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FIRE DISTRICT DID NOT HAVE STANDING TO CONTEST A SEQRA NEGATIVE DECLARATION FOR A RESIDENTIAL DEVELOPMENT, THE FIRE DISTRICT RAISED AN ECONOMIC CONCERN ABOUT INCREASED SERVICE CALLS, NOT AN ENVIRONMENTAL CONCERN (SECOND DEPT).

The Second Department determined the board of commissioners of a fire district (a municipal corporation) did not have standing to contest the negative declaration under the State Environmental Quality Review Act (SEQRA) made by the town planning board regarding a residential development. Among other things, the fire district argued that the increased number of residents would burden the fire district with increased service calls. The Second Department noted that the increase burden was an economic concern, not an environmental concern:

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“To establish standing under SEQRA, a petitioner must show (1) an environmental injury that is in some way different from that of the public at large, and (2) that the alleged injury falls within the zone of interests sought to be protected or promoted by SEQRA” … . To qualify for standing to raise a SEQRA challenge, a party must demonstrate that it will suffer an injury that is environmental and not solely economic in nature Although raising economic concerns does not foreclose standing to also raise environmental injury … , economic injury is not by itself within the zone of interests which SEQRA seeks to protect … . Here, the petitioner’s concerns that an increase in the number of residents in its district would result in an increase in the number of service calls made by it, which would result in a financial burden on it, were insufficient to establish its standing since such concerns are solely economic in nature … . Matter of Board of Fire Commr. of the Fairview Fire Dist. v Town of Poughkeepsie Planning Bd., 2017 NY Slip Op 08514, Second Dept 12-6-17

 

ENVIRONMENTAL LAW (STATE ENVIRONMENTAL QUALITY REVIEW ACT, STANDING, FIRE DISTRICT DID NOT HAVE STANDING TO CONTEST A SEQRA NEGATIVE DECLARATION FOR A RESIDENTIAL DEVELOPMENT, THE FIRE DISTRICT RAISED AN ECONOMIC CONCERN ABOUT INCREASED SERVICE CALLS, NOT AN ENVIRONMENTAL CONCERN (SECOND DEPT)}/STATE ENVIRONMENTAL QUALITY REVIEW ACT (SEQRA) (STANDING, FIRE DISTRICT DID NOT HAVE STANDING TO CONTEST A SEQRA NEGATIVE DECLARATION FOR A RESIDENTIAL DEVELOPMENT, THE FIRE DISTRICT RAISED AN ECONOMIC CONCERN ABOUT INCREASED SERVICE CALLS, NOT AN ENVIRONMENTAL CONCERN (SECOND DEPT)}/STANDING (ENVIRONMENTAL LAW, STATE ENVIRONMENTAL QUALITY REVIEW ACT, FIRE DISTRICT DID NOT HAVE STANDING TO CONTEST A SEQRA NEGATIVE DECLARATION FOR A RESIDENTIAL DEVELOPMENT, THE FIRE DISTRICT RAISED AN ECONOMIC CONCERN ABOUT INCREASED SERVICE CALLS, NOT AN ENVIRONMENTAL CONCERN (SECOND DEPT)}

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NYC LANDMARKS PRESERVATION COMMISSION’S DECISION THAT IT DID NOT HAVE THE AUTHORITY TO REGULATE THE MECHANISM OF AND ACCESS TO A LANDMARK NINETEENTH CENTURY CLOCKTOWER WHICH HAD BEEN PURCHASED BY A PRIVATE PARTY WAS BASED UPON AN ERROR OF LAW AND WAS IRRATIONAL (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Gesmer, over a two-justice dissent, determined the NYC Landmarks Preservation Commission’s (LPC’s) decision to allow the electrification of a landmark nineteenth century clocktower (similar in structure to Big Ben) was based upon an error of law and was irrational. The clocktower had been sold to a private party which planned to convert it to a residence. The LPC found, in effect, that the commission did not have authority over the now privately-owned clocktower:

 

We hold that the LPC has authority under the Landmarks Law to regulate the clock mechanism for two reasons.

