NY Appellate Court Holds Town Must Rely on the Fully Developed SEQRA Record in Making the Findings that Will Provide a Rationale For Its Zoning Determinations

In 2003, plaintiff Troy Sand & Gravel Company, Inc. applied for a mining permit from the Department of Environmental Conservation (“DEC”) to operate a quarry in the Town of Nassau, Rensselaer County. Plaintiff also applied for a special use permit and site plan approval from defendant Town of Nassau. As lead agency for the coordinated State Environmental Quality Review Act (“SEQRA”) process, DEC issued a positive declaration and Troy Sand prepared a draft environmental impact statement (“EIS”) in 2006. After a public hearing and comment period, Troy Sand prepared a final EIS in 2007 and the DEC issued its SEQRA findings approving the project and granting the mining permit. A preliminary injunction that precluded the Town from conducting its own review of the environmental impact of the proposed quarry as part of its zoning determination was issued by the trial court, which was then reversed by the appellate court. The Town Board rescinded its determination that the permit was complete, and the plaintiffs commenced this appeal from an order of the Supreme Court action seeking, among other things, a declaration that the Town was bound by DEC’s SEQRA findings.

At the outset, the Court noted that although the Town is bound by DEC’s SEQRA findings and it may not repeat the SEQRA process, it nevertheless retains the authority to make an independent review of plaintiffs’ application for a special use permit in accord with the standards and criteria set forth in its applicable zoning regulation. The court found that here, the full SEQRA record, covering thousands of pages, reflected the hard look at the proposed quarry’s environmental impacts conducted by DEC with the Town’s extensive involvement. Thus to allow the Town to gather information outside the SEQRA record would vitiate the efficiency and coordination goals of SEQRA. Accordingly, the court held that the Town must base its determination of the environmental impact for zoning purposes on the record developed as part of the coordinated review conducted pursuant to the State Environmental Quality Review Act

Troy Sand & Gravel Co. Inc. v. Town of Nassau, 2015 WL 685968 (N.Y. A.D. 2/19/2015)

The opinion can be accessed at: http://www.decisions.courts.state.ny.us/ad3/Decisions/2012/514187.pdf