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.

seqraThe New York State Department of Environmental Conservation (“NYSDEC”) proposed significant changes to the State Environmental Quality Review Act (“SEQRA”) regulations almost 5 years ago. The NYSDEC recently indicated that these proposed regulations finally will be enacted this year. The proposed regulations will streamline the SEQRA process. This post discusses changes to Type II actions under the proposed regulations.

Type II Projects

Type II actions do not require SEQRA review. The proposed regulations will add over a dozen different specific actions to this category. Some of the more interesting additions to Type II actions include:

  • In cities, towns, or villages with adopted zoning laws or ordinances, reuse of a commercial or residential structure not requiring a change in zoning or a use variance, unless it meets or exceeds certain specified thresholds.
  • In cities, towns, and villages with adopted subdivision regulations, a “minor” subdivision that does not involve construction of new roads, water, or sewer infrastructure and is not part of a larger tract subdivided within the previous 12 months.
  • A recommendation of a county or regional planning board issued pursuant to General Municipal Law §§ 239-m or 239-n.
  • Replacement, rehabilitation, or reconstruction of a structure or facility on the same site, including upgrading buildings to meet energy codes or to incorporate green building infrastructure techniques, within certain specified thresholds.
  • Installation of up to five megawatts of solar energy arrays on certain existing structures, including landfills, brownfield cleanup sites, and residential and commercial parking facilities.
  • Installation of cellular antennas or repeaters on certain existing structures.
  • Installation of fiber-optic or other broadband cable technology in existing highway or utility rights-of-way.
  • Specified brownfields clean-up agreements.
  • Acquisition, sale, lease, annexation, or transfer of any ownership of land to undertake any activity on the new list of Type II actions.
  • Disposition by a municipal or state agency of land, by auction, where there is no discretion on its part on the outcome, such as when a municipality or a state agency acquires land through foreclosure and is required to dispose of the site through a public auction to the highest qualified bidder.      

Conclusion

The NYSDEC is accepting comments on the proposed regulations until May 19, 2017 and intends to enact them in the Fall.

Canoe Place Inn, Hampton Bays
Canoe Place Inn, Hampton Bays, photo credit: www.27east.com

The Town of Southampton re-zoned three properties located in Hampton Bays adjacent or close to the Shinnecock Canal by amending the Town’s Zoning Code to add section 330-248(V), creating the Canoe Place Inn, Canal and Eastern District Maritime Planned Development District. This local law, adopted on January 13, 2015, provides for the rehabilitation of the Canoe Place Inn for use as an inn, catering facility, and restaurant. The law also provides for the development of a 37-unit luxury, waterfront town-house community and associated wastewater treatment facility on the Shinnecock Canal.   Four individual property owners/taxpayers formed an unincorporated community group called Shinnecock Neighbors to oppose the zoning changes and to challenge the local law via a hybrid Article 78 proceeding and declaratory action. In the case, entitled Shinnecock Neighbors, et al. v. Town of Southampton, R Squared Development LLC et al., 3 NYS3d 679 [Sup. Ct. Suffolk Co. 2016], the Shinnecock Neighbors allege, in part, that the local law should be deemed null and void because the Town Board failed to comply with the New York State Environmental Quality Review Act (“SEQRA”) and take the requisite hard look at the potential environmental impacts of the proposed development. Several of the respondents moved to dismiss the petition and complaint on the grounds that the petitioners lacked standing. In an order dated August 30, 2016, the Hon. William B. Rebolini, Justice of the Supreme Court, Suffolk County, dismissed the motion and held that the four petitioners and their unincorporated community group, Shinnecock Neighbors, had the requisite standing to bring the proceeding/action.

As noted in the decision, in order to establish standing in a land use matter, a party “must suffer direct harm (i.e., injury-in-fact) that is in some way different from that of the public at large and, further, that the claimed harm is within the zone of interests protected by the statute or statutes alleged to have been violated.” Shinnecock Neighbors v. Town of Southampton, 3 NYS3d at 683. An organization or association such as Shinnecock Neighbors has standing when one or more of its members has standing to sue, the association demonstrates that the interests it asserts are germane to its purpose, and it is evident that neither the asserted claim nor relief requires the participation of its individual members. (See Society of the Plastics Industry, Inc. v. County of Suffolk, 77 NY2d 761, 570 NYS2d 778 [1991]; Matter of Dental Society of State of NY v. Carey, 61 NY2d 330, 474 NYS2d 262 [1984]).

