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A CONTRACT (A MEMORANDUM OF UNDERSTANDING OR “MOU”) WHICH PURPORTED TO BIND CURRENT AND FUTURE TOWN OFFICIALS TO A REZONING REQUEST FOR A REAL ESTATE DEVELOPMENT PROJECT VIOLATED THE “TERM LIMITS DOCTRINE” AND WAS THEREFORE UNENFORCEABLE (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Singas, over a three-judge concurrence, determined that a memorandum of understanding (MOU) which purported to bind current and future municipal officials to plaintiff’s rezoning request for a real estate development project violated the term limits doctrine and was unenforceable:​

“The term limits rule prohibits one municipal body from contractually binding its successors in areas relating to governance unless specifically authorized by statute or charter provisions to do so” … . It recognizes that “[e]lected officials must be free to exercise legislative and governmental powers in accordance with their own discretion and ordinarily may not do so in a manner that limits the same discretionary right of their successors” … . The doctrine thus instructs “that where a contract ‘involves a matter of discretion to be exercised by the [municipal body,] unless the statute conferring power to contract clearly authorizes th[at body] to make a contract extending beyond its own term, no power . . . so to do exists’ ” … . The term limits doctrine reaches only “matters relating to governmental or legislative functions” … and does not apply where the municipality is “acting in its proprietary capacity” … . * * *

… [W]e conclude that by entering into the MOU, the Town Board violated the term limits doctrine by purporting to “limit” a “discretionary right of [its] successors,” rendering the MOU invalid and unenforceable … . Absent an enforceable agreement, plaintiff’s contractual claims fail as a matter of law. Hudson View Park Co. v Town of Fishkill, 2025 NY Slip Op 07080, CtApp 12-18-25

Practice Point: Here an attempt to bind current and future municipal officials to a rezoning request for a real estate development project was deemed unenforceable because it violated the “term limits doctrine.” Consult this opinion for insight into how the “term limits doctrine” is applied.​

 

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HERE THE TOWN PASSED A LOCAL LAW REQUIRING THE CLOSURE OF A LANDFILL OWNED AND OPERATED BY SMI; BECAUSE SMI’S PROPERTY IS THE VERY SUBJECT OF THE LOCAL LAW, SMI NEED NOT DEMONSTRATE “ENVIRONMENTAL HARM” AS AN ELEMENT OF STANDING TO CHALLENGE THE TOWN’S STATE ENVIRONMENTAL QUALITY REVIEW ACT (SEQRA) DECLARATION THAT THE CLOSURE OF THE LANDFILL WILL NOT HAVE A SIGNIFICANT ADVERSE ENVIRONMENTAL IMPACT; SMI HAS STANDING TO CHALLENGE THE TOWN’S NEGATIVE SEQRA DECLARATION ON THE GROUND THAT THE TOWN DID NOT TAKE THE REQUIRED “HARD LOOK” AT THE EVIDENCE BEFORE ISSUING THE NEGATIVE DECLARATION (CT APP). ​

The Court of Appeals, reversing the Appellate Division, in a full-fledged opinion by Judge Rivera, determined the petitioner-plaintiff Seneca Meadows, Inc. (SMI), the owner and operator of a landfill, had standing to challenge the town’s State Environmental Quality Review Act (SEQRA) finding that the closure of the landfill pursuant to a Local Law would not have a significant adverse environmental impact. SMI argued the town did not take the required “hard look” at the evidence before issuing its negative SEQRA declaration:

“SEQRA is designed to promote efforts which will prevent or eliminate damage to the environment and enhance human and community resources . . . by injecting environmental considerations directly into governmental decision making; thus the statute mandates that social, economic and environmental factors shall be considered together in reaching decisions on proposed activities” … . Standing to sue under SEQRA, as with other statutory causes of action, requires that the plaintiff establish an injury-in-fact and that the in-fact injury fall within the zone of interest that the statute protects … . Thus, to sue under SEQRA, a plaintiff must ordinarily show that their injury falls within the statute’s environmental zone of interest by “demonstrat[ing] that it will suffer an injury that is environmental and not solely economic in nature” … .

