NY Appellate Court Holds Expense Incurred in the Preparation and Circulation of a DEIS Insufficient to Pass Ripeness Test

Ranco Sand and Stone Corp., owned a parcel of real property in Kings Park, which was leased to third parties for use primarily as a bus yard and trucking station. In 2002, Ranco filed an application with the Town of Smithtown to rezone the subject parcel to change its zoning designation from residential to heavy industrial. Several years later, the Town Board of the Town of Smithtown, upon determining that the proposed zoning change may have a significant effect on the environment, issued a positive declaration pursuant to the State Environmental Quality Review Act, requiring Ranco to prepare and circulate a draft environmental impact statement (“DEIS”). Ranco commenced this article 78 against the Town and the members of the Town Board seeking to annul the Town Board’s determination approving a resolution issuing a SEQRA positive declaration on the ground that the approval of the resolution was arbitrary and capricious.

An action taken by an agency pursuant to SEQRA may be challenged only when such action is final. In this case, a SEQRA positive declaration has been issued, requiring Ranco to prepare and circulate a DEIS. Ranco contended that it would incur a tremendous expense to prepare the DEIS, and that the Town would receive no benefit from such a study, as it has permitted Ranco’s (or its tenant’s) long-standing use of the property in a manner consistent with a heavy industrial zoning designation. While the court acknowledged that requiring the petitioner to prepare a DEIS would cause the petitioner to incur considerable time and expense, that factor alone was not determining. Here, the issuance of the positive declaration appeared to be the initial step in the process for these parties, albeit several years after the application for rezoning was submitted. Accordingly, the court found the matter to be unripe for judicial review.

Ranco Sand and Stone Corp. v Vecchio, 2014 WL 6676772 (NYAD 2 Dept.11/26/2014)

The opinion can be accessed at: http://www.courts.state.ny.us/courts/ad2/calendar/webcal/decisions/2014/D42822.pdf