New York Law Review

Tag: SEQRA

  • Matter of Ranco Sand & Stone Corp. v. Vecchio, 26 N.Y.3d 93 (2015): When a SEQRA Positive Declaration is Ripe for Judicial Review

    26 N.Y.3d 93 (2015)

    A SEQRA positive declaration requiring an environmental impact statement (EIS) is generally not ripe for judicial review because it’s an initial step in the SEQRA process, unless the declaration is unauthorized or further administrative action cannot ameliorate the harm.

    Summary

    Ranco Sand & Stone Corp. challenged a Town Board’s positive declaration under the State Environmental Quality Review Act (SEQRA), which mandated that Ranco prepare a draft environmental impact statement (DEIS) for a proposed rezoning. The New York Court of Appeals held that the positive declaration was not ripe for judicial review. The Court found that the declaration was an initial step in the SEQRA process and that the potential harm to Ranco, including the cost of preparing a DEIS, could be addressed by further administrative action. The Court distinguished this case from prior cases where a positive declaration was deemed ripe, emphasizing the need for a final agency determination before judicial intervention and the importance of not allowing piecemeal review of the SEQRA process.

    Facts

    Ranco owned two parcels of land in Smithtown, New York. Ranco sought to rezone parcel one from residential to heavy industrial use. The Town Board, acting as lead agency under SEQRA, issued a positive declaration, requiring Ranco to prepare a DEIS, due to potential environmental impacts. Ranco argued the declaration was unnecessary and would cause financial hardship, citing a prior rezoning of a contiguous parcel without a DEIS. The Town Board argued the declaration was not a final determination and was not yet ripe for review.

    Procedural History

    Ranco commenced an Article 78 proceeding in Supreme Court seeking to annul the positive declaration. The Supreme Court granted the Town’s motion to dismiss, finding the matter unripe. The Appellate Division affirmed, and the Court of Appeals granted leave to appeal.

    Issue(s)

    1. Whether a SEQRA positive declaration requiring preparation of a DEIS is a final and binding determination ripe for judicial review.

    Holding

    1. No, because the positive declaration was not a final administrative determination.

    Court’s Reasoning

    The Court applied the ripeness doctrine, requiring an administrative determination to be final before judicial review. The Court cited the two-prong test established in Matter of Gordon v. Rush (100 NY2d 236 (2003)). First, the action must “impose an obligation, deny a right or fix some legal relationship as a consummation of the administrative process.” Second, the apparent harm inflicted by the action “may not be ‘prevented or significantly ameliorated by further administrative action or by steps available to the complaining party.’” The Court found that while the positive declaration imposed an obligation on Ranco to prepare a DEIS, the harm was not yet final because the Town Board could still take further action on the rezoning application. The Court clarified that a positive declaration is usually an initial step in the SEQRA process and is not a final agency action. The court distinguished the case from Gordon, which involved an unauthorized action. The court emphasized that premature review of the SEQRA process could lead to significant delays.

    Practical Implications

    This case emphasizes that challenges to SEQRA positive declarations are generally premature. Attorneys should advise clients that a positive declaration alone usually does not trigger a right to judicial review. Legal practitioners must carefully assess the facts of a case to ascertain whether the agency’s action is final and whether further administrative processes might resolve the alleged injury. The case reinforces the principle that judicial review is generally reserved for final agency actions, which may have implications in other areas of administrative law. Subsequent cases that have applied or cited this ruling include those dealing with the finality of environmental reviews and the premature nature of challenges to preliminary agency actions.

  • Marvin v. Village of Painted Post, 26 N.Y.3d 306 (2015): Standing in SEQRA Cases and the ‘Special Injury’ Requirement

    Marvin v. Village of Painted Post, 26 N.Y.3d 306 (2015)

    To establish standing in land use matters under SEQRA, a plaintiff must demonstrate a harm that is different in kind or degree from that suffered by the public at large, even if others in the community also experience the harm.

    Summary

    This case concerns a challenge to a water sale and rail loading facility project in the Village of Painted Post, NY, under the State Environmental Quality Review Act (SEQRA). The central issue is whether a local resident, John Marvin, had standing to sue the Village based on increased train noise from the project. The lower courts disagreed on whether Marvin suffered a ‘special injury’ distinct from the general public’s. The New York Court of Appeals reversed the Appellate Division, holding that Marvin’s claims of noise pollution, arising from his proximity to the project and increased rail traffic, were sufficient to establish standing. The court clarified that harm need not be unique to confer standing, but must be different in kind or degree from that experienced by the general public. The court emphasized that to deny standing in this case would effectively shield governmental actions from judicial review and emphasized that multiple individuals experiencing similar harms does not negate the existence of a ‘special injury’ for purposes of establishing standing.

