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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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TRAFFIC CONCERNS JUSTIFIED THE ZONING BOARD’S RESTRICTIONS ON A RESTAURANT’S HOURS OF OPERATION AND REQUIREMENT FOR VALET PARKING (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the zoning board of appeals’ (ZBA’s) restrictions on the hours of operation of petitioner’s restaurant, as well as the requirement for valey parking, were appropriate. The hours coincided with the availability of off-street parking:

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“A zoning board may, where appropriate, impose reasonable conditions and restrictions as are directly related to and incidental to the proposed use of the property, and aimed at minimizing the adverse impact to an area that might result from the grant of a variance or special permit”… . “However, if a zoning board imposes unreasonable or improper conditions, those conditions may be annulled although the variance is upheld'” … .

Here, the ZBA’s conditions requiring valet parking and limiting the petitioner’s hours of operation to coincide with the hours of access to the 40 off-street parking spaces granted in the license agreement were proper because the conditions related directly to the use of the land and were intended to protect the neighboring commercial properties from the potential adverse effects of the petitioner’s operation, such as the anticipated increase in traffic congestion and parking problems… ” The need to alleviate traffic congestion by requiring adequate parking facilities’ is a legitimate consideration for a zoning board of appeals” … .

… The ZBA was entitled to rely on the testimony of the local store owners, since “a zoning board’s reliance upon specific, detailed testimony of neighbors based on personal knowledge does not render a variance determination the product of generalized and conclusory community opposition”… . Their testimony was supported by the observation of the petitioner’s own expert that there is a great demand for parking in the area of the subject restaurant. Members of the ZBA were also entitled to rely on their own personal knowledge of the area in reaching their decision … . Matter of Bonefish Grill, LLC v Zoning Bd. of Appeals of the Vil. of Rockville Ctr., 2017 NY Slip Op 06643, Fourth Dept 9-29-17

 

ZONING (TRAFFIC CONCERNS JUSTIFIED THE ZONING BOARD’S RESTRICTIONS ON A RESTAURANT’S HOURS OF OPERATION AND REQUIREMENT FOR VALET PARKING (FOURTH DEPT))/VARIANCES (CONDITIONS, TRAFFIC CONCERNS JUSTIFIED THE ZONING BOARD’S RESTRICTIONS ON A RESTAURANT’S HOURS OF OPERATION AND REQUIREMENT FOR VALET PARKING (FOURTH DEPT))/PARKING (ZONING, TRAFFIC CONCERNS JUSTIFIED THE ZONING BOARD’S RESTRICTIONS ON A RESTAURANT’S HOURS OF OPERATION AND REQUIREMENT FOR VALET PARKING (FOURTH DEPT))/TRAFFIC (ZONING, TRAFFIC CONCERNS JUSTIFIED THE ZONING BOARD’S RESTRICTIONS ON A RESTAURANT’S HOURS OF OPERATION AND REQUIREMENT FOR VALET PARKING (FOURTH DEPT))

TOWN RESIDENTS CANNOT COMPEL TOWN TO ISSUE A FORMAL DETERMINATION OF THEIR ZONING COMPLAINT AND CANNOT COMPEL THE ZONING BOARD OF APPEALS TO REVIEW THE FAILURE TO ISSUE SUCH A DETERMINATION (SECOND DEPT).

The Second Department determined petitioners’ Article 78 proceeding seeking to compel the town to issue a formal determination of their complaint about an alleged zoning violation, and further seeking to compel the zoning board of appeals (ZBA) rule on the building inspector’s failure to formally address petitioners’ complaint, was properly dismissed:

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… [T]he first cause of action alleged that the Town Code required the Town and the Building Inspector to issue a formal determination of the allegations contained in the letter they sent to the Building Inspector. Contrary to the allegations in the petition, there is nothing in the plain language of the Town Code which imposes a duty on the Building Inspector or the Town to issue a formal determination in response to every allegation or complaint received by his office … . Even assuming the Town Code imposes a non-discretionary duty on the Building Inspector to “review and investigate complaints” … , the petitioners have failed to cite any provision of law that would require the Building Inspector to issue a formal determination of the merits of every allegation that he received. Rather, the decision of how to respond to alleged violations of the Town’s building code is effectively left to the discretion of the Building Inspector … . * * *