First, this result effectuates the statutory purposes. The Landmarks Law, New York City’s first historic preservation statute, * * * declares that “the protection, enhancement, perpetuation and use of improvements . . . of special character or special historical or aesthetic interest or value is a public necessity and is required in the interest of the health, prosperity, safety and welfare of the people” (Landmarks Law § 25-301[b]). … * * *

Second, the Landmarks Law defines the term “interior architectural feature” to include the “components of an interior, including, but not limited to . . . the type and style of all . . . fixtures appurtenant to such interior” (Landmarks Law § 25-302[l]). Matter of Save America’s Clocks, Inc. v City of New York, 2017 NY Slip Op 08457, First Dept 11-30-17

 

ADMINISTRATIVE LAW (NYC LANDMARKS PRESERVATION LAW NYC LANDMARKS PRESERVATION COMMISSION’S DECISION THAT IT DID NOT HAVE THE AUTHORITY TO REGULATE THE MECHANISM OF AND ACCESS TO A LANDMARK NINETEENTH CENTURY CLOCKTOWER WHICH HAD BEEN PURCHASED BY A PRIVATE PARTY WAS BASED UPON AN ERROR OF LAW AND WAS IRRATIONAL (FIRST DEPT))/MUNICIPAL LAW  (NYC LANDMARKS PRESERVATION LAW NYC LANDMARKS PRESERVATION COMMISSION’S DECISION THAT IT DID NOT HAVE THE AUTHORITY TO REGULATE THE MECHANISM OF AND ACCESS TO A LANDMARK NINETEENTH CENTURY CLOCKTOWER WHICH HAD BEEN PURCHASED BY A PRIVATE PARTY WAS BASED UPON AN ERROR OF LAW AND WAS IRRATIONAL (FIRST DEPT))/ENVIRONMENTAL LAW (NYC LANDMARKS PRESERVATION LAW NYC LANDMARKS PRESERVATION COMMISSION’S DECISION THAT IT DID NOT HAVE THE AUTHORITY TO REGULATE THE MECHANISM OF AND ACCESS TO A LANDMARK NINETEENTH CENTURY CLOCKTOWER WHICH HAD BEEN PURCHASED BY A PRIVATE PARTY WAS BASED UPON AN ERROR OF LAW AND WAS IRRATIONAL (FIRST DEPT))/LANDMARKS (NYC LANDMARKS PRESERVATION LAW NYC LANDMARKS PRESERVATION COMMISSION’S DECISION THAT IT DID NOT HAVE THE AUTHORITY TO REGULATE THE MECHANISM OF AND ACCESS TO A LANDMARK NINETEENTH CENTURY CLOCKTOWER WHICH HAD BEEN PURCHASED BY A PRIVATE PARTY WAS BASED UPON AN ERROR OF LAW AND WAS IRRATIONAL (FIRST DEPT))/CLOCKTOWER  (NYC LANDMARKS PRESERVATION LAW NYC LANDMARKS PRESERVATION COMMISSION’S DECISION THAT IT DID NOT HAVE THE AUTHORITY TO REGULATE THE MECHANISM OF AND ACCESS TO A LANDMARK NINETEENTH CENTURY CLOCKTOWER WHICH HAD BEEN PURCHASED BY A PRIVATE PARTY WAS BASED UPON AN ERROR OF LAW AND WAS IRRATIONAL (FIRST DEPT))

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ALTHOUGH THE PLANNING BOARD HELD THAT IT HAD JURISDICTION OVER THE PROPOSED DEVELOPMENT, A FINDING WITH WHICH PETITIONERS DISAGREED, THE BOARD ALSO HELD THE PETITIONERS COULD APPLY FOR A HARDSHIP EXEMPTION WHICH WAS NOT DONE, THE ACTION IS THEREFORE PREMATURE (SECOND DEPT).

The Second Department determined the action seeking a declaration whether a proposed development was within the jurisdiction of the planning board was premature. Although the board found it had jurisdiction, it also indicated the landowner could obtain a hardship exemption which would allow development:

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Here, the Planning Commission’s initial finding that the proposed subdivision constituted “development” within the meaning of the Act (see Environmental Conservation Law § 57-0107[13]; see also Central Pine Barrens Comprehensive Land Use Plan § 4.3.5) did not constitute a final determination prohibiting the petitioners from subdividing the property in accordance with their proposal. As the Planning Commission’s determination indicated, the petitioners may still obtain a hardship exemption, which would render the proposed residential use of the property authorized … . Since the petitioners failed to adequately allege that they suffered an actual concrete injury, the Supreme Court properly granted the respondents’ motion to dismiss the proceeding as premature … . Matter of Equine Facility, LLC v Pavacic, 2017 NY Slip Op 08371, Second Dept 11-29-17

 

