Environmental Law – New York Appellate Digest

EVEN THOUGH THE RECONSTRUCTION OF THE EAST RIVER PARK WILL BENEFIT THE SURROUNDING COMMUNITY (FLOOD PROTECTION) AS WELL AS THE PARK, THE RECONSTRUCTION SERVES A PARK PURPOSE AND THE APPROVAL OF THE STATE LEGISLATURE IS THERFORE NOT REQUIRED UNDER THE PUBLIC TRUST DOCTRINE (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Gische, determined the planned reconstruction of the East River Park along the waterfront of the lower east side of Manhattan did not require approval by the state legislature pursuant to the public trust doctrine, even though the project benefitted the park and other community objectives (protection against neighborhood flooding):

Petitioners contend that the principal purpose of the project is construction of a coastal shore floodwall to safeguard the residential developments nearby. They argue that the conclusion of a nonpark purpose is warranted because the work proposed is disproportionate to the work required to preserve the Park. There is no dispute that the project will greatly benefit the nearby communities from the risk of coastal flooding. At its core, however, petitioners’ argument is that any project that serves a park purpose cannot serve a dual purpose. Stated differently, that a park purpose is served only if that is the sole objective of a particular project. This is too narrow a reading of the park purpose requirement.

A project that benefits a park as well as other community objectives can still be considered to serve a park purpose under the public trust doctrine. * * * … [E]ven though a coastal flooding protection project will provide communities adjacent to the Park with flood protection, it will also protect the Park from coastal flooding.

Once it is determined that there is a park purpose, the salutary goal of preventing the alienation of parkland is satisfied. Matter of East Riv. Park Action v City of New York, 2021 NY Slip Op 06652, First Dept 11-30-21

November 30, 2021/by Bruce Freeman

Civil Procedure, Environmental Law, Municipal Law, Utilities

THE STATE PROPERLY APPROVED THE CONSTRUCTION OF ELECTICITY-GENERATING WIND TURBINES IN WESTERN NEW YORK (FOURTH DEPT).

The Fourth Department, affirming the approval of the construction of wind turbines for generating electricity by the NYS Board on Electric Generation Siting and the Environment (Board), determined: (1) the correct local wind-turbine law for the Town of Freedom was considered by the Board; (2) the Board correctly refused to consider a local wind-turbine law for the Town of Farmersville enacted after the evidentiary phase of the project was complete; (3) the Board properly considered the climate-change effects of the project and the effects on wild life and the land; and (4) the coalition contesting the Board ruling did not have standing to represent the First Amendment rights of the Amish community:

… [T]he Board must determine … whether a proposed electric generating facility “is a beneficial addition to or substitution for the electric generation capacity of the state” and whether “the adverse environmental effects of the construction and operation of the facility will be minimized or avoided to the maximum extent practicable” (Public Service Law § 168 [3] [a], [c]), and the Board must consider … “the impact on community character” and any additional “social, economic, visual or other aesthetic, environmental and other conditions” deemed pertinent by the Board … . “[T]he Board was created to provide for an expeditious review process and ‘to balance, in a single proceeding, the people’s need for electricity and their environmental concerns’ ” … . Furthermore, it is settled that “[t]his [C]ourt’s scope of review is limited to whether the decision and opinion of the [B]oard, inter alia, are . . . supported by substantial evidence in the record and matters of judicial notice properly considered and applied in the opinion . . . , are made in accordance with proper procedure . . . and are not arbitrary, capricious or an abuse of discretion” … . “The task of weighing conflicting evidence . . . is properly left to the . . . Board” … . Matter of Coalition of Concerned Citizens v New York State Bd. On Elec. Generation Siting & The Envt. & Alle-Catt Wind Energy, LLC, 2021 NY Slip Op 06221, Fourth Dept 11-12-21

November 12, 2021/by Bruce Freeman

Environmental Law, Municipal Law, Utilities

IN APPROVING A WIND TURBINE INSTALLATION THE STATE BOARD ON ELECTRIC GENERATION AND SITING AND THE ENVIRONMENT PROPERLY REFUSED TO CONSIDER LOCAL LAWS ENACTED BY THE TOWN AFTER THE EVIDENTIARY HEARING WAS CLOSED; THE LOCAL LAWS SOUGHT TO IMPOSE A MORATORIUM ON THE PROJECT (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Pritzker, determined the State Board on Electric Generation Siting and the Environment (siting board) had properly approved the Bluestone Wind Farm Project. The siting board properly ignored local laws enacted by the town after the evidentiary hearing was closed which attempted to impose a moratorium on the project to allow further study:

