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.

Second Department Upholds Denial of Area Variance

Petitioners applied for a setback variance with the Town of Carmel Zoning Board of Appeals. When the application was denied, Petitioners brought an Article 78 proceeding to appeal the decision. The trial court denied the petition and dismissed the proceeding. Petitioners appealed.

In determining whether to grant an area variance, a zoning board must engage in a balancing test, weighing the benefit to the applicant against the detriment to the health, safety, and welfare of the neighborhood if the variance is granted.  In applying this test, the zoning board is not required to justify its determination with supporting evidence for each of the statutory factors, so long as its determination is rational.  Here, the ZBA performed the balancing test and found that granting the variances would produce an undesirable change in the character of the neighborhood and that the benefit sought by Petitioners could be achieved by other methods.  Accordingly, the Court ruled that the ZBA’s decision that the drawbacks outweighed the benefits to the petitioners had a rational basis and was supported by the record.

Petitioners also contended that the Board denying their application for an area variance was arbitrary and capricious because it had granted similar applications. “The fact that one property owner is denied a variance while others similarly situated are granted such variances, does not, in and of itself, indicate that the difference in result is due to impermissible discrimination or to arbitrariness.” Here, Petitioners failed to establish that the Board “reached a different result on essentially the same facts.” While the vice chairman of the ZBA arguably should have recused himself if he felt that he had any bias against Petitioners, there was no “proof that the outcome flowed from the alleged bias.”

The Court thus affirmed the lower court’s decision, holding that the ZBA had a rational basis for denying owners' the setback variance and that the denial of the area variance was not arbitrary and capricious.

The case was Matter of Harris v. Zoning Bd. of Appeals of Town of Carmel, 137 A.D.3d 1130 (2d Dep’t 2016).

Eastern District Denies Equal Protection and Retaliation Claims against Village

Plaintiff sought to build upon his property, which was subject to a restrictive covenant that protects his neighbors’ views of Oyster Bay.  Plaintiff brought claims under 42 U.S.C. § 1983 and state law against the Incorporated Village of Centre Island (“Village”), the Village's Board of Zoning Appeals (“BZA”), Deputy Mayor Lawrence Schmidlapp, the Village’s Board of Trustees (collectively, “the Village defendants”), and Laura Sweeney Chuba (“Chuba”), plaintiff’s neighbor and a member of the Village's Board of Trustees. Plaintiff alleged that the Defendants purposefully frustrated his efforts to seek zoning variances and building permits. The Village defendants and Chuba separately filed and were granted motions to dismiss. Plaintiff was then granted leave to file an amended complaint “to address the pleading deficiencies identified by the Court with respect to his substantive due process, equal protection, and First Amendment retaliation claims.”

For his substantive due process claim, Plaintiff claims the denial of his “as-of-right” application was arbitrary and capricious because his architect and the Village building inspector believed that the proposed construction did not violate the covenant. As the Court previously held Plaintiff plausibly alleged that his building plans did not violate the covenant, the Court focused on the second prong of a substantive due process claim: whether Plaintiff’s amended complaint plausibly alleged that the Village’s view that the covenant barred Plaintiff’s application was entirely baseless or in bad faith. The Court ruled it did not, and dismissed the claim.

Plaintiff’s Equal Protection claim similarly failed.  While Plaintiff asserted similarly situated applicants were treated differently, his assertions were conclusory and did not show “that the Village granted virtually identical applications submitted by other persons in comparable zoning districts.” The Court also rejected Plaintiff’s retaliation claim, holding that requesting a building permit and variance did not constitute protected speech. As Plaintiff failed to adequately plead a constitutional claim, the Court also held that he failed to plead a conspiracy claim. Having dismissed all federal constitutional claims, the Court declined jurisdiction over the remaining state law claims and dismissed the case.

The case was Gregory v Incorporated Village of Centre Island, 2016 WL 4033171 (EDNY July 27, 2016)

Second Department Holds Zoning Board Lacked Authority to Impose Durational Limits on Permit

Petitioners own property in a split-zone lot in the Town of North Hempstead.  The property had a restaurant within the Town's business district, and an adjoining parking lot that extends into the Town's residential district. The Zoning Board of Appeals (“ZBA”) granted Petitioners a permit pursuant to the Code of the Town of North Hempstead (“Town Code”) § 70–225(E) to continue use of the parking lot in the residence district for a period of five years. Petitioners commenced an Article 78 proceeding to annul the five-year durational limit. The Supreme Court denied the petition and dismissed the proceeding. Petitioners appealed.

On appeal, the Appellate Division, Second Department reversed, finding that the Board lacked the authority to impose a durational limit on a permit granted pursuant to Town Code § 70–225(E). Noting that conditions imposed by a zoning board of appealed must be authorized by the zoning ordinance, the Court held that as the Town Code did not explicitly provide the Board with the authority to impose durational limits upon permits granted pursuant to that section, it was improper for the Board to include a five-year durational limit. Thus, the Court annulled the condition.

The case was Citrin v Board of Zoning Appeals of the Town of North Hempstead, 143 A.D.3d 893 (2d Dep’t 2016).

Court Finds Code Enforcement Officer Rationally Concluded Bulk of Proposed Activities Was Not Activity Subject to Further Site Plan Review

The Town of Harpersfield Planning Board granted site plan approval for Respondent New York Safety Track LLC to operate a motorcycle safety training facility at a converted former airport. In January 2013, Safety Track was advised by Respondent Town of Harpersfield Code Enforcement Officer (“CEO”) that the races and other large events occurring at the track were not authorized uses pursuant to the site plan. Safety Track and the Planning Board then executed an agreement that “purported to outline Safety Track's approved land uses for May 1, 2013 to December 31, 2013.” The agreement was challenged in a combined CPLR article 78 / declaratory judgment action. The Supreme Court “annulled it and made declarations regarding the scope of Safety Track's permissible land uses.” During the pendency of this appeal, the court reversed the part of the judgment that made declarations regarding the uses permitted under the site plan approval.

Safety Track then requested a determination by the CEO whether specified activities at the track would require further site plan approval. The CEO declined to rule whether the activities were permitted under the terms of the January 2014 judgment, and found most would not require further review. Petitioners, a group of concerned landowners, commenced the instant proceeding to challenge the CEO's determination. The Supreme Court granted the petition annulling certain portions of the CEO's determination. Safety Track, respondent Mountain Top Airfield LLC, and the CEO appealed.

Respondents argued the Supreme Court erred in concluding that the CEO irrationally refused to take a position on whether the specified uses ran afoul of the January 2014 judgment. However, as the court subsequently reversed that part of its judgment, the CEO could not be faulted for failing to adhere to or otherwise interpret judicial declarations that no longer existed. Absent the January 2014 judgment, the court found nothing irrational in the CEO’s determination that the bulk of the proposed activities did not constitute a “change in the use” of the property or otherwise constitute activity that would be subject to further site plan review.  The Second Department thus reversed to the extent the petition had been partially granted, and dismissed the petition in its entirety.

The case was Ballard v New York Safety Track, LLC, 134 A.D. 3d 1322 (2 Dep’t 2015).

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