However, [Matter of Har Enters. v Town of Brookhaven (74 NY2d 524 [1989])] established that “no such specific allegation [of environmental harm] is necessary” when the petitioner’s property is “the very subject” of the government’s action … . That case involved a rezoning of the petitioner’s property from commercial to residential use … . As the Court explained, “[i]t seems evident that if any party should be held to have a sufficient interest to object—without having to allege some specific harm—it is an owner of property which is the subject of a contemplated rezoning” … . Following that ruling, a few years later, the Court held in [Gernatt Asphalt Prods. v Town of Sardinia (87 NY2d 668 [1996])] that a landowner whose potential mining operations would be eliminated by rezoning was directly impacted by the governmental land use regulation and thus had standing under Har to challenge the government’s lack of compliance with SEQRA … . Matter of Seneca Meadows, Inc. v Town of Seneca Falls, 2025 NY Slip Op 06961, CtApp 12-16-25

Practice Point: When the petitioner’s property is the subject of the government’s action, the petitioner need not demonstrate “environmental harm” to have standing to challenge the government’s SEQRA declaration. Here the town passed a local law requiring closure of petitioner’s landfill. Petitioner need not demonstrate “environmental harm” to have standing to challenge the town’s SEQRA negative declaration on the ground the town did not take the required “hard look” at the evidence before finding that the landfill closure would not have a significant adverse environmental impact.

 

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A NEW APPLICATION FOR APPROVAL OF CONSTRUCTION OF A STORAGE FACILITY SUBMITTED WHILE THE CHALLENGE TO A PRIOR APPLICATION WAS PENDING REQUIRED A NEW SITE PLAN REVIEW OR A WRITTEN DETERMINATION WAIVING A NEW REVIEW; MATTER REMITTED TO THE PLANNING BOARD (THIRD DEPT).

The Third Department, reversing Supreme Court, determined the Planning Board, when faced with a new application for approval of construction of a storage facility while a challenge to the prior application was still pending, should have conducted a new site plan review or issued a written determination waiving a new site plan review. The matter was remitted to the Planning Board. In the initial application, the proposed building encroached on a residential zoning district. In the new application, the proposed building was entirely within the commercial zoning district:

… [I]t is evident from the application materials and the Planning Board minutes that the second application was meant to serve as a separate application for the purpose of bypassing the challenge still pending [*4]in Supreme Court on the first application.

The new application required the Planning Board to either conduct the site plan review process anew or issue a written determination waiving same, neither of which it did … . Instead, the Planning Board issued site plan approval with little discussion save for a brief question on the topic of parking and ascertaining the status of the proceeding in Supreme Court challenging the initial plan. Based upon this exceedingly limited discussion of the new plan and the utter failure to set forth a record-based elaboration for its decision to grant site plan approval, we cannot find that the Planning Board “identified the relevant areas of environmental concern, took [the requisite] hard look at them, and made a reasoned elaboration of the basis for its determination,” as required by SEQRA [State Environmental Quality Review Act] … . Therefore, that part of the court’s judgment dismissing the causes of action asserting SEQRA violations must be reversed, and that aspect of the petition seeking to annul the Planning Board’s grant of site plan approval granted. Matter of Bigelow v Town of Willsboro Planning Bd., 2025 NY Slip Op 06105, Third Dept 11-6-25

Practice Point: A new application to the the Planning Board for approval of construction which is designed to bypass a prior application for which a challenge is pending must either be reviewed anew by the Planning Board or the Board must issue a written determination waiving a new review. Neither was done here and the matter was remitted to the Planning Board.

