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ONE PURPOSE FOR ASSESSING ATTORNEY’S FEES AGAINST THE AGENCY IN A FREEDOM OF INFORMATION LAW CASE IS TO DISCOURAGE DELAYS IN RESPONSES TO REQUESTS FOR DOCUMENTS; THEREFORE, EVEN THOUGH THE DEPARTMENT OF ENVIRONMENTAL PROTECTION (DEP) TURNED OVER THE DOCUMENTS BEFORE THE APPEAL, THE DEP STILL SHOULD PAY THE ATTORNEY’S FEES RELATED TO THE APPEAL (THIRD DEPT).

The Third Department, reversing Supreme Court, determined the request for attorney’s fees for the appeal in this Freedom of Information Law action should not have been denied. Supreme Court reasoned that the Department of Environmental Protection (DEP) had turned over the requested documents before the appeal:

Supreme Court suggested that it would be “unduly punitive” to include appellate counsel fees and costs in its award given that DEC had already disclosed all responsive, nonprivileged documents to petitioners. The goal of an award of counsel fees and costs under Public Officers Law § 89 (4) (c), however, is to deter “unreasonable delays and denials of access and thereby encourage every unit of government to make a good faith effort to comply with the requirements of FOIL” … . As we detailed in our prior decision (169 AD3d at 1311-1312), DEC failed to respond to petitioners’ FOIL administrative appeal in a timely manner and disclosed responsive documents after petitioners advanced a FOIL claim in this action/proceeding, and DEC then resisted petitioners’ efforts to recover counsel fees and costs incurred as a result of its dilatory conduct. In our view, those facts demonstrate that the portion of the prior appeal relating to petitioners’ FOIL claim stemmed from “the very kinds of unreasonable delays and denials of access which the counsel fee provision seeks to deter,” and Supreme Court accordingly abused its discretion in declining to include the counsel fees and costs connected thereto in its award … . Matter of 101CO, LLC v New York State Dept. of Envtl. Conservation, 2020 NY Slip Op 07969, Third Dept 12-24-20

 

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NYC’S “OPEN SPACE” ZONING REQUIREMENT IS MET BY ROOFTOP GARDENS ON A SINGLE BUILDING IN A MULTI-BUILDING ZONING LOT (CT APP). ​

The Court of Appeals, in a full-fledged opinion by Judge Feinman, reversing the Appellate Division and upholding the NYC Board of Standards and Appeals (BSA), over an extensive three-judge dissent, determined the “open space” requirement of the NYC Zoning Resolution in a zoning lot with multiple buildings was met by rooftop gardens accessible to a single building’s residents:

The question before us is whether an area must be accessible to the residents of every building on a zoning lot containing multiple, separately owned buildings in order to constitute “open space” within the meaning of the New York City Zoning Resolution … . The Board of Standards and Appeals of the City of New York (BSA), which is responsible for administering the Zoning Resolution, has interpreted the definition of open space to encompass rooftop gardens accessible to a single building’s residents as long as the residents of each building on the zoning lot receive at least a proportionate share of open space. …

… “‘Open space’ is that part of a zoning lot, including courts or yards, which is open and unobstructed from its lowest level to the sky and is accessible to and usable by all persons occupying a dwelling unit or a rooming unit on the zoning lot” … . The minimum amount of open space required on a zoning lot is determined by the “open space ratio,” which is “the number of square feet of open space on the zoning lot, expressed as a percentage of the floor area on that zoning lot” … . … [T]he minimum amount of open space required on a zoning lot is calculated by multiplying the given open space ratio by the total residential floor area on the zoning lot. * * * The Appellate Division … opined that the definition of open space in ZR [Zoning Resolution] § 12-10 unambiguously requires that open space be accessible to the residents of every building on a zoning lot. By contrast, the dissent concluded that the statute was ambiguous and would have deferred to the BSA’s practical reading of the open-space definition as applied to multi-owner zoning lots. * * *The BSA’s interpretation is rational as applied to multi-owner zoning lots. Matter of Peyton v New York City Bd. of Stds. & Appeals, 2020 NY Slip Op 07662, CtApp 12-17-20

 