ZONING (ALTHOUGH THE PLANNING BOARD HELD THAT IT HAD JURISDICTION OVER THE PROPOSED DEVELOPMENT, A FINDING WITH WHICH PETITIONERS DISAGREED, THE BOARD ALSO HELD THE PETITIONERS COULD APPLY FOR A HARDSHIP EXEMPTION WHICH WAS NOT DONE, THE ACTION IS THEREFORE PREMATURE (SECOND DEPT))/CIVIL PROCEDURE (RIPENESS, ZONING, ALTHOUGH THE PLANNING BOARD HELD THAT IT HAD JURISDICTION OVER THE PROPOSED DEVELOPMENT, A FINDING WITH WHICH PETITIONERS DISAGREED, THE BOARD ALSO HELD THE PETITIONERS COULD APPLY FOR A HARDSHIP EXEMPTION WHICH WAS NOT DONE, THE ACTION IS THEREFORE PREMATURE (SECOND DEPT))/ENVIRONMENTAL LAW (ZONING,  (ALTHOUGH THE PLANNING BOARD HELD THAT IT HAD JURISDICTION OVER THE PROPOSED DEVELOPMENT, A FINDING WITH WHICH PETITIONERS DISAGREED, THE BOARD ALSO HELD THE PETITIONERS COULD APPLY FOR A HARDSHIP EXEMPTION WHICH WAS NOT DONE, THE ACTION IS THEREFORE PREMATURE (SECOND DEPT))

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PLANNING BOARD DID NOT TAKE THE REQUISITE HARD LOOK AT THE IMPACT OF THE PROPOSED DEVELOPMENT, SUPPLEMENTAL ENVIRONMENTAL IMPACT STATEMENT REQUIRED (SECOND DEPT).

The Second Department, reversing (in part) Supreme Court, determined the town planning board did not take the requisite “hard look” at the combined effect of the proposed development and the proximity of the development to a gas line. Therefore a Supplemental Environmental Impact Statement (SEIS) was required. Petitioners arguments that the proposed development conflicted with the town’s comprehensive plan and constituted prohibited spot zoning were rejected:

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… [W]e agree with the petitioner’s contention that the Town Board failed to take a “hard look” at the environmental impact of placing the proposed development in close proximity to the existing Columbia Gas pipeline, and the combined environmental impact of the pipeline and the development together. The Draft Environmental Impact Statement (hereinafter DEIS) contains only a brief mention of the pipeline which bisects the property, and Columbia Gas was omitted from the list of “interested agencies.” In addition, there is nothing in the Town Board’s determinations that suggests that it considered these issues outside the context of the DEIS and the final environmental impact statement (hereinafter FEIS), and they are not discussed in the Town’s SEQRA findings statement. Thus, the record supports the petitioner’s contention that the Town Board did not take a “hard look” at these issues or make a “reasoned elaboration” of the basis for its determination regarding them … , and the Supreme Court should have annulled the Town Board’s determination resolving to approve the findings statement pursuant to SEQRA for the proposed zone change. Matter of Youngewirth v Town of Ramapo Town Bd., 2017 NY Slip Op 07744, Second Dept 11-8-17

 

ENVIRONMENTAL LAW (PLANNING BOARD DID NOT TAKE THE REQUISITE HARD LOOK AT THE IMPACT OF THE PROPOSED DEVELOPMENT, SUPPLEMENTAL ENVIRONMENTAL IMPACT STATEMENT REQUIRED (SECOND DEPT))/ZONING (ENVIRONMENTAL LAW, PLANNING BOARD DID NOT TAKE THE REQUISITE HARD LOOK AT THE IMPACT OF THE PROPOSED DEVELOPMENT, SUPPLEMENTAL ENVIRONMENTAL IMPACT STATEMENT REQUIRED (SECOND DEPT))/MUNICIPAL LAW (ENVIRONMENTAL LAW, ZONING, PLANNING BOARD DID NOT TAKE THE REQUISITE HARD LOOK AT THE IMPACT OF THE PROPOSED DEVELOPMENT, SUPPLEMENTAL ENVIRONMENTAL IMPACT STATEMENT REQUIRED (SECOND DEPT))/STATE ENVIRONMENTAL QUALITY REVIEW ACT (SEQRA) (PLANNING BOARD DID NOT TAKE THE REQUISITE HARD LOOK AT THE IMPACT OF THE PROPOSED DEVELOPMENT, SUPPLEMENTAL ENVIRONMENTAL IMPACT STATEMENT REQUIRED (SECOND DEPT)/ENVIRONMENTAL IMPACT STATEMENT  (PLANNING BOARD DID NOT TAKE THE REQUISITE HARD LOOK AT THE IMPACT OF THE PROPOSED DEVELOPMENT, SUPPLEMENTAL ENVIRONMENTAL IMPACT STATEMENT REQUIRED (SECOND DEPT))

