Posted by: Patricia Salkin | May 5, 2017

NY Appeallate Court Denies Appeal to Annul the Negative Declaration Issued By Respondent City of Buffalo Planning Board under the State Environmental Quality Review Act

Petitioners Margaret Wooster, Clayton S. “Jay” Burney, Jr., Lynda K. Stephens, and James E. Carr (collectively, Wooster petitioners) and Buffalo Niagara Riverkeeper, Inc. commenced these CPLR article 78 proceedings seeking to annul the negative declaration issued by respondent City of Buffalo Planning Board under the State Environmental Quality Review Act (SEQRA) with respect to the proposed construction of Queen City Landing in Buffalo’s Outer Harbor area. Respondent Queen City Landing, LLC (QCL), the developer of the project, intended to construct a mixed-use facility that will include a 23–story tower containing nearly 200 residential units. In appeal No. 1, petitioners appealed and QCL cross-appealed from a judgment dening respondents’ motions to dismiss Riverkeeper’s petition and the Wooster petitioners’ amended petition for lack of standing, and granted respondents’ motions to dismiss the petition and amended petition except insofar as the Wooster petitioners claimed that respondents violated the performance bond provisions of General City Law §§ 27–a (7) and 33(8)(a). In appeal No. 2, the Wooster petitioners appealed from the dismissal of their performance bond claim.

The court first noted that although either the Common Council or the Planning Board could have been designated as the lead agency, the Planning Board had oversight of subdivision approval and site plan review, and was responsible for preparing a report of recommendations to the Common Council on QCL’s application for a “restricted use permit.” As such, the Planning Board was properly designated lead agency. Furthermore, although members of the strategic planning department from respondent City of Buffalo filled out part of the full environmental assessment form and prepared the negative declaration, the Planning Board was entitled to rely on the information provided by such experts, and the record established that it “fully retained and exercised its role as the lead agency assessing the environmental impact of the project” Accordingly, the court rejected petitioners’ contention that the Planning Board improperly deferred its review of site contamination to other agencies.

The court next found that the record established that the Planning Board took the requisite hard look and provided a reasoned elaboration of the basis for its determination regarding the potential impacts of the project on aesthetic resources and community character, particularly with respect to the height of the building, migratory birds, especially in light of the project’s conformance with accepted governmental guidelines to mitigate bird impact. Moreover, the Planning Board’s consideration of the contaminant remediation and storm water management components of the project, which would minimize pollutants running off into the lake, supported its determination that “no other potentially significant impacts to plants or animals were identified,” which would include impacts on aquatic wildlife. Additionally, to the extent that the project’s potential impacts on aquatic wildlife were not specifically discussed in the negative declaration, the court noted that it was “well established that the lead agency need not consider every conceivable environmental impact.” Thus, the record established that the Planning Board complied with the requirements of SEQRA in issuing the negative declaration. Lastly, the court held that the court properly dismissed the petitioner’s claim that respondents violated the performance bond provisions of General City Law §§27–a (7) and 33(8)(a).

Wooster v Queen City Landing, LLC 2017 WL 1822611 (NYAD 4 Dept. 5/5/017)

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