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SUPREME COURT WENT BEYOND THE PERMISSIBLE REVIEW OF THE DEPARTMENT OF ENVIRONMENTAL CONSERVATION’S DETERMINATION UNION CARBIDE’S FOIL REQUESTS WERE MOOT BECAUSE THE REQUESTED DOCUMENTS HAD BEEN PROVIDED; ONCE SUPREME COURT FOUND THAT THE FOIL REQUEST WAS NOT MOOT BECAUSE THERE WERE ADDITIONAL DOCUMENTS, IT SHOULD NOT HAVE GONE ON TO CONSIDER WHETHER THE ADDITIONAL DOCUMENTS WERE EXEMPT FROM DISCLOSURE (THIRD DEPT).

The Third Department, reversing (modifying) Supreme Court and remitting the matter to the Department of Environmental Conservation (DEP), determined Supreme Court exceeded its review powers with respect to DEP’s response to petitioner’s (Union Carbide’s) FOIL requests. Union Carbide sought documents relating to a study which determined the radioactive slag found at sites owned by Union Carbide was not the same as the radioactive slag produced by Union Carbide’s predecessor. The DEP had determined the FOIL requests were moot because the requested documents had been produced. Supreme Court properly held that the requests were not moot, but then improperly went on to consider whether the additional requested documents were protected from disclosure:

… [T]he administrative determination was that the first two FOIL requests were closed and that the administrative appeal with respect to the third FOIL request was moot given the production of responsive records prior to and following the filing of the appeal. As such, Supreme Court’s review was limited to whether the appeal was moot on the basis offered by the FOIL Appeals Officer, that being, whether all responsive records had been provided. By virtue of respondent’s in camera submission of additional documents to the court, it was evident that all responsive records had not been provided, and the administrative determination should have been annulled. However, in reviewing the subject documents and finding that those documents, with the exception of the site classification report, were statutorily exempted from disclosure, Supreme Court went beyond its mandate to “judge the propriety of [the agency’s] action solely by the grounds invoked by the agency” … . Accordingly, there was no basis for the court to determine that any exemption justified the withholding or redacting of the additional documents submitted to the court … . Inasmuch as the record demonstrates that additional documents responsive to petitioners’ FOIL requests exist and were not yet produced or examined by respondent’s FOIL Appeals Officer, we remit to Supreme Court to direct respondent to respond to petitioners’ FOIL requests by reviewing the additional subject documents and to determine in the first instance whether they are statutorily exempted from disclosure under the Public Officers Law. Matter of Union Carbide Corp. v New York State Dept. of Envtl. Conservation, 2020 NY Slip Op 07445, Second Dept 12-10-20

 

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THE GROUNDS FOR THE DEPARTMENT OF ENVIRONMENTAL CONSERVATION’S DENIAL OF PETITIONER PROPERTY OWNER’S APPLICATION TO PARTICIPATE IN THE BROWNFIELD CLEANUP PLAN WERE IRRATIONAL AND UNREASONABLE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the petitioner property owner’s application to participate in the Brownfield Cleanup Plan (BCP) should not have been denied by the Department of Environmental Conservation (DEP) on the grounds that; (1) the petitioner had already entered an agreement to cleanup the property; and (2) an additional financial burden would be imposed on the state. Both grounds were deemed irrational and unreasonable:

… [T]he DEC’s determination that the public interest would not be served by granting the petitioner’s application because National Grid had already agreed to remediate the site pursuant to the consent order was irrational and unreasonable. We hold, consistent with the determinations reached by several other courts, that a “brownfield site” is not ineligible for acceptance into the BCP “on the ground that it would have been remediated in any event” … . …  [A]ny “financial misgivings” (id. at 167) concerning the fiscal impact of a property being accepted into the BCP on the state is irrelevant to the question of whether the public interest would be served by the granting of an application to participate in the BCP. The DEC is not tasked with acting as “a fiscal watchdog” … .

