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Town Board’s “Adverse Effects” Findings Annulled as Inconsistent with Final Environmental Impact Statement (FEIS)

The Second Department determined Supreme Court properly annulled the town board’s findings that a project would have adverse environmental effects because the board’s findings were not consistent with the Final Environmental Impact Statement (FEIS). The court explained the board’s obligations and the courts’ review powers in this context:

Judicial review of an agency determination under SEQRA [State Environmental Quality Review Act] is limited to whether the agency procedures were lawful and “whether the agency identified the relevant areas of environmental concern, took a hard look’ at them, and made a reasoned elaboration’ of the basis for its determination” … . “In a statutory scheme whose purpose is that the agency decision-makers focus attention on environmental concerns, it is not the role of the courts to weigh the desirability of any action or choose among alternatives, but to assure that the agency itself has satisfied SEQRA, procedurally and substantively” … . The agency decision should be annulled only if it is arbitrary, capricious, or unsupported by the evidence … .

“The purpose of an environmental impact statement is to provide detailed information about the effect which a proposed action is likely to have on the environment, to list ways in which any adverse effects of such an action might be minimized, and to suggest alternatives to such an action so as to form the basis for a decision whether or not to undertake or approve such action” (ECL 8-0109[2]). In a findings statement, the lead agency “considers the relevant environmental impacts presented in an EIS, weighs and balances them with social, economic and other essential considerations, provides a rationale for the agency’s decision and certifies that the SEQRA requirements have been met” (6 NYCRR 617.2[p]…). Agencies have considerable latitude in evaluating environmental effects and choosing between alternatives … .

While an agency’s ultimate conclusion is within the discretion of the agency, it must be based upon factual evidence in the record and not generalized, speculative community objections … . “While an EIS does not require a public agency to act in any particular manner, it constitutes evidence which must be considered by the public agency along with other evidence which may be presented to such agency” … .

Here, the Supreme Court properly annulled the Board’s findings statement as unsupported by the evidence. The Board was required to render its conclusions regarding the sufficiency of mitigation measures, the propriety of permit approvals, and a balancing of considerations, based on the evidence contained in the environmental review. The Board’s conclusions in the findings statement were based, at least in part, on factual findings which were contradicted by the scientific and technical analyses included in the FEIS and not otherwise supported by empirical evidence in the record … .

The findings statement also failed to give sufficient consideration to the various alternative plans reviewed in the FEIS … . Matter of Falcon Group Ltd. Liab. Co. v Town/Village of Harrison Planning Bd., 2015 NY Slip Op 07025, 2nd Dept 9-30-15

 

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