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1987 NEGATIVE DECLARATION DID NOT EXPIRE AND REMAINS VALID WITH RESPECT TO A PRELIMINATY PLAT APPLICATION; HOWEVER, BECAUSE OF CHANGES MADE TO THE PROJECT, THE PLANNING BOARD HAS THE POWER TO AMEND OR RESCIND THE NEGATIVE DECLARATION.

The Second Department determined that a 1987 negative declaration with respect to a preliminary plat application had not expired and was still valid. Therefore, the planning board’s determination that a new State Environmental Quality Review Act (SEQRA) review was necessary was annulled. However, since changes had been made to the project, the planning board has the power to amend or rescind the original negative declaration:

 

…[I]n light of … the changes to the project, the Planning Board has the responsibility to assess whether the 1987 negative declaration should be amended (see 6 NYCRR 617.7[e][1]) or “must” be rescinded (6 NYCRR 617.7[f][1]) under the standards set forth in 6 NYCRR 617.7(e) and (f) … . The provisions of 6 NYCRR 617.7(e) and (f) specifically authorize an agency to take into account changes in projects, new information, and changed circumstances affecting a project.

The Planning Board erroneously concluded that the amendment and rescission provisions were, by their terms, inapplicable. Rescission and amendment are authorized “[a]t any time prior to [the lead agency’s] decision to . . . approve an action” (6 NYCRR 617.7[e], [f]). Here, the Planning Board has never given final approval for subdivision of the entire parcel or for subdivision of the portion of the parcel the plaintiffs/petitioners now seek to develop. Accordingly, contrary to its conclusion otherwise, the Planning Board is still authorized to assess possible adverse environmental impacts with respect to the proposed East Mountain North subdivision pursuant to 6 NYCRR 617.7(e) and (f). Leonard v Planning Bd. of Town of Union Vale, 2016 NY Slip Op 01156, 2nd Dept 2-17-16

 

ENVIRONMENTAL LAW (1987 NEGATIVE DECLARATION WITH RESPECT TO A PRELIMINARY PLAT APPLICATION DID NOT EXPIRE, HOWEVER, BECAUSE OF CHANGES TO THE PROJECT, PLANNING BOARD HAS POWER TO AMEND OR RESCIND THE NEGATIVE DECLARATION)/STATE ENVIRONMENT QUALITY REVIEW ACT [SEQRA] (1987 NEGATIVE DECLARATION WITH RESPECT TO A PRELIMINARY PLAT APPLICATION DID NOT EXPIRE, HOWEVER, BECAUSE OF CHANGES TO THE PROJECT, PLANNING BOARD HAS POWER TO AMEND OR RESCIND THE NEGATIVE DECLARATION)/LAND USE (SEQRA, 1987 NEGATIVE DECLARATION WITH RESPECT TO A PRELIMINARY PLAT APPLICATION DID NOT EXPIRE, HOWEVER, BECAUSE OF CHANGES TO THE PROJECT, PLANNING BOARD HAS POWER TO AMEND OR RESCIND THE NEGATIVE DECLARATION)

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