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The portion of the second cause of action which is at issue on this appeal sought to compel the ZBA to “hear and determine” the petitioners’ application for review of the Building Inspector’s failure to issue a formal determination of their allegations. In this regard, the petitioners have failed to adequately allege that the ZBA had a non-discretionary duty to determine the merits of their application to review the failure of the Building Inspector to issue a formal determination in response to their allegations. To the contrary, the ZBA’s appellate jurisdiction is limited to reviewing an “order, requirement, decision, interpretation, or determination” … . Matter of Willows Condominium Assn. v Town of Greenburgh, 2017 NY Slip Op 05961, Second Dept 8-2-17

 

ZONING (TOWN RESIDENTS CANNOT COMPEL TOWN TO ISSUE A FORMAL DETERMINATION OF THEIR ZONING COMPLAINT AND CANNOT COMPEL THE ZONING BOARD OF APPEALS TO REVIEW THE FAILURE TO ISSUE SUCH A DETERMINATION (SECOND DEPT))

SPECIAL USE PERMIT PROPERLY GRANTED, CRITERIA FOR A SPECIAL USE PERMIT VERSUS A VARIANCE EXPLAINED 2ND DEPT.

The Second Department determined a special use permit was properly granted to a golf course seeking permission to host nonmember events. The court explained the different criteria for a special use permit versus a variance:

“Unlike a variance which gives permission to an owner to use property in a manner inconsistent with a local zoning ordinance, a special use permit gives permission to use property that is consistent with the zoning ordinance, although not necessarily allowed as of right” … . The burden of proof on an applicant seeking a special use permit is lighter than that carried by an applicant for a zoning variance … . Once an applicant shows “that the contemplated use is in conformance with the conditions imposed, a special [use] permit or exception must be granted unless there are reasonable grounds for denying it that are supported by substantial evidence” … .

Here, on this record, there was substantial evidence that Hampshire Club, Inc.’s contemplated use comported with the requirements of Village of Mamaroneck Zoning Code … , and there were no reasonable grounds for denying the special use permit. Therefore, the special use permit to host nonmember events at the Country Club should have been granted… . “Where substantial evidence exists, a court may not substitute its own judgment for that of the board, even if such a contrary determination is itself supported by the record” … . Matter of Mamaroneck Coastal Envt. Coalition, Inc. v Board of Appeals of the Vil. of Mamaroneck, 2017 NY Slip Op 05822, 2nd Dept 7-25-17

ZONING (SPECIAL USE PERMIT PROPERLY GRANTED, CRITERIA FOR A SPECIAL USE PERMIT VERSUS A VARIANCE EXPLAINED 2ND DEPT)/SPECIAL USE PERMIT (ZONING, SPECIAL USE PERMIT PROPERLY GRANTED, CRITERIA FOR A SPECIAL USE PERMIT VERSUS A VARIANCE EXPLAINED 2ND DEPT)/VARIANCE (ZING, SPECIAL USE PERMIT PROPERLY GRANTED, CRITERIA FOR A SPECIAL USE PERMIT VERSUS A VARIANCE EXPLAINED 2ND DEPT)

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CAUSES OF ACTION SEEKING TO ENFORCE A ZONING ORDINANCE AND COVENANTS IN ANOTHER’S DEED PROPERLY DISMISSED, CRITERIA EXPLAINED.

The Second Department, in affirming the dismissal of the causes of action, explained when a resident can bring a private action to enforce a zoning ordinance and restrictive covenants in another’s deed:

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The Supreme Court also properly granted that branch of the defendants’ motion which was pursuant to CPLR 3211(a)(3) to dismiss the plaintiff’s third cause of action, which was to enjoin alleged violations of the Code of the Town of Islip and restrictive covenants and to recover damages incidental to the alleged violations, as the plaintiff lacks standing to bring such a cause of action. Generally, to maintain a private action at common law to enjoin a zoning violation, a plaintiff must establish that he or she has standing to do so by demonstrating that special damages were sustained due to the defendant’s activities. To establish special damages, it is necessary to show that there is some depreciation in the value of the premises as real property arising from the forbidden use… . The plaintiff here failed to show that there was a depreciation of the character of the immediate neighborhood, or a depreciation in the value of her premises.