The legislative history and intent fully support this decision. In enacting the predecessor to Public Service Law article 10, the Legislature acted with the express purpose of providing “‘for the expeditious resolution of all matters concerning the location of major steam electric generating facilities presently under the jurisdiction of multiple state and local agencies, including all matters of state and local law, in a single proceeding'” … . In its current iteration, article 10 “was enacted in 1992 to provide ‘a comprehensive framework for developing and implementing sound energy policy for the [s]tate that integrates energy planning with consideration of environmental quality and [to provide] a one-stop process for the siting of major electric generating facilities'” … . “One goal of the legislation was to permit comprehensive review of the benefits and impacts anticipated from proposed facilities without unreasonable delay [and,] . . . [i]ndeed, the expeditious resolution of siting applications is a goal noted throughout documents submitted in support of the legislation” … .

This goal was manifested in the 12-month deadline imposed on the Siting Board to issue a final determination on each application before it … . … Public Service Law article 10 requires the inclusion of all substantive local laws in the record by way of a specific exhibit to be incorporated into each application … . Any disputes as to whether a proposed facility complies with a local substantive law are thus intended to be resolved by way of evidence presented during the hearing to the Hearing Examiners, and the statute explicitly places the burden on the municipality to present evidence in support of enforcement of the local law in question … . “Thus, the history and scope of article [10], as well as its comprehensive regulatory scheme, . . . would be frustrated by” last minute laws such as Local Law No. 4 … . Matter of Broome County Concerned Residents v New York State Bd. on Elec. Generation Siting & the Envt., 2021 NY Slip Op 05903, Third Dept 10-28-21

October 28, 2021/by Bruce Freeman

Environmental Law, Land Use, Zoning

ALLOWING THE APPLICANT FOR SITE PLAN APPROVAL TO RETURN WITH A SIGNAGE PROPOSAL AFTER THE PLAN WAS APPROVED DID NOT CONSTITUTE (IMPERMISSIBLE) SEGMENTATION UNDER SEQRA (SECOND DEPT).

The Second Department determined the fact the site plan was approved by the planning board without signage did not constitute segmentation under the State Environmental Quality Review Act (SEQRA):

The fact that the site plan was approved without signage did not constitute segmentation under SEQRA. Segmentation is defined as the division of the environmental review of a single action such that various activities or stages are addressed as though they are independent, unrelated activities, needing individual determinations of significance (see 6 NYCRR 617.2[ah]). The regulations which prohibit segmentation are designed to guard against a distortion of the approval process by preventing a project with potentially significant environmental effects from being split into two or more smaller projects, each falling below the threshold requiring full-blown review … . Here, signage is not being treated as an independent, unrelated activity, but as a part of the entire project, and allowing [the applicant] to return to the Planning Board with a signage proposal will not distort the approval process. Matter of Route 17K Real Estate, LLC v Planning Bd. of the Town of Newburgh, 2021 NY Slip Op 05858, Second Dept 10-27-21

October 27, 2021/by Bruce Freeman

Environmental Law, Negligence, Nuisance

NOXIOUS ODORS FROM A LANDFILL DID NOT SUPPORT THE PUBLIC NUISANCE AND NEGLIGENCE CAUSES OF ACTION; COMPLAINT DISMISSED (THIRD DEPT).

The Third Department, in a full-fledged opinion by Justice Lynch, over a dissent, reversing Supreme Court, determined the public nuisance and negligence causes of action stemming from odors from a landfill should have been dismissed. The public nuisance cause of action alleged only injury to the public at large, not the required special injury unique to the parties. The negligence cause of action did not allege any tangible property damage or physical injury:

… [P]laintiffs here have not asserted an injury that is different in kind from the relevant community at large, which, in our view, consists of the other homeowners and renters impacted by the landfill’s odors … . * * *

To recover in negligence, a plaintiff must sustain either physical injury or property damage resulting from the defendant’s alleged negligent conduct … . …

… [T]he noxious odors at issue are transient in nature and do not have a continuing physical presence. … [P]laintiffs have not alleged any tangible property damage or physical injury resulting from exposure to the odors. … [T]he economic loss resulting from the diminution of plaintiffs’ property values is not, standing alone, sufficient to sustain a negligence claim under New York law … . Davies v S.A. Dunn & Co., LLC, 2021 NY Slip Op 05751, Third Dept 10-21-21

October 21, 2021/by Bruce Freeman

Administrative Law, Environmental Law, Land Use, Zoning

THE PLANNING BOARD TOOK THE REQUISITE HARD LOOK REQUIRED BY THE STATE ENVIRONMENTAL QUALITY REVIEW ACT (SEQRA) WHEN IT APPROVED THE DEVELOPMENT WHICH INCLUDED APARTMENTS AND A COSTCO RETAIL FACILITY; SUPREME COURT SHOULD NOT HAVE ANNULLED THE APPROVAL AS ARBITRARY AND CAPRICIOUS (THIRD DEPT).

