Second Department Upholds Finding That Water District’s Proposed Construction Was A Type II Action Not Subject To Review Under SEQRA

Defendant/Respondent Manhasset–Lakeville Water District (the “Water District”) was a special district of the Town of North Hempstead created to provide and sell potable water to those in its boundaries. To do this, the Water District required water storage tanks to provide water and maintain water pressure, including elevated water storage tanks.  One such storage tank was located on a lot owned by the Water District within Plaintiff Incorporated Village of Munsey Park (“Plaintiff”). As the Village’s zoning code prohibits buildings over 30 feet high, the current tank was not permitted as of right.

In 2014, the Water District made plans to replace the tank.  This included installing an antennae on the replacement tank to provide wireless communication between facilities and for dispatching employees and volunteer firemen of the Fire District. The Nassau County Department of Health approved the proposed plans, and the Water District determined that the proposed construction was a replacement-in-kind Type II action not subject to further environmental review under SEQRA. The Village commenced a declaratory judgment action asserting that the Water District must comply with the Village Code, for a permanent injunction enjoining the Water District from commencing any demolition, construction, or alterations until the Water District complies with the Village Code, and directing the Water District to act in strict compliance with SEQRA. The Supreme Court granted the Water District’s motion for summary judgment, and Plaintiff appealed.

On appeal, the Court agreed that the proposed construction plan was for a “replacement, rehabilitation or reconstruction of a structure or facility, in kind”, and was therefore a Type II action under SEQRA that presumptively did not have a significant impact upon the environment or require the preparation and circulation of an environmental impact statement. As such, the Water District’s determination was not irrational, arbitrary or capricious, affected by error of law, or an abuse of discretion.  Therefore, the court affirmed the Supreme Court’s holding that the Water District was entitled to summary judgment.

The case was Incorporated Village of Munsey Park v Manhasset-Lakeville Water District, 150 A.D.3d 154 (2d Dep’t 2017).

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