of a public street, together with related injunctive relief. In their lawsuit, Petitioners-Plaintiffs alleged the Council violated the State Environmental Quality Review Act (SEQRA) and the Long Beach City Charter and that the comfort station at Lincoln Boulevard would interfere with their easement of light, air and access.

The Supreme Court, Nassau County, denied Plaintiffs-Petitioners’ motion for a preliminary injunction, effectively determined that the construction of the structure is not a prohibited use of a public street, denied the petition and dismissed the hybrid proceeding/action. On appeal, the Appellate Division affirmed and modified. In its decision, the Second Department analyzed two distinct issues: (1) whether the Petitioners-Plaintiffs had standing to proffer their SEQRA challenge and (2) whether the construction of the comfort station was a permissible use of Lincoln Boulevard.

With respect to SEQRA standing, the Second Department reasoned that the alleged environmental injuries were too “speculative and conjectural to demonstrate an actual and specific injury-in-fact.” The Petitioners-Plaintiffs failed to show an environmental injury different from that of the public at-large and that the alleged injury fell within the zone of interests protected by SEQRA. The Court noted “[c]lose proximity alone is insufficient to confer standing where there are no zoning issues involved, and general environmental concerns will not suffice.” Moreover, a party must also demonstrate it will suffer an injury that is environmental and not solely economic in nature.

With respect to the permissible use of Lincoln Boulevard, the Court treated this issue vis-à-vis Petitioners-Plaintiffs’ claims of an interference with their easement of light, air and access.   An owner of land abutting a highway or street has such an easement incident to ownership; however, when fee title of the roadway is transferred to the State, the State may use the roadway for any public purpose not inconsistent with or prejudicial to its use as a roadway. The mere disturbance of light, air and access to abutting owners by imposition of a new use consistent with roadway purposes must be tolerated and does not necessarily create a cause of action for interference with use and enjoyment of the premises.

At the Lincoln Boulevard site, the comfort station “bump-out” will not completely block Petitioners-Plaintiffs ocean view, will not prevent use of the public street, will not substantially affect the turn-around area in the dead-end and does not impact access to the condominium complex. The mere fact that the construction area is proximate to the Petitioners-Plaintiffs’ condominium complex does not signify that an easement of light, air and access creates a cause of action.

Accordingly, the Appellate Division affirmed the Supreme Court, with a minor modification to sufficiently address and resolve the declaratory judgment action.

Petitioners, residents and nearby occupants (“Petitioners”), commenced a hybrid Article 78 proceeding and declaratory judgment action against the Planning Board of the Village of Tuckahoe (“Board”) and others in Murphy v. Planning Board of Tuckahoe (Sup. Ct. Westchester County 2017), to annul a negative declaration issued by the Board. The Board initially issued a conditional negative declaration (“CND“) for a project to construct a hotel, restaurant and parking lot (“Project”) at a former marble quarry and dump site (“Site”). Petitioners filed suit after the Board amended its CND to a negative declaration.

The Site had been a quarry from the late 1800s until the 1930s, after which private entities and municipalities used the Site for dumping. In 2014, the project’s developer, Bilwin Development Affiliates, LLC (“Developer”), conducted environmental testing which revealed concentrations of volatile organic compounds, semi-volatile organic compounds and inorganic compounds at the Site. The Developer applied for admission into the New York State Brownfield Cleanup Program (“BCP”), which the New York State Department of Environmental Conservation (“DEC”) accepted. During plan preparation for the BCP, the Developer submitted an application to the Board for site plan approval for the Project; and the Board declared itself lead agency for SEQRA review.

In July 2015, after its review, the Board issued a draft conditional negative declaration (“CND”) with time for notice and comment. The Board ultimately adopted the CND in September 2015, categorizing the Project as an unlisted action with the condition that the Developer meet all DEC and Department of Health requirements.

Before and after issuance of the CND, the Developer – in conjunction with the DEC and the Board – performed additional Site investigations and prepared plans for remediation and containment. The final plans for the Project included remediation specifications for the contaminated soil, a community air monitoring plan and construction of a hotel and parking lot as a Site cap. The DEC determined that the remediation plan would eliminate or mitigate all significant threats to public health and the environment presented by contamination.

In October 2016, after a number of public meetings and comments, the Board amended the CND to a negative declaration based upon the DEC’s determination, the remediation plans and other documents in the record. This amendment occurred over a year after the issuance of the draft CND (July 2015). Petitioners sued to annul this decision claiming, among other things, that: (1) SEQRA regulations do not allow the amendment or rescission of a CND unless the lead agency later determines a positive declaration is appropriate; and, (2) the lead agency failed to take a “hard look” at evaluating the environmental impact of the methods to be used in removing contaminated soil and monitoring contaminants. Petitioners also challenged the issuance of the CND.

First, although SEQRA regulations require rescission of a negative declaration or CND if new substantive information or changes cause the lead agency to determine a significant adverse environmental impact may result, the regulations do not prohibit amendments to a CND that remove conditions. 6 NYCRR § 617.7(d)(2), (f)(1). Moreover, SEQRA regulations permit a lead agency, at its discretion, to amend a negative declaration (a CND is a type of negative declaration) at any time prior to the decision to approve an action. 6 NYCRR § 617.7(e). Therefore, the Board was allowed to amend or rescind the CND.

Second, with respect to excavating the contaminants, Petitioners argued that the proposed methods to remediate and monitor were unsafe. Notably, Petitioners did not argue that the proposed methods would have an adverse environmental impact. Petitioners cited their experts’ methods and opinions, which the Board already reviewed during the comment period. The Court held that, at best, Petitioners merely indicated a disagreement between Petitioners’ experts and the Board as to the preferred methods to remediate and monitor – which is not grounds to overturn the Board’s decision to issue the negative declaration.

Lastly, the Court held that Petitioners’ challenge to the underlying CND was untimely. The draft CND was published on July 21, 2015, the period of limitations began to run thirty (30) days later on August 20, 2015, and expired four (4) months later on December 20, 2015. Petitioners could not attack the underlying CND eleven (11) months past the period of limitations by virtue of seeking to annul a later amendment to that CND.

Based upon the foregoing, and other reasons, the Court dismissed these challenges.