You are here: / Environmental Law
,

THE FACT THAT THE CONTAMINATED AREA WHERE THE NEW CONSTRUCTION WAS TO BE LOCATED HAD BEEN REMEDIATED BY THE DEPARTMENT OF ENVIRONMENTAL CONSERVATION (DEC) WAS NOT ENOUGH TO ENSURE SAFETY WHEN THE SOIL IS DISTURBED FOR CONSTRUCTION; THE SEQRA REVIEW DID NOT TAKE THE REQUISITE HARD LOOK AT THE EFFECTS OF DISTURBING THE SOIL (THIRD DEPT).

The Third Department, over a two-justice dissent, determined the Plattsburgh Common Council, the lead agency responsible for review of a construction project pursuant to the State Environmental Quality Review Act (SEQRA), did not take the requisite hard look at the potential danger associated with disturbing the contaminated soil which had been cleaned up and declared remediated by the Department of Environmental Conservation (DEC):

… Supreme Court correctly determined that, although the soil contamination was addressed, the ZBA (Zoning Board of Appeals) and Planning Board failed to take a hard look at this issue … . More specifically, the failure in providing mitigation measures for this environmental concern did not comply with the mandates of SEQRA … . Preliminarily, the Common Council, and thereafter the Planning Board and ZBA, properly relied on DEC correspondence in determining that the project site in its current form did not present adverse environmental impacts … . Here, however, it was inappropriate to determine that there would be no adverse environmental impacts when it was known that the contemplated site plan would necessarily disturb the contaminated soil … . * * * The fact that the brownfield remediation was successful at the time does not discharge the involved agency’s duty to take a hard look relative to the project … . Indeed, the citizens who may be impacted have the right to insist that the construction be done in an environmentally safe manner in accordance with SEQRA.  Matter of Boise v City of Plattsburgh, 2023 NY Slip Op 04338, Third Dept 8-17-23

Practice Point: Here the construction area had been contaminated and was successfully remediated by the DEC. But the SEQRA review required a hard look at the effects of disturbing the soil n the remediated area during construction. The review could not simply rely on the remediation-conclusions of the DEC.

 

,

THE OFFICE OF RENEWABLE ENERGY SITING (ORES) CONDUCTED A PROPER REVIEW BEFORE ISSUING THE CHALLENGED REGULATIONS CONCERNING THE SITING OF MAJOR RENEWABLE ENERGY FACILITIES (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Pritzker, determined that the Office of Renewable Energy Siting (ORES) had conducted a proper review before issuing regulations concerning the siting of major renewable energy facilities. The opinion is far too detailed to fairly summarize here:

… [P]etitioners — who include numerous municipalities, municipal corporations and private entities — commenced the instant combined proceeding pursuant to CPLR article 78 and action for declaratory judgment, seeking, among other things, to annul the regulations and direct ORES to engage in a proper SEQRA [State Environmental Quality Review Act] review. Specifically, petitioners alleged that, among other things, ORES: (1) mischaracterized the action as an unlisted action rather than a type I action; (2) failed to take a hard look at the environmental consequences of the regulations; (3) violated the home rule provision of the NY Constitution; and (4) violated the express terms of Executive Law § 94-c. * * *

… [W]e agree with petitioners’ threshold argument that ORES misclassified this action as unlisted, rather than type I. … … [T]he promulgation of the regulations should have been classified as a type I action that would carry the presumption of requiring preparation of an EIS [Environment Impact Statement] … . However, “a misclassification does not always lead to the annulment of the negative declaration if the lead agency conducts the equivalent of a type I review notwithstanding the misclassification” … , and, notably, “a type I action does not, per se, necessitate the filing of an EIS” … . * * *

A review of the vast record reveals that ORES took a thorough and hard look at the potential negative environmental impacts associated with the proposed regulations. Matter of Town of Copake v New York State Off. of Renewable Energy Siting, 2023 NY Slip Op 02721, Third Dept 5-18-23

Practice Point: The newly created Office of Renewable Energy Siting conducted a proper review before issuing the challenged regulations concerning the siting of major renewable energy facilities.

 

,

THE TOWN PLANNING BOARD COMPLIED WITH THE “HARD LOOK” REQUIREMENTS OF SEQRA AND PROPERLY GRANTED A SPECIAL USE PERMIT, CRITERIA EXPLAINED IN SOME DETAIL (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the town planning board complied with the State Environmental Quality Review Act (SEQRA) and properly considered the criteria for a special use permit when it approved a project:

… [T]he Planning Board identified groundwater resources, noise, and scenic resources as relevant areas of environmental concern, took a hard look at them, and made a reasoned elaboration of the basis for its negative determination of significance. * * *

… [T]he record demonstrates that the Planning Board complied with Zoning Code § 143-117(A)(6) and (9), which required it to assess the “[a]dequacy of water supply and sewage disposal facilities,” and to provide the protection of “neighboring properties against noise, glare, unsightliness or other objectionable features.”