 

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THE COMMISSIONER OF AGRICULTURE AND MARKETS HAD JURISDICTION OVER THE DISPUTE BETWEEN THE TOWN AND A FARM IN WHICH THE TOWN ALLEGED THE FARM WAS RUNNING A COMMERCIAL MULCHING OPERATION IN VIOLATION OF THE TOWN CODE; THE COMMISSIONER PROPERLY DETERMINED THE FARM WAS NOT VIOLATING THE TOWN CODE (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Egan, determined the Commissioner of Agriculture and Markets had jurisdiction over the matter and had the authority to determine a farm located in the Long Island Pine Barrens Maritime Reserve (Central Pine Barrens) was not running a commercial mulching operation in violation of the Code of the Town of Brookhaven:

Respondent Delea Sod Farms, Inc. (hereinafter Delea Farms) operates a farm in an agricultural district in the Town of Brookhaven, Suffolk County, where it primarily produces sod for sale that is used at, among other places, Yankee Stadium. Mulch and compost are stored and sold at the farm as well. The farm also lies within the Central Pine Barrens area as defined by the Long Island Pine Barrens Maritime Reserve Act (ECL 57-0101 et seq. [hereinafter the Pine Barrens Act]), the Pine Barrens being an environmentally sensitive area of Long Island that contains an aquifer from which many locals obtain drinking water and is subject to “laws and policies . . . at all government levels to protect [it] from unbridled development” (… see also ECL 57-0107 [10]). Petitioner sued Delea Farms in March 2020 to enjoin it from running what was, in petitioner’s view, a commercial mulching operation that allegedly ran afoul of the farmland bill of rights and zoning regulations contained in the Code of the Town of Brookhaven (hereinafter the Town Code) as well as the terms of a conditional discharge entered following a 2017 guilty plea by Delea Farms in a code enforcement matter. Delea Farms reacted by requesting an informal opinion from respondent Commissioner of Agriculture and Markets as to whether its storage and sale of compost and mulch on the farm was “agricultural in nature” within the meaning of Agriculture and Markets Law § 308 (4). The Commissioner issued an opinion in July 2020 that the storage and sale of mulch and compost was an incidental agricultural use to the production and sale of sod at the farm. * * *

The Commissioner determined that Delea Farms was primarily operating the farm for sod production and harvesting, that it was not manufacturing or processing mulch at the farm and that the mulch and compost at the farm was either used on the farm itself or sold to customers who needed it to install the sod and nursery stock that was the farm’s actual focus. Matter of Town of Brookhaven v Ball, 2025 NY Slip Op 01686, Third Dept 3-20-25

 

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THE RECORD DOES NOT DEMONSTRATE THAT THE TOWN PLANNING BOARD TOOK THE REQUIRED “HARD LOOK” AT THE EFFECTS OF THE EMISSION OF HAZARDOUS AIR POLLUTANTS [HAPS] FROM THE PROPOSED “BIOSOLIDS REMEDIATION AND FERTILIZER PROCESSING FACILITY;” THE NEGATIVE DECLARATION WAS THEREFORE DEEMED ARBITRARY AND CAPRICIOUS (THIRD DEPT). ​

The Third Department, reversing Supreme Court’s dismissal of the Article 78 petition contesting the town planning board’s “negative declaration” regarding a proposed “biosolids remediation and fertilizer processing facility.” The record did not demonstrate that the planning board took the required “hard look” at the effects of the emissions from the facility. Instead the board relied on proposed mitigation measures overseen by the Department of Environmental Conservation (DEC):

… [T]he planning board failed to take a hard look at the project’s potential adverse impacts on air, resulting in an arbitrary and capricious negative declaration (see CPLR 7803 [3]). The voluminous record includes the planning board’s meeting minutes, recordings and other documents, all of which are devoid of evidence that the planning board “thoroughly analyze[d]” the project’s generation of 12.7 tons of designated HAPs [hazardous air pollutants] before it issued a negative declaration … . Instead, the planning board appears to have determined that, because the project’s HAP emissions were “mitigated” to fall below the 25-ton threshold for a major source, then emissions at 50% of that rate were also mitigated … . Not only is this conclusion “without sound basis in reason” — it is not clear why the planning board decided that mitigating the impact of 25 tons of HAPs would do the same for 12.7 tons of HAPs — but also “without . . . regard to the facts,” as the record confirms that the planning board never considered the potential impacts of the project’s HAP emissions at al … . * * *

