Posted by: Patricia Salkin | June 10, 2017

NY Appellate Court Affirms Holding that Water District’s Proposed Construction Plan was a Type II Action Not Subject to Review under the State Environmental Quality Review Act

Defendant Manhasset–Lakeville Water District was a special district of the Town of North Hempstead, which was created for the purpose of providing and selling potable water to consumers within its boundaries. The Water District required the use of water storage tanks to provide water and maintain water pressure, including elevated water storage tanks. One of these elevated water storage tanks was located on a lot owned by the Water District in the plaintiff, Incorporated Village of Munsey Park. The current tank was not permitted as of right by the Village’s zoning code, which prohibits buildings in excess of 30 feet in height. In 2014, the Water District developed a plan to replace the current tank, which included an antennae being placed on the replacement tank to provide a means of wireless communication between Water District facilities and for dispatching the employees and volunteer firemen of the Fire District. The Nassau County Department of Health approved the proposed construction plan. The Water District also determined that the proposed construction plan was a replacement-in-kind Type II action not subject to further environmental review under the State Environmental Quality Review Act (SEQRA). The Village commenced this action for a judgment declaring that the Water District must comply with the Village Code, for a permanent injunction enjoining the Water District from commencing any demolition, construction, or alterations until the Water District complies with the Village Code, and directing the Water District to act in strict compliance with SEQRA. The Supreme Court granted the Water District’s motion for summary judgment.

On appeal, the court found that the Water District’s determination that the proposed construction plan was for a “replacement, rehabilitation or reconstruction of a structure or facility, in kind”, and was therefore a Type II action under SEQRA that presumptively did not have a significant impact upon the environment and did not require the preparation and circulation of an environmental impact statement. As such, the Water District’s determination was not irrational, arbitrary or capricious, affected by error of law, or an abuse of discretion. Accordingly, the court affirmed the Supreme Court’s holding that the Water District was entitled to summary judgment.

Incorporated Village of Munsey Park v Manhasset-Lakeville Water District, 2017 WL 2126350 (NYAD 2 Dept. 5/17/2017)

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