DEC Proposes Amendments To SEQRA Regulations, Part Six: Mandatory Scoping

Earlier this year, the New York State Department of Environmental Conservation ("DEC") proposed amendments to the regulations implementing the State Environmental Quality Review Act ("SEQRA”), currently codified in 6 NYCRR Part 617. This the sixth post in our series examining the proposed amendments.  The focus of this post is mandatory scoping.

Scoping, which was added to the SEQRA regulations in 1987, is “the process by which the lead agency identifies the potentially significant adverse impacts related to the proposed action that are to be addressed in the draft EIS,” in essence focusing the EIS process on those issues that are most relevant. Initially, scoping was optional and did not require public input.  After the 1995 amendments, scoping remained optional but was strongly recommended, and if undertaken, must include a draft scope for public review.

Under the proposed amendments, scoping would become mandatory for all environmental impact statements and may be initiated by the lead agency or the project sponsor. The amended regulations also place a strong emphasis on using the recently revised environmental assessment forms (“EAFs”) early in the scoping process to better define what issues warrant additional scrutiny in the EIS, as opposed to those issues that may be excluded as minor or not impactful.

The amendments would also modify the standard for accepting or rejecting the adequacy of a draft EIS.  Currently, the project sponsor must accept or defer issues that arise after preparation of the final written scope. However, a lead agency may currently undermine this decision by rejecting a draft EIS as inadequate for failing to include deferred issues.  Under the proposed regulation, a project sponsor’s decision to defer an issue and treat it as a public comment about the draft EIS, to be included in the final draft, cannot be a basis for the lead agency to reject a draft EIS as inadequate. In addition, determining the adequacy of a resubmitted draft EIS can only be based upon the written list of deficiencies provided by the lead agency following the previous review.  As a result, DEC hopes that project sponsors will take a less “defensive approach” to creating EIS records and leave out extraneous information that is often included in pursuit of creating a “bullet proof EIS” draft.  

DEC will hold a public hearing on the regulations on March 31, 2017, and be accept comments on the proposed amendments until May 19, 2017. Drafts of the proposed amendments and additional information on submitting comments is available on the DEC website.


DEC Proposes Amendments To SEQRA Regulations, Part Five: Additions To The Type II List – Zoning and Variances

Earlier this year, the New York State Department of Environmental Conservation ("DEC") proposed amendments to the regulations implementing the State Environmental Quality Review Act ("SEQRA”), currently codified in 6 NYCRR Part 617. This the fifth post in our series examining the proposed amendments.  The focus of this post is the Type II list of actions, particularly proposals to relating to zoning and variances.

As noted in previous posts, Type II actions (Part 617.5) are actions or classes of actions “which have been determined not to have a significant effect on the environment and which do not require environmental impact statements.”  The goal is to accelerate the SEQRA review process by categorically excluding actions that almost invariably receive negative declarations.

The proposed amendments add a variety of zoning-related actions to the Type II list.  This includes: (1) expanding the exemption for individual lot line and setback variances to include all “lot line adjustments and area variances not involving a chance in allowable density;” (2) certain minor subdivisions under the municipality’s subdivision regulations; (3) redevelopment of certain previously disturbed sites already served by public infrastructure; and (4) “in a city, town or village with an adopted zoning law or ordinance, reuse of a commercial or residential structure where the activity is consistent with the current zoning law or ordinance.”  Another notable change under the proposed amendments is that the recommendation of a county or regional planning entity made following referral of an action pursuant to General Municipal §§ 239-m, 239-n would not be subject to SEQRA review.

The proposed amendments also include several provisions addressing acts that benefit the public.  For example, the amendments would designate both the dedication of parkland, as well as an agency’s acquisition of less than one hundred acres of land to be dedicated as parkland, as Type II actions.  Similarly, the amendments would add “the transfer or conveyance of five acres or less by a municipality or a public corporation to a not-for-profit corporation for the construction or rehabilitation of one, two or three family housing.”  This provision, entitled “Certain Transfers of Land to Provide Affordable Housing,” is meant to facilitate transfers to organizations such as Habitat for Humanity and comparable organizations.