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PLANNING BOARD’S APPROVAL OF DEVELOPMENT INCLUDING WETLANDS NEEDED APPROVAL BY THE ARMY CORPS OF ENGINEERS, REQUEST FOR A SUPPLEMENTAL ENVIRONMENTAL IMPACT STATEMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that the town planning board’s approval of the development of land should be annulled. The land included wetlands which required an investigation and approval by the Army Corps of Engineers (ACOE) and those requirements had not been met. The petitioners’ request for a Supplemental Environmental Impact Statement (SEIS) should have been granted:

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“A lead agency’s determination whether to require a SEIS . . . is discretionary” … . “The lead agency may require a supplemental EIS, limited to the specific significant adverse environmental impacts not addressed or inadequately addressed in the EIS that arise from: (a) changes proposed for the project; (b) newly discovered information; or (c) a change in circumstances related to the project” … . “The decision to prepare a SEIS as a result of newly discovered information must be based upon . . . (a) the importance and relevance of the information; and (b) the present state of the information in the EIS'” … . The limitations that apply to a court’s review of an agency’s SEQRA determination, that is, only to ascertain whether the agency took a hard look at the relevant areas of environmental concern and made a reasoned elaboration of the basis for its determination, also apply to the agency’s determination regarding whether a SEIS is needed, and the court may no more substitute its judgment on this point than it may on other aspects of agency decision-making … .

Here, the petitioners contend that a SEIS is needed because Scenic never obtained a jurisdictional determination from the United States Army Corps of Engineers (hereinafter ACOE) validating  [the developer’s] delineation of wetlands on the subject property. They argue that, prior to issuing the determinations challenged on appeal, the Planning Board was presented with critical new evidence demonstrating that no jurisdictional determination had been issued by the ACOE for the subject property. The petitioners are correct. Matter of Shapiro v Planning Bd. of the Town of Ramapo, 2017 NY Slip Op 07734, Second Dept 11-8-17

 

ENVIRONMENTAL LAW (PLANNING BOARD’S APPROVAL OF DEVELOPMENT INCLUDING WETLANDS NEEDED APPROVAL BY THE ARMY CORPS OF ENGINEERS, REQUEST FOR A SUPPLEMENTAL ENVIRONMENTAL IMPACT STATEMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT))/ZONING (PLANNING BOARD’S APPROVAL OF DEVELOPMENT INCLUDING WETLANDS NEEDED APPROVAL BY THE ARMY CORPS OF ENGINEERS, REQUEST FOR A SUPPLEMENTAL ENVIRONMENTAL IMPACT STATEMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT))/MUNICIPAL LAW (PLANNING BOARD’S APPROVAL OF DEVELOPMENT INCLUDING WETLANDS NEEDED APPROVAL BY THE ARMY CORPS OF ENGINEERS, REQUEST FOR A SUPPLEMENTAL ENVIRONMENTAL IMPACT STATEMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT))/STATE ENVIRONMENTAL QUALITY REVIEW ACT (SEQRA)  (PLANNING BOARD’S APPROVAL OF DEVELOPMENT INCLUDING WETLANDS NEEDED APPROVAL BY THE ARMY CORPS OF ENGINEERS, REQUEST FOR A SUPPLEMENTAL ENVIRONMENTAL IMPACT STATEMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT))/ENVIRONMENTAL IMPACT STATEMENT (PLANNING BOARD’S APPROVAL OF DEVELOPMENT INCLUDING WETLANDS NEEDED APPROVAL BY THE ARMY CORPS OF ENGINEERS, REQUEST FOR A SUPPLEMENTAL ENVIRONMENTAL IMPACT STATEMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT))/WETLANDS (ENVIRONMENTAL LAW, PLANNING BOARD’S APPROVAL OF DEVELOPMENT INCLUDING WETLANDS NEEDED APPROVAL BY THE ARMY CORPS OF ENGINEERS, REQUEST FOR A SUPPLEMENTAL ENVIRONMENTAL IMPACT STATEMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT))/ARMY CORPS OF ENGINEERS (ENVIRONMENTAL LAW, WETLANDS, PLANNING BOARD’S APPROVAL OF DEVELOPMENT INCLUDING WETLANDS NEEDED APPROVAL BY THE ARMY CORPS OF ENGINEERS, REQUEST FOR A SUPPLEMENTAL ENVIRONMENTAL IMPACT STATEMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT))

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AIR, LIGHT AND ACCESS EASEMENTS COULD NOT BE ASSERTED AGAINST THE STATE AS OWNER OF THE PUBLIC HIGHWAY, RESIDENTS DID NOT HAVE STANDING UNDER SEQRA TO CONTEST CONSTRUCTION OF PUBLIC COMFORT STATIONS (SECOND DEPT).

