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TOWN DID NOT TAKE THE REQUISITE HARD LOOK AT THE ENVIRONMENTAL IMPACT OF THE CONSTRUCTION OF A WALMART STORE, NEGATIVE DECLARATION ANNULLED.

The Fourth Department determined the town failed to take the requisite hard look at the environmental impact of the construction of a Walmart store and annulled the town’s negative (impact) declaration. The court held that the effects of the construction upon wildlife, community character and surface water were not adequately investigated:

We agree with petitioner … that the Town Board failed to take the requisite hard look at the impact of the project on wildlife, the community character of the Village, and surface water, and that the resolution adopting the negative declaration must therefore be annulled. … Given the information received from the public that state-listed threatened species might be present on the project site and the failure of the Town Board to investigate the veracity of that information, we conclude that the Town Board failed to take a hard look at the impact of the project on wildlife, and the negative declaration with respect thereto was therefore arbitrary and capricious … .

[A] “… town . . . board reviewing a big box development should consider the impact of the development on the community character of a neighboring village that might suffer business displacement as a result of the approval of the big box development”… .

… [T]he Town Board erred in failing to consider the surface water impact of the entire project. While the Town Board considered surface water impacts relating to the footprint of the Supercenter and related areas, the project documents submitted to the Town Board make clear that the reconstruction of four golf course holes on a golf course adjacent to the project is a central part of the project, and the DEC specifically directed that the environmental assessment of the project include consideration of that reconstruction. Matter of Wellsville Citizens for Responsible Dev., Inc. v Wal-Mart Stores, Inc., 2016 NY Slip Op 04847, 4th Dept 6-17-16

 

ENVIRONMENTAL LAW (TOWN DID NOT TAKE THE REQUISITE HARD LOOK AT THE ENVIRONMENTAL IMPACT OF THE CONSTRUCTION OF A WALMART STORE, NEGATIVE DECLARATION ANNULLED)/STATE ENVIRONMENTAL QUALITY REVIEW ACT (SEQRA) (TOWN DID NOT TAKE THE REQUISITE HARD LOOK AT THE ENVIRONMENTAL IMPACT OF THE CONSTRUCTION OF A WALMART STORE, NEGATIVE DECLARATION ANNULLED)/SEQRA (TOWN DID NOT TAKE THE REQUISITE HARD LOOK AT THE ENVIRONMENTAL IMPACT OF THE CONSTRUCTION OF A WALMART STORE, NEGATIVE DECLARATION ANNULLED)/BIG BOX STORE (ENVIRONMENTAL LAW, TOWN DID NOT TAKE THE REQUISITE HARD LOOK AT THE ENVIRONMENTAL IMPACT OF THE CONSTRUCTION OF A WALMART STORE, NEGATIVE DECLARATION ANNULLED)/WALMART (ENVIRONMENTAL LAW, TOWN DID NOT TAKE THE REQUISITE HARD LOOK AT THE ENVIRONMENTAL IMPACT OF THE CONSTRUCTION OF A WALMART STORE, NEGATIVE DECLARATION ANNULLED)

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WHETHER ADIRONDACK WATERWAY IS NAVIGABLE IN FACT, AND THEREFORE AVAILABLE FOR PUBLIC USE, COULD NOT BE DETERMINED AS A MATTER OF LAW.

The Court of Appeals held questions of fact precluded summary judgment in an action to determine whether a two-mile system of ponds and streams in a remote area of the Adirondack Mountains is navigable-in-fact.  If it is, it is subject to a public right of navigation (by canoe). If it isn't the adjacent private property owners can prohibit public use:

As a general principle, if a waterway is not navigable-in-fact, “it is the private property of the adjacent landowner” … . A waterway that is navigable-in-fact, however, “is considered a public highway, notwithstanding the fact that its banks and bed are in private hands” … . To be subject to this public easement, a waterway must provide practical utility to the public as a means for transportation, whether for trade or travel (Adirondack League Club, 92 NY2d at 603). In Adirondack League Club, though we did “not broaden the standard for navigability-in-fact,” we held that recreational use may properly be “part of the navigability analysis” … . Friends of Thayer Lake LLC v Brown, 2016 NY Slip Op 03647, CtApp 5-10-16