There are other zoning-related provisions, but for brevity these are not addressed here.  However, full descriptions and rationales can be found in the Final Draft of the proposed amendments, available at the link below.

DEC will hold a public hearing on the regulations on March 31, 2017, and be accept comments on the proposed amendments until May 19, 2017. Drafts of the proposed amendments and additional information on submitting comments is available on the DEC website.


DEC Proposes Amendments To SEQRA Regulations, Part Four: Additions To The Type II List – Cellular and Broadband

Earlier this year, the New York State Department of Environmental Conservation ("DEC") proposed amendments to the regulations implementing the State Environmental Quality Review Act ("SEQRA”), currently codified in 6 NYCRR Part 617. This the fourth post in our series examining the proposed amendments.  The focus of this post is the Type II list of actions, particularly proposals to relating to cell towers and broadband.

As noted in previous posts, Type II actions (Part 617.5) are actions or classes of actions “which have been determined not to have a significant effect on the environment and which do not require environmental impact statements.”  The goal is to accelerate the SEQRA review process by categorically excluding actions that almost invariably receive negative declarations.

Like with the energy improvements discussed in our last post, many of the proposed additions to the Type II list are intended to encourage other state policy goals.  The actions relating to cellular and broadband service follow this pattern as well, by promoting measures to expand coverage.  For example, the proposed amendments add the installation of fiber-optic or other broadband cable technology in existing highway or utility rights of way to the list of Type II actions.  This would remove hurdles to greater installation of high-speed broadband service, a priority for the state as an essential component of promoting job growth and competitive industries.

The proposed amendments also add the co-location of cellular antennas and repeaters to the list of Type II actions, providing that the existing structure on which they are installed is not a designated as historic place under state or national registries.  This change better conforms the co-location procedures with federal law, while removing the need, in some cases, for the installation of an additional transmission tower.

DEC will hold a public hearing on the regulations on March 31, 2017, and be accept comments on the proposed amendments until May 19, 2017. Drafts of the proposed amendments and additional information on submitting comments is available on the DEC website.


DEC Proposes Amendments To SEQRA Regulations, Part Three: Additions To The Type II List – Green Projects

Earlier this year, the New York State Department of Environmental Conservation ("DEC") proposed amendments to the regulations implementing the State Environmental Quality Review Act ("SEQRA”), currently codified in 6 NYCRR Part 617. This the third post in our series examining the proposed amendments.  The focus of this post is the Type II list of actions, particularly proposals to add certain the environmentally friendly measures.

Type II actions (Part 617.5) are actions or classes of actions “which have been determined not to have a significant effect on the environment and which do not require environmental impact statements.”  The purpose of this list is to accelerate the SEQRA review process and reduce the administrative burden on both the lead agency and applicant by categorically excluding actions that almost invariably receive negative declarations. The proposed amendments would expand this list by adding several new types of actions to the Type II list.

With respect to environmentally friendly improvements, the proposed amendments would add two new types of actions to the Type II list.  The first is “Green Infrastructure,” defined as “practices that manage stormwater through infiltration, evapotranspiration and reuse such as the use of permeable pavement; bio-retention; green roofs and green walls; tree pits, stormwater planters, rain gardens, vegetated swales, urban forestry programs; downspout disconnection; and stormwater harvesting and reuse.”  While these practices could be used in new development projects, the proposed amendments would be limited to retrofit projects (the replacement or altering of an existing structure to incorporate green infrastructure practices).

Similarly, another proposed addition is “Upgrade of Structures to Meet Energy Codes.”  As the name implies, this would expand the existing “replacement, rehabilitation, or reconstruction” language for in-kind upgrades to include meeting energy codes.  Currently, the provision is limited to upgrades to meet the applicable building and fire codes.

Finally, the proposed amendments would add a broad category for the installation of solar energy arrays with a generating capacity of five megawatts or less.  The focus is on installation on existing structures, or alternatively on land such as sanitary landfills, sites zoned for industrial use, or placed on or over residential and commercial parking facilities (lots or garages).  This meets a variety of state goals relating to clean energy, improving air quality, etc., and does so by utilizing dead space in existing structures or otherwise unused land.  The five-megawatt cap also ensures that large, utility-scale projects will still require SEQRA review.