The Second Department determined that residents of a condominium across the street from the proposed construction of beach-front comfort stations did not have standing to contest the construction under the State Environmental Quality Review Act (SEQRA). The court further found that the petitioners’ air, light and access easements could not be asserted against the state, which owns the public road where the construction will be located:

“To establish standing under SEQRA, a petitioner must show (1) an environmental injury that is in some way different from that of the public at large, and (2) that the alleged injury falls within the zone of interests sought to be protected or promoted by SEQRA” … . The alleged harm cannot be “too speculative and conjectural to demonstrate an actual and specific injury-in-fact” … . Close proximity alone is insufficient to confer standing where there are no zoning issues involved, and general environmental concerns will not suffice … . Moreover, “[t]o qualify for standing to raise a SEQRA challenge, a party must demonstrate that it will suffer an injury that is environmental and not solely economic in nature” … . Here, the petitioners’ alleged environmentally related injuries are too speculative and conjectural to demonstrate an actual and specific injury-in-fact … .

“When lands adjoin private property an easement of light, air and access over such property does not exist, under ordinary circumstances, merely because of the proximity of the lands to the private property” … .. However, an owner of land abutting a highway or street possesses, as incident to his or her ownership, easements of light, air, and access, irrespective of whether the owner owns the fee of the highway or the street itself … . Nevertheless, “[w]hen the fee of the highway has been transferred to the State, the State may use the highway for any public purpose not inconsistent with or prejudicial to its use for highway purposes . . . [and] [t]he mere disturbance of the rights of light, air and access of abutting owners on such a highway by the imposition of a new use, consistent with its use as an open public street, must be tolerated by them and no right of action arises therefrom, although such use interferes with the enjoyment of the premises”… . For example, the maintenance of trees on a street for the purposes of ornament and shade has been determined to be a proper street use … .

Here, the proposed construction will not completely block the petitioners’ ocean view nor prevent the petitioners from using the public street. Rather, the length of the dead-end street will be shortened and several public parking spaces will be removed. The turnaround will still be intact, although moved 23 feet to the north, and access to the petitioners’ driveway and building’s entrance will not be impeded … . In addition, the disputed comfort station will be open to, and for the purpose of, serving the public … . Matter of Shapiro v Torres, 2017 NY Slip Op 06281, Second Dept 8-23-17

 

REAL PROPERTY (AIR, LIGHT AND ACCESS EASEMENTS COULD NOT BE ASSERTED AGAINST THE STATE AS OWNER OF THE PUBLIC HIGHWAY, RESIDENTS DID NOT HAVE STANDING UNDER SEQRA TO CONTEST CONSTRUCTION OF PUBLIC COMFORT STATIONS UNDER (SECOND DEPT))/EASEMENTS (AIR, LIGHT AND ACCESS EASEMENTS COULD NOT BE ASSERTED AGAINST THE STATE AS OWNER OF THE PUBLIC HIGHWAY, RESIDENTS DID NOT HAVE STANDING UNDER SEQRA TO CONTEST CONSTRUCTION OF PUBLIC COMFORT STATIONS UNDER (SECOND DEPT))/AIR LIGHT AND ACCESS  (AIR, LIGHT AND ACCESS EASEMENTS COULD NOT BE ASSERTED AGAINST THE STATE AS OWNER OF THE PUBLIC HIGHWAY, RESIDENTS DID NOT HAVE STANDING UNDER SEQRA TO CONTEST CONSTRUCTION OF PUBLIC COMFORT STATIONS UNDER (SECOND DEPT))/ENVIRONMENTAL LAW (STANDING, RESIDENTS DID NOT HAVE STANDING UNDER SEQRA TO CONTEST CONSTRUCTION OF PUBLIC COMFORT STATIONS UNDER (SECOND DEPT))/STANDING (ENVIRONMENTAL LAW, RESIDENTS DID NOT HAVE STANDING UNDER SEQRA TO CONTEST CONSTRUCTION OF PUBLIC COMFORT STATIONS UNDER (SECOND DEPT))/STATE ENVIRONMENTAL QUALITY REVIEW ACT (STANDING, RESIDENTS DID NOT HAVE STANDING UNDER SEQRA TO CONTEST CONSTRUCTION OF PUBLIC COMFORT STATIONS UNDER (SECOND DEPT))/MUNICIPAL LAW (ENVIRONMENTAL LAW, RESIDENTS DID NOT HAVE STANDING UNDER SEQRA TO CONTEST CONSTRUCTION OF PUBLIC COMFORT STATIONS UNDER (SECOND DEPT))/HIGHWAYS (AIR, LIGHT AND ACCESS EASEMENTS COULD NOT BE ASSERTED AGAINST THE STATE AS OWNER OF THE PUBLIC HIGHWAY (SECOND DEPT).

