NY Appellate Department Holds Court Should Have Declined to Accept, Without a Revised Review, Contention that Project Should be Classified as a Type II Action Under SEQRA

This appeal arose from the request of plaintiff-petitioner for the approval of defendant-respondent for a proposed commercial structure that included a Tim Horton’s restaurant with a drive-through window. Defendant initially issued a positive declaration pursuant to the State Environmental Quality Review Act (SEQRA), in which it designated the project as an “unlisted action” rather than a Type I or Type II action pursuant to SEQRA, and requested that plaintiff prepare a draft environmental impact statement (DEIS) in connection with its proposal. After plaintiff submitted an updated site plan and requested that defendant reclassify the project as a Type II action pursuant to SEQRA, eliminating the need for a DEIS, defendant adopted Orchard Park Local Law No. 9–2014, which provided that actions involving “drive-through stations or windows, including but not limited to restaurants and banks” would be designated as Type I actions under SEQRA. Defendant subsequently denied plaintiff’s request that the project be reclassified as a Type II action, and unanimously adopted a resolution that designated the project a Type I action.

Plaintiff commenced this hybrid CPLR article 78 proceeding and declaratory judgment action seeking a declaration that Orchard Park Local Law No. 9–2014 was invalid, and a judgment annulling defendant’s determination that the project was a Type I action, and determining that the project was a Type II action. The Supreme Court granted judgment in favor of plaintiff, declaring that Local Law No. 9–2014 was null and void “insofar as that law designates drive-through facilities as Type I actions under SEQRA,” annulling defendant’s classification of the project as a Type I action, and determining that the project was a Type II action.

At the outset, the court found that plaintiff’s first cause of action, seeking a declaration invalidating Local Law No. 9–2014, was timely commenced inasmuch as it was a challenge to the substance of the law and was therefore subject to a six-year statute of limitations. Next, although 6 NYCRR 617.5(c)(7) did not explicitly include the construction of a restaurant with a drive-through window as a Type II action, the court held that the Department of Environmental Conservation contemplated restaurants with drive-through windows as Type II actions when it promulgated that regulation. As such, the court determined that the lower court properly annulled defendant’s classification of the project as a Type I action on the ground that the classification was affected by an error of law: as Local Law No. 9–2014 was inconsistent with SEQRA. Regardless, however, the court held that the lower court should have declined to accept, without a revised review by defendant, plaintiff’s contention that the project be classified as a Type II action. The court therefore annulled the determination that the project was a Type II action, and remitted the matter to defendant for a new determination.

Miranda Holdings, Inc v Town Board of Town of Orchard Park, 2017 WL 2884633 (NYAD 4 Dept. 7/7/2017)