Posted by: Patricia Salkin | June 12, 2017

NY Appellate Court Finds Petitioners were Within the Zone of Interest Protected by SEQRA and Had Standing to Seek Judicial Review Without Pleading and Proving Special Damage

Petitioners, Rochester Eastside Residents for Appropriate Development, Inc. (RERAD), commenced an Article 78 proceeding seeking to annul the negative declaration issued by respondent City of Rochester Director of Planning and Zoning under the State Environmental Quality Review Act (SEQRA) with respect to the proposed construction of an ALDI supermarket. On appeal, petitioners contended that the Supreme Court erred in determining that they lacked standing to bring the proceeding.

The court found that the record established that petitioner Igatopsfy, LLC owned property that was less than 300 feet from the property line of the proposed construction project, and was therefore “arguably within the zone of interest to be protected by SEQRA,” and had standing to seek judicial review without pleading and proving special damage. Additionally, the court found that petitioner RERAD had “associational or organizational standing”, and that two members of RERAD owned property that was less than 500 feet from the property line of the proposed construction project, and thereby had standing.

Respondent next argued that the negative declaration did not contain a “reasoned elaboration of the basis for the determination.” Here, the record indicated that despite the undisputed presence of preexisting soil contamination on the project site, the negative declaration set forth no findings with respect to that contamination. Moreover, the document containing the purported reasoning for the lead agency’s determination of significance was prepared after the issuance of the negative declaration, and did not fulfill the statutory mandate. The court further found that the developer’s promise to remediate the contamination before proceeding with construction did not absolve the lead agency from its obligations under SEQRA. Accordingly, the court reversed, and annulled the negative declaration and vacated the variances granted by respondent City of Rochester Zoning Board of Appeals and the special use permit granted by respondent Rochester City Planning Commission.

Rochester Eastside Residents for Appropriate Development, Inc. v City of Rochester, 2017 WL 182588 (NYAD 4 Dept. 5/5/017)


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