    Facts

    The Village of Painted Post entered into a surplus water sale agreement with SWEPI, LP, for the sale of water and leased land to Wellsboro & Corning Railroad (Wellsboro) for a water transloading facility. The Village determined the water sale was a Type II action and issued a negative declaration for the lease agreement. Construction began, and petitioners, including several organizations and individual residents, initiated an Article 78 proceeding. The petition alleged violations of SEQRA, including failure to consider environmental impacts and improper segmentation of the project review. John Marvin, a resident near the proposed rail loading facility, alleged he was adversely affected by increased train noise. Respondents moved to dismiss for lack of standing. Marvin submitted an affidavit stating the increased noise kept him awake.

    Procedural History

    The Supreme Court granted summary judgment for petitioners, finding Marvin had standing and the Village had violated SEQRA. The Appellate Division reversed, finding Marvin lacked standing because the noise he complained of was not different in kind or degree from the public at large, focusing that the source of the noise (i.e. the trains themselves) passed throughout the village. The Court of Appeals granted review.

    Issue(s)

    1. Whether John Marvin, a resident near a water transloading facility, has standing to challenge the Village’s actions under SEQRA, based on allegations of increased train noise affecting his quality of life?

    Holding

    1. Yes, because Marvin’s allegations of increased train noise constituted a harm different in kind or degree from the general public, thus establishing his standing.

    Court’s Reasoning

    The court reaffirmed the principle from Society of Plastics Indus. v County of Suffolk that for standing in land use matters, a plaintiff must show a ‘special injury’ different from the public at large. The court distinguished Marvin’s situation from a scenario where the public experienced indirect effects. Marvin, like those in Save the Pine Bush was directly impacted. The court emphasized that the harm need not be unique, and that the fact that others may experience the same harm does not preclude standing. The court held that the Appellate Division applied an overly restrictive analysis, which would shield government actions from judicial review. The court noted that Marvin’s allegations about train noise were distinct because they were directly related to the increased train traffic.

    Practical Implications

    This case clarifies the ‘special injury’ requirement for standing in SEQRA cases in New York. Attorneys should advise clients that standing is not automatically denied because others experience the same harm. A plaintiff can establish standing by demonstrating a direct, particularized harm resulting from a project’s impacts on their property. It is critical to emphasize the nature and degree of a plaintiff’s injury. This case suggests that if governmental action causes a real injury to a property, even if others in the vicinity are also impacted, standing may be present. When drafting pleadings, attorneys should ensure that the injury is described with enough specificity and that it falls within the zone of interests protected by SEQRA. The Court emphasized the need to avoid overly restrictive interpretations of standing rules to allow for judicial review of governmental decisions.

  • Bronx Committee for Toxic Free Schools v. New York City School Constr. Auth., 20 N.Y.3d 146 (2012): Supplemental EIS for Post-Remediation Monitoring

    Bronx Committee for Toxic Free Schools v. New York City School Constr. Auth., 20 N.Y.3d 146 (2012)

    An agency must supplement its Environmental Impact Statement (EIS) to describe remedial measures essential to understanding a project’s environmental impact when that showing is unrebutted.

    Summary

    The New York City School Construction Authority (Authority) sought to build a school campus on a contaminated former railroad yard. After participating in the Brownfield Cleanup Program and preparing an EIS, the Authority was challenged for failing to include long-term maintenance and monitoring plans for its environmental controls in the EIS. The Court of Appeals held that the Authority had to supplement its EIS. Because the Authority did not dispute the petitioners’ claim that these measures were essential to protecting the site’s occupants, the court found that a supplemental EIS was required to address the maintenance and monitoring protocols, despite the Authority’s participation in the Brownfield Program and submission of a site management plan to the Department of Environmental Conservation (DEC).