DEC will hold a public hearing on the regulations on March 31, 2017, and be accept comments on the proposed amendments until May 19, 2017. Drafts of the proposed amendments and additional information on submitting comments is available on the DEC website.


DEC Proposes Amendments To SEQRA Regulations, Part Two: Modifying The Type I List

Earlier this year, the New York State Department of Environmental Conservation ("DEC") proposed amendments to the regulations implementing the State Environmental Quality Review Act ("SEQRA”), currently codified in 6 NYCRR Part 617. This the second post in our series examining the proposed amendments.  The focus of this post are the threshold modifications to the Type I list of actions.

Type I actions (Part 617.4) are acts presumed to be of potential environmental significance.  As a result, a lead agency is required to complete a full environmental assessment form for each such action and coordinate review between agencies. Type I also includes thresholds after which actions that would otherwise be designated as “Unlisted” are elevated to Type I actions.  The proposed amendments to Part 617 would amend these thresholds with respect to three issues.

First, the proposed amendments would lower the threshold for the number of residential units in cities, towns and villages of various population levels, as the current thresholds were found to be so high that they were rarely triggered.  Specifically, the threshold for populations of 150,000 or less would be lowered from 250 to 200, the threshold for populations of 150,001 to 1,000,000 would be reduced from 1,000 units to 500 units, and the threshold for populations over 1,000,000 would be lowered from 2,500 to 1,000 units.  These limits are expected to capture various large projects that would otherwise proceed as Unlisted, encourage greater public input, and ensure coordination between reviewing agencies.

Second, the proposed amendments would change the parking space threshold, which is currently 1000 vehicles, to include a lower threshold for smaller municipalities.  Under the proposal, the threshold would remain 1000 vehicles for a city, town, or village with a population over 150,000, but drop to 500 vehicles for municipalities with less than 150,000 persons. Based on the gross floor area typically associated with parking requirements at this level, the proposal is expected to impact only a small number of projects that wouldn’t otherwise be categorized as Type I.

Finally, the proposed amendments would add a threshold for historic resources, designating Unlisted actions in close proximity to historic resources as Type I actions.  It would also include properties that have been determined by the Commissioner of the Office of Parks, Recreation and Historic Preservation as eligible for listing on the State Register of Historic Places. This aligns SEQRA’s methodologies with the federal equivalents, as the State Historic Preservation Act was modelled on the federal National Historic Preservation Act.

DEC will hold a public hearing on the regulations on March 31, 2017, and be accept comments on the proposed amendments until May 19, 2017. Drafts of the proposed amendments and additional information on submitting comments is available on the DEC website.


DEC Proposes Amendments To SEQRA Regulations, Part One: Introduction

Earlier this year, the New York State Department of Environmental Conservation ("DEC") proposed amendments to the regulations implementing the State Environmental Quality Review Act ("SEQRA”), currently codified in 6 NYCRR Part 617. The proposed amendments aim to streamline the environmental review process, while also updating the regulations to reflect the changes, both technological and otherwise, that have occurred since the last major overhaul of Part 617 in 1995.  This will be the first in a series of posts examining the proposed amendments.

Examples of the changes to be discussed in forthcoming posts include: (1) modifying certain thresholds in the Type I list of actions, i.e. those deemed more likely to require an environmental impact statement; (2) expanding the Type II list of activities, i.e. those DEC has categorically deemed to not have a significant adverse impact on the environment (this will be the subject of multiple posts); (3) provisions encouraging the electronic filing of environmental impact statements; (4) transparency measures relating to the use of consulting firms by lead agencies; and (5) making scoping of environmental impact statements mandatory (it is currently optional).

DEC will hold a public hearing on the regulations on March 31, 2017, and be accept comments on the proposed amendments until May 19, 2017. Drafts of the proposed amendments and additional information on submitting comments is available on the DEC website.