Furthermore, as stated previously, the plaintiff lacks standing to enforce restrictive covenants regarding the defendants’ property. The language in the deed from the original grantor indicates that the covenants were not imposed for the benefit of the owner of neighboring land. Therefore, the plaintiff may not enforce the covenants as a third-party beneficiary … .. Moreover, these covenants were not part of a common development scheme created for the benefit of all property owners within the subject development … . Wheeler v Del Duca, 2017 NY Slip Op 05116, 2nd Dept 6-21-17

 

ZONING (CAUSES OF ACTION SEEKING TO ENFORCE A ZONING ORDINANCE AND COVENANTS IN ANOTHER’S DEED PROPERLY DISMISSED, CRITERIA EXPLAINED)/REAL PROPERTY (CAUSES OF ACTION SEEKING TO ENFORCE A ZONING ORDINANCE AND COVENANTS IN ANOTHER’S DEED PROPERLY DISMISSED, CRITERIA EXPLAINED)/RESTRICTIVE COVENANTS (CAUSES OF ACTION SEEKING TO ENFORCE A ZONING ORDINANCE AND COVENANTS IN ANOTHER’S DEED PROPERLY DISMISSED, CRITERIA EXPLAINED)/DEEDS (CAUSES OF ACTION SEEKING TO ENFORCE A ZONING ORDINANCE AND COVENANTS IN ANOTHER’S DEED PROPERLY DISMISSED, CRITERIA EXPLAINED)

NO SHOWING A REASONABLE RETURN ON THE PROPERTY WAS NOT POSSIBLE WITH A CONFORMING USE, USE VARIANCE SHOULD NOT HAVE BEEN GRANTED.

The Fourth Department, reversing Supreme Court, determined the grant of a use variance by the zoning board of appeals (ZBA) should have been annulled. The parties seeking the variance (JCC and Lynn) did not present any proof that a reasonable return was not possible with a conforming use:

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“No . . . use variance shall be granted without a showing by the applicant that applicable zoning regulations and restrictions have caused unnecessary hardship.” In order to prove such unnecessary hardship, the Zoning Ordinance requires the applicant to establish, among other things, that, for each and every permitted use under the zoning regulations for the particular district where the property is located, the applicant cannot realize a reasonable return and that the lack of return is substantial as demonstrated by competent financial evidence… . In other words, the applicant must demonstrate “by dollars and cents proof” that he or she cannot realize a reasonable return by any conforming use… . As part of that demonstration, the applicant must necessarily establish what a reasonable return for the property is … . An applicant’s failure to establish that he or she cannot realize a reasonable return by any conforming use requires denial of the use variance by the ZBA … .

Here, JCC and Lynn failed to present any evidence to the ZBA to satisfy the first requirement of unnecessary hardship, i.e., that they could not realize a reasonable return on the property by any conforming use. In the absence of such evidence in dollars and cents form, there is no rational basis for the ZBA’s finding that the premises would not yield a reasonable return in the absence of the requested use variance and, for that reason, we conclude that the ZBA’s determination must be annulled … . Leone v City of Jamestown Zoning Bd. of Appeals, 2017 NY Slip Op 04980, 4th Dept 6-16-17

 

ZONING (USE VARIANCE, NO SHOWING A REASONABLE RETURN ON THE PROPERTY WAS NOT POSSIBLE WITH A CONFORMING USE, USE VARIANCE SHOULD NOT HAVE BEEN GRANTED)/USE VARIANCE (ZONING, NO SHOWING A REASONABLE RETURN ON THE PROPERTY WAS NOT POSSIBLE WITH A CONFORMING USE, USE VARIANCE SHOULD NOT HAVE BEEN GRANTED)

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NYC ZONING ORDINANCES CONCERNING ADULT BOOKSTORES AND CLUBS ARE CONSTITUTIONAL AND ENFORCEABLE.

The Court of Appeals, reversing the appellate division, in a full-fledged opinion by Judge Fahey, determined New York City’s zoning ordinances concerning adult bookstores and clubs were constitutional and, therefore, enforceable:

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Viewed in the proper light, the evidence and the factual findings of the lower courts support only one conclusion: that the City met its burden of showing continued focus on sexually explicit activities and materials by the adult bookstores and adult eating and drinking establishments.