    Facts

    The Authority planned to construct a school campus on a site that was formerly a railroad yard in the Bronx. The site was significantly contaminated, requiring cleanup. The Authority participated in the Brownfield Cleanup Program administered by the DEC. As part of this program, the Authority submitted a Remedial Action Work Plan (RAWP) that included engineering controls like vapor and hydraulic barriers. The DEC conditionally approved the RAWP, requiring the Authority to develop a site management plan for DEC approval, which would detail the operation and maintenance of the implemented remedies. The Authority then prepared a draft and final EIS but did not include a description of long-term maintenance and monitoring procedures in either version.

    Procedural History

    Petitioners initiated a CPLR article 78 proceeding challenging the Authority’s SEQRA compliance, focusing on the absence of a long-term maintenance and monitoring protocol in the EIS. Supreme Court ordered the Authority to prepare a supplemental EIS. The Authority moved for reargument and renewal, arguing that the site management plan obviated the need for a supplemental EIS. Supreme Court granted reargument but adhered to its previous ruling. The Appellate Division affirmed. The Court of Appeals granted leave to appeal and affirmed the Appellate Division’s order.

    Issue(s)

    Whether the Authority violated the State Environmental Quality Review Act (SEQRA) by failing to describe in an EIS the methods it adopted for long-term maintenance and monitoring of the controls it used to prevent or mitigate environmental harm, when the Authority did not dispute that such information was essential to understanding the project’s environmental impact.

    Holding

    Yes, because the Authority did not dispute the petitioners’ showing that the long-term maintenance and monitoring measures were essential to protecting the site’s occupants from dangerous contaminants, and therefore, the EIS was incomplete without this information.

    Court’s Reasoning

    The Court of Appeals emphasized that an EIS must include a description of the proposed action, its environmental impact, and mitigation measures (ECL 8-0109[2]). The court’s role is to assess whether the agency identified relevant environmental concerns, took a “hard look” at them, and provided a “reasoned elaboration” for its determination, citing Matter of Jackson v New York State Urban Dev. Corp., 67 NY2d 400, 417 (1986). The court stated that the Authority did not argue that the maintenance and monitoring measures were minor details but failed to dispute petitioners’ claims that the measures were “essential” to protecting occupants. The court rejected the Authority’s arguments that it reasonably postponed detailing these measures until after the EIS filing and that the DEC’s approval of the site management plan within the Brownfield Program satisfied the requirement. The court reasoned that DEC regulations allow for supplemental EIS filings when subjects are “not addressed or inadequately addressed in the EIS,” including when changes are proposed for the project, newly discovered information arises, or circumstances change (6 NYCRR 617.9 [a][7]). The court affirmed that SEQRA and the Brownfield Program serve distinct purposes, with SEQRA designed to ensure that primary environmental concerns and mitigation efforts are described in a publicly available EIS subject to public review and comment. The court concluded that despite other outreach efforts, the Authority needed to take the additional step of filing a supplemental EIS. As the Court explained, “SEQRA is designed to assure that the main environmental concerns, and the measures taken to mitigate them, are described in a publicly filed document identified as an EIS, as to which the public has a statutorily-required period for review and comment.”

  • Riverkeeper, Inc. v. Planning Bd. of Town of Southeast, 9 N.Y.3d 219 (2007): Discretion in Requiring Supplemental EIS After Project Changes

    Riverkeeper, Inc. v. Planning Bd. of Town of Southeast, 9 N.Y.3d 219 (2007)

    A lead agency has discretion under SEQRA to determine whether a supplemental environmental impact statement (SEIS) is necessary when project changes, new information, or altered circumstances arise after the initial EIS, and a court should only overturn that decision if it is arbitrary or capricious.

    Summary

    This case addresses the extent of a planning board’s discretion in deciding whether to require a second Supplemental Environmental Impact Statement (SEIS) after a residential development project had been in planning for nearly 20 years. The Court of Appeals held that the Planning Board of the Town of Southeast acted within its discretion when it determined that a second SEIS was not required, even after significant environmental and regulatory changes. The Court emphasized that judicial review of such agency determinations is limited and that courts should not substitute their judgment for that of the agency unless the decision is arbitrary, capricious, or unsupported by evidence.

    Facts

    Glickenhaus Brewster Development, Inc. sought approval for a residential development in the Town of Southeast in 1988. The proposed development, called the Meadows at Deans Corners, spanned approximately 309 acres and included 104 homes. The project raised environmental concerns due to its location within the Croton Watershed, which supplies New York City with drinking water. Over several years, the Planning Board reviewed various environmental impact statements. In 2003, a court annulled the conditional final approval, directing the Board to re-evaluate the need for a second SEIS due to significant changes, including expanded wetlands acreage, tightened phosphorous regulations, and the designation of the Croton Watershed as a Critical Resource Water.