The Third Department, reversing Supreme Court, in an exhaustive analysis which cannot be fairly summarized here, determined the Planning Board took the required hard look, pursuant to the State Environmental Quality Review Act (SEGRA), at all the aspects of the proposed development project. Therefore the Planning Board’s approval of the project should not have been annulled as arbitrary and capricious. The development included apartments and a Costco Wholesale retail facility. With regard to the compatibility issues, the court wrote:

In essence, although the Costco store may, to some, not be the most compatible use, the Planning Board properly viewed it in the context of the entire project. As such, the Planning Board considered not only the fact that the Costco store is a permitted use that complied with all of the design standards contained in Local Law No. 4, but also the other tangible benefits of the project, which directly aligned with the purpose of the Local Law. These factors included pedestrian and bicycle accommodations and improvements. Also, the Planning Board considered access management and transit improvements in design and layout, including the reduction of lanes … , the construction of a new roundabout to process traffic more efficiently, the reconfiguration of a major intersection to reduce vehicular speed and a new CDTA bus stop, which CDTA confirmed would ease congestion, improve safety and result in a “marked improvement for customers” in the area. The Planning Board proposed the construction of a new connector road … , and numerous project design features to prevent noise and visual and other impacts. All told, the Planning Board discharged its duty and took the requisite hard look as to compatibility and satisfied its obligations under SEQRA … . Matter of Hart v Town of Guilderland, 2021 NY Slip Op 04273, Third Dept 7-8-21

July 8, 2021/by Bruce Freeman

Eminent Domain, Environmental Law, Municipal Law

THE CONDEMNATION OF PROPERTY WAS NOT SUPPORTED BY A DEMONSTRATION OF URBAN BLIGHT OR ANY OTHER PUBLIC PURPOSE; THE SEQRA NEGATIVE DECLARATION WAS NOT SUPPORTED (SECOND DEPT).

The Second Department, annulling the determination of the City of White Plains Urban Renewal Agency, held that the agency did not demonstrate the condemnation of the petitioners’ proper served a public purpose. The condemnation was founded on a 25-year-old study which found the area was affected by “urban blight.” The court noted that the State Environmental Quality Review Act (SEQRA) negative declaration by the agency did not identify the areas of environmental concern and the agency did not take a hard look at them:

… [T]he remediation of substandard or insanitary conditions (i.e., urban blight) is a proper basis for the exercise of the power of eminent domain … . Here, however, the agency relies only on conclusory assertions of blight based upon a 25-year-old urban renewal plan which itself lacks detail or documentation. …

Where a condemning authority does not demonstrate that property is substandard for the purpose of urban renewal, the authority must identify some public purpose other than the purported remediation of blight … . While a condemning authority may select virtually any project which “contributes to the health, safety, general welfare, convenience, or prosperity of the community” … , this broad discretion does not relieve the authority from selecting a particular project and, where demanded by the property owner, submitting that project to judicial scrutiny. Matter of Gabe Realty Corp. v City of White Plains Urban Renewal Agency, 2021 NY Slip Op 04134, Second Dept 6-30-21

June 30, 2021/by Bruce Freeman

Environmental Law, Municipal Law

PURSUANT TO ECL 23-2711, THE DEPARTMENT OF ENVIRONMENTAL CONSERVATION DID NOT HAVE THE AUTHORITY TO ISSUE A MINING PERMIT BECAUSE THE TOWN LAW PROHIBITED MINING (THIRD DEPT).

