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PLANNING BOARD’S APPROVAL OF DEVELOPMENT INCLUDING WETLANDS NEEDED APPROVAL BY THE ARMY CORPS OF ENGINEERS, REQUEST FOR A SUPPLEMENTAL ENVIRONMENTAL IMPACT STATEMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that the town planning board’s approval of the development of land should be annulled. The land included wetlands which required an investigation and approval by the Army Corps of Engineers (ACOE) and those requirements had not been met. The petitioners’ request for a Supplemental Environmental Impact Statement (SEIS) should have been granted:

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“A lead agency’s determination whether to require a SEIS . . . is discretionary” … . “The lead agency may require a supplemental EIS, limited to the specific significant adverse environmental impacts not addressed or inadequately addressed in the EIS that arise from: (a) changes proposed for the project; (b) newly discovered information; or (c) a change in circumstances related to the project” … . “The decision to prepare a SEIS as a result of newly discovered information must be based upon . . . (a) the importance and relevance of the information; and (b) the present state of the information in the EIS'” … . The limitations that apply to a court’s review of an agency’s SEQRA determination, that is, only to ascertain whether the agency took a hard look at the relevant areas of environmental concern and made a reasoned elaboration of the basis for its determination, also apply to the agency’s determination regarding whether a SEIS is needed, and the court may no more substitute its judgment on this point than it may on other aspects of agency decision-making … .

Here, the petitioners contend that a SEIS is needed because Scenic never obtained a jurisdictional determination from the United States Army Corps of Engineers (hereinafter ACOE) validating  [the developer’s] delineation of wetlands on the subject property. They argue that, prior to issuing the determinations challenged on appeal, the Planning Board was presented with critical new evidence demonstrating that no jurisdictional determination had been issued by the ACOE for the subject property. The petitioners are correct. Matter of Shapiro v Planning Bd. of the Town of Ramapo, 2017 NY Slip Op 07734, Second Dept 11-8-17

 

ENVIRONMENTAL LAW (PLANNING BOARD’S APPROVAL OF DEVELOPMENT INCLUDING WETLANDS NEEDED APPROVAL BY THE ARMY CORPS OF ENGINEERS, REQUEST FOR A SUPPLEMENTAL ENVIRONMENTAL IMPACT STATEMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT))/ZONING (PLANNING BOARD’S APPROVAL OF DEVELOPMENT INCLUDING WETLANDS NEEDED APPROVAL BY THE ARMY CORPS OF ENGINEERS, REQUEST FOR A SUPPLEMENTAL ENVIRONMENTAL IMPACT STATEMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT))/MUNICIPAL LAW (PLANNING BOARD’S APPROVAL OF DEVELOPMENT INCLUDING WETLANDS NEEDED APPROVAL BY THE ARMY CORPS OF ENGINEERS, REQUEST FOR A SUPPLEMENTAL ENVIRONMENTAL IMPACT STATEMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT))/STATE ENVIRONMENTAL QUALITY REVIEW ACT (SEQRA)  (PLANNING BOARD’S APPROVAL OF DEVELOPMENT INCLUDING WETLANDS NEEDED APPROVAL BY THE ARMY CORPS OF ENGINEERS, REQUEST FOR A SUPPLEMENTAL ENVIRONMENTAL IMPACT STATEMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT))/ENVIRONMENTAL IMPACT STATEMENT (PLANNING BOARD’S APPROVAL OF DEVELOPMENT INCLUDING WETLANDS NEEDED APPROVAL BY THE ARMY CORPS OF ENGINEERS, REQUEST FOR A SUPPLEMENTAL ENVIRONMENTAL IMPACT STATEMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT))/WETLANDS (ENVIRONMENTAL LAW, PLANNING BOARD’S APPROVAL OF DEVELOPMENT INCLUDING WETLANDS NEEDED APPROVAL BY THE ARMY CORPS OF ENGINEERS, REQUEST FOR A SUPPLEMENTAL ENVIRONMENTAL IMPACT STATEMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT))/ARMY CORPS OF ENGINEERS (ENVIRONMENTAL LAW, WETLANDS, PLANNING BOARD’S APPROVAL OF DEVELOPMENT INCLUDING WETLANDS NEEDED APPROVAL BY THE ARMY CORPS OF ENGINEERS, REQUEST FOR A SUPPLEMENTAL ENVIRONMENTAL IMPACT STATEMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT))

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