Lastly, “[a] use permitted by a special use permit is a use that has been found by the local legislative body to be appropriate for the zoning district and ‘in harmony with the general zoning plan and will not adversely affect the neighborhood'” … . Although the Planning Board “‘does not have the authority to waive or modify any conditions set forth in the ordinance'” … , “[t]he permit must be granted if the application satisfies the criteria set forth in the zoning law” … . Matter of Tampone v Town of Red Hook Planning Bd., 2023 NY Slip Op 02011, Second Dept 4-19-23

Practice Point: The Second Department explained the judicial-review criteria for a town planning board’s negative declaration under SEQRA and a town planning board’s compliance with the zoning code and special-use-permit requirements.

 

, ,

THE COURT’S INQUIRY ON MOTIONS TO DISMISS AN ARTICLE 78 PETITION, A COMPLAINT, AND/OR A REQUEST FOR A DECLARATORY JUDGMENT SHOULD RARELY GO BEYOND WHETHER, ASSUMING THE TRUTH OF THE ALLEGATIONS, A CAUSE OF ACTION HAS BEEN STATED (SECOND DEPT).

The Second Department, reversing Supreme Court, noted that the inquiry on motions to dismiss should rarely go beyond determining whether a cause of action has been stated. The action here alleged violations of the Sewage Pollution Right to Know Act (ECL 17-0825-a):

“On a motion pursuant to CPLR 7804(f) to dismiss a petition, only the petition is to be considered, all of its allegations are to be deemed true, and the petitioner is to be accorded the benefit of every possible inference” … , On a motion pursuant to CPLR 3211(a)(7), “[c]ourts may consider extrinsic evidence outside of the pleading’s four corners to help determine whether the pleading party has a cause of action, as distinguished from whether the pleading simply states a cause of action” … . However, affidavits submitted by a movant “will almost never warrant dismissal under CPLR 3211 unless they establish conclusively that [petitioner] has no [claim or] cause of action” … . …

The petition/complaint also states a viable cause of action for declaratory relief. A motion to dismiss the complaint in an action for a declaratory judgment “‘presents for consideration only the issue of whether a cause of action for declaratory relief is set forth, not the question of whether the plaintiff is entitled to a favorable declaration'” … . Matter of Riverkeeper, Inc. v New York City Dept. of Envtl. Protection, 2023 NY Slip Op 01679, Second Dept 3-29-23

Practice Point: A court’s inquiry on motions to dismiss an Article 78 petition, a complaint and/or a request for declaratory judgment should rarely go beyond whether a cause of action has been stated.

 

,

PERMIT/ORDER ALLOWING DEVELOPMENT OF MARINAS ON LOWER SARANAC LAKE IN THE ADIRONDACK PARK ANNULLED (THIRD DEPT).

The Third Department, reversing the Adirondack Park Agency (APA), in a full-fledged opinion by Justice Ceresia, determined that the APA misapplied its wetlands regulations in issuing a permit for the development of marinas on Lower Saranac Lake in the Adirondack Park. The permit/order was therefore annulled. The opinion is too detailed and comprehensive to fairly summarize here:

LS Marina’s wetlands permit application required APA to evaluate the freshwater wetland at the Annex location and assign it a value rating between one and four, with one representing the highest value (see 9 NYCRR 578.5). The value rating is arrived at by first determining whether the wetland possesses any one or more of 24 different characteristics, each of which, in turn, has an assigned value of one through four (see 9 NYCRR 578.5 [a]-[x]). These 24 characteristics are grouped under six headings or categories, which APA refers to as “factors.” The wetland’s overall value is to be no lower than the highest value of any of its characteristics (see 9 NYCRR 578.6 [a]). Furthermore, as is relevant here, if the wetland has three or more characteristics with a value of two, which fall under “more than one factor,” this will raise the wetland’s value to one (9 NYCRR 578.6 [c]).

There is no dispute that the wetland at the Annex has three value-two characteristics, and that these three characteristics fall under two separate factors (see 9 NYCRR 578.5 [c], [g], [k]). Nevertheless, APA assigned the wetland an overall value of two rather than one … . … Therefore, APA should have assigned an overall value of one to the Annex wetland and should have analyzed the wetlands permit application accordingly (see 9 NYCRR 578.10 [a] [1]). Matter of Jorling v Adirondack Park Agency, 2023 NY Slip Op 01118, Third Dept 3-2-23

Practice Point: Here the Adirondack Park Agency misapplied its wetlands regulations with respect to a permit for the development of marinas on Lower Saranac Lake in the Adirondack Park. The permit/order was therefore annulled.