The Appellate Division found that all but one of the adult bookstores had peep booths for viewing adult films, with an average of about 17 booths per store. Peep booths, by design, obviously promote sexual activities. The Appellate Division further found that all the bookstores used signage, displays, and layouts to promote sexually focused adult materials and activities. In addition, as the trial court found, many of the adult bookstores sold sex toys, adult novelties, and the like in the nonadult sections of the stores. This evidence showed that most of the adult bookstores predominantly emphasized the promotion of sexual materials and activities. * * *

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As to the adult eating and drinking establishments, the Appellate Division found that, in all the clubs, “topless dancing takes place at all times daily for approximately 16 to 18 hours a day” and also that lap dances, a quintessentially sexual activity, were offered by dancers “in both public and private areas of the club” … . This evidence, without more, adequately supported the conclusion that the topless clubs retained a predominant sexual focus. For the People Theatres of N.Y. Inc. v City of New York, 2017 NY Slip Op 04385, CtApp 6-6-17

 

ZONING (ADULT BOOKSTORES AND CLUBS, NYC ZONING ORDINANCES CONCERNING ADULT BOOKSTORES AND CLUBS ARE CONSTITUTIONAL AND ENFORCEABLE)/ADULT BOOKSTORES AND CLUBS (ZONING, NYC ZONING ORDINANCES CONCERNING ADULT BOOKSTORES AND CLUBS ARE CONSTITUTIONAL AND ENFORCEABLE)/CONSTITUTIONAL LAW (ZONING, ADULT BOOKSTORES AND CLUBS, NYC ZONING ORDINANCES CONCERNING ADULT BOOKSTORES AND CLUBS ARE CONSTITUTIONAL AND ENFORCEABLE)

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ZONING BOARD PROPERLY CONDUCTED A SEQRA REVIEW AND PROPERLY ISSUED A SUBSTANTIAL SETBACK VARIANCE, REVIEW CRITERIA EXPLAINED.

The Second Department determined the zoning board of appeals properly issued a negative declaration pursuant to the State Environmental Quality Review Act (SEQRA) and properly issued a substantial setback variance. The court explained its limited role in assessing the propriety of actions taken by zoning boards:

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“[I]t 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” … . While courts must review the record to determine if 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 … , “[n]othing in the law requires an agency to reach a particular result on any issue, or permits the courts to second-guess the agency’s choice, which can be annulled only if arbitrary, capricious or unsupported by substantial evidence” … .

Contrary to the petitioner’s contention, the Planning Board took the required hard look at the project proposal and set forth well-reasoned explanations for finding that the project would not result in any significant adverse environmental impacts. …

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In determining whether to grant an area variance, a zoning board of appeals is required to engage in a balancing test, weighing the benefit to the applicant against the detriment to the health, safety, and welfare of the neighborhood or community if the variance is granted … . A zoning board must also consider “(1) whether an undesirable change will be produced in the character of the neighborhood or a detriment to nearby properties will be created by the granting of the area variance; (2) whether the benefit sought by the applicant can be achieved by some method, feasible for the applicant to pursue, other than an area variance; (3) whether the requested area variance is substantial; (4) whether the proposed variance will have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district; and (5) whether the alleged difficulty was self-created, which consideration shall be relevant to the decision of the board of appeals, but shall not necessarily preclude the granting of the area variance” … .

Here, the record establishes that the Zoning Board considered and properly weighed the relevant factors in determining to grant the area variance. Although the variance is indisputably substantial, there is no evidence that granting the variance would produce an undesirable change in the character of the neighborhood or have an adverse effect or impact on the physical and environmental conditions in the neighborhood or district, that the benefit to the applicant could be achieved by other means, or that the applicant’s difficulty was self-created … . Matter of Beekman Delamater Props., LLC v Village of Rhinebeck Zoning Bd. of Appeals, 2017 NY Slip Op 04112, 2nd Dept 5-24-17

