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LOCAL LAW WHICH CONFLICTED WITH THE STATE ENVIRONMENTAL QUALITY REVIEW ACT WAS PROPERLY DECLARED INVALID 4TH DEPT.

The Fourth Department determined Supreme Court properly declared invalid a local law which conflicted with the State Environmental Quality Review Act (SEQRA). The local law allowed the classification of a restaurant with a drive-through window as a Type I project. However, the Fourth Department held the intent of SEQRA was to classify such a restaurant as a Type II project:

We … conclude that the court properly declared that Local Law No. 9-2014 is invalid inasmuch as it is inconsistent with 6 NYCRR 617.5 (c) (7) to the extent that it classifies “[d]rive-through stations or windows” such as “restaurants” as Type I actions under SEQRA. A local law that is “inconsistent with SEQRA” must be invalidated … . Here, although 6 NYCRR 617.5 (c) (7) does not explicitly include the construction of a restaurant with a drive-through window as a Type II action, we conclude that the Department of Environmental Conservation contemplated restaurants with drive-through windows as Type II actions when it promulgated that regulation … . We similarly conclude that the court properly annulled defendant’s classification of the project as a Type I action on the ground that the classification was affected by an error of law inasmuch as Local Law No. 9-2014 is inconsistent with SEQRA … . Nonetheless, the court should have declined to accept, without a revised review by defendant, plaintiff’s contention that the project should be classified as a Type II action … . We therefore modify the judgment by annulling the determination that the project is a Type II action, and we remit the matter to defendant for a new determination. Miranda Holdings, Inc. v Town Bd. of Town of Orchard Park, 2017 NY Slip Op 05554, 4th Dept 7-7-17

ENVIRONMENTAL LAW (LOCAL LAW WHICH CONFLICTED WITH THE STATE ENVIRONMENTAL QUALITY REVIEW ACT WAS PROPERLY DECLARED INVALID 4TH DEPT)/STATE ENVIRONMENTAL QUALITY REVIEW ACT (SEQRA) (LOCAL LAW WHICH CONFLICTED WITH THE STATE ENVIRONMENTAL QUALITY REVIEW ACT WAS PROPERLY DECLARED INVALID 4TH DEPT)/MUNICIPAL LAW (ENVIRONMENTAL LAW, LOCAL LAW WHICH CONFLICTED WITH THE STATE ENVIRONMENTAL QUALITY REVIEW ACT WAS PROPERLY DECLARED INVALID 4TH DEPT)/SEQRA (LOCAL LAW WHICH CONFLICTED WITH THE STATE ENVIRONMENTAL QUALITY REVIEW ACT WAS PROPERLY DECLARED INVALID 4TH DEPT)

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