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PETITIONERS DID NOT HAVE STANDING TO SEEK ANNULMENT OF A NEGATIVE DECLARATION UNDER THE STATE ENVIROMMENTAL QUALITY REVIEW ACT (SEQRA); PETITIONERS DID NOT ALLEGE “ENVIRONMENTAL INJURY.”

In an action seeking to annul a negative declaration under the State Environmental Quality Review Act (SEQRA), the Fourth Department determined the petitioners did not allege an environmental injury, and therefore did not have standing to bring the petition. The petition concerned the construction of an Erie Community College building on the Amherst campus. Apparently, the underlying basis for the petition was the fact that that the new construction was not in the City of Buffalo, but rather was in a suburb. The court explained that the “injuries” described by the petitioners, such as difficulty in commuting to the new location, were not the type of “environmental injury” contemplated by SEQRA:

 

Despite the responsibility of every citizen to contribute to the preservation and enhancement of the quality of the environment, there is a limit on those who may raise environmental challenges to governmental actions … . Those seeking to raise SEQRA challenges must establish both “an environmental injury that is in some way different from that of the public at large, and . . . that the alleged injury falls within the zone of interests sought to be protected or promoted by SEQRA” … .

Here, petitioners failed to establish that they have suffered an environmental injury. In opposition to the motion to dismiss, each petitioner submitted an affidavit discussing how he had been allegedly harmed. Petitioner Wilfred Turner stated that, as a student at ECC, he would be harmed by the proposed construction because he did not own a motor vehicle, and it would be both expensive and inconvenient for him and other similarly situated students to use public transportation to attend classes at the Amherst Campus. Petitioner Joel Giambra, the former County Executive of Erie County, stated that, if the proposed facility were constructed on the Amherst Campus instead of within the City of Buffalo, “[he] would be harmed in that all of the work [he had] done and all of the procedures [he had] fought for would be shown to have been useless.” Finally, petitioner Joseph Golombek, Jr., a City Council member for the City of Buffalo (City), stated that he would be harmed because of the “unfavorable decision on the placement of the facility” inasmuch as his “constituents [would] certainly judge [him] according to how well he accomplished [his] tasks,” such as safeguarding the City from “adverse economic decisions” and “promot[ing] the expansion of business and economic opportunity within the City.” None of those alleged injuries constitutes an environmental injury under SEQRA … . Matter of Turner v County of Erie, 2016 NY Slip Op 00806, 4th Dept 2-5-16

 

ENVIRONMENTAL LAW (PETITIONERS DID NOT ALLEGE ENVIRONMENTAL INJURY, DID NOT HAVE STANDING TO ANNUL NEGATIVE DECLARATION UNDER SEQRA)/STANDING (SEQRA, PETITIONERS DID NOT ALLEGE ENVIRONMENTAL INJURY, DID NOT HAVE STANDING)/STATE ENVIRONMENTAL QUALITY REVIEW ACT [SEQRA] (PETITIONERS DID NOT ALLEGE ENVIRONMENTAL INJURY, DID NOT HAVE STANDING TO ANNUL NEGATIVE DECLARATION UNDER SEQRA)

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ACTION SEEKING RESCISSION OF A CONSERVATION EASEMENT RESTRICTING DEVELOPMENT ON UPSTATE LAND WITHIN THE NEW YORK CITY WATERSHED PROPERLY DISMISSED; UNIQUE LAW RE: MODIFICATION OR EXTINGUISHMENT OF A CONSERVATION EASEMENT EXPLAINED.