ZONING (ZONING BOARD PROPERLY CONDUCTED A SEQRA REVIEW AND PROPERLY ISSUED A SUBSTANTIAL SETBACK VARIANCE, REVIEW CRITERIA EXPLAINED)/ENVIRONMENTAL LAW (SETBACK VARIANCE, ZONING BOARD PROPERLY CONDUCTED A SEQRA REVIEW AND PROPERLY ISSUED A SUBSTANTIAL SETBACK VARIANCE, REVIEW CRITERIA EXPLAINED)/VARIANCES (ZONING, ZONING BOARD PROPERLY CONDUCTED A SEQRA REVIEW AND PROPERLY ISSUED A SUBSTANTIAL SETBACK VARIANCE, REVIEW CRITERIA EXPLAINED)

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WATER DISTRICT’S CONSTRUCTION OF A REPLACEMENT DRINKING WATER SUPPLY TANK WAS IMMUNE FROM COMPLIANCE WITH THE VILLAGE CODE AND DID NOT TRIGGER THE STATE ENVIRONMENTAL QUALITY REVIEW ACT.

The Second Department determined Supreme Court properly concluded the Water District’s planned replacement of a drinking water supply tank was immune from the village code and did not trigger the State Environmental Quality Review Act (SEQRA):

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In Matter of County of Monroe (City of Rochester) (72 NY2d 338), the Court of Appeals addressed the applicability of local zoning laws where a conflict exists between two governmental entities. The Court therein articulated “a balancing of public interests” test which requires the consideration of various factors in order to determine whether an entity should be granted immunity from local zoning requirements … . These factors include “the nature and scope of the instrumentality seeking immunity, the kind of function or land use involved, the extent of the public interest to be served thereby, the effect local land use regulation would have upon the enterprise concerned and the impact upon legitimate local interests” … .

Here, the Village failed to set forth any basis for its contention that the application of the Monroe balancing test is in the exclusive province of the Village, or host entity. In fact, the Court of Appeals did not specify the entity initially responsible for evaluating the competing interests … . Further, the Supreme Court properly employed the “balancing of public interests” test and correctly determined that the proposed construction plan is immune from the Village’s local laws … .

The Supreme Court also properly found, in effect, that the Water District’s determination that the proposed construction plan was for a “replacement, rehabilitation or reconstruction of a structure or facility, in kind” (6 NYCRR 617.5[c][2]) and, thus, was a Type II action under SEQRA that presumptively did not have a significant impact upon the environment and did not require the preparation and circulation of an environmental impact statement, was not irrational, arbitrary or capricious, affected by error of law, or an abuse of discretion … . Incorporated Vil. of Munsey Park v Manhasset-Lakeville Water Dist., 2017 NY Slip Op 03934, 2nd Dept 5-17-17

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ZONING (WATER DISTRICT’S CONSTRUCTION OF A REPLACEMENT DRINKING WATER SUPPLY TANK WAS IMMUNE FROM COMPLIANCE WITH THE VILLAGE CODE AND DID NOT TRIGGER THE STATE ENVIRONMENTAL QUALITY REVIEW ACT)/ENVIRONMENTAL LAW (REPLACEMENT WATER TANK, WATER DISTRICT’S CONSTRUCTION OF A REPLACEMENT DRINKING WATER SUPPLY TANK WAS IMMUNE FROM COMPLIANCE WITH THE VILLAGE CODE AND DID NOT TRIGGER THE STATE ENVIRONMENTAL QUALITY REVIEW ACT)/MONROE BALANCING TEST (REPLACEMENT WATER TANK, WATER DISTRICT’S CONSTRUCTION OF A REPLACEMENT DRINKING WATER SUPPLY TANK WAS IMMUNE FROM COMPLIANCE WITH THE VILLAGE CODE AND DID NOT TRIGGER THE STATE ENVIRONMENTAL QUALITY REVIEW ACT)/STATE ENVIRONMENTAL QUALITY REVIEW ACT (SEQRA)  (REPLACEMENT WATER TANK, WATER DISTRICT’S CONSTRUCTION OF A REPLACEMENT DRINKING WATER SUPPLY TANK WAS IMMUNE FROM COMPLIANCE WITH THE VILLAGE CODE AND DID NOT TRIGGER THE STATE ENVIRONMENTAL QUALITY REVIEW ACT)/WATER TANKS (WATER DISTRICT’S CONSTRUCTION OF A REPLACEMENT DRINKING WATER SUPPLY TANK WAS IMMUNE FROM COMPLIANCE WITH THE VILLAGE CODE AND DID NOT TRIGGER THE STATE ENVIRONMENTAL QUALITY REVIEW ACT)/MUNICIPAL LAW  (WATER DISTRICT’S CONSTRUCTION OF A REPLACEMENT DRINKING WATER SUPPLY TANK WAS IMMUNE FROM COMPLIANCE WITH THE VILLAGE CODE AND DID NOT TRIGGER THE STATE ENVIRONMENTAL QUALITY REVIEW ACT)