… [T]he DEC’s determination that the site was ineligible for acceptance into the BCP on the ground that it is was “subject to [an] on-going state . . . environmental enforcement action related to the contamination which is at or emanating from the site” is also irrational and unreasonable … . There is no support in the language of the statute ECL 27-1405(2)(e) or in its legislative history for the DEC’s conclusion that the consent order constituted an ongoing enforcement action … . Matter of Wythe Berry, LLC v New York State Dept. of Envtl. Conservation, 2020 NY Slip Op 07076, Second Dept 11-25-2o

 

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TOWN PLANNING BOARD PROPERLY ISSUED A SPECIAL USE PERMIT FOR THE INSTALLATION OF A MAJOR SOLAR SYSTEM; DENIAL OF A SPECIAL USE PERMIT CANNOT BE BASED SOLELY UPON COMMUNITY OPPOSITION (THIRD DEPT).

The Third Department determined the town planning board properly issued the special use permit for a major solar energy system. Petitioners objected to the project alleging “negative visual impact and negative impact on adjoining property values.” The court found that the planning board had complied with the State Environmental Quality Review Act (SEQRA), the relevant Local Law and the relevant zoning ordinance.  The court noted a special use permit cannot be denied solely based upon community opposition:

A Planning Board may not deny a special use permit based “solely on community objection” … . Petitioners and the community objected to the project due to potential concerns of negative visual impact and negative impact upon adjoining property values. The Planning Board had ample evidence to support its determination that these impacts would be minimal. The visual assessment survey determined that, between the existing vegetation and the topography, the completed project would not be readily visible to the surrounding area. The Planning Board further found that the property owner’s concern about potential reflected glare from the solar panels was adequately addressed through Eden’s use of anti-glare coating. To further shield the community’s view of the project and to allow adjoining property owners to cut down their own trees if they so choose, the Planning Board required a 1,600-foot evergreen barrier. This evergreen screen, the property’s continued use of the land for beekeeping and sheep grazing and the determination that the project will not affect any historic resources all provide a rational basis for the Planning Board’s determination that the character of the neighborhood and property values would be reasonably safeguarded. Matter of Biggs v Eden Renewables LLC, 2020 NY Slip Op 07011, Third Dept 11-25-20

 

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FOIL REQUEST FOR THE “COMPREHENSIVE STUDY” RE NEW YORK’S TRANSITION TO 100% RENEWABLE ENERGY WAS PROPERLY INTERPRETED TO BE A DEMAND FOR THE COMPLETED REPORT, WHICH THE DEPARTMENT OF ENVIRONMENTAL CONSERVATION (DEC) CERTIFIED HAD NOT BEEN CREATED (THIRD DEPT).

The Third Department, reversing Supreme Court, over a two-justice dissent, determined petitioner’s FOIL request was properly denied because the Department of Environmental Conservation (DEC) certified that the document did not exist because it had not been completed. Petitioner had requested “an electronic copy of the ‘comprehensive study’ ordered by Gov. Andrew Cuomo ‘to determine the most rapid, cost-effective, and responsible pathway to reach 100[%] renewable energy statewide’ as detailed in [the] January 10, 2017 press release and as completed prior to revisions mentioned publicly by NYSERDA [New York State Energy and Research Development Authority] in February 2019.” The majority held the DEC properly interpreted the request as a demand for the completed report, which the DEC certified had not been created. The dissenters argued the request should not have been interpreted as a demand for the completed study, but rather as a request for any relevant documents:

Where, as here, an agency maintains that it does not possess a requested record, the agency is required to certify as much (see Public Officers Law § 89 [3]). Here, respondents submitted affidavits from Alicia Barton, the president and chief executive officer of NYSERDA, and Carl Mas, the Director of the Energy and Environmental Analysis Department of NYSERDA, as well as an affirmation from Daniella Keller, an attorney who served as DEC’s records access officer at the relevant time. In their sworn affidavits, Barton and Mas attested that the study referenced in Governor Cuomo’s January 2017 press release had yet to be completed at the time of petitioner’s FOIL request. Keller stated, in her affirmation, that DEC records custodians had conducted a search of relevant files and advised her that the requested record did not exist because the study “had not been drafted.” Such sworn attestations amply satisfy respondents’ obligations under Public Officers Law § 89 (3) … .