… [T]he planning board’s unexplained deference to DEC’s permitting standards and periodic monitoring with respect to the impacts of the project’s emissions on air quality does not satisfy its SEQRA obligations, resulting in an arbitrary and capricious negative declaration (see CPLR 7803 [3] …). Matter of Clean Air Action Network of Glens Falls, Inc. v Town of Moreau Planning Bd., 2025 NY Slip Op 01020, Third Dept 2-20-25

Practice Point: The lead agency for a State Environmental Quality Review Act (SEQRA) declaration cannot avoid a “hard look” at the potential hazardous air pollutants (HAPS} which will be produced by a proposed facility by simply deferring to the Department of Environmental Conservation’s (DEC’s) permitting and monitoring of the facility.

 

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SMI, A SOLID WASTE TREATMENT FACILITY, RAISED A SEQRA CHALLENGE TO A LOCAL LAW ALLOWING THE CONSTRUCTION OF A SOLID WASTE TREATMENT FACILITY IN THE TOWN OF SENECA FALLS; ALTHOUGH SMI ALLEGED THE NEW FACILITY WOULD CAUSE IT ECONOMIC LOSS, SMI DID NOT ALLEGE IT WOULD SUFFER ENVIRONMENTAL INJURY; THEREFORE SMI DID NOT HAVE STANDING TO CHALLENGE THE LOCAL LAW (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, over a two-justice dissent, determined SMI, the owner of a solid waste management facility, did not have standing to challenge, pursuant to the State Environmental Quality Review Act (SEQRA), a local law allowing the construction of a solid waste management facility in the Town of Seneca Falls. SMI’s claim it would suffer economic loss if the new facility is constructed was not enough to confer standing:

Those seeking to raise a SEQRA challenge must establish both “an environmental injury that is in some way different from that of the public at large, and . . . that the alleged injury falls within the zone of interests sought to be protected or promoted by SEQRA” … .

… Although “[a] property owner in nearby proximity to premises that are the subject of [an agency] determination may have standing to seek judicial review without pleading and proving special damages, because adverse effect or aggrievement can be inferred from the proximity” … , the “status of neighbor does not . . . automatically provide the entitlement . . . to judicial review in every instance” … . The petitioner must also establish “that the interest asserted is arguably within the zone of interest to be protected by the statute” … .

Here, SMI failed to establish, or even allege, that it had suffered or would suffer an environmental injury. SMI submitted, inter alia, the affidavit of its managing director, who averred only that SMI would suffer economic injuries if the local law was not annulled. Although SMI, as the owner of a solid waste management facility, is entitled to a presumption that it would, in fact, suffer such economic harm, it failed to establish that it has standing to raise a SEQRA challenge because economic injury does not fall within the zone of interest SEQRA seeks to protect … . Matter of Seneca Meadows, Inc. v Town of Seneca Falls, 2024 NY Slip Op 06435, Fourth Dept 12-20-24

Practice Point: To demonstrate standing, a party bringing a SEQRA challenge must demonstrate an environmental injury which is in some way different from that of the public at large. Here no environmental injury was alleged. Therefore standing was not demonstrated.

 

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THE ZONING BOARD’S DENIAL OF A USE VARIANCE FOR CONSTRUCTION OF A SOLAR ENERGY GENERATION FACILITY WAS “ARBITRARY AND CAPRICIOUS;” MATTER REMITTED FOR ISSUANCE OF THE VARIANCE (THIRD DEPT).