Appellate Court Holds Town Code Did Not Bar Petitioner From Constructing Multiple One-Family Dwellings

Petitioners Boni Enterprises, LLC (“Boni”) and Country Club Acres, Inc. (“CCA”) (collectively “Petitioners”) owned contiguous parcels in the Town of Clifton Park (“Town”). Petitioners submitted an application for site plan review to the Town Planning Board for a plan to build 74 one-family dwellings on Boni’s parcel and 15 commercial buildings (offices, warehouses and flex space) on CCA’s parcel. The Planning Board held it could not consider the application because Respondent Town's Zoning Enforcement Officer Myers (“Myers”) believed there were zoning issues with the plan. The Town’s Zoning Board of Appeals (“ZBA”) upheld Myers's interpretation, finding multiple one-family dwellings could not be constructed on Boni's parcel. Petitioners commenced a CPLR article 78 / declaratory judgment action to review the ZBA's determination.  The Supreme Court dismissed the petition, and Petitioners appealed.

On appeal, the Court noted that while courts generally defer to determinations by a zoning board of appeals, no deference is required on questions of pure legal interpretation of the zoning law. Petitioners argued that “buildings” in the last sentence of Town Code § 208–33(B) includes one-family dwellings, thus permitting them to build multiple dwellings on the Boni parcel as long as they comply with density limitations. While the Court agreed with Respondents that the words “building” and “dwelling” were not synonymous or interchangeable, it noted that “dwelling” is a subset of the broader “building.” Thus, the plain language of the Town Code, strictly construed against the municipality, did permit multiple buildings, including one-family dwellings, on a single lot as long as they adhere to the density limitations. Accordingly, the ZBA's determination was annulled to the extent that it incorrectly interpreted that section of the Town Code.

Finally, the Court addressed the issue of notice as to the passage of Local Law No. 8 (1991).  While the notice given here did not state that the proposed ordinance would repeal Local Law No. 2 (1970), it did say that the ordinance would amend the zoning ordinance for two business districts, and identified the geographical area that would be affected, including the CCA parcel.  Accordingly, the Court held that the Town gave adequate notice, having described the proposed ordinance in general terms, and as such, Respondents were entitled to a declaration that Local Law No. 8 was properly enacted. Finally, the Court held the Town’s failure to update its zoning map, which is unofficial and available merely as a reference tool, did not affect the validity of Local Law No. 8.

The case was Boni Enterprises, LLC v. Zoning Bd. of Appeals of Town of Clifton Park, 124 A.D.3d 1052 (3d Dep’t 2015).


Court Finds Planning Board Determination On Site Plan Approval Had Rational Basis

Petitioners, Panevan Corporation, which owned 784 Central Park Avenue in the Town of Greenburgh, and 784 SCPA Rest. Corp. (collectively “Petitioners”), which leased that property and operated a diner, challenged a determination of the Greenburgh Planning Board to grant site plan approval and special permits to the respondent Dimitri Ostashkin, doing business as 788 Central Park Avenue.  These special permits, including parking permits, allowed Ostashkin to develop his property, located adjacent to 784 Central Park Avenue. The Town and the Planning Board moved to dismiss the proceeding as Petitioners lacked standing. The Supreme Court granted the motion, denying the petition and dismissing it in its entirety.  The Supreme Court further determined that the Planning Board properly granted site plan approval and the special parking permits to Ostashkin.

On appeal, the Court noted that “a local planning board has broad discretion in deciding applications for site-plan approvals, and judicial review is limited to determining whether the board's action was illegal, arbitrary and capricious, or an abuse of discretion.” Here, the court found that contrary to Petitioners’ contention, the determination regarding site plan approval had a rational basis, and was not illegal, arbitrary and capricious, or an abuse of discretion. Additionally, it found that the Supreme Court had properly determined that Petitioners had failed to establish standing.  As such, the Court dismissed the appeal.  However, the Court also noted that this was a hybrid Article 78/declaratory judgment action, and as such modified the order appealed from to include a provision declaring that the special permits issued by the Planning Board are valid, that the Planning Board had jurisdiction to grant Ostashkin a set-back variance, and that the Board's determination to approve the application for site plan approval was valid.