 

,

IN THIS OIL SPILL CLEAN UP SUIT AGAINST THE PROPERTY OWNER BROUGHT UNDER THE NAVIGATION LAW, THERE IS NO STATUTE PROHIBITING THE STATE FROM SEEKING INDEMNIFICATION FOR FUNDS EXPENDED FROM THE ENVIRONMENTAL RESTORATION PROGRAM FUND PURSUANT TO THE ENVIRONMENTAL CONSERVATION LAW (THIRD DEPT).

The Third Department, reversing Supreme Court, determined the complaint seeking reimbursement of oil spill clean up costs from the defendant property owner should not have been dismissed. Defendant argued the state could not seek reimbursement under the Navigation Law for funds expended from the Environmental Restoration Program Fund pursuant to the Environmental Conservation Law. The Third Department found no support for the argument in the statutes:

Nothing in the Navigation Law prohibits plaintiff from seeking indemnification for funds expended from sources other than the Oil Spill Fund. Moreover, the Environmental Conservation Law requires the state to seek recovery of the funds under any statute (see ECL 56-0507 [2]). * * *

… “[T]he state of New York and any of its political subdivisions or agents” (Navigation Law § 172 [14]). Additionally, the Legislature imposed strict liability against “[a]ny person who has discharged petroleum . . . without regard to fault, for all cleanup and removal costs and all direct and indirect damages, no matter by whom sustained” (Navigation Law § 181 [1] … ). The language of the statute does not limit recovery solely to the Oil Spill Fund. Rather, the fund simply serves as a possible means to effectuate the statute. “[B]arring plaintiff from seeking to hold defendant strictly liable for the [remediation] expenditures would thwart the plain language of Navigation Law § 181, as well as the express purposes of Navigation Law article 12 …”. State of New York v Alfa Laval Inc., 2023 NY Slip Op 01034, Third Dept 2-23-23

Practice Point: Here the state sought recovery of oil spill clean up costs from the defendant property owner. The defendant argued the state could not be indemnified for funds expended from the Environmental Restoration Program fund (pursuant to the Environmental Conservation Law) by suing under the Navigation Law, which has its own Oil Spill Fund. The Third Department found no such statutory restriction.

 

,

THE DEPARTMENT OF ENVIRONMENTAL CONSERVATION (DEC) MAY APPROVE MINING WHERE MINING IS OTHERWISE PROHIBITED IF THE MINING IS AN UNDISPUTED PRIOR NONCONFORMING USE (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Cannataro, determined the Department of Environment Conservation (DEC) can renew mining permits where mining is an undisputed prior nonconforming use. The “mining” at issue in this case is a sand and gravel mine on Long Island. Although mining was a permitted use when the mine opened, the area where the mine is located had been rezoned as a residential district where mining is prohibited:

The question raised on this appeal is whether Environmental Conservation Law 23-2703 (3) bars the Department of Environmental Conservation from processing all applications for permits to mine in covered counties, including applications for renewal and modification permits, when “local zoning laws or ordinances prohibit mining uses within the area proposed to be mined” … . We hold that DEC may process renewal and modification applications when such applications seek to mine land that falls within the scope of an undisputed prior nonconforming use. The applications at issue implicate some prior nonconforming uses that are undisputed and others that are disputed but not yet resolved. Because prior nonconforming use was not taken into account by either DEC or the courts below, we modify and remit for further proceedings. Matter of Town of Southampton v New York State Dept. of Envtl. Conservation, 2023 NY Slip Op 00689, Second Dept 2-9-23

Practice Point: Where mining is currently prohibited by zoning, the DEC cam renew mining permits when the mining is an undisputed prior nonconforming use.

 

, , ,

THE PLAINTIFF SHOULD NOT HAVE DESTROYED THE UNDERGROUND OIL TANKS WHICH WERE ALLEGED TO HAVE LEAKED, CONTAMINATING PLAINTIFF’S PROPERTY; HOWEVER THE DEFENDANT OIL COMPANIES DID NOT DEMONSRTATE THE DESTRUCTION OF THE TANKS MADE IT IMPOSSIBLE TO PROVE A DEFENSE; THEREFORE AN ADVERSE INFERENCE JURY INSTRUCTION, NOT THE STRIKING OF THE COMPLAINT, WAS THE APPROPRIATE SANCTION (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court, determined that the plaintiff should have preserved the underground oil tanks which allegedly leaked and contaminated plaintiff’s property, but that striking the complaint was not warranted under the doctrine of spoliation. Because the defendants did not demonstrate the destruction of the tanks made it impossible to mount a defense, an adverse inference instruction was the appropriate sanction:

