Posted by: Patricia Salkin | April 29, 2012

NY Appellate Court Finds Planning Board Conducted Appropriate SEQRA Review Taking a “Hard Look” at Impacts

Garrison Projects sought approval from the town board of the Town of New Scotland for a planned unit development.  Under the State Environmental Quality Review Act (“SEQRA”), the town board was designated as the lead agency.  Thus, after identifying several relevant agencies, the town board conducted a coordinated review of the proposal.  The project was subsequently modified which caused it to become a cluster subdivision.  Thus, the planning board took over as lead agency from the town board.  The planning board ultimately issued SEQRA findings, approved the subdivision application, conditioned on the zoning board issueing a height variance for a water tower, and approved the submitted open space maintenance plan.  The petitioner, an adjacent landowner commenced a CPLR Article 78 proceedings seeking relief including the annulment of the planning board’s approval.  The court denied plaintiff’s relief and plaintiff appealed. 

The appellate court begins by exploring whether the petitioner has standing.  The trial court had found that petitioner only had standing to challenge the SEQRA determination because the proposed water tower was located near his residence, and lacked standing with regard to other claims.  The appellate court, however, finds that the lower court’s determination that petitioner has standing to some SEQRA claims, means he has in all claims related to the SEQRA decision.  Thus, the court considers whether the planning board identified potential environmental concerns, “took a hard look at them,” and explored them for their ultimate SEQRA determination.  

Next, the court determines whether petitioner has standing to challenge the planning board’s approval of the cluster subdivision.  The court finds that petitioner’s close proximity to the proposed subdivision places him in the zone of injury contemplated by the statute to suffice for standing.  The court finds, however, that by conditioning approval of the subdivision on ultimate approval of management and ownership by the town board, the board complied with the town ordinance.  

The court next turns to petitioner’s contention that the planning board’s failure to include the zoning board of appeals in the SEQRA review was fatal.  The court finds that the since the town board was the initial lead agency and there was no water tower included in the proposal, there was no indication that zoning board approval was necessary.  Similarly, once it was apparent that there would be a need for a variance, the board fully considered those issues.  Therefore, the court finds that the water tower was sufficiently considered as part of the SEQRA review.  

Finally, the court considers whether the planning board has failed to sufficiently consider the water tower’s visual impact on the area.  The court finds that the record shows a complete review of the visual impact issue, including statements, reports, photographs, and public hearings.  Further, there were steps taken to conceal the water tower, including preserving vegetation and painting the water tank.  Thus, the court concludes that the planning board took a “hard look” at potential environmental concerns and made a reasonable decision based on its findings.  

Cade v. Stapf, 937 N.Y.S.2d 673  (A.D. 3 Dep’t 01/26/2012) 

The opinion can be accessed at: http://decisions.courts.state.ny.us/ad3/decisions/2012/511811.pdf


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