The Third Department, reversing Supreme Court, over an extensive dissent, determined the mining permit issued by the Department of Environmental Conservation (DEC) must be annulled pursuant to Environmental Conservation Law (ECL) 23-2711 because the local law prohibiting mining. The permit purported to allow the expansion of an existing mining operation:

ECL 23-2703 (3) provides that, in the event that an application for a permit is received from an applicant whose mine falls within an area described in the statute, the agency may not process the application if the local zoning laws prohibit same. ECL 23-2703 (3) is not vague or ambiguous; it is concise and clear. Contrary to all other permit applications received by DEC, an application received from an area protected under ECL 23-2703 (3) must be put on hold until the status of the local laws is determined … . There is no qualification on what type of permit applications must be put on hold; rather, by its certain language, the statute applies to all applications. … . …

ECL 23-2703 (3) clearly recognizes that the local laws of the municipality are determinative as to whether an application can be processed. Here, where it is unchallenged that the Town’s laws prohibit zoning [SIC mining?], DEC cannot process the application, let alone issue the permit. It cannot do by fiat what is prohibited under the law. Therefore, the act of issuing the permits here, in contravention of ECL 23-2703 (3), was arbitrary and capricious. Matter of Town of Southampton v New York State Dept. of Envtl. Conservation, 2021 NY Slip Op 03351, Third Dept 5-27-21

May 27, 2021/by Bruce Freeman

Environmental Law, Land Use, Zoning

OWNERS OF BUSINESSES IN THE VICINITY OF THE PROPOSED CONSTRUCTION ALLEGED DECREASED PARKING SPACES, INCREASED TRAFFIC CONGESTION AND THE BLOCKING OF SCENIC VIEWS AS REASONS FOR OVERTURNING THE SEQRA NEGATIVE DECLARATION ALLOWING THE CONSTRUCTION; THE BUSINESS OWNERS DID NOT HAVE STANDING TO CONTEST THE DECLARATION (THIRD DEPT).

The Third Department upheld the negative SEQRA (State Environmental Quality Review Act) declaration approving the construction of a mixed use structure which would reduce the number of parking spaces available in Oneonta. The fact that the petitioners owned businesses in the vicinity of the new construction did not confer standing to contest the negative declaration:

Although petitioners have established that their businesses are within close proximity to the project site, that fact alone does not confer automatic standing in the SEQRA context … . Petitioners’ allegations largely hinged on economic business concerns occasioned by an alleged decrease in available parking … , and their claim relating to traffic impacts “fail[s] to demonstrate an environmental injury different from that suffered by the public at large” … . Although the obstruction of a scenic view may constitute an environmental injury within the zone of interests sought to be protected by SEQRA … , the concerns espoused by certain petitioners regarding potential adverse scenic impacts to their businesses were undeveloped and otherwise too speculative to establish standing in these circumstances … . We also note that the project site is located in a “mixed use” district (MU-1) — which permits the type of development contemplated — and, according to the full environmental assessment form, there are no officially designated scenic or aesthetic resources located within five miles … . Matter of Peachin v City of Oneonta, 2021 NY Slip Op 02863, Third Detp 5-6-21

May 6, 2021/by Bruce Freeman

Constitutional Law, Environmental Law

THE CONSTRUCTION OF SNOWMOBILE TRAILS IN THE ADIRONDACK PARK IS PROHIBITED BY THE “FOREVER WILD” PROVISION IN THE NEW YORK STATE CONSTITUTION (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Rivera, over an extensive two-judge dissent, determined the construction of snowmobile trails in the Adirondack Park would violate the “forever wild” provision of the New York State Constitution:

… [W]e must determine whether the state’s plan for the construction of approximately 27 miles of Class II community connector trails designed for snowmobile use in the Forest Preserve is permissible under the New York Constitution. The plan requires the cutting and removal of thousands of trees, grading and leveling, and the removal of rocks and other natural components from the Forest Preserve to create snowmobile paths that are nine to 12 feet in width. We conclude that construction of these trails violates the “forever wild” provision of the New York State Constitution (art XIV, § 1) and therefore cannot be accomplished other than by constitutional amendment. * * *

The Forest Preserve is a publicly owned wilderness of incomparable beauty. Located in two regions of the Adirondack and Catskill Mountains, the Forest Preserve—with its trees, rivers, wetlands, mountain landscape, and rugged terrain—is a respite from the demands of daily life and the encroachment of commercial development. It has been this way for over a century because our State Constitution mandates:

“The lands of the state, now owned or hereafter acquired, constituting the forest preserve as now fixed by law, shall be forever kept as wild forest lands. They shall not be leased, sold or exchanged, or be taken by any corporation, public or private, nor shall the timber thereon be sold, removed or destroyed.” …

This unique “forever wild” provision was deemed necessary by its drafters and the people of the State of New York to end the commercial destruction and despoliation of the soil and trees that jeopardized the state’s forests and, perhaps most importantly, the state watershed. Protect the Adirondacks! Inc. v New York State Dept. of Envtl. Conservation, 2021 NY Slip Op 02734, CtApp 5-4-21

May 4, 2021/by Bruce Freeman