ENVIRONMENTAL LAW (WATER LAW, WHETHER ADIRONDACK WATERWAY IS NAVIGABLE IN FACT, AND THEREFORE AVAILABLE FOR PUBLIC USE, COULD NOT BE DETERMINED AS A MATTER OF LAW)/WATER LAW (WHETHER ADIRONDACK WATERWAY IS NAVIGABLE IN FACT, AND THEREFORE AVAILABLE FOR PUBLIC USE, COULD NOT BE DETERMINED AS A MATTER OF LAW)/ADIRONDACKS (WATER LAW, WHETHER ADIRONDACK WATERWAY IS NAVIGABLE IN FACT, AND THEREFORE AVAILABLE FOR PUBLIC USE, COULD NOT BE DETERMINED AS A MATTER OF LAW)

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STATE WATER RESOURCES LAW DID NOT PREEMPT ZONING BOARD’S REQUIRING TOWN APPROVAL BEFORE WATER CAN BE EXTRACTED FOR COMMERCIAL PURPOSES.

The Fourth Department determined the state Water Resources Law, which governs the extraction of groundwater, did not preempt the town zoning board's special-permit condition requiring town approval before water can be extracted for commercial purposes. Petitioner sought to build a pipeline to carry water from under petitioner's land to another town where the water would be sold. Petitioner argued the Water Resources Law preempted the town from requiring approval for commercial use of the extracted water. The Fourth Department held that the town's power to regulate the use of land, here requiring permission before water can be extracted for commercial purposes, was not limited by the Water Resources Law:

… [T]he Water Resources Law (ECL article 15, et seq.) does not preempt local zoning laws concerning land use. Instead, the Water Resources Law preempts only those local laws that attempt “to regulate withdrawals of groundwater,” which “includes all surface and underground water within the state's territorial limits” … . The Water Resources Law does not preempt the authority of local governments to “regulate the use of land through the enactment of zoning laws” … . * * * … [T]he statute regulates how a natural resource may be extracted but does not regulate where in the Town such extraction may occur. Matter of Smoke v Planning Bd. of Town of Greig, 2016 NY Slip Op 03322, 4th Dept 4-29-16


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VILLAGE BOARD OF TRUSTEES DID NOT FAIL TO STRICTLY COMPLY WITH THE STATE ENVIRONMENTAL QUALITY REVIEW ACT (SEQRA).

The Second Department, reversing Supreme Court, determined the village comprehensive plan and zoning amendments should not have been annulled on the ground the board of trustees failed to strictly comply with the State Environmental Quality Review Act (SEQRA):

“SEQRA mandates literal compliance with its procedural requirements and substantial compliance is insufficient to discharge the responsibility of the agency under the act” … . As relevant here, 6 NYCRR 617.6(a)(4) permits an agency to waive the requirement for an environmental assessment form (hereinafter EAF) if a draft environmental impact statement is prepared or submitted. In this case, such a draft environmental impact statement was prepared. Thus, the failure to prepare an EAF did not amount to a failure to literally comply with SEQRA's procedural requirements. * * *

… [T]he Board of Trustees satisfied SEQRA's substantive requirements. In particular, the Board of Trustees adequately analyzed a reasonable range of alternatives … . Accordingly, the Supreme Court should have denied so much of the petition/complaint as sought to annul the Comprehensive Plan and the Zoning Amendments on the ground that the Board of Trustees failed to strictly comply with the substantive requirements of SEQRA … . Matter of Village of Kiryas Joel, N.Y. v Village of Woodbury, N.Y., 2016 NY Slip Op 03005, 2nd Dept 4-20-16


ORGANIZATION HAD STANDING TO CONTEST HARDSHIP WAIVER GRANTED TO MINE IN CORE PRESERVATION AREA.

The Second Department found that petitioner Richard Amper, director of the Long Island Pine Barrens Society, Inc., had standing, in his individual and representative capacities, to contest a hardship waiver granted to respondent, Westhampton, which operated a sand and gravel mine within a “core preservation area.” The Second Department found that the waiver was properly granted, but further found the petition should not have been denied on the standing issue. With respect to standing, the court explained:

An association or organization has standing when “one or more of its members would have standing to sue,” “the interests it asserts are germane to its purposes,” and “neither the asserted claim nor the appropriate relief requires the participation of the individual members” … . Here, the petitioners established that Amper, in both his individual and professional capacities, uses and enjoys the Pine Barrens to a greater degree than most other members of the public. Further, the petitioners established that the threatened injury to Amper caused by development within the core preservation area of the Central Pine Barrens falls within the zone of interests sought to be protected by the Long Island Pine Barrens Protection Act of 1993 … . Thus, Amper has standing to sue individually, and his standing satisfied the first prong of the test for the Society's organizational standing. The Society meets the second and third prongs of the organizational standing test, namely, that its interests in the instant proceeding are germane to its purposes, and that neither the asserted claim nor the appropriate relief requires the participation of the individual members … . Therefore, the Society also has standing to challenge the Commission's determination … . Matter of Long Is. Pine Barrens Socy., Inc. v Central Pine Barrens Joint Planning & Policy Commn., 2016 NY Slip Op 02997, 4-20-16


