New York Law Review

Tag: Gordon v. Rush

  • Gordon v. Rush, 100 N.Y.2d 236 (2003): Estoppel of Subsequent SEQRA Review After Prior Negative Declaration

    Gordon v. Rush, 100 N.Y.2d 236 (2003)

    When a lead agency under SEQRA issues a negative declaration after a coordinated review, other involved agencies with notice of the process are generally bound by that determination and cannot conduct their own subsequent SEQRA review unless they timely challenge the lead agency’s determination.

    Summary

    Oceanfront property owners sought permits from the Town of Southampton and the DEC to install bulkheads. The DEC, as lead agency, issued a negative declaration after a coordinated SEQRA review. The Town’s Coastal Erosion Hazard Board of Review, after initially not objecting, later sought to conduct its own SEQRA review and issued a positive declaration requiring an EIS. The Court of Appeals held that the Board was bound by the DEC’s negative declaration because it had notice of the coordinated review and failed to raise objections. The Board’s attempt to conduct a subsequent, independent SEQRA review was thus unauthorized.

    Facts

    Storms caused erosion to beaches in Bridgehampton, NY, prompting oceanfront property owners (petitioners) to request permits to install steel bulkheads. They applied to both the Town of Southampton (through its Coastal Erosion Hazard Area (CEHA) Administrator) and the Department of Environmental Conservation (DEC). The CEHA Administrator was the liaison with DEC. The DEC had jurisdiction because the bulkheads were within tidal wetlands. Initially, the Town Administrator requested the DEC act as lead agency. After initial concerns, the petitioners modified their applications, moving the bulkheads landward of the primary dune.

    Procedural History

    The DEC issued negative declarations and wetlands permits. The Town CEHA Administrator denied the coastal erosion permits because the modified proposal violated the Town Code. Petitioners appealed to the Town’s Coastal Erosion Hazard Board of Review. The Board decided to conduct its own SEQRA review, leading to a positive declaration. Petitioners then commenced a CPLR Article 78 proceeding and declaratory judgment action (Gordon v Matthew). The Supreme Court compelled the Board to review the Administrator’s denial but annulled the Board’s authority to conduct a new SEQRA review, remanding for further proceedings. On remand, the Board again declared itself lead agency and issued a positive declaration, leading to a second Article 78 proceeding. The Supreme Court annulled the Board’s resolution, and the Appellate Division affirmed. The Court of Appeals granted leave to appeal.

    Issue(s)

    1. Whether the Board’s issuance of a positive declaration requiring the preparation of a DEIS (Draft Environmental Impact Statement) is ripe for judicial review.

    2. Whether the Town of Southampton Coastal Erosion Hazard Board of Review was bound by the prior negative declaration issued by the Department of Environmental Conservation (DEC) acting as lead agency in a coordinated State Environmental Quality Review Act (SEQRA) review.

    Holding

    1. Yes, because the issuance of the positive declaration directing petitioners to prepare a DEIS, involving the expenditure of time and resources, after petitioners had already been through the coordinated review process and a negative declaration had been issued by the DEC as lead agency constitutes a final administrative action ripe for judicial review.

    2. Yes, because the Board had notice of the DEC’s coordinated SEQRA review process and failed to raise objections during that process. The Board is therefore bound by the DEC’s negative declaration.

    Court’s Reasoning

    The Court reasoned that the Board’s action was ripe for review because it imposed an obligation on the petitioners to prepare a DEIS, which constitutes a concrete injury. The Court distinguished this case from situations where a positive declaration is merely a step in the decision-making process, emphasizing that the DEC had already conducted a coordinated review and issued a negative declaration, in which the Board had an opportunity but failed to participate. Requiring the petitioners to expend time and resources on a DEIS after the negative declaration inflicts actual harm. The Court emphasized the need for a “pragmatic evaluation” of whether the agency action inflicts “an actual, concrete injury.”

    On the merits, the Court found that the Board was bound by the DEC’s negative declaration. The DEC properly identified the involved agencies and conducted a coordinated review. The Court noted that the Administrator was the primary liaison with the DEC and received copies of the DEC’s communications. The Board failed to advise the DEC of any concerns during the SEQRA process, as required by regulations. “The Board did not make its objections known until after it received copies of the negative declarations and tidal wetlands permits issued by the DEC.”

    To challenge the DEC’s issuance of the tidal wetlands permits and negative declaration, the Board should have commenced a timely Article 78 proceeding. Because the Board was bound by the DEC’s negative declaration, its decision to conduct its own SEQRA review was unauthorized. The court affirmed that the DEC took the necessary “hard look” at “the relevant areas of environmental concern” (Matter of Merson v McNally, 90 NY2d 742, 751 [1997]).