The Third Department, reversing Supreme Court, in a full-fledged opinion by Justice Pritzker, determined petitioners were entitled to a use variance for the construction of a solar energy generation facility, finding the denial of the variance “arbitrary and capricious:”

… [R]espondent erred in failing to afford petitioners a reduced showing relative to their application as a public utility because of the project’s minimal impact … . That the project will have a minimal impact was not only recognized by Supreme Court, but also is fully supported by the evidence in the record, including the unanimous State Environmental Quality Review Act (see ECL art 8 [hereinafter SEQRA]) determination which found no significant environmental impacts … . * * *

… [O]ne cannot quarrel with the premise that New York State’s goal of transitioning to renewable energy is designed to benefit the public at large, and this project is in line with that goal … . * * *

… [P]etitioners’ submissions to respondent establish ” ‘that there are compelling reasons, economic or otherwise, which make it more feasible to [grant a use variance]’ ” than to use an alternative site … . Matter of Freepoint Solar LLC v Town of Athens Zoning Bd. of Appeals, 2024 NY Slip Op 06409, Third Dept 12-19-24

Practice Point: Consult this opinion for a rare rejection of an administrative finding as “arbitrary and capricious.” In light of the minimal environmental impact of a solar energy facility and the state policy supporting the transition to clean energy, the zoning board’s reasons for denying the use variance were deemed untenable.

 

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PURSUANT TO THE TOWN CODE, THE PLANNING BOARD DID NOT HAVE THE POWER TO INTERPRET A LOCAL ZONING LAW TO APPROVE A DEVELOPMENT PROJECT, MATTER REMITTED (THIRD DEPT).

The Third Department, reversing Supreme Court, over a two-judge dissent, determined the planning board did not have the power to issue a special use permit and site plan approval for a commercial park:

… [T]he jurisdiction of a zoning board of appeals is appellate in nature (see Town Law § 267-a [4]). Nevertheless, a town possesses the authority to enact a local law or ordinance vesting its zoning board of appeals with original jurisdiction (see Town Law § 267-a [4]), including, for example, to address questions of zoning code interpretation … . Here, the Code of the Town of Thompson expressly provides that the ZBA may pass on matters of interpretation as to whether a proposed use is permitted under the zoning code either “[o]n appeal from a[ ] . . . determination made by an administrative official, or on request by an official, board or agency of the Town” (Code of the Town of Thompson § 250-46 [A] …), the latter option being what was requested by petitioners. * * *

… [I]t is evident that a genuine question exists as to whether the project will fall within a permissible or prohibited use, and the Planning Board improperly resolved this issue on its own. “Planning boards are without power to interpret the local zoning law, as that power is vested exclusively in local code enforcement officials and the zoning board of appeals” … . As such, the issue should have been resolved either by the local code enforcement officer, or by the ZBA upon referral from the Planning Board (see Code of the Town of Thompson §§ 250-41 [C], 250-46 [A] … . Matter of Smith v Town of Thompson Planning Bd., 2024 NY Slip Op 06085, Third Dept 12-5-24

Practice Point: Check the Town Law and the local Town Code to determine whether a Planning Board has the power to act. Here the Planning Board did not have the power to interpret a local zoning law and determine, on its own, that the proposed development is a permissible use of the land.​

 

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THE STATE ENVIRONMENTAL QUALITY REVIEW ACT (SEQRA) DETERMINATION DID NOT TAKE INTO ACCOUNT THE ARCHAEOLOGICAL/HISTORICAL SIGNIFICANCE OF THE AREA WHERE THE APARTMENT COMPLEX WAS TO BE BUILT; DETERMINATION ANNULLED AND REZONING ORDINANCE VACATED (THIRD DEPT).