    Procedural History

    1. 1988-1991: Glickenhaus submits DEIS, FEIS, DSEIS, and FSEIS.
    2. February 25, 1991: The Board issues a SEQRA findings statement.
    3. August 10, 1998, and June 10, 2002: The Board granted preliminary and conditional final approval.
    4. February 3, 2003: Supreme Court annuls conditional final approval, remanding for a determination on the need for a second SEIS.
    5. April 14, 2003: The Board determines a second SEIS is unnecessary.
    6. February 23, 2004: Conditional final approval is granted again.
    7. The Appellate Division reversed the Supreme Court’s decision, holding that a second SEIS was required. The Court of Appeals then reversed the Appellate Division.

    Issue(s)

    Whether the Planning Board of the Town of Southeast acted arbitrarily and capriciously when it determined that a second SEIS was not necessary to address project and regulatory changes that arose after the filing of the initial SEQRA findings statement.

    Holding

    No, because the Board took a hard look at the relevant areas of environmental concern and provided a reasoned elaboration for its determination that the changes did not present significant adverse environmental impacts necessitating a second SEIS.

    Court’s Reasoning

    The Court of Appeals emphasized that a lead agency’s decision regarding the necessity of a SEIS is discretionary. The relevant SEQRA regulations state that the lead agency "may require a supplemental EIS." The Court reiterated the limited scope of judicial review in SEQRA cases, stating that courts should only determine whether the agency (1) identified the relevant areas of environmental concern, (2) took a “hard look” at them, and (3) made a “reasoned elaboration” of the basis for its determination. The Court found that the Board had satisfied these requirements. The Board considered the increased wetlands acreage, the tightened phosphorous regulations, and the Critical Resource Water designation. It relied on reports from the Town’s wetlands consultant and the developer’s engineering consultant, concluding that the changes would not result in significant adverse environmental impacts. The Court noted that the Board’s requirement of a technologically advanced sewage treatment facility in its 1991 findings statement anticipated many of the later regulatory changes. The Court also rejected the argument that the Board improperly deferred its SEQRA responsibilities by making the SEIS determination prior to the completion of various permitting processes, stating "Provided that a lead agency sufficiently considers the environmental concerns addressed by particular permits, the lead agency need not await another agency’s permitting decision before exercising its independent judgment on that issue." The court emphasized that SEQRA is to be implemented with minimum delay. The court concluded that the Board’s determination was supported by the evidence and was not arbitrary or capricious.

  • Matter of Peterson v. Town of N. Greenbush, 9 N.Y.3d 246 (2007): Defining ‘Adjacent Land’ in Zoning Amendments and SEQRA Timing

    Matter of Peterson v. Town of N. Greenbush, 9 N.Y.3d 246 (2007)

    In determining whether a supermajority vote is required for a zoning amendment under Town Law § 265(1), the measurement of “adjacent land” extends 100 feet from the boundary of the rezoned area, not the boundary of the entire parcel; furthermore, a challenge to a zoning amendment under SEQRA must be commenced within four months of the amendment’s enactment, not the completion of the SEQRA process, unless the SEQRA process itself directly inflicts a concrete injury.

    Summary

    This case addresses two critical aspects of zoning law: the interpretation of “adjacent land” for protest petitions requiring a supermajority vote on zoning amendments, and the statute of limitations for challenging zoning decisions under the State Environmental Quality Review Act (SEQRA). The Court of Appeals held that the 100-foot measurement for adjacent landowners objecting to a zoning change starts at the rezoned area’s boundary, not the property’s outer boundary. Additionally, the Court clarified that SEQRA challenges to zoning amendments must be filed within four months of the zoning enactment, reaffirming the principle that the injury occurs when the zoning changes, not necessarily when the SEQRA process concludes.

    Facts

    The Town of North Greenbush considered rezoning a large area near the intersection of Routes 4 and 43 to allow retail development, requested by landowners John and Thomas Gallogly. The Town released a draft generic environmental impact statement (DGEIS) and, following public input, adopted a final generic environmental impact statement (GEIS) that included an access management plan to mitigate traffic impacts. The final GEIS did not specify the timing of the proposed improvements. A findings statement approved the project, including the rezoning, but deferred the timing of mitigation measures. Opponents of the rezoning presented a protest petition claiming to represent over 20% of landowners within 100 feet of the rezoned area, based on measurements from the tax map parcel boundaries. The Town rejected this, measuring from the actual rezoned boundary, which excluded a buffer zone within the Gallogly property.