The plaintiff commenced this action, inter alia, to recover damages for a violation of Navigation Law § 181, alleging that the defendants Chevron U.S.A., Inc., Getty Oil Company, Getty Refining and Marketing Company, and Getty Oil Company (Eastern Operations), Inc. (hereinafter collectively the defendants), discharged petroleum from underground storage tanks on the plaintiff’s property. * * *

… [T]he defendants demonstrated that the plaintiff had an obligation to preserve the tanks at the time they were disposed of, which was before the defendants had an opportunity to inspect the tanks, that the tanks were destroyed with a culpable state of mind, and that the tanks were relevant to the litigation … . However, the defendants failed to establish that their ability to prove a defense was fatally compromised by the destruction of the tanks, or that the destruction of the tanks was willful and contumacious … . Dagro Assoc. II, LLC v Chevron U.S.A., Inc., 2022 NY Slip Op 03884, Second Dept 6-15-22

Practice Point: Where spoliation of evidence does not take away the defendants’ ability to prove a defense, and where spoliation was not done willfully and contumaciously, striking the complaint is not warranted. The appropriate sanction is an adverse inference jury instruction.

 

, ,

ALTHOUGH THE PLANS FOR THE EXPANSION OF A HOSPITAL WERE NOT YET FINALIZED, IT WAS CLEAR THAT SUCH AN EXPANSION WAS AN ANTICIPATED RESULT OF THE PROPOSED ZONING CHANGE; THEREFORE THE STATE ENVIRONMENTAL QUALITY REVIEW ACT (SEQRA) PROHIBITION OF “SEGMENTATION” REQUIRED CONSIDERATION OF THE EXPANSION AS PART OF THE “HARD LOOK” AT THE CONSEQUENCES OF THE ZONING CHANGE (THIRD DEPT).

The Third Department, reversing (modifying) Supreme Court, determined the respondents (city) did not take the requisite “hard look,” required by the State Environmental Quality Review Act (SEQRA), at the environmental consequences before approving a zoning change that would allow an expansion of a hospital. Although there were no finalized plans to expand the hospital, it was clear that the zoning change was a first step in an expected expansion. Failure consider the expansion constituted a prohibited form of “segmentation:”

As to the segmentation claim, although the City Council was not presented with any impending, specific development proposals, rezoning parcel 1 was the “first step” in the process of eventually developing parcel 1 … . In essence, before Saratoga Hospital could move forward with any development and expansion, it needed to acquire the “right” to do so … . The zoning map amendment for parcel 1 provided just that; it would be the green light to reignite development plans. … [T]he potential development of the parcel here was not so attenuated from the zoning map amendment that reviewing an expansion of the hospital constituted permissible segmentation … . Thus, the City Council was “obligated to consider the impacts to be expected from such future development at the time of rezoning, even absent a specific site plan for the project proposal” … . Matter of Evans v City of Saratoga Springs, 2022 NY Slip Op 01079, Third Dept 2-17-22​

 

, ,

THE PETITIONERS DEMONSTRATED THAT THE OPERATION OF A CONCRETE PLANT WOULD CAUSE INJURIES TO THEM DIFFERENT FROM THOSE SUFFERED BY THE PUBLIC AT LARGE; SUPREME COURT SHOULD NOT HAVE DETERMINED PETITIONERS DID NOT HAVE STANDING TO CONTEST THE RENOVATION AND OPERATION OF THE PLANT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined petitioners had standing to contest the renovation and operation of a concrete plant:

Supreme Court improperly determined that the Hill & Dale petitioners and the Veteri petitioners lacked standing to challenge the ZBA’s determination. The Hill & Dale petitioners alleged environmental injuries to a private lake owned by Hill & Dale, which was situated directly across from the subject property, as well as interference with recreational activities enjoyed in and around the lake, and impacts to their properties from increased noise, truck traffic, dust, and pollutants from the concrete manufacturing use. These alleged injuries were different from those suffered by the public at large … , and fell within the zone of interests protected by the Town’s zoning laws … . Similarly, the Veteri petitioners sufficiently alleged that they would be adversely affected by the ZBA’s determination and that their alleged injuries fell within the zone of interests protected by the zoning laws. Matter of Veteri v Zoning Bd. of Appeals of the Town of Kent, 2022 NY Slip Op 01030, Second Dept 2-16-22

 

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

Copyright © 2023 New York Appellate Digest, LLC
Site by CurlyHost | Privacy Policy