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TOWN’S ISSUANCE OF A POSITIVE DECLARATION WITH THE REQUIREMENT THAT THE LANDOWNER SUBMIT A DRAFT ENVIRONMENTAL IMPACT STATEMENT DID NOT RAISE A JUSTICIABLE CONTROVERY WHICH COULD BE REVIEWED BY A COURT.

The Court of Appeals, in a full-fledged opinion by Judge Rivera, determined the town board's issuing a positive declaration under the State Environmental Quality Review Act (SEQRA) and imposing a DEIS (draft environmental impact statement) requirement on a landowner seeking a nonconforming use did not raise a justiciable controversy.   Although the creation of a DEIS imposes a financial cost on the landowner, it is only the initial step in the SEQRA review process and is not, therefore, ripe for review. The landowner relied on Matter of Gordon v Rush, 100 NY2d 236, to argue review was appropriate. The court explained why Gordon did not apply:

This Court [in Gordon] concluded that the Board's administrative action was ripe for judicial review because the Board's SEQRA declaration imposed an obligation on the petitioners to prepare and submit a DEIS, after they “had already been through the coordinated review process and a negative declaration had been issued by the DEC as lead agency,” and where no apparent further proceedings would remedy the injury caused by the unnecessary and unauthorized expenditures associated with conducting a DEIS … . Thus, Gordon's analysis and its import must be considered in light of the Court's recognition that the administrative action in that case was potentially unauthorized because “the Board may not have had jurisdiction to conduct its own SEQRA review,” given the existence of a prior negative declaration by a facially appropriate lead agency … . Matter of Ranco Sand & Stone Corp. v Vecchio, 2016 NY Slip Op 02477, CtApp 3-31-16

ENVIRONMENTAL LAW (TOWN'S ISSUANCE OF A POSITIVE DECLARATION WITH THE REQUIREMENT THAT THE LANDOWNER SUBMIT A DRAFT ENVIRONMENTAL IMPACT STATEMENT DID NOT RAISE A JUSTICIABLE CONTROVERSY WHICH COULD BE REVIEWED BY A COURT)/LAND USE (TOWN'S ISSUANCE OF A POSITIVE DECLARATION WITH THE REQUIREMENT THAT THE LANDOWNER SUBMIT A DRAFT ENVIRONMENTAL IMPACT STATEMENT DID NOT RAISE A JUSTICIABLE CONTROVERSY WHICH COULD BE REVIEWED BY A COURT)/ADMINISTRATIVE LAW (STATE ENVIRONMENTAL QUALITY REVIEW ACT, TOWN'S ISSUANCE OF A POSITIVE DECLARATION WITH THE REQUIREMENT THAT THE LANDOWNER SUBMIT A DRAFT ENVIRONMENTAL IMPACT STATEMENT DID NOT RAISE A JUSTICIABLE CONTROVERSY WHICH COULD BE REVIEWED BY A COURT)/STATE ENVIRONMENTAL QUALITY REVIEW ACT (SEQRA) (TOWN'S ISSUANCE OF A POSITIVE DECLARATION WITH THE REQUIREMENT THAT THE LANDOWNER SUBMIT A DRAFT ENVIRONMENTAL IMPACT STATEMENT DID NOT RAISE A JUSTICIABLE CONTROVERSY WHICH COULD BE REVIEWED BY A COURT)/ENVIRONMENTAL IMPACT STATEMENT (TOWN'S ISSUANCE OF A POSITIVE DECLARATION WITH THE REQUIREMENT THAT THE LANDOWNER SUBMIT A DRAFT ENVIRONMENTAL IMPACT STATEMENT DID NOT RAISE A JUSTICIABLE CONTROVERSY WHICH COULD BE REVIEWED BY A COURT)

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EXPRESSION OF OPPOSITION TO A PROPOSED DEVELOPMENT PROJECT DID NOT CREATE A CONFLICT OF INTEREST PRECLUDING VILLAGE OFFICIALS FROM PARTICIPATING IN A SEQRA REVIEW; PLANNING BOARD DID NOT HAVE AUTHORITY TO RESCIND A NEGATIVE DECLARATION AFTER PERMITS WERE ISSUED.