    Procedural History

    After the Town Board approved the rezoning by a 3-2 vote, opponents filed an Article 78 proceeding alleging violations of Town Law § 265(1) and SEQRA. The Supreme Court initially granted the petition and annulled the rezoning based on the Town Law claim. The Appellate Division reversed, dismissing the petition, finding the protest petition insufficient, the SEQRA claims time-barred, and the SEQRA claims meritless. The Court of Appeals then reviewed the Appellate Division’s decision.

    Issue(s)

    1. Whether Town Law § 265(1) requires measuring the 100-foot distance for protest petitions from the boundary of the rezoned area or the boundary of the entire parcel containing the rezoned area?

    2. Whether the statute of limitations for a SEQRA challenge to a zoning amendment runs from the adoption of the rezoning or the completion of the SEQRA process?

    3. Whether the Town complied with SEQRA requirements in its environmental review of the rezoning?

    Holding

    1. No, because the “one hundred feet” must be measured from the boundary of the rezoned area, not the parcel of which the rezoned area is a part.

    2. Yes, because in this case the statute of limitations ran from the adoption of the rezoning, not from the earlier completion of the SEQRA process.

    3. Yes, because the Town identified relevant environmental concerns, took a “hard look” at them, and provided a reasoned basis for its determination.

    Court’s Reasoning

    Regarding Town Law § 265(1), the Court reasoned that the statute’s language, referring to “land included in such proposed change,” indicates measurement from the rezoned area itself. This interpretation ensures fairness by linking the right to compel a supermajority vote to the proximity of one’s property to the area actually affected by the zoning change. The Court dismissed concerns about “buffer zoning,” stating that a buffer of 100 feet or more appropriately insulates neighbors from compelling a supermajority vote.

    Regarding SEQRA, the Court reaffirmed the principle from Matter of Save the Pine Bush v City of Albany, holding that challenges to zoning amendments under SEQRA must be brought within four months of the amendment’s enactment. The Court distinguished Stop-The-Barge v Cahill, noting that it did not involve the enactment of legislation. Here, the petitioners’ injury was contingent until the Town Board approved the rezoning. The Court clarified that the statute of limitations might run from the SEQRA process’s completion if the SEQRA process itself, rather than the rezoning, directly inflicted the injury. The court stated, “that a proceeding alleging SEQRA violations in the enactment of legislation must be commenced within four months of the date of enactment of the ordinance.”

    Finally, the Court found that the Town complied with SEQRA by adequately addressing traffic concerns and providing a reasonable explanation for its proposed courses of action. The Court deferred to the Town’s judgment, stating it may not substitute its judgment for that of the Town’s governing body and noted the town’s comment that a more precise plan for traffic mitigation was impractical until the Town could know “which parcels will be developed and when.” The Court noted that the document in question was a generic environmental impact statement, allowing for broader and more general analysis.

  • City Council v. Town Board, 3 N.Y.3d 512 (2004): SEQRA Review Required for Municipal Annexations

    City Council v. Town Board, 3 N.Y.3d 512 (2004)

    Under New York law, the State Environmental Quality Review Act (SEQRA) applies to all annexations under Article 17 of the General Municipal Law, requiring environmental assessment before a municipality approves the annexation of real property; however, the extent of the assessment depends on specific development plans.

    Summary

    This case addresses whether SEQRA review is mandatory before a municipality adopts a resolution approving the annexation of property from an adjacent municipality. The New York Court of Appeals held that SEQRA requirements apply to all annexations under Article 17 of the General Municipal Law. The level of environmental assessment required is contingent upon the specificity of development plans associated with the land transfer. The court reasoned that SEQRA promotes, rather than undermines, the public interest purposes of annexation laws.

    Facts

    East-West Realty Corp. owned 37 acres of vacant land in the Town of Colonie, zoned for single-family residences. After allegedly receiving an unfavorable informal response from the Town regarding a proposed senior citizen assisted-living development, East-West petitioned the Town of Colonie and the City Council of Watervliet to annex approximately 43 acres, including its property, to Watervliet. While no formal development plan was submitted, East-West indicated the property could potentially be developed as assisted living apartments.