In an action seeking rescission of a conservation easement which restricts development on upstate land within the watershed for New York City, the Third Department affirmed the dismissal of the complaint and explained the unique law which pertains to the modification or extinguishment of a conservation easement:

 

“Conservation easements are of a character wholly distinct from the easements traditionally recognized at common law and are excepted from many of the defenses that would defeat a common-law easement” (… see ECL 49-0305 [2], [5]…). Pursuant to ECL 49-0307 (1), “[a] conservation easement held by a not-for-profit conservation organization may only be modified or extinguished” (1) pursuant to the terms of the instrument creating the easement, (2) in a proceeding pursuant to RPAPL 1951, or (3) by eminent domain. Notably, ECL 49-0307 provides the exclusive means by which a conservation easement may be modified or extinguished (see ECL 49-0305 [2]). Argyle Farm & Props., LLC v Watershed Agric. Council of the N.Y. City Watersheds, Inc., 2016 NY Slip Op 00559, 3rd Dept 1-28-16

 

ENVIRONMENTAL LAW (CONSERVATION EASEMENT, UNIQUE LAW APPLICABLE TO MODIFICATION OR EXTINGUISHMENT)/EASEMENTS (CONSERVATION EASEMENTS, UNIQUE LAW APPLICABLE TO MODIFICATION OR EXTINGUISHMENT)/CONSERVATION EASEMENTS (MODIFICATION OR EXTINGUISHMENT)

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CLASS ACTION PROPERLY CERTIFIED IN CASE ALLEGING NEGLIGENT DISCHARGE OF CHEMICALS INTO THE ATMOSPHERE.

In an action alleging defendants negligently discharged chemicals into the atmosphere, resulting in a reduction of property values and quality of life, the Fourth Department determined a class action was properly certified. The court explained the criteria:

“[A] class action may be maintained in New York only after the five prerequisites set forth in CPLR 901 (a) have been met, i.e., the class is so numerous that joinder of all members is impracticable, common questions of law or fact predominate over questions affecting only individual members, the claims or defenses of the representative parties are typical of the class as a whole, the representative parties will fairly and adequately protect the interests of the class, and a class action is superior to other available methods for the fair and efficient adjudication of the controversy” … . A plaintiff seeking class certification has the “burden of establishing the prerequisites of CPLR 901 (a) and thus establish[ing] . . . entitlement to class certification” … .

Although the individual class members may have sustained differing amounts of damages, it is well settled that ” the amount of damages suffered by each class member typically varies from individual to individual, but that fact will not prevent the suit from going forward as a class action if the important legal or factual issues involving liability are common to the class’ ” … . * * *

… [B]ecause “the typicality requirement relates to the nature of the claims and the underlying transaction, not the amount or measure of damages, [the fact that the class representative’s] damages may differ from those of other members of the class is not a proper basis to deny class certification” … . DeLuca v Tonawanda Coke Corp., 2015 NY Slip Op 09739, 4th Dept 12-31-15

CIVIL PROCEDURE (CLASS ACTION PROPERLY CERTIFIED DESPITE DIFFERENCES IN DAMAGES)/CLASS ACTION (PROPERLY CERTIFIED DESPITE DIFFERENCES IN DAMAGES)/NEGLIGENCE (CLASS ACTION BASED ON DISCHARGE OF CHEMICALS INTO THE ATMOSPHERE)/ENVIRONMENTAL LAW (CLASS ACTION BASED ON DISCHARGE OF CHEMICALS INTO THE ATMOSPHERE)

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VILLAGE’S AGREEMENT TO SELL ONE MILLION GALLONS OF WATER PER DAY FOR TRANSPORT TO PENNSYLVANIA WAS A TYPE I ACTION REQUIRING SEQRA REVIEW.

