Second Department Holds Planning Board Failed To Adequately Articulate Its Basis For Determining A Second SEIS Was Unnecessary For Proposed Changes

In 2004, a developer, Davies Farm, LLC, applied for site plan approval and a zoning amendment in connection with proposed residential and commercial development of a 53.3–acre parcel of land in the adjacent towns of Haverstraw and Ramapo. The Town of Haverstraw Planning Board, issued a positive declaration under SEQRA and required the preparation of a draft environmental impact statement (“DEIS”). After the DEIS was submitted in 2006, Davies Farm changed the proposed plan by eliminating the residential development in the Town of Haverstraw to avoid needing a zoning amendment. As a result, the Planning Board required a Supplemental Environmental Impact Statement (“SEIS”). In 2009, the Planning Board accepted a final SEIS and adopted a findings statement under SEQRA certifying that the development plan minimized or avoided adverse environmental impacts to the maximum extent practicable.

The property was later sold, and in 2012, the property’s new owner, Mt. Ivy Partners, LLC, applied to the Planning Board for preliminary and final site plan approval for the project, which included a deli/coffee shop with gas pumps. The Planning Board determined a second SEIS was not required, and granted the preliminary and final site plan approval subject to certain conditions. The owners of properties near the site of the supplemental proposed development commenced an Article 78 proceeding to review the Planning Board’s determination, and the Supreme Court granted the petition, annulled the SEQRA determination and site plan approval, and remitted the matter to the Planning Board.  The Planning Board appealed.

On appeal, the Second Department found that while a lead agency’s determination to require a SEIS is discretionary, the lead agency must “consider the environmental issues requiring permits” and must make “an independent judgment that they would not create significant environmental impact.” Here, the proposed changes for the project included the construction of a large convenience store with 16 gas pumps. Mt. Ivy’s representatives asserted that the gas station did not necessitate a second SEIS because it would be constructed to meet New York State requirements and would need permits from the Rockland County Department of Health during the building permit process.  However, the Planning Board did not mention the gas station or petroleum storage in its determination that a second SEIS was not required. As such, the Court held that the Planning Board “failed to take the requisite hard look” at the project change adding the gas station, and “did not make a reasoned elaboration” of its basis for determining that a second SEIS was not necessary. Accordingly, the decision of the lower court was affirmed.

The case was Green Earth Farms Rockland, LLC v Town of Haverstraw Planning Board, 153 A.D.3d 823 (2d Dep’t 2017).

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