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Type II Actions (Here Replacement of a Wooden Boardwalk With Synthetic Materials) Presumptively Do Not Have a Significant Impact on the Environment and Do Not Require an Environmental Impact Statement

Petitioners brought an Article 78 proceeding against the NYC Department of Parks and Recreation (DPR) alleging that the plan to replace wooden planks in a boardwalk with a concrete/plastic surface violated the State Environmental Quality Review Act (SEQRA) and the City Environmental Quality Review Rules (CEQR).  The Second Department noted the action was timely and the DPR’s determination the replacement of the boardwalk was a Type II action under SEQR and CEQR that presumptively did not have a significant environmental impact and did not require an environmental impact statement:

The DPR failed to meet its burden of demonstrating that it made a final and binding determination to implement the plan, and that the petitioners were provided notice of such a determination more than four months before the proceeding was commenced (see CPLR 217[1]…).

… The DPR determined that the proposed boardwalk project was for a “replacement, rehabilitation or reconstruction of a structure or facility, in kind” (6 NYCRR 617.5[c][2]) and, thus, was a Type II action under SEQRA and CEQR that presumptively did not have a significant impact upon the environment, and did not require the preparation and circulation of an environmental impact statement. The fact that different materials were used in the replacement construction did not alter the propriety of classifying the project as a Type II action, and that determination was, thus, not arbitrary and capricious, made in violation of lawful procedure, affected by an error of law, an abuse of discretion, or irrational … . Once an action is properly classified as a Type II action under the enumerated provisions of 6 NYCRR 617.5(c), which the New York State Department of Environmental Conservation has already determined to have no significant impact on the environment… . Matter of Coney-Brighton Boardwalk Alliance v New York City Dept of Parks & Recreation, 2014 NY Slip Op 08334, 2nd Dept 11-26-14

 

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