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PETITIONERS CLOSE TO THE PROPOSED GAS STATION HAD STANDING TO CONTEST THE BOARD’S SEQRA RULING APPROVING CONSTRUCTION, SUPREME COURT PROPERLY FOUND THE BOARD’S APPROVAL WAS IMPROPER UNDER SEQRA (SECOND DEPT).

The Second Department determined one of the petitioners did not have standing to contest the board’s State Environmental Quality Review Act (SEQRA) ruling because he lived more that 2000 feet from the proposed gas station. The other petitioners, whose businesses were across the street from the proposed gas station, had standing. The Second Department held that the board had not taken the required “hard look” at the proposal to add a gas station with 16 pumps to the project which had been approved:

… [T]he Supreme Court properly concluded that the Planning Board failed to comply with the substantive requirements of SEQRA in determining that a second SEIS (Supplemental Environmental Impact Statement] was not required prior to its approval of the site plan. As is relevant to this appeal, a lead agency may require a SEIS, “limited to the specific significant adverse environmental impacts not addressed or inadequately addressed in the EIS that arise from . . . changes proposed for the project” (6 NYCRR 617.9[a][7][i]). “In making this fact-intensive determination, the lead agency has discretion to weigh and evaluate the credibility of reports and comments submitted to it and must assess environmental concerns in conjunction with other economic and social planning goals”… .

Although a lead agency’s determination whether to require a SEIS, or a second SEIS, is discretionary … , the lead agency must “consider[ ] the environmental issues requiring permits” and must make “an independent judgment that they would not create significant environmental impact” … . Here, the changes proposed for the project after the issuance of the 2009 findings statement included the construction of a large convenience store with 16 gas pumps. …

Under these circumstances, the Planning Board failed to take the requisite hard look at the project change adding the gas station, and did not make a reasoned elaboration of its basis for determining that a second SEIS was not necessary to address that change … . Matter of Green Earth Farms Rockland, LLC v Town of Haverstraw Planning Bd., 2017 NY Slip Op 06273, Second Dept 8-23-17

 

ENVIRONMENTAL LAW (PETITIONERS CLOSE TO THE PROPOSED GAS STATION HAD STANDING TO CONTEST THE TOWN BOARD’S SEQRA RULING APPROVING CONSTRUCTION, SUPREME COURT PROPERLY FOUND THE TOWN BOARD’S APPROVAL WAS IMPROPER UNDER SEQRA (SECOND DEPT))/MUNICIPAL LAW (ENVIRONMENTAL LAW, PETITIONERS CLOSE TO THE PROPOSED GAS STATION HAD STANDING TO CONTEST THE TOWN BOARD’S SEQRA RULING APPROVING CONSTRUCTION, SUPREME COURT PROPERLY FOUND THE TOWN BOARD’S APPROVAL WAS IMPROPER UNDER SEQRA (SECOND DEPT))/STATE ENVIRONMENTAL QUALITY REVIEW ACT (SEQRA) (PETITIONERS CLOSE TO THE PROPOSED GAS STATION HAD STANDING TO CONTEST THE TOWN BOARD’S SEQRA RULING APPROVING CONSTRUCTION, SUPREME COURT PROPERLY FOUND THE TOWN BOARD’S APPROVAL WAS IMPROPER UNDER SEQRA (SECOND DEPT))/STANDING, ENVIRONMENTAL LAW, (PETITIONERS CLOSE TO THE PROPOSED GAS STATION HAD STANDING TO CONTEST THE TOWN BOARD’S SEQRA RULING APPROVING CONSTRUCTION (SECOND DEPT))

ELECTRIC GENERATING FACILITY WHICH USES HUDSON RIVER WATER TO COOL MACHINERY AND RETURNS WARM WATER TO THE RIVER WAS PROPERLY ALLOWED TO CONTINUE OPERATION UNDER RENEWED PERMITS 3RD DEPT.

The Third Department determined the two-year shutdown of electrical power generating facility, which uses Hudson River water to cool machinery and discharges warm water back into the Hudson, was not a permanent shutdown and therefore the operating permits were properly renewed by the Department of Environmental Conservation (DEC):

Contrary to petitioner’s contention, DEC was not required to hold a public adjudicatory hearing prior to issuing final … permits. It was incumbent upon DEC, after evaluating the permit applications and reviewing all comments submitted in response to them, to “determine whether or not to conduct a public hearing ‘based on whether the evaluation or comments raise substantive and significant issues relating to any findings or determinations [DEC] is required to make . . ., including the reasonable likelihood that [the permits] will be denied or can be granted only with major modifications to the project” … . The ultimate burden rested on petitioner to show that its issues were “substantive and significant” enough to warrant a public hearing … .

