Posted by: Patricia Salkin | August 23, 2009

Town Rezoning Not Subject to State Environmental Review Since Adirondack Park Agency is Responsible for Environmental Review Standards in the Park

Respondents are potential developers of a project consisting of over 6,000 acres of land in the Town of Tupper Lake (NY), which they were in the process of purchasing from respondent Nancy Hull Godshall, as trustee of respondent Oval Wood Dish Liquidating Trust (“developers”).  The project, the Adirondack Club and Resort was one of the largest ever proposed for New York State’s six million acre Adirondack Park.  Petitioners are all property owners, owning property adjoining or close to the land to be used for the project, as well as the Association for the Protection of the Adirondacks, Inc. and the Residents’ Committee to Protect the Adirondacks, Inc.  In April 2005, the developers submitted an application for review and approval of their project to the Adirondack Park Agency (“APA”).  The project was classified as a class A regional project, subject to the most stringent review.  The application was labeled incomplete until the land to be used for the project was rezoned as a planned development district (“PDD”).  In response to the suspension of the application, the developers requested the required rezoning from respondent Town Board of the Town of Tupper Lake (“Board”). The Board considered the request and deemed the rezoning to be one step in the overall project or “action.”  The Board determined that the rezoning required no SEQRA review and enacted Local Law No. 2, which rezoned the project’s land as a PDD, which made the area rezoned correspond exactly with the area of the project.  

Petitioners commenced a proceeding pursuant to CPLR article 78, challenging the Board’s legislative action on the grounds that the Board failed to conduct full SEQRA review of the project before rezoning the land for that purpose.  The Board, respondent (Town of Tupper Lake) and the developers moved for dismissal and petitioners cross-moved for summary judgment.  The trial court denied petitioners’ cross-motion and dismissed the petition, from which the petitioners appeal. 

The appellate court, in upholding the trial court’s determination said that the Board was not required to do an environmental review of the project before the rezoning was approved.  The APA is responsible for ensuring that certain projects within its jurisdiction would not have an “adverse impact upon the natural, scenic, aesthetic, ecological, wildlife, historic, recreational or open space resources of the park.”  (Executive Law §§ 809).  This mandate predates SEQRA and is more protective of the environment than SEQRA.  To avoid unnecessary repeated reviews, the legislature excluded actions subject to the APA’s review from the requirements of SEQRA.  Because the zoning enacted by the Board was only for (and coextensive with) the proposed project, the Board acted correctly when viewing it as one step in a single action which is subject to the APA’s review.  The APA refused to reconsider the application until the rezoning occurred, so the Board acted practically by conditioning the rezoning on a finding of no adverse impacts by the APA. 

The appellate court concluded that because the rezoning enacted by the Board would not permit another project or landowner to make a use permitted in the PDD without environmental review by the APA, the trial acted appropriately in concluding that the SEQRA review by the Town was unneeded, as was a judicial review.    

Association for the Protection of the Adirondacks, Inc., et al. v. Town Board of Tupper Lake et al., 2009 WL 1885115 (N.Y.A.D.  3 Dept.  7/2/2009).

The opinion can be accessed at:

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