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PARTIES HAD STANDING TO CONTEST THE NEGATIVE DECLARATION ISSUED PURSUANT TO THE STATE ENVIRONMENTAL QUALITY REVIEW ACT, NEGATIVE DECLARATION SHOULD HAVE BEEN ANNULLED FOR FAILURE TO SET OUT THE UNDERLYING REASONING.

The Fourth Department, reversing Supreme Court, determined that the negative declaration by the City of Rochester Director of Planning and Zoning under the State Environmental Quality Review Act [SEQRA] should have been annulled. The Fourth Department first held that the parties had standing to contest the negative declaration because of their proximity to the subject construction site. In the face of the acknowledged contamination of the soil at the site, the negative declaration did not set forth or document the underlying reasoning:

We … agree with petitioners that the negative declaration did not contain a ” reasoned elaboration’ of the basis for [the] determination” … . “It is well settled that SEQRA’s procedural mechanisms mandate strict compliance, and anything less will result in annulment of the lead agency’s determination of significance” … . The lead agency must “set forth its determination of significance in a written form containing a reasoned elaboration and providing reference to any supporting documentation” … . The purpose of that regulation “is to focus and facilitate judicial review and . . . to provide affected landowners and residents with a clear, written explanation of the lead agency’s reasoning at the time the negative declaration is made” … . Here, despite the undisputed presence of preexisting soil contamination on the project site, the negative declaration set forth no findings whatsoever with respect to that contamination. The document containing the purported reasoning for the lead agency’s determination of significance, which was prepared subsequent to the issuance of the negative declaration, does not fulfill the statutory mandate … . Contrary to respondents’ contention, the developer’s promise to remediate the contamination before proceeding with construction did not absolve the lead agency from its obligations under SEQRA … . Matter of Rochester Eastside Residents for Appropriate Dev., Inc. v City of Rochester, 2017 NY Slip Op 03665, 4th Dept 5-5-17

ENVIRONMENTAL LAW (PARTIES HAD STANDING TO CONTEST THE NEGATIVE DECLARATION ISSUED PURSUANT TO THE STATE ENVIRONMENTAL QUALITY REVIEW ACT, NEGATIVE DECLARATION SHOULD HAVE BEEN ANNULLED FOR FAILURE TO SET OUT THE UNDERLYING REASONING)/STATE ENVIRONMENTAL QUALITY REVIEW ACT (SEQRA) (PARTIES HAD STANDING TO CONTEST THE NEGATIVE DECLARATION ISSUED PURSUANT TO THE STATE ENVIRONMENTAL QUALITY REVIEW ACT, NEGATIVE DECLARATION SHOULD HAVE BEEN ANNULLED FOR FAILURE TO SET OUT THE UNDERLYING REASONING)/ZONING (STATE ENVIRONMENTAL QUALITY REVIEW ACT, PARTIES HAD STANDING TO CONTEST THE NEGATIVE DECLARATION ISSUED PURSUANT TO THE STATE ENVIRONMENTAL QUALITY REVIEW ACT, NEGATIVE DECLARATION SHOULD HAVE BEEN ANNULLED FOR FAILURE TO SET OUT THE UNDERLYING REASONING)/NEGATIVE DECLARATION (STATE ENVIRONMENTAL QUALITY REVIEW ACT, PARTIES HAD STANDING TO CONTEST THE NEGATIVE DECLARATION ISSUED PURSUANT TO THE STATE ENVIRONMENTAL QUALITY REVIEW ACT, NEGATIVE DECLARATION SHOULD HAVE BEEN ANNULLED FOR FAILURE TO SET OUT THE UNDERLYING REASONING)

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