Upon remittitur after reversal by the Court of Appeals, the Fourth Department affirmed Supreme Court’s rulings re: the Water Agreement and Lease Agreement entered into by the Village of Painted Post. The Lease Agreement concerned the construction of a railroad transloading facility and the Water Agreement concerned the sale of one million gallons of water per day (gpd) to be transported (by rail) to Pennsylvania. The Fourth Department determined the Water Agreement was a Type I, not Type II, action which required review under the State Environmental Quality Review Act (SEQRA). Because the Village of Painted Post did not conduct a SEQRA review of the Water Agreement, the relevant village resolutions were annulled and a consolidated SEQRA review of both the Water Agreement and Lease Agreement was ordered:

Although the Water Agreement does not call for the use of “ground or surface water in excess of [two million gpd]” (6 NYCRR 617.4 [b] [6] [ii]) and thus is not a Type I action under that subsection, Type I actions also include “any Unlisted action[] that exceeds 25 percent of any threshold in this section, occurring wholly or partially within or substantially contiguous to any publicly owned or operated parkland, recreation area or designated open space” (6 NYCRR 617.4 [b] [10]). Where, as here, the Department of Environmental Conservation (DEC) has set a threshold clarifying that the use of a certain amount of a natural resource, e.g., land or water, constitutes a Type I action, it is reasonable to assume that the DEC has “implicitly determined that an annexation of less than [that threshold] is an [U]nlisted action’ ” … . We thus conclude therefrom that the Water Agreement is implicitly an Unlisted action. Inasmuch as there is also evidence in the record that the transloading facility may be substantially contiguous to a publicly owned park and the Water Agreement calls for the use of surface water in the amount of one million gpd, i.e., 50% of the threshold in section 617.4 (b) (6) (ii), the Water Agreement could also be deemed a Type I action under 6 NYCRR 617.4 (b) (10).

Consequently, SEQRA review was required for the Water Agreement. Although the Village conducted a SEQRA review of the Lease Agreement, segmentation, i.e., the division of environmental review for different sections or stages of a project (see 6 NYCRR 617.2 [ag]), is generally disfavored … . We thus conclude that the court properly determined, on the merits of the first cause of action, that all of respondent Village’s resolutions should be annulled and that a consolidated SEQRA review of both agreements was required. Matter of Sierra Club v Village of Painted Post, 2015 NY Slip Op 09707, 4th Dept 12-31-15

ENVIRONMENTAL LAW (SALE OF WATER BY VILLAGE REQUIRED SEQRA REVIEW)/STATE ENVIRONMENTAL QUALITY REVIEW ACT [SEQRA] (SALE OF WATER BY VILLAGE REQUIRED SEQRA REVIEW)/WATER (SALE OF WATER BY VILLAGE REQUIRED SEQRA REVIEW)/MUNICIPAL LAW (SALE OF WATER BY VILLAGE REQUIRED SEQRA REVIEW)

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BECAUSE THE GAS WELL TO WHICH PLAINTIFFS OBJECTED MAY NEVER BE CONSTRUCTED, THE DECLARATORY JUDGMENT ACTION DID NOT PRESENT A JUSTICIABLE CONTROVERSY.

The Third Department determined plaintiff coalition’s declaratory judgment action against the New York Department of Environmental Conservation (DEC) was properly dismissed. The action contended that the DEC’s response to a comment submitted by plaintiff coalition (re; a gas-well permit under State Environmental Quality Review Act [SEQRA] review) constituted an unlawful extension of the common law rule of capture and effectuated a trespass on the land owned by a coalition member. The Third Department determined, because the comment period for the relevant rule-making had passed and the relevant rules had not been adopted, and because whether or not the gas-well permit will be issued has not been determined, the declaratory judgment action did not raise a  justiciable controversy:

Assuming, without deciding, that the statewide ban on hydrofracking does not render all of plaintiffs’ claims moot and, further, that plaintiffs each have standing to maintain this declaratory judgment action, Supreme Court nonetheless properly granted defendant’s motion to dismiss the complaint. As this Court recently reiterated, “[i]n order to warrant a determination of the merits of a cause of action, the party requesting relief must state a justiciable claim — one that is capable of review and redress by the courts at the time it is brought for review. A claim is justiciable, in turn, when two requirements are met: first, that the plaintiff has an interest sufficient to constitute standing to maintain the action and, second, that the underlying controversy involves present, rather than hypothetical, contingent or remote, prejudice to the plaintiff” … . Again, even assuming that plaintiffs have satisfied the standing element of this equation, the fact remains that their entire complaint is predicated upon either (1) defendant’s allegedly improper response to a comment made by the Coalition regarding proposed draft regulations that ultimately were not adopted, or (2) the theoretical consequences of a well bore or fluid fracture penetrating the subsurface of [a plaintiff’s] property. Community Watersheds Clear Water Coalition, Inc. v New York State Dept. of Envtl. Conservation, 2015 NY Slip Op 08890, 3rd Dept 12-3-15