The Third Department, reversing Supreme Court, determined the “negative declaration” did not adequately take into account the historic/archaeological significance of the site where the apartment complex was to be built, and failed to include a necessary “consulting party.” The State Environmental Quality Review Act (SEQRA) determination was annulled and the rezoning ordinance was vacated:

In our view, respondent’s characterization of the archaeological impact as “moderate” unduly minimizes the historic/archaeological significance of the project site. We also find it significant that respondent’s coordination plan … excludes the Stockbridge-Munsee Community as a consulting party, notwithstanding EDP’s [Environmental Design Partnership] report including the Stockbridge-Munsee Community as a key participant. By letter dated May 3, 2022, just three days before respondent adopted the negative declaration, a representative from the Stockbridge-Munsee Community Tribal Historic Preservation Office wrote to respondent “to state the Tribe’s strong[ ] disagreement” with the proposed negative declaration resolution. … [T]he representative explained that “our office concluded there would be serious and irrevocable impacts to [i]ndigenous cultural resources including a significant site known to be eligible for the National Register of Historic Places and has yielded or may be likely to yield, information important in history or prehistory.” He further commented that “[f]or thousands of years the site was used for the extraction of resources for lithic tool making and camping along the [r]iver.” In 2021, a Stockbridge-Munsee Community Tribal Historic Preservation Officer submitted a statement to respondent explaining that the parcel “has high archaeological sensitivity and cultural significance for the Stockbridge-Munsee Band of Mohican Nation. . . . The recorded Chert Quarries Precontact Site represents immense cultural and educational significance. For thousands of years this area was used for the extraction of resources for Mohican people.” Matter of Bennett v Troy City Council, 2024 NY Slip Op 05257, Third Dept 10-24-24

Practice Point: Here the failure to take into account the historical/archaeological (“indigenous cultural”) significance of the land and the failure to include a Native American group as a consulting party warranted the annulment of the SEQRA determination (“negative declaration”) and vacation of the rezoning ordinance.

 

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PETITIONER, A NONPROFIT ORGANIZATION FOR THE PRESERVATION AND PROTECTION OF THE HEALTH OF THE FINGER LAKES, HAD STANDING TO CONTEST A PERMIT ALLOWING THE DUMPING OF TREATED WASTE IN CAYUGA LAKE; ONE OF PETITIONER’S MEMBER’S DRINKING WATER COMES FROM CAYUGA LAKE (THIRD DEPT).

The Third Department, reversing Supreme Court, determined petitioner, a nonprofit organization for the preservation and protection of the health of the Finger Lakes, had standing to contest a permit allowing treated waste to be dumped into Cayuga Lake. Standing is conferred if one of petitioner’s members suffers harm greater than that suffered by the general public. Here a member’s drinking water comes from Cayuga Lake:

… [T]he sole issue on this appeal is whether petitioner sufficiently pleaded that at least one of its members would suffer an injury-in-fact that is different from harm suffered by the public at large, such as to confer petitioner with standing. Petitioner alleged in its petition/complaint that its members would be harmed by the leachate produced by County Line [waste treatment facility], which would be treated by the Ithaca treatment facility and then dumped into Cayuga Lake. According to petitioner, the type of solid waste that County Line would handle would create leachate that contains per- or polyfluoroalkyl substances (hereinafter PFAS), a by-product linked to adverse health outcomes and which the Ithaca treatment facility is not capable of completely filtering out of the treated leachate. Because the Ithaca treatment facility dumps treated leachate into Cayuga Lake and is incapable of completely filtering out PFAS, petitioner alleged that if County Line was permitted to operate its facility in accordance with its application, as DEC’s [*3]permit requires, PFAS would enter the lake and cause petitioner’s members harm. In setting forth this harm, petitioner specifically identified a member whose potable drinking water is only filtered through the ground in “beach wells” on Cayuga Lake. As these wells do not filter out PFAS, allowing PFAS to be dumped into the lake would render this member’s water contaminated and unsafe to drink. Matter of Seneca Lake Guardian v New York State Dept. of Envtl. Conservation, 2024 NY Slip Op 03856, Third Dept 7-18-24

Practice Point: Here a nonprofit whose purpose is to preserve and protect the health of the Finger Lakes had standing to contest a permit allowing the dumping of treated waste in Cayuga Lake. One of the member’s drinking water came from Cayuga Lake. Therefore the member suffered an injury greater than that suffered by the general public.

 

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