Inside Track: Planning, Environment & Sustainability - In the media, In practice and courts, Cases and Legislation - Real Estate and Construction


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The courts decided 47 cases under the New York State
Environmental Quality Review Act (SEQRA) in 2020. Of these, in the
great majority— 31— the courts upheld, or at least left
alone, agencies’ decisions that a particular action did not
require the preparation of a full environmental impact statement
(EIS); in seven the courts rejected such decisions; and in eight
the courts upheld EISs that had been prepared. (One case was
unclassifiable.) The Court of Appeals issued no SEQRA decisions in
2020.

This article marks the 30th anniversary of this column’s
first annual SEQRA review. As usual, all the cases will be included
in this year’s update to Environmental Impact Review in New
York (Gerrard, Ruzow & Weinberg). The 2020 cases continued the
familiar pattern that the safest way for a controversial project to
withstand attack in court is to prepare a full EIS.

That is not to say that projects with EISs will always enjoy a
smooth path. Indeed, the 2020 cases involved three where the
Supreme Court had found the EIS deficient and annulled the
approvals, but the Appellate Division then reversed, all by
unanimous decisions of the panel. Since those cases are especially
notable, we start with them.

Appellate Reversals Of Rejection of EISs

Hart v. Town of Guilderland, Index No. 906179-20 (Sup.
Ct. Albany Co. 2020), concerned the development of five apartment
buildings and a Costco retail store near the Crossgates Mall in a
suburb of Albany. In its 77-page decision, the Supreme Court was
unsparing in its review of the EIS and other elements of the
record, declaring, “On scrutiny, the record herein is replete
with conclusory self-serving and equally troubling representations
made by the project sponsor, without the support of empirical data,
which, unfortunately, the Planning Board relied on. That is not the
stuff that the SEQRA hard look test is made of.”

The Appellate Division, Third Department took a contrary view.
2021 N.Y. App. Div. Lexis 4367 (3d Dept. July 8, 2021). It found
that the EIS had adequately examined the project’s impacts on
avian populations, views from an historic district, and community
character, and had considered a reasonable range of alternatives.
In sum, the appellate court found “that the Planning
Board’s review was proper and thorough and that the mitigation
measures that [the developer] was required to implement were
appropriate.”

The same plaintiffs also challenged this project in federal
court. Their motion for a preliminary injunction was denied, as the
court found that plaintiffs had failed to establish likelihood of
success on the merits, or irreparable harm absent injunctive
relief, and subsequently dismissed the lawsuit. Hart v. Town of
Guilderland
, 2020 U.S. Dist. Lexis 95240 (N.D.N.Y. June 1,
2020); 2020 U.S. Dist. LEXIS 139496 (N.D.N.Y. Aug. 5, 2020).

Neighbors United Below Canal v. De Blasio, 2020 N.Y.
Misc. Lexis 9837 (Sup. Ct. N.Y. Co. Sept. 21, 2020), was a
challenge to the construction of a new jail in Manhattan as part of
the City of New York’s plan to shut down and replace the Rikers
Island facility. The City initially selected 80 Centre Street as
the site, and prepared a draft scoping statement on that basis.
After the public comment period on the draft scoping statement
expired, the City decided instead to use a site three blocks away,
124-125 White Street. Draft and final EISs analyzed the White
Street site. Neighbors of that site sued.

The Supreme Court found that the City should have undertaken a
new scoping process focused on the White Street site, and that
“the FEIS effectively ignores both the short- and long-term
consequences of demolition, excavation, and construction activities
on the health of the public in the neighborhood adjacent to the
project.” The court also found that the city “deferred
and delayed a full and complete consideration of vehicular traffic
and congestion-related impacts inasmuch as those impacts are
design-specific.” The court annulled the project’s
approvals.

The Appellate Division, First Department reversed. In a brief
opinion, it found that the scoping process did not have to be
redone; that the environmental review considered a reasonable range
of alternatives; and the EIS “took the requisite hard look at
impacts on public health, traffic, and parking.” 192 A.D.3d
642 (1st Dept. 2021) (citations omitted).