ENVIRONMENTAL LAW (NO JUSTICIABLE CONTROVERSY, POTENTIAL ISSUANCE OF GAS DRILLING PERMIT)/CIVIL PROCEDURE (NO JUSTICIABLE CONTROVERSY, POTENTIAL ISSUANCE OF GAS DRILLING PERMIT)/HYDROFRACKING BAN (NO JUSTICIABLE CONTROVERSY, POTENTIAL ISSUANCE OF GAS DRILLING PERMIT)/NATURAL GAS (NO JUSTICIABLE CONTROVERSY, POTENTIAL ISSUANCE OF GAS DRILLING PERMIT)

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Standing Criteria for Petitioning for Review of Municipal Environmental Rulings Clarified; The Fact that Many People, in Addition to Petitioner, Will Suffer the Same Adverse Effects as Petitioner, Did Not Negate Petitioner’s Standing

In a full-fledged opinion by Judge Abdus-Salaam, the Court of Appeals clarified the nature of the standing requirement for contesting municipal rulings under the State Environmental Quality Review Act (SEQRA). The Village of Painted Post had approved the sale of municipal water to a company which operates gas wells in Pennsylvania. As part of that project, construction of a railroad loading facility was approved. A resident of the village, Martin, was one of the petitioners seeking the annulment of the Village’s SEQRA rulings. Martin, who lives near the rail facility, alleged the noise from the facility was different in degree from that experienced by the general public (thus according him standing to bring the petition). Supreme Court agreed Martin had standing. The Appellate Division reversed. The Court of Appeals determined Martin did in fact sufficiently allege standing. The fact that other nearby residents would experience the same intrusion as Martin was not dispositive:

The Appellate Division, in concluding that petitioner Marvin lacked standing, applied an overly restrictive analysis of the requirement to show harm “different from that of the public at large,” reasoning that because other Village residents also lived along the train line, Marvin did not suffer noise impacts different from his neighbors. * * *

To deny standing to persons who are in fact injured simply because many others are also injured, would mean that the most injurious and widespread Government actions could be questioned by nobody.”]). The harm that is alleged must be specific to the individuals who allege it, and must be “different in kind or degree from the public at large”… , but it need not be unique. Here, petitioner Marvin is not alleging an indirect, collateral effect from the increased train noise that will be experienced by the public at large, but rather a particularized harm that may also be inflicted upon others in the community who live near the tracks.

The number of people who are affected by the challenged action is not dispositive of standing. …[S]tanding rules should not be “heavy-handed,” …[w]e are “reluctant to apply [standing] principles in an overly restrictive manner where the result would be to completely shield a particular action from judicial review” … . Applying the Appellate Division’s reasoning, because there are multiple residents who are directly impacted, no resident of the Village would have standing to challenge the actions of the Village, notwithstanding that the train noise fell within the zone of interest of SEQRA. That result would effectively insulate the Village’s actions from any review and thereby run afoul of our pronouncement that the standing rule should not be so restrictive as to avoid judicial review. Matter of Sierra Club v Village of Painted Post, 2015 NY Slip Op 08452, CtApp 11-19-15

 

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Environmental Clean-Up Indemnification Agreement Between Seller and Buyer of Property Triggered by Department of Environmental Conservation’s (DEC’s) “Potentially Responsible Party (PRP)” Letter to Buyer