The Fourth Department determined two village officials did not have a conflict of interest which would preclude their participation in a State Environmental Quality Review Act (SEQRA) review of a development project. The two had expressed opposition to the project before and after their elections, but expression of opinion does not create a conflict of interest. The Fourth Department upheld the annulment of resolutions which stated the proposed project would adversely affect the environment. The planning board had previously found no adverse impact (a negative declaration) and had issued permits. The board did not have the authority to rescind the negative declaration at that point:

… [T]he Board lacked authority to rescind its negative declaration under the circumstances of this case. Here, the Board was authorized to rescind its negative declaration “prior to its decision to undertake, fund, or approve an action,” and the Board made its decision to approve the action, i.e., the Project, when it issued the requisite special permits … . Matter of Pittsford Canalside Props., LLC v Village of Pittsford, 2016 NY Slip Op 01929, 4th Dept 3-18-16

ENVIRONMENTAL LAW (EXPRESSION OF OPPOSITION TO A PROPOSED DEVELOPMENT PROJECT DID NOT CREATE A CONFLICT OF INTEREST PRECLUDING VILLAGE OFFICIALS FROM PARTICIPATING IN SEQRA REVIEW)/ENVIRONMENTAL LAW (PLANNING BOARD DID NOT HAVE AUTHORITY TO RESCIND NEGATIVE DECLARATION AFTER PERMITS ISSUED)/STATE ENVIRONMENTAL QUALITY REVIEW ACT (SEQRA) (EXPRESSION OF OPPOSITION TO A PROPOSED DEVELOPMENT PROJECT DID NOT CREATE A CONFLICT OF INTEREST PRECLUDING VILLAGE OFFICIALS FROM PARTICIPATING IN SEQRA REVIEW)/STATE ENVIRONMENTAL QUALITY REVIEW ACT (SEQRA) (PLANNING BOARD DID NOT HAVE AUTHORITY TO RESCIND NEGATIVE DECLARATION AFTER PERMITS ISSUED)

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PETITIONER ORGANIZATION DID NOT HAVE STANDING TO CHALLENGE CONSTRUCTION OF ASPHALT PLANT NEAR A STATE PARK.

The Second Department, affirming Supreme Court, determined the petitioner did not have standing to challenge the construction of a temporary asphalt plant near a state forest. The conclusory allegations of pollution of the park by a member of petitioner-organization were not enough:

 

” [I]n land use matters . . . the plaintiff, for standing purposes, must show that it would suffer direct harm, injury that is in some way different from that of the public at large'” … . Whether an organization or association has standing involves the application of the three-pronged test set forth in Society of Plastics Indus. v County of Suffolk (77 NY2d at 775). As pertinent to this appeal, the first prong of that test requires that the organization or association demonstrate that “one or more of its members would have standing to sue” as an individual (id.). An individual has standing where he or she “would suffer direct harm, injury that is in some way different from that of the public at large” (id. at 774) and “the in-fact injury of which [he or she] complains . . . falls within the zone of interests,’ or concerns, sought to be promoted or protected by the statutory provision under which the agency has acted” (id. at 773, …). Here, the petitioner submitted an affidavit from one of its members asserting that he frequently used the area of Stewart State Forest that was closest to the temporary asphalt plant. However, his allegations that the operation of the plant polluted the natural resources of the forest were conclusory and speculative, and therefore, insufficient to establish standing… . Matter of Stewart Park & Reserve Coalition, Inc. v Town of New Windsor Zoning Bd. of Appeals, 2016 NY Slip Op 01685, 2nd Dept 3-9-16

 

ENVIRONMENTAL LAW (PETITIONER ORGANIZATION DID NOT HAVE STANDING TO CHALLENGE CONSTRUCTION OF ASPHALT PLANT)/LAND USE (PETITIONER ORGANIZATION DID NOT HAVE STANDING TO CHALLENGE CONSTRUCTION OF ASPHALT PLANT)/STANDING (ENVIRONMENTAL LAW, LAND USE, PETITIONER ORGANIZATION DID NOT HAVE STANDING TO CHALLENGE CONSTRUCTION OF ASPHALT PLANT)

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LANDSCAPER AND ITS INSURER STRICTLY LIABLE FOR OIL DISCHARGE ON PLAINTIFFS’ PROPERTY; OIL LINE SEVERED DURING SPRINKLER REPAIR.