    Procedural History

    Colonie and Watervliet held a joint public hearing on the annexation petition. Watervliet approved the annexation. Colonie denied the petition, arguing SEQRA review was necessary to fully assess whether annexation was in the public interest. Watervliet then initiated a proceeding in the Appellate Division. Colonie argued Watervliet failed to comply with SEQRA requirements. The Appellate Division dismissed the petition, holding that SEQRA review was required. The Court of Appeals affirmed.

    Issue(s)

    1. Whether SEQRA applies to municipal annexations under Article 17 of the General Municipal Law, even if Article 17 does not explicitly incorporate SEQRA.
    2. Whether a proposed annexation, absent a specific development plan, constitutes an “action” under SEQRA, thereby triggering environmental review requirements.
    3. Assuming SEQRA applies, what level of environmental review is required for a proposed annexation lacking a specific development plan.

    Holding

    1. Yes, SEQRA applies to municipal annexations under Article 17 of the General Municipal Law, because SEQRA is a law of general applicability that promotes the public interest purposes of annexation laws.
    2. Yes, a proposed annexation, even without a formal development project, constitutes an “action” under SEQRA, because a DEC regulation classifies annexations as actions subject to SEQRA.
    3. For annexations lacking a specific project plan, an Environmental Assessment Form (EAF) is appropriate, limited to the annexation itself and its effects; where a formal project plan exists, environmental review must be more extensive.

    Court’s Reasoning

    The Court reasoned that SEQRA’s purpose is to inject environmental considerations into governmental decision-making. It stated that SEQRA is a law of general applicability, and statutes should be administered in accordance with SEQRA policies. The Court dismissed the argument that General Municipal Law § 718 (5) exempts annexations from SEQRA, finding SEQRA promotes, rather than undermines, the public interest purposes of Article 17.

    The Court deferred to DEC’s (Department of Environmental Conservation) classification of annexations as “actions” subject to SEQRA, finding it not unreasonable. Annexations are often the first step toward development and may involve changes in municipal services or land use regulation. The Court distinguished Matter of Programming & Sys. v New York State Urban Dev. Corp., noting this case involves a specific request for governmental action (approval of an annexation) and a DEC regulation designates annexation as an “action.”

    Addressing the level of environmental review, the Court noted that DEC regulations contemplate the EAF and EIS (Environmental Impact Statement). For unlisted actions (annexations of less than 100 acres), an EAF is appropriate before approving or rejecting the annexation petition. Without a specific project plan or rezoning proposal, the EAF will be limited to the annexation itself and its effects. But, where a formal project plan exists, review must be more extensive.

    The court emphasized incorporating environmental considerations into decision-making at the earliest opportunity and quoted Matter of Neville v. Koch, 79 NY2d 416, 426 (1992), stating that SEQRA aims “to incorporate environmental considerations into the decisionmaking process at the earliest opportunity.”

  • Matter of Parkview Assoc. v. City of N.Y., 1 N.Y.3d 682 (2004): Mootness Doctrine and Failure to Seek Injunctive Relief

    Matter of Parkview Assoc. v. City of N.Y., 1 N.Y.3d 682 (2004)

    A case challenging a construction project is moot when the project is substantially complete and the challenger failed to seek preliminary injunctive relief to preserve the status quo during litigation.

    Summary

    Parkview Associates challenged the issuance of a certificate of appropriateness (COA) for a construction project, arguing that it required environmental review under SEQRA. They did not seek a preliminary injunction to halt construction. By the time the case reached the Court of Appeals, the project was substantially complete. The Court of Appeals held the appeal was moot because the project was nearly finished, demolishing the work would cause undue hardship, and the challengers failed to seek preliminary injunctive relief to prevent construction during the litigation. This highlights the importance of seeking preliminary injunctions to preserve legal challenges to ongoing projects.

    Facts

    The New York City Landmarks Preservation Commission approved a proposal to construct an eight-story building on an existing one-story building. Parkview Associates commenced a CPLR article 78 proceeding to annul the COA, arguing it required compliance with SEQRA. Construction began, and Parkview Associates did not seek a temporary restraining order or preliminary injunction to halt the work. By the time the case reached the Court of Appeals, the building’s steel and concrete structure, brick facade, and most window frames were complete, with roughly $25.7 million already spent on the project.