The third decision in which the Supreme Court’s rejection of
an EIS was reversed was Northern Manhattan Is Not for Sale v.
City of New York
, 2019 N.Y. Misc. Lexis 6755 (Sup. Ct. N.Y.
Co. Dec. 16, 2019). It concerned the rezoning of the Inwood
neighborhood. A community group sued, asserting that the review
process “failed to take a hard look at the socio-economic
consequences of the proposed rezoning,” particularly “the
impact of the rezoning on preferential rents and on fostering or
increasing residential displacement; the racial impact of rezoning/
residential displacement,” and other factors. The petitioners
argued the City should have considered various issues (such as
emergency response times) that were not required to be considered
by the CEQR Technical Manual, which contains detailed
guidance from the Mayor’s Office of Environmental Coordination
specifying what analysis should be conducted under City
Environmental Quality Review (CEQR), which is the City’s
implementation of SEQRA. The Supreme Court agreed with petitioners,
and found the City failed to take a hard look at certain potential
impacts identified by the public but should have done so, even if
some analyses are not required by the Manual.

Here again, the First Department reversed. 185 A.D.3d 515, 128
N.Y.S.3d 483 (1st Dept. 2020). It found that “it was not
unreasonable for the City to determine that [various issues] were
beyond the scope of SEQRA/CEQR review pursuant to the CEQR
Technical Manual
, did not result in a significant adverse
impact, or were based on speculation and hypotheticals and
therefore did not warrant further review.”

Overturning Negative Declarations

As stated above, in seven of the 2020 cases, the courts
overturned an agency’s decision not to prepare an EIS. Five of
these cases are of special note.

The baseline for analysis was a central issue in Neeman v.
Town of Warwick
, 184 A.D.3d 567 (2d Dept. 2020). Back in 1965
the Town had approved a site plan permitting the operation of 74
campsites on property owned by Black Bear Family Campground, Inc.
Over the years, Black Bear increased the number of campsites from
74 to 154 without obtaining the required approvals. The Town
eventually took enforcement action, and later reached a settlement
agreement under which the 154 campsites could remain, and the Town
agreed to amend its zoning code to accommodate the campground in
various ways. The Town issued a negative declaration (a
determination that no EIS is necessary), largely based on its
finding that the campground had been operating 154
campsites—albeit illegally— for many years. The owners
of an adjacent property sued. The Supreme Court, Orange County,
dismissed the suit. The Appellate Division, Second Department
reversed, finding that the Town should have reviewed the impacts of
expanding the campground from 74 campsites (what had been approved)
to 154 campsites (the present reality). The appellate court also
found that the development agreement between the Town Board and
Black Bear constituted illegal contract zoning.

The genesis of Roger Realty Co. v. New York State Department
of Environmental Conservation
(DEC), 2020 N.Y. Misc. Lexis
10234 (Sup. Ct. Albany Co. Nov. 30, 2020) was the abandonment of a
construction and demolition debris facility in the Town of
Hempstead. Inwood Realty Associates acquired the facility and
entered into a consent order with DEC to clean it up and remove the
material by barge. The foreshore area was owned by the Town, which
needed to approve the construction of the barge facility. After
removing the waste, Inwood’s plan was for the barge facility to
be used to grind up and transport fill material that would be sold
to others in an ongoing business. This business went far beyond the
purpose of the DEC consent order (cleaning up the site), and the
court found that it should have undergone SEQRA review.

The negative declaration issued by the New York City Planning
Commission for the rezoning of the Franklin Avenue area of Brooklyn
was struck down because “there are discrepancies throughout
the application and the [environmental assessment] which call into
question whether the decision of [the Department of City Planning]
was rational and based on the required hard look.” Boyd v.
Cumbo
, 69 Misc.3d 1222(A) (Sup. Ct. Kings Co. 2020).

In a case concerning a mixed-use project, the environmental
assessment (a short form document used to determine whether an EIS
is needed) identified at least nine areas of potential significant
environmental impact; nevertheless, the lead agency issued a
negative declaration. The court found this to be impermissible and
vacated the approval of the project. Moreover, though the
village’s board of trustees established itself as lead agency
for the SEQRA review, in fact it delegated the lead agency
authority to the planning board. The court found that this, too,
violated SEQRA. Augustinian Recollects of N.J. v. Planning Bd.
of the Vill. of Montebello
, 2020 66 Misc.3d 1214(A) (Sup. Ct.
Rockland Co. 2020).

The issue of improper delegation of lead agency duties also came
up in Village of Islandia v. Ball, 2020 N.Y. Misc. Lexis
10242 (Sup. Ct. Albany Co. Aug. 21, 2020), concerning the
designation of certain agricultural lands. The Suffolk County
Legislature was designated as lead agency and issued a negative
declaration. However, the court found that “the Legislature
gave lip service to its SEQRA obligation, and utterly failed to
meet its procedural and substantive SEQRA mandate to take a hard
look.” Instead, the Legislature delegated its duties to
planning staff. The court found that “the record is unclear if
the Legislators were even aware of or ever evaluated the negative
declaration language.”

Originally published by New York Law Journal.

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