Three of the four individual petitioners owned residential properties within 500 feet of the proposed wastewater treatment facility. As a result, the Court found that these three individuals had standing and stated, “[a]s it is alleged that each of them resides in close proximity to the proposed development, there arises a presumption that each will be adversely affected in a manner different from the public at large.” Shinnecock Neighbors v. Town of Southampton, 3 NYS3d at 684. Additionally, the Court found that their allegations of harm, including increased traffic, increased noise and air pollution, and degradation of the community from the proximity of the wastewater treatment facility were within the zone of interests protected by SEQRA and the Town’s zoning code. Id. at 684.

Interestingly, the fourth individually-named petitioner asserted a different rationale for standing. Although this petitioner lived about one mile from the canal and was not within the zone of interests protected by the statute, she claimed to be an environmental activist, professional artist and “art activist” who required access to the canal as it was a significant source of her creative inspiration and that the proposed development would have a profound negative effect on her work. The Court found that this fourth petitioner had standing and stated: “…her use and enjoyment of the area is more intense than that of the general public and, therefore, that she may be directly harmed in a way different in kind and degree from others…like claims of specific environmental injury, injury to a petitioner’s aesthetic and environmental well-being, activities, pastimes or desire to use and observe natural resources may also be found to state cognizable interests for purposes of standing.” Id. at 684. As each of the four petitioners had standing, the Court determined that the Shinnecock Neighbors also had the requisite standing. The underlying proceeding/action is still pending before the Court.

Back on September 6, 2016, this blog commented on the case of Matter of Long Island Pine Barrens Society, Inc. v Central Pine Barrens Joint Planning & Policy Commission, 138 AD3d 996 [2d Dept 2016]. In that case, none of the individual petitioners lived within the zone of interests. Nevertheless, the Appellate Division found that the Society had standing because one of the petitioners, the Society’s Executive Director, used and enjoyed the Pine Barrens to a greater degree than most members of the public. Thus, based on the holdings in the Shinnecock Neighbors v. Town of Southampton and Matter of Long Island Pine Barrens Society, Inc. v Central Pine Barrens Joint Planning & Policy Commission cases, an organization may have standing even though all its members reside outside the zone of protected interests if at least one member can articulate a rationale that shows he or she has an interest that is different from the general public, and that interest may be adversely impacted by the proposed action.

 

In July 2012, the New York State Department of Environmental Conservation (“NYSDEC”)  proposed significant amendments to the regulations that implement the State Environmental Quality Review Act (“SEQRA”).[1]  The proposed changes will mandate certain steps that are currently optional, will lower threshold triggers for SEQRA review and will reclassify certain actions to change the level of SEQRA review.

Scoping, a process aimed at focusing environmental impact statements (“EIS”) on potentially significant adverse impacts and eliminating consideration of irrelevant or insignificant impacts, is currently optional.  The proposed amendments mandate scoping for every EIS. In addition, the proposed amendments place greater emphasis on using the environmental assessment form (“EAF”)[2] early in the scoping process.

Certain criteria for Type I actions, which are presumed to have significant adverse impacts and  require the preparation of an EIS, are proposed to be lowered.  For example, these actions would be classified as Type I under the proposed regulations: (i) residential developments with 500 or more parking spaces in communities with a population of 150,000 or less; and (2) residential developments with 1,000 or more parking spaces in communities with a population of 150,000 people or more.  The proposed amendments  would change certain Unlisted actions into Type I actions if they exceed certain criteria and are located wholly or partially within or substantially contiguous to an historic resource.

The NYSDEC is also proposing to broaden the list of actions that will not require review under SEQRA (so-called “Type II actions”).  These include: (1) certain minor subdivisions involving 10 acres or less and certain subdivisions of four or fewer lots; (2) replacement, rehabilitation, or reconstruction of  certain structures or facilities  that use green infrastructure techniques; (3)  installation of rooftop solar energy arrays on an existing structure, provided it is not listed on the National or State Register of Historic Places; (4)  installation of less than 25 megawatts of solar energy arrays on closed sanitary landfills; (5) installation of cellular antennas or repeaters on an existing structure that is not listed on the National or State Register of Historic Places; and (6) sites that are the subject of a NYSDEC Brownfield Clean-up Program agreement.

The NYSDEC is proposing to revise the timeline applicable to the completion of a final EIS.  Currently, a final EIS is supposed to be prepared within 45 days after the close of any hearing or within 60 days of the filing of the draft EIS. These deadlines are rarely met.  The proposed amendments provide that if a final EIS is not prepared and filed within 180 calendar days after the lead agency’s acceptance of the draft EIS, the EIS shall be deemed complete on the basis of the draft EIS, public comment, and the response to comments prepared and submitted by the project sponsor to the lead agency.

Whether these proposed changes, if enacted, will streamline the SEQRA process remains to be seen.


[1] http://www.dec.ny.gov/docs/permits_ej_operations_pdf/drftscope617.pdf

[2] http://www.dec.ny.gov/docs/permits_ej_operations_pdf/longeaf.pdf