    Procedural History

    Supreme Court denied the petition and dismissed the proceeding. The Appellate Division affirmed. The Court of Appeals granted leave to appeal.

    Issue(s)

    Whether the appeal should be dismissed as moot given the substantial completion of the construction project and the petitioners’ failure to seek preliminary injunctive relief.

    Holding

    Yes, because the construction project was substantially complete, demolishing portions would cause undue hardship, and the petitioners failed to seek preliminary injunctive relief to preserve the status quo during the litigation.

    Court’s Reasoning

    The Court of Appeals applied the mootness doctrine, noting that a change in circumstances prevented the court from rendering an effective decision. Regarding construction projects, the court considers the progress of the work, but a “race to completion cannot be determinative.” Crucially, the court emphasized the challenger’s failure to seek preliminary injunctive relief or otherwise preserve the status quo. The court found that the project was substantially complete, and reducing the building’s height would “inevitably alter the proportion, mass and details of a design that the Commission determined would fit in with the special architectural and historic character of the district.” Furthermore, the court rejected the argument that the property owner engaged in an “unseemly race to completion,” noting they had every business incentive to complete the project quickly. The court stated that the petitioners “were required, at a minimum, to seek an injunction in the circumstances presented here.” Finally, the court found the exception to the mootness doctrine inapplicable because the issues were likely to recur with adequate opportunity for review if objectors promptly requested injunctive relief. As the court pointed out, those challenging a COA on SEQRA grounds can protect against mootness by promptly requesting injunctive relief.

  • Stop the Barge v. Cahill, 1 N.Y.3d 218 (2003): Determining When SEQRA Statute of Limitations Begins

    Stop the Barge v. Cahill, 1 N.Y.3d 218 (2003)

    In a challenge to agency action under the State Environmental Quality Review Act (SEQRA), the statute of limitations begins to run when the agency issues a final determination, such as a conditioned negative declaration (CND), that definitively establishes the agency’s position and inflicts a concrete injury.

    Summary

    This case clarifies when the statute of limitations begins for challenging agency actions under SEQRA. Petitioners challenged a CND issued by the New York City Department of Environmental Protection (DEP) and an air permit issued by the New York State Department of Environmental Conservation (DEC) for a power generator on a barge. The Court of Appeals held that the statute of limitations began to run when the DEP’s CND became final, not when the DEC issued the air permit, because the CND represented a definitive agency position causing concrete injury by allowing the project to proceed without an environmental impact statement.

    Facts

    In 1996, New York City Energy (NYCE) submitted an environmental assessment statement to DEP for permits to install a power generator on a barge in Brooklyn. DEP, as the lead agency, issued a CND in August 1997, concluding the project had no significant adverse environmental impact. Following project modifications, DEP issued revised CNDs, the last on January 10, 2000, followed by a 30-day public comment period ending February 18, 2000. Separately, NYCE applied to DEC for an air permit in 1999. DEC tentatively approved the permit on August 9, 2000, and issued it on December 18, 2000, after public comment and a hearing.

    Procedural History

    Petitioners commenced a CPLR Article 78 proceeding on February 20, 2001, challenging DEP’s CND and DEC’s air permit. The Supreme Court dismissed the action as time-barred. The Appellate Division modified, applying a four-month statute of limitations but upheld the dismissal of the claim against DEP, finding the CND triggered the statute of limitations. Petitioners and DEC appealed, arguing the statute of limitations began with the air permit issuance. DEP and NYCE argued for the CND as the trigger.

    Issue(s)

    Whether the statute of limitations for challenging agency action under SEQRA regarding the power generator barge project began to run upon the finalization of the conditioned negative declaration (CND) issued by DEP or upon the issuance of the air permit by DEC?

    Holding

    Yes, the statute of limitations began to run when the CND became final because at that point the agency reached a definitive position and inflicted an actual, concrete injury.

