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Issuance of a Positive Declaration that the Requested Rezoning May Have a Significant Impact on the Environment and the Requirement that a Draft Environmental Impact Statement Be Drawn Up, Under the Facts, Did Not Constitute an “Injury” Sufficient to Make the Matter Ripe for Court Review—All the Relevant Factors Discussed in Depth

The Second Department, in a full-fledged opinion by Justice Dickerson, determined that the town board’s issuance of a positive declaration pursuant to the State Environmental Quality Review Act (SEQRA) (finding the proposed rezoning to heavy industrial may have a significant effect on the environment) and the requirement that the petitioner (landowner) prepare and circulate a draft environmental impact statement (DEIS), under all the facts, did not constitute an “injury” sufficient to make the matter ripe for judicial review.  Much of the opinion was devoted to distinguishing Matter of Gordon v Rush, 100 NY2d 236, where the Court of Appeals determined, under the facts, the positive SEQRA declaration and the DEIS requirement constituted an “injury” sufficient to make the case ripe for court review without further proceedings.  The Second Department determined that facts here did not warrant the relief granted in the Rush case:

“Ripeness is a justiciability doctrine designed to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties'” … . “To determine whether a matter is ripe for judicial review, it is necessary first to determine whether the issues tendered are appropriate for judicial resolution, and second to assess the hardship to the parties if judicial relief is denied” … .

A court considering review of an agency determination “must determine whether an agency has arrived at a definitive position on the issue that inflicts an actual concrete injury and whether the resolution of the dispute requires any fact-finding, for [e]ven if an administrative action is final, however, it will still be “inappropriate” for judicial review and, hence, unripe, if the determination of the legal controversy involves the resolution of factual issues'” … . “The position taken by an agency is not definitive and the injury is not actual or concrete if the injury purportedly inflicted by the agency could be prevented, significantly ameliorated, or rendered moot by further administrative action or by steps available to the complaining party” … . * * *

“An action taken by an agency pursuant to SEQRA may be challenged only when such action is final” … . Traditionally, a “SEQRA determination [has] usually [been] considered to be a preliminary step in the decision-making process and, therefore, . . . not ripe for judicial review until the decision-making process has been completed” … . Matter of Ranco Sand & Stone Corp v Vecchio, 2014 NY Slip Op 08338, 2nd Dept 11-26-14

 

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