The case was Panevan Corp. v. Town of Greenburgh, 144 A.D.3d 808 (2d Dep’t 2016).


Court Holds Restrictive Covenant Provision Limiting Leasing of Units Was Unenforceable

Blue Island Development, LLC, and Posillico Development Company at Harbor Island, Inc. (collectively “Petitioners”), purchased land that had formerly been used as an oil storage facility and developed it into 172 waterfront condominium units.  This required a zoning change, which the Town of Hempstead granted subject to a restrictive covenant allowing Blue Island to sell the condos, but subsequent owners to sell the units for any purpose allowing by Town Law.  The Town later agreed to modify the covenant to allow Petitioners to rent 17 of the units for five years.  Petitioners applied to modify the restrictive covenant again to allow it to maintain 140 of the properties as rentals.  The application was denied, and Petitioners brought an action against the Town, challenging the town's denial. The Supreme Court denied the Town's motion to dismiss, and the Town appealed. The Appellate Division affirmed.  On remand, the Supreme Court denied Petitioners’ motion for summary judgment, and Petitioners’ again appealed.

On appeal, the Court found that Blue Island met its prima facie burden of showing that paragraph seven of the Declaration was of no actual and substantial benefit to the Town. In opposition, the Town failed to raise a triable issue of fact, as it offered no explanation to rebut this showing. Pursuant to RPAPL 1951(1), “a restrictive covenant shall not be enforced if, at the time enforceability of the restriction is brought into question, it appears that the restriction is of no actual and substantial benefit to the persons seeking its enforcement or seeking a declaration or determination of its enforceability.” Accordingly, the Court held that the Supreme Court erred in denying that branch of Blue Island's motion for summary judgment on the second cause of action declaring paragraph seven of the Declaration invalid and unenforceable pursuant to RPAPL 1951.

The case was Blue Island Development, LLC, v Town of Hempstead, 143 A.D.3d 656 (2d Dep’t 2016).


Northern District of New York Finds Claims Arising From Site Plan Application Unripe

Plaintiff made diverse claims that Defendant Town of Ballston (“Town”) used improper, discriminatory and unconstitutional means to thwart its efforts to construct a hot mix asphalt plant in the Curtis Industrial Park (“CIP”) in the Town. At its core, Plaintiff alleged Defendants opposed construction of a legal business under the Town's current zoning plan, and violated local laws and rules in an attempt to prevent the construction of same. As a result, Plaintiff was unable to build the project, and claimed damages. Plaintiff’s specific allegations include (1) Defendants discriminated against it by applying different standards to its project than to those of other similarly situated businesses; (2) the Town’s Planning Board deliberately prolonged consideration of its site plan application and refused, in bad faith, to process same, (3) the Town enacted an ordinance designed to delay or prevent its project, lied about the purpose of said ordinance, and refused to withdraw the ordinance despite public ally acknowledging its defects, forcing Plaintiff to litigate the issue, and (4) the Town purposefully delayed processing the site plan after the Supreme Court struck down the ordinance, and then passed a new ordinance with the same defects as the earlier ordinance.

Despite Plaintiff’s varied claims, the Court found that these allegations, even if taken as true, indicated that the case was not ripe for disposition. The Complaint stated Plaintiff applied for a permit to build an asphalt plant in the CIP, and all of Plaintiff's alleged injuries flowed from the Town's failure to approve that plan. Yet nothing in the Complaint indicated that the Town Zoning Board, let alone Zoning Appeals Board, ever ruled on the application, or that the application had been withdrawn. In addition, the state court decision that established a restraining order against the ordinance Plaintiff cited specifically directed the Town to continue processing the application. Ultimately, nothing in the Complaint indicated that any of Plaintiff’s efforts showed Plaintiff’s abandonment of the initial application or that an appeal of the initial denial had been completed. Accordingly, the court held the issue was not ripe for review.

The case was Dolomite Products Company, Inc. v. Town of Ballston, 2016 WL 5394711 (N.D.N.Y. September 27, 2016).  Please note that an appeal has been filed in this case.



Powered by 123ContactForm | Report abuse