The Court of Appeals, in a full-fledged opinion by Judge Stein, reversing the Appellate Division, determined the environmental clean-up indemnification agreement between the seller (Pyne) and buyer (Remet) of property was triggered by the Department of Environmental Conservation’s (DEC’s) letter to Remet. Although the letter referred to Remet as a “potentially” responsible party (PRP), the letter required that Remet enter into a consent agreement (re: the clean-up) with the DEC or, if no consent agreement is executed within 30 days, pay for the clean-up done by the DEC:

The plain language of the governing contractual indemnity provision, together with the language of the PRP letter and the surrounding facts and circumstances, demonstrate that Remet was entitled to indemnification because it was “required,” within the meaning of the sales agreement, to act in response to the PRP letter. The PRP letter stated that it pertained to an “Urgent Legal Matter,” indicated that a prompt reply was “necessary,” and set forth the consequences that would flow from Remet’s refusal to act. Regardless of whether Remet was designated a potentially responsible party or a responsible party, the letter demanded either a consent order or payment, and any language indicating that Remet’s response was voluntary must be read in terms of those demands. In other words, the PRP letter — by its terms — effectively marked the beginning of a “legal” process against Remet pursuant to the ECL, in which DEC expressly sought recovery from Remet for any amounts expended in remediating the [the site].

Additionally, the circumstances surrounding the execution of the indemnification clause include the parties’ awareness that, because the [site] was listed as an inactive hazardous waste site, the purchaser of the property at issue here risked incurring substantial expenses, and that Pyne accordingly deposited a large sum in escrow to cover at least a portion of those potential expenses. Remet Corp. v Estate of Pyne, 2015 NY Slip Op 07575, CtApp 10-20-15

 

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State Claims Re: Alleged Release of Toxins During Love Canal Clean-Up Not Precluded (Preempted) by Federal CERCLA Remedy

The Fourth Department determined state claims for negligence, abnormally dangerous activity, private nuisance and trespass were not precluded by a federal Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) remedy re: the Love Canal toxic contamination:

As the federal District Court explained, “it is uniformly recognized that, in enacting CERCLA, Congress expressly disclaimed an intent to preempt state tort liability for damages caused by the release of hazardous substances” … . District Court therefore granted plaintiffs’ motion seeking to remand the matter to Supreme Court, determining that “plaintiffs seek relief only under common law theories of negligence, . . . private nuisance, and trespass” … , “[and t]he claims . . . do not expressly challenge the effectiveness of the [CERCLA] remedy . . . Rather, plaintiffs seek only to be made whole for any harm proximately caused by defendants’ conduct, whether in performance of operation, maintenance, and monitoring obligations with respect to the remedy, or during the [sewer project]” … .

* * * The doctrine of judicial estoppel prohibits a party who has assumed a position in one legal proceeding, and prevailed on that position, from assuming a contrary position in another proceeding because the party’s interests have changed … . Here, however, we conclude that plaintiffs’ position was consistent in both the federal and state court matters inasmuch as they maintained that they did not challenge the CERCLA remedy, as the moving defendants alleged, but instead challenged defendants’ performance of their respective obligations in executing the CERCLA remedY. Abbo-Bradley v City of Niagara Falls, 2015 NY Slip Op 07145, 4th Dept 10-2-15

 

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Town Board’s “Adverse Effects” Findings Annulled as Inconsistent with Final Environmental Impact Statement (FEIS)

The Second Department determined Supreme Court properly annulled the town board’s findings that a project would have adverse environmental effects because the board’s findings were not consistent with the Final Environmental Impact Statement (FEIS). The court explained the board’s obligations and the courts’ review powers in this context:

Judicial review of an agency determination under SEQRA [State Environmental Quality Review Act] is limited to whether the agency procedures were lawful and “whether the agency identified the relevant areas of environmental concern, took a hard look’ at them, and made a reasoned elaboration’ of the basis for its determination” … . “In a statutory scheme whose purpose is that the agency decision-makers focus attention on environmental concerns, it is not the role of the courts to weigh the desirability of any action or choose among alternatives, but to assure that the agency itself has satisfied SEQRA, procedurally and substantively” … . The agency decision should be annulled only if it is arbitrary, capricious, or unsupported by the evidence … .