Where an agency properly certifies that it does not possess a requested record, a petitioner may be entitled to a hearing on the issue if it can “articulate a demonstrable factual basis to support [the] contention that the requested document[] existed and [was] within the [agency’s] control”… [S]peculation and conjecture does not warrant a hearing or a rejection of the sworn statements of Barton and Mas — individuals with personal knowledge of the study and its status — and Keller … . Matter of Empire Ctr. for Pub. Policy v New York State Energy & Research Dev. Auth., 2020 NY Slip Op 07126, Third Dept 11-25-20

 

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THE APPEAL WAS MOOT BECAUSE THE PETITION SOUGHT TO HALT THE CONSTRUCTION OF A MINING SHAFT APPROVED BY THE DEPARTMENT OF ENVIRONMENTAL CONSERVATION (DEC) AND THE SHAFT HAD BEEN COMPLETED AT THE TIME OF THE APPEAL (THIRD DEPT).

The Third Department determined the appeal was moot because the action sought to halt the construction of a mining shaft approved by the Department of Environmental Conservation (DEC) but the shaft had already been constructed at the time of the appeal:

“[T]he doctrine of mootness is invoked where a change in circumstances prevents a court from rendering a decision that would effectively determine an actual controversy” … . Whether the controversy has become moot requires the consideration of various factors, including how far the construction work has progressed towards completion, whether the work was undertaken in bad faith or without authority and whether the substantially completed work cannot be readily undone without substantial hardship … . A chief consideration to be assessed is whether the challenger to the construction work “fail[ed] to seek preliminary injunctive relief or otherwise preserve the status quo to prevent construction from commencing or continuing during the pendency of the litigation” … .

This Court has been advised that, during the pendency of the underlying proceeding and this appeal, the construction of the surface shaft has been completed to the point that it cannot be safely halted and that substantial construction costs have been incurred. Furthermore, there is no indication that petitioners promptly sought injunctive relief to maintain the status quo … or that [respondent] proceeded with the construction in bad faith or without the authority to do so … . Based on the foregoing, petitioners’ appeal is moot … . Matter of City of Ithaca v New York State Dept. of Envtl. Conservation, 2020 NY Slip Op 06322, Third Dept 11-5-20

 

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ALTHOUGH THE SEQRA REVIEW OF THE PROPOSED MODIFICATION OF A LANDFILL WAS PROPERLY DONE, SUPREME COURT SHOULD NOT HAVE DETERMINED THAT NEARBY RESIDENTS DID NOT HAVE STANDING TO CONTEST THE RULING (THIRD DEPT).

Although the Third Department determined the Department of Environmental Conservation (DEC) had properly conducted its State Environmental Quality Review Act (SEQRA) review of the proposed modification of a landfill, the petition by nearby residents should not have been denied on the ground that the petitioners did not have standing to contest the DEC ruling:

… [A]t least some of the petitioners will suffer distinct environmental harm under the circumstances presented in these proceedings. For instance, although one might expect the visual impact of the landfill expansion to be widespread, DEC specifically found that the impact would be limited and that the areas where the individual petitioners live and/or maintain recreation facilities would be among the few having a “generally unobstructed” view of the landfill. Many of the individual petitioners confirmed that they can see the landfill from their residences, explained how they are personally impacted by the sights, sounds, smells and dust generated by operations there, and further articulated how those impacts will worsen if the landfill expansion goes forward … . Moreover, the Halfmoon petitioners alleged that those impacts will impair the use and enjoyment of Halfmoon’s public park, trails and boat launches across the river, while one of the individual Halfmoon petitioners described how she was intimately involved in the development of a trail system and boat launch along the river and was similarly concerned by those impacts … . Standing rules are not to be applied in a manner so restrictive that agency actions are insulated from judicial review and, in our view, the foregoing was sufficient to establish that at least some of the petitioners in each proceeding will suffer environmental impacts different from those experienced by the general public so as to afford standing to sue … . Matter of Town of Waterford v New York State Dept. of Envtl. Conservation, 2020 NY Slip Op 06180, Third Dept 10-29-20

 