The Second Department determined summary judgment was properly awarded to plaintiffs in an action under the Navigation Law based upon an oil spill. The defendant landscaping company acknowledged that its employee severed the underground oil line on plaintiffs’ property while repairing a sprinkler system. Navigation Law 181 (1) imposes strict liability upon a person responsible for the discharge of petroleum and any insurer:

Navigation Law § 181(1) provides that a person who has “discharged petroleum shall be strictly liable . . . for all cleanup and removal costs and all direct and indirect damages, no matter by whom sustained.” Article 12 of the Navigation Law defines a “discharge,” as relevant here, as “any intentional or unintentional action or omission resulting in the releasing, spilling, leaking, pumping, pouring, emitting, emptying or dumping of petroleum” (Navigation Law § 172[8]). The statute provides that any individual or entity “who is not responsible for the discharge” may maintain a claim thereunder (Navigation Law § 172[3]…). The statute also provides that under article 12, “[a]ny claims for costs of cleanup and removal, civil penalties or damages by the state and any claim for damages by any injured person, may be brought directly against the bond, the insurer, or any other person providing evidence of financial responsibility” (Navigation Law § 190). Bennett v State Farm Fire & Cas. Co., 2016 NY Slip Op 01452, 2nd Dept 3-2-16

ENVIRONMENTAL LAW (LANDSCAPER STRICTLY LIABLE OF OIL DISCHARGE)/NAVIGATION LAW (LANDSCAPER STRICTLY LIABLE FOR OIL DISCHARGE)/INSURANCE LAW (INSURER STRICTLY LIABLE FOR OIL DISCHARGE BY INSURED)

1987 NEGATIVE DECLARATION DID NOT EXPIRE AND REMAINS VALID WITH RESPECT TO A PRELIMINATY PLAT APPLICATION; HOWEVER, BECAUSE OF CHANGES MADE TO THE PROJECT, THE PLANNING BOARD HAS THE POWER TO AMEND OR RESCIND THE NEGATIVE DECLARATION.

The Second Department determined that a 1987 negative declaration with respect to a preliminary plat application had not expired and was still valid. Therefore, the planning board’s determination that a new State Environmental Quality Review Act (SEQRA) review was necessary was annulled. However, since changes had been made to the project, the planning board has the power to amend or rescind the original negative declaration:

 

…[I]n light of … the changes to the project, the Planning Board has the responsibility to assess whether the 1987 negative declaration should be amended (see 6 NYCRR 617.7[e][1]) or “must” be rescinded (6 NYCRR 617.7[f][1]) under the standards set forth in 6 NYCRR 617.7(e) and (f) … . The provisions of 6 NYCRR 617.7(e) and (f) specifically authorize an agency to take into account changes in projects, new information, and changed circumstances affecting a project.

The Planning Board erroneously concluded that the amendment and rescission provisions were, by their terms, inapplicable. Rescission and amendment are authorized “[a]t any time prior to [the lead agency’s] decision to . . . approve an action” (6 NYCRR 617.7[e], [f]). Here, the Planning Board has never given final approval for subdivision of the entire parcel or for subdivision of the portion of the parcel the plaintiffs/petitioners now seek to develop. Accordingly, contrary to its conclusion otherwise, the Planning Board is still authorized to assess possible adverse environmental impacts with respect to the proposed East Mountain North subdivision pursuant to 6 NYCRR 617.7(e) and (f). Leonard v Planning Bd. of Town of Union Vale, 2016 NY Slip Op 01156, 2nd Dept 2-17-16

 

ENVIRONMENTAL LAW (1987 NEGATIVE DECLARATION WITH RESPECT TO A PRELIMINARY PLAT APPLICATION DID NOT EXPIRE, HOWEVER, BECAUSE OF CHANGES TO THE PROJECT, PLANNING BOARD HAS POWER TO AMEND OR RESCIND THE NEGATIVE DECLARATION)/STATE ENVIRONMENT QUALITY REVIEW ACT [SEQRA] (1987 NEGATIVE DECLARATION WITH RESPECT TO A PRELIMINARY PLAT APPLICATION DID NOT EXPIRE, HOWEVER, BECAUSE OF CHANGES TO THE PROJECT, PLANNING BOARD HAS POWER TO AMEND OR RESCIND THE NEGATIVE DECLARATION)/LAND USE (SEQRA, 1987 NEGATIVE DECLARATION WITH RESPECT TO A PRELIMINARY PLAT APPLICATION DID NOT EXPIRE, HOWEVER, BECAUSE OF CHANGES TO THE PROJECT, PLANNING BOARD HAS POWER TO AMEND OR RESCIND THE NEGATIVE DECLARATION)

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