In that regard, while petitioner raised a number of concerns regarding the draft … permit, it also acknowledged that the draft permit was largely identical to the existing permit… , one that DEC noted had only been issued after extensive administrative proceedings and an adjudicatory hearing. Moreover, to the extent that the draft … permit modified the terms of the prior permit, those modifications reduced the impact of the station upon the river. The objection to the Title V permit amounted to the rather obvious point that a station in service would create more atmospheric emissions than one offline. DEC issued a written response to petitioner’s comments and, while it did make modifications as a result of the concerns raised, it gave no reason to believe that those concerns might have required extensive retooling of either permit or imperiled their issuance altogether. Accordingly, mindful as we are that our judgment should not be substituted for that of the agency, the determination that petitioner had failed to demonstrate the need for an adjudicatory hearing was not arbitrary and capricious … . Matter of Riverkeeper, Inc. v New York State Dept. of Envtl. Conservation, 2017 NY Slip Op 05778, 3rd Dept 7-20-17

ENVIRONMENTAL LAW (ELECTRIC GENERATING FACILITY WHICH USES HUDSON RIVER WATER TO COOL MACHINERY AND RETURNS WARM WATER TO THE RIVER WAS PROPERLY ALLOWED TO CONTINUE OPERATION UNDER RENEWED PERMITS 3RD DEPT)/HUDSON RIVER (ENVIRONMENTAL LAW, ELECTRIC GENERATING FACILITY WHICH USES HUDSON RIVER WATER TO COOL MACHINERY AND RETURNS WARM WATER TO THE RIVER WAS PROPERLY ALLOWED TO CONTINUE OPERATION UNDER RENEWED PERMITS 3RD DEPT)/DISCHARGE, WARM WATER (ENVIRONMENTAL LAW, ELECTRIC GENERATING FACILITY WHICH USES HUDSON RIVER WATER TO COOL MACHINERY AND RETURNS WARM WATER TO THE RIVER WAS PROPERLY ALLOWED TO CONTINUE OPERATION UNDER RENEWED PERMITS 3RD DEPT)

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DEC CONTRACTORS HAD THE RIGHT TO ENTER PROPERTY TO TEST FOR GASOLINE CONTAMINATION WITHOUT SIGNING THE PROPERTY OWNER’S ACCESS AGREEMENT, BECAUSE ONLY A CHANGE IN FORM WAS REQUIRED, THE DEC’S ACTION WAS CONVERTED TO A DECLARATORY JUDGMENT ACTION 4TH DEPT.

The Fourth Department, reversing Supreme Court, determined the Department of Environmental Conservation (DEC) and its contractors had the right to enter respondent’s property to test for gasoline contamination without signing an access agreement with the property owner. The property owner had refused entry to DEC contractors because its proposed access agreement was rejected by the DEC. The Fourth Department further determined a declaratory judgment action was the appropriate vehicle for the relief requested by the DEC and converted the action accordingly:

We … agree with the DEC that the Oil Spill Act authorizes it and its contractors or agents to enter suspected spill sites. Navigation Law § 178 provides, in pertinent part, that “[t]he department is hereby authorized to enter and inspect any property or premises for the purpose of inspecting facilities and investigating either actual or suspected sources of discharges or violation of this article or any rule or regulation promulgated pursuant to this article.  * * *

Where an unregulated discharge takes place, … the “person” responsible “shall immediately undertake to contain such discharge” … . As this does not always occur, “the [DEC] may undertake the removal of such discharge and may retain agents and contractors who shall operate under the direction of [the DEC] for such purposes” … , and in reading the Act’s sections together to best effectuate the Legislature’s intended objectives … , we conclude that the DEC’s contractors who “operate under the direction of [the DEC]” to investigate and remediate suspected and actual discharges of petroleum are authorized by statute, like the DEC, to enter the subject property for such purposes without acceding to landowner access agreements, but remaining subject only to restrictions imposed by law. Matter of State of New York (Essex Prop. Mgt., LLC), 2017 NY Slip Op 05525, 4th Dept 7-7-17