“The purpose of an environmental impact statement is to provide detailed information about the effect which a proposed action is likely to have on the environment, to list ways in which any adverse effects of such an action might be minimized, and to suggest alternatives to such an action so as to form the basis for a decision whether or not to undertake or approve such action” (ECL 8-0109[2]). In a findings statement, the lead agency “considers the relevant environmental impacts presented in an EIS, weighs and balances them with social, economic and other essential considerations, provides a rationale for the agency’s decision and certifies that the SEQRA requirements have been met” (6 NYCRR 617.2[p]…). Agencies have considerable latitude in evaluating environmental effects and choosing between alternatives … .

While an agency’s ultimate conclusion is within the discretion of the agency, it must be based upon factual evidence in the record and not generalized, speculative community objections … . “While an EIS does not require a public agency to act in any particular manner, it constitutes evidence which must be considered by the public agency along with other evidence which may be presented to such agency” … .

Here, the Supreme Court properly annulled the Board’s findings statement as unsupported by the evidence. The Board was required to render its conclusions regarding the sufficiency of mitigation measures, the propriety of permit approvals, and a balancing of considerations, based on the evidence contained in the environmental review. The Board’s conclusions in the findings statement were based, at least in part, on factual findings which were contradicted by the scientific and technical analyses included in the FEIS and not otherwise supported by empirical evidence in the record … .

The findings statement also failed to give sufficient consideration to the various alternative plans reviewed in the FEIS … . Matter of Falcon Group Ltd. Liab. Co. v Town/Village of Harrison Planning Bd., 2015 NY Slip Op 07025, 2nd Dept 9-30-15

 

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Original Grantor Has the Power to Remove Restrictive Covenants from a Deed/Land Conveyed for Public Use Which Is Subject to a Condition Subsequent (Here a Reversionary Interest in the Deed) Is Not Covered by the Public Trust Doctrine (Legislative Approval for Conveyance for Private Use Not Required)

The Second Department upheld an agreement to remove restrictive covenants from a deed, allowing the village, to which the property had been conveyed, to retain the property free and clear from restrictions. The deed to the village from the Ortenbergs (husband and wife) included a covenant that the property would remain in its natural state for public purposes for the life of the village.  If the village ceased maintaining the property in a natural state, or if the village ceased to exist, the property reverted to the Ortenbergs, their heirs and assigns. After Mrs. Ortenberg died, Mr. Orternberg entered an agreement with the village to remove the restrictive covenants. The petitioners, owners of contiguous land, brought an Article 78 petition arguing that the agreement violated the public trust doctrine which requires the approval of the New York State Legislature before the land held for public use could be converted to private use.  The Second Department noted that the public trust doctrine does not apply to land conveyed for public use subject to a condition subsequent (the reversionary interest). The court also noted that the agreement was not subject to the State Environmental Quality Review Act (SEQRA):

Ortenberg, as the grantor, had the authority to release the Village from its obligation to perform the conditions in the deed and thereupon waive and terminate his reversionary interest (… see a… EPTL 6-5.1). Moreover, the Village was not required to obtain the approval of the New York State Legislature before mutually rescinding the underlying agreement with Ortenberg. Under the public trust doctrine, “a municipality, without specific legislative sanction, may not permit property acquired or held by it for public use to be wholly or partly diverted to a possession or use exclusively private” …, but this doctrine is inapplicable to property which is subject to a reversionary interest … . Where “the land acquired by the [municipality] for public . . . purposes was conveyed subject to a condition subsequent it is not under the control of the Legislature” … . Matter of Rappaport v Village of Saltaire, 2015 NY Slip Op 06246, 2nd Dept 7-22-15

 

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