Appellate Court Holds Town Findings Underlying Zoning Determinations Must Be Based Upon Fully Developed SEQRA Record

In 2003, Plaintiff Troy Sand & Gravel Company, Inc. (“Plaintiff”) applied for a mining permit from the Department of Environmental Conservation (“DEC”) to operate a quarry in the Town of Nassau, Rensselaer County. Plaintiff also applied for a special use permit and site plan approval from defendant Town of Nassau. DEC, as the lead agency for a coordinated review under the State Environmental Quality Review Act (“SEQRA”), issued a positive declaration, and Plaintiff prepared a draft environmental impact statement in 2006. After a public hearing and comments, Plaintiff prepared a final EIS in 2007. Thereafter, DEC issued its SEQRA findings, approved the project, and granted the mining permit.

Following DEC’s approval, the Town filed an action challenging DEC’s findings, and in the subsequent years the parties have litigated at least three related actions that have come before the Appellate Division, Third Department.  The instant case arose when Plaintiff filed a declaratory judgment action seeking a declaration that the Town was from conducting its own review of the environmental impact of the proposed quarry as part of its zoning determination.  The trial court granted a preliminary injunction to that effect, but the Third Department reversed and vacated the injunction on appeal. The Town Board then rescinded its determination that the permit was complete, and Plaintiff commenced a separate Article 78 proceeding to reverse the decision and for a declaratory judgment that the Town was limited to relying on the existing SEQRA record to justify its determination.  As the Supreme Court refused to allow consolidation of the Article 78 and pending appeal, the Third Department addressed the Article 78 in a separate, simultaneously issued decision that refers.

As a preliminary matter, the Court noted that while the Town is bound by DEC's SEQRA findings and may not repeat the SEQRA process, it still retains authority to make an independent review of Plaintiffs' application for a special use permit based on the standards laid out in the applicable zoning regulation. Here, the full SEQRA record, spanning thousands of pages, reflected the hard look taken by DEC at the proposed quarry's environmental impacts, made with the Town's extensive involvement. Allowing the Town to rely on information outside of the SEQRA record would undermine the efficiency and coordination goals of SEQRA. Accordingly, the Court held that the Town must base its determination of the environmental impact for zoning purposes on the record developed as part of the coordinated review conducted pursuant to SEQRA.

The case was Troy Sand & Gravel Co. Inc. v. Town of Nassau, 125 A.D.3d 1170 (3d Dep’t 2015).  The Article 78 was decided in a separate, but related decision, Troy Sand & Gravel Co. Inc. v. Town of Nassau, 125 A.D.3d 1188 (3d Dep’t 2015).

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