ENVIRONMENTAL LAW (NAVIGATION LAW, GASOLINE CONTAMINATION, DEC CONTRACTORS HAD THE RIGHT TO ENTER PROPERTY TO TEST FOR GASOLINE CONTAMINATION WITHOUT SIGNING THE PROPERTY OWNER’S ACCESS AGREEMENT, BECAUSE ONLY A CHANGE IN FORM  WAS REQUIRED, THE DEC’S ACTION WAS CONVERTED TO A DECLARATORY JUDGMENT ACTION 4TH DEPT)/CIVIL PROCEDURE (BECAUSE ONLY A CHANGE IN FORM WAS REQUIRED, THE DEC’S ACTION WAS CONVERTED TO A DECLARATORY JUDGMENT ACTION 4TH DEPT)/NAVIGATION LAW (GASOLINE CONTAMINATION, DEC CONTRACTORS HAD THE RIGHT TO ENTER PROPERTY TO TEST FOR GASOLINE CONTAMINATION WITHOUT SIGNING THE PROPERTY OWNER’S ACCESS AGREEMENT, BECAUSE ONLY A CHANGE IN FORM WAS REQUIRED, THE DEC’S ACTION WAS CONVERTED TO A DECLARATORY JUDGMENT ACTION 4TH DEPT)/OIL SPILL LAW  (NAVIGATION LAW, GASOLINE CONTAMINATION, DEC CONTRACTORS HAD THE RIGHT TO ENTER PROPERTY TO TEST FOR GASOLINE CONTAMINATION WITHOUT SIGNING THE PROPERTY OWNER’S ACCESS AGREEMENT, BECAUSE ONLY A CHANGE IN FORM WAS REQUIRED, THE DEC’S ACTION WAS CONVERTED TO A DECLARATORY JUDGMENT ACTION 4TH DEPT)/GASOLINE CONTAMINATION (NAVIGATION LAW, GASOLINE CONTAMINATION, DEC CONTRACTORS HAD THE RIGHT TO ENTER PROPERTY TO TEST FOR GASOLINE CONTAMINATION WITHOUT SIGNING THE PROPERTY OWNER’S ACCESS AGREEMENT, BECAUSE ONLY A CHANGE IN FORM WAS REQUIRED, THE DEC’S ACTION WAS CONVERTED TO A DECLARATORY JUDGMENT ACTION 4TH DEPT)

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LOCAL LAW WHICH CONFLICTED WITH THE STATE ENVIRONMENTAL QUALITY REVIEW ACT WAS PROPERLY DECLARED INVALID 4TH DEPT.

The Fourth Department determined Supreme Court properly declared invalid a local law which conflicted with the State Environmental Quality Review Act (SEQRA). The local law allowed the classification of a restaurant with a drive-through window as a Type I project. However, the Fourth Department held the intent of SEQRA was to classify such a restaurant as a Type II project:

We … conclude that the court properly declared that Local Law No. 9-2014 is invalid inasmuch as it is inconsistent with 6 NYCRR 617.5 (c) (7) to the extent that it classifies “[d]rive-through stations or windows” such as “restaurants” as Type I actions under SEQRA. A local law that is “inconsistent with SEQRA” must be invalidated … . Here, although 6 NYCRR 617.5 (c) (7) does not explicitly include the construction of a restaurant with a drive-through window as a Type II action, we conclude that the Department of Environmental Conservation contemplated restaurants with drive-through windows as Type II actions when it promulgated that regulation … . We similarly conclude that the court properly annulled defendant’s classification of the project as a Type I action on the ground that the classification was affected by an error of law inasmuch as Local Law No. 9-2014 is inconsistent with SEQRA … . Nonetheless, the court should have declined to accept, without a revised review by defendant, plaintiff’s contention that the project should be classified as a Type II action … . We therefore modify the judgment by annulling the determination that the project is a Type II action, and we remit the matter to defendant for a new determination. Miranda Holdings, Inc. v Town Bd. of Town of Orchard Park, 2017 NY Slip Op 05554, 4th Dept 7-7-17

ENVIRONMENTAL LAW (LOCAL LAW WHICH CONFLICTED WITH THE STATE ENVIRONMENTAL QUALITY REVIEW ACT WAS PROPERLY DECLARED INVALID 4TH DEPT)/STATE ENVIRONMENTAL QUALITY REVIEW ACT (SEQRA) (LOCAL LAW WHICH CONFLICTED WITH THE STATE ENVIRONMENTAL QUALITY REVIEW ACT WAS PROPERLY DECLARED INVALID 4TH DEPT)/MUNICIPAL LAW (ENVIRONMENTAL LAW, LOCAL LAW WHICH CONFLICTED WITH THE STATE ENVIRONMENTAL QUALITY REVIEW ACT WAS PROPERLY DECLARED INVALID 4TH DEPT)/SEQRA (LOCAL LAW WHICH CONFLICTED WITH THE STATE ENVIRONMENTAL QUALITY REVIEW ACT WAS PROPERLY DECLARED INVALID 4TH DEPT)

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