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THE STATE HAS NOT PREEMPTED A MUNICIPALITY’S ABILITY TO REGULATE THE PROCESSING OF WASTE; THEREFORE, EVEN THOUGH THE STATE HAD ISSUED A PERMIT ALLOWING THE PROCESSING OF 500 TONS OF WASTE PER DAY, THE VILLAGE’S ACTION FOR A PERMANENT INJUNCTION REDUCING THE ALLOWED AMOUNT OF WASTE SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the village’s request for a preliminary injunction limiting the amount of waste that could be processed by defendant recycling company was properly denied, but the action seeking a permanent injunction should not have been dismissed. The Department of Environmental Conservation (DEC) had issued a temporary emergency permit allowing the defendant to process 1100 tons of waste per day and the defendant applied to make 1100 tons per day permanent. The village sought an injunction imposing the 2008 limit of 370 tons per day. While the preliminary injunction was pending, the DEC issued a permit imposing a daily waste limit of 500 tons per day, which obviated the need for the preliminary injunction. But, because the state has not preempted the ability of a municipality to regulate the amount of waste, the permanent injunction action should not have been dismissed:

… [T]he Supreme Court erred in determining, in effect, that it did not have the authority to issue declaratory or injunctive relief limiting the maximum amount of waste that could be processed at the facility in an amount less than that permitted by the DEC. Indeed, “the State has not preempted local legislation of issues related to municipal solid waste management” … . Thus, the DEC’s issuance of the 2016 renewal permit did not per se preclude the court from considering the merits of the causes of action asserted in the Village’s complaint. * * *

… [A]s a practical matter, the DEC’s issuance of the [500 ton per day] permit largely obviated the need for an order preliminarily enjoining the defendants … . … However, the Supreme Court had an insufficient legal or factual basis, at this preliminary stage, to deny the Village’s request for permanent injunctive relief precluding [defendant] from exceeding the 2008 limits. Indeed, if the Village is ultimately able to establish, at trial, that the defendants breached the terms of a prior agreement entered into between the Village and [defendant], or that the facility’s operation in excess of the 2008 limits constitutes a nuisance, or that the facility is operating in violation of the Village’s zoning code, then the Village may well be entitled to permanent injunctive relief as an appropriate remedy … . Incorporated Vil. of Lindenhurst v One World Recycling, LLC, 2020 NY Slip Op 05037, Second Dept 9-23-20

 

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THE TOWN’S APPROVAL OF CHANGES TO A WIND-TURBINE PROJECT WITHOUT A SECOND SUPPLEMENTAL ENVIRONMENTAL IMPACT STATEMENT (SEIS) WAS NOT ARBITRARY AND CAPRICIOUS (FOURTH DEPT).

The Fourth Department, dismissing the petition seeking review of the town’s approval of a wind turbine project. determined a second supplemental environmental impact statement (SEIS) was not necessary before approving an increase in the height of the turbines and the placement of the transmission lines underground. The Fourth Department noted that Supreme Court’s failure to address issues raised in the petition constitutes a denial of the related relief, and the petitioners did not cross-appeal those denials:

During the SEQRA [State Environmental Quality Review Act] process, a SEIS may be required to address “specific significant adverse environmental impacts not addressed or inadequately addressed in the EIS,” arising from, inter alia, changes in the project … . A decision to require a SEIS “must be based upon . . . the importance and relevance of the information; and . . . the present state of the information in the EIS” … . “A lead agency’s determination whether to require a SEIS—or in this case a second SEIS—is discretionary” … , and such determination “should be annulled only if it is arbitrary, capricious, or unsupported by the evidence” … .

We conclude that the Town Board “took a hard look at the areas of environmental concern and made a reasoned elaboration of the basis for its conclusion that a second SEIS was not necessary” … . The Town Board’s discretionary determination was not arbitrary, capricious, or unsupported by the evidence … . The prior submissions concerning the impact of the project on bald eagles, combined with the updated materials submitted with the latest project modification, were sufficient to establish that the proposed changes would not adversely impact bald eagles. The materials established that collisions between raptors and wind turbines are rare, and that even the higher, 599-foot turbines lie below the normal flight altitude of bald eagles. With respect to the buried electrical transmission lines, the materials showed that such a modification would have a significant positive environmental impact, reducing the effect of the project on wetlands. Matter of McGraw v Town Bd. of Town of Villenova, 2020 NY Slip Op 04644, Fourth Dept 8-20-20

 

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