Fourth Department Rejects SEQRA Challenge To Approval Of Four-Story, Mixed-Use Building

Respondent Affinity Elmwood Gateway Properties, LLC sought to build a four-story mixed-use building in the City of Buffalo (“City”). The project called for demolishing 14 structures in a district listed on the National Register of Historic Places. Respondent Planning Board of City of Buffalo (“Planning Board”) was the lead agency under State Environmental Quality Review Act (“SEQRA”) and, after determining that the project was in compliance with SEQRA's mandates, granted site plan and minor subdivision approval. Petitioners commenced a CPLR article 78 proceeding to annul the determinations of the Planning Board. The Supreme Court dismissed the amended petition, and Petitioners appealed.

On appeal, the Fourth Department rejected a challenge to the notices of the ZBA’s hearing, noting they listed the dates and times of the hearings, said that they were for “variances” or “variance applications” regarding the construction of a “mixed use building” at the relevant property address, and listed a website address, telephone number, and email address for the public to obtain further information.  Moreover, while the ZBA imposed a three-minute time limit per speaker and closed one hearing before every member of the public could speak, the ZBA stated that it would accept all written comments.  Accordingly, the Court held that those restrictions were reasonable in nature and allowed the public an opportunity to be heard.

The Court similarly rejected Petitioners’ claim that the Planning Board did not comply with the substantive requirements of SEQRA because it failed to take the requisite hard look at identified historic resources as an area of environmental concern or provide a reasoned elaboration for its determination. The Court noted that the record showed that the Planning Board initially issued a positive declaration pursuant to SEQRA, i.e. had “the potential to result in a substantial impact on the neighborhood character,” and informed the New York State Office of Parks, Recreation and Historic Preservation (“SHPO”) of the project as an interested agency. The SHPO recommended that the “impacts to important historic resources be considered in your review,” and noted the project would “significantly and negatively alter the character of the surrounding historic districts.” The Planning Board’s final environmental impact statement addressed the concerns raised by SHPO, but ultimately disagreed and concluded that the demolition of the structures would not have a significant adverse impact on the historic resources on or adjacent to the site. As the record demonstrated that the Planning Board conducted a lengthy and detailed review of the project, and a written elaboration for its determination, its determination was upheld as not arbitrary, capricious, or unsupported by substantial evidence.

The case was Davis v. Zoning Bd. of Appeals of City of Buffalo, 177 A.D.3d 1331 (4th Dep’t 2019).

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