    Court’s Reasoning

    The Court of Appeals affirmed the Appellate Division, holding that the CND was the final agency action triggering the statute of limitations. The Court relied on Matter of Essex County v. Zagata, 91 N.Y.2d 447, 453 (1998), stating that an agency action is final when the decision-maker arrives at a “definitive position on the issue that inflicts an actual, concrete injury.” The Court reasoned that DEP reached a definitive position on February 18, 2000, when the public comment period ended and its SEQRA review concluded. Petitioners failed to raise their concerns during the comment period. The Court emphasized that the CND caused concrete injury by allowing the project to proceed without an environmental impact statement. The Court further noted that allowing petitioners to postpone their challenge until the air permit issuance—10 months later—would be unreasonable and inconsistent with the policy of resolving environmental issues early in project planning. The court quoted Matter of Long Is. Pine Barrens Socy. v. Planning Bd. of Town of Brookhaven, 78 N.Y.2d 608 (1991) to support the policy of early resolution of environmental issues. The Court emphasized that further administrative action was unlikely to moot the issue after the CND. The holding promotes efficiency and predictability in environmental review processes by setting a clear point for when legal challenges must be initiated.

  • 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]).

  • Spitzer v. Farrell, 100 N.Y.2d 186 (2003): Agency’s Duty to Consider Environmental Impacts Using Available Standards

    Spitzer v. Farrell, 100 N.Y.2d 186 (2003)

    An agency satisfies its obligation to take a ‘hard look’ at environmental impacts under SEQRA when it identifies relevant concerns and uses existing, reasonable methodologies and expert guidance, even if more refined measurement tools are not yet available.

    Summary

    This case addresses the scope of environmental review required under the State Environmental Quality Review Act (SEQRA). The Attorney General challenged New York City’s Department of Sanitation’s (DOS) negative declaration regarding its plan to transport waste via diesel trucks. The challenge was based on DOS’s failure to specifically analyze PM2.5 emissions, a type of particulate matter. The Court of Appeals held that DOS acted reasonably by relying on PM10 standards, the accepted surrogate at the time, given the lack of feasible PM2.5 measurement methodologies. This decision emphasizes that agencies must use available tools and expert guidance in their environmental assessments, even if those tools are imperfect.

    Facts

    In 1999, New York City’s Department of Sanitation (DOS) proposed the “Manhattan plan,” involving diesel trucks transporting waste to New Jersey. Prior to implementation, DOS assessed potential environmental impacts, including air quality. While the EPA had established National Ambient Air Quality Standards (NAAQS) for PM2.5 in 1997, the agency acknowledged the absence of adequate technology and data for proper PM2.5 emission calculation, and advised using PM10 as a surrogate. DOS issued a negative declaration based on a PM10 analysis, concluding the plan would not significantly impact the environment. The Attorney General challenged this, arguing for a PM2.5-specific analysis.

    Procedural History

    The Attorney General initiated a CPLR Article 78 proceeding challenging DOS’s negative declaration. The Supreme Court dismissed the petition, upholding the negative declaration. The Appellate Division reversed, annulling the negative declaration and directing DOS to conduct a new environmental assessment. The Court of Appeals then reversed the Appellate Division’s decision.

    Issue(s)

    Whether the Department of Sanitation acted arbitrarily and irrationally in issuing a negative declaration for the Manhattan plan without performing a specific PM2.5 analysis, given the EPA’s guidance to use PM10 as a surrogate and the lack of feasible PM2.5 measurement methodologies at the time.

    Holding

    No, because DOS identified the relevant environmental concern (air quality impact), took a hard look at it using the accepted PM10 standard as a surrogate for PM2.5, and made a reasoned elaboration for its determination based on the best available science and expert guidance at the time.

    Court’s Reasoning

    The Court of Appeals emphasized that SEQRA requires agencies to consider environmental impacts. However, a negative declaration is appropriate when the agency has thoroughly investigated potential problems and reasonably exercised its discretion. The court’s review is limited to determining whether the agency identified relevant concerns, took a hard look at them, and provided a reasoned basis for its decision. The Court found that DOS appropriately relied on PM10 emissions analysis because, in 1999, there was no technologically feasible methodology to determine the impact of PM2.5 emissions. The EPA had determined that PM10 NAAQS could be used as a surrogate to study PM2.5 until new protocols could be implemented. The court noted, “When DOS issued its negative declaration in 1999, EPA had not yet completed the necessary studies or corrected the technological problems in determining the presence of PM2.5. Based on the scientific information available at that time, DOS rationally conducted a study of particulate matter emissions based on PM10 without further specific reference to PM2.5.” The court also acknowledged that DOS’s reliance on its own expert and the EPA’s guidance was rational. The decision highlights the importance of deference to agency expertise and the acceptance of using reasonable methodologies based on available information, even if those methodologies are not the most precise possible. This case provides practical guidance for agencies navigating evolving scientific standards in environmental review.