Posted by: Patricia Salkin | August 24, 2017

NY Appellate Court Holds Planning Board did not make a Reasoned Elaboration of Its Basis for Determining that a Second SEIS was not Necessary for Proposed Zoning Amendment and Site Plan Approval

Developer, Davies Farm, LLC, applied for site plan approval and a zoning amendment in connection with proposed residential and commercial development of a 53.3–acre parcel of land located in the adjacent towns of Haverstraw and Ramapo. The Town of Haverstraw Planning Board, issued a positive declaration under SEQRA and required the preparation of a draft environmental impact statement (DEIS). After the DEIS was submitted in 2006, Davies Farm changed the proposed development plan by eliminating the proposed residential development in the Town of Haverstraw to avoid the need for a zoning amendment. As a result, the Planning Board required a Supplemental Environmental Impact Statement (SEIS). In 2009, the Planning Board accepted a final SEIS and adopted a findings statement certifying that the approved supplemental proposed development plan minimized or avoided adverse environmental impacts to the maximum extent practicable.

In 2012, the property’s new owner, Mt. Ivy Partners, LLC, applied to the Planning Board for preliminary and final site plan approval for the Haverstraw and Ramapo commercial phases of the project, which included a deli/coffee shop with gas pumps. The Planning Board determined that a second SEIS was not required, and granted the requested preliminary and final site plan approval subject to certain conditions. The owners of properties near the site of the supplemental proposed development commenced an article 78 petition seeking review of the Planning Board’s determination. The Supreme Court granted the petition, annulled the SEQRA determination, annulled the site plan approval, and remitted the matter to the Planning Board.

On appeal, the court found that although a lead agency’s determination whether to require a SEIS, or a second SEIS, is discretionary, the lead agency must “consider the environmental issues requiring permits” and must make “an independent judgment that they would not create significant environmental impact” Here, the proposed changes for the project included the construction of a large convenience store with 16 gas pumps. While Mt. Ivy’s representatives asserted that the gas station did not necessitate a second SEIS because Mt. Ivy would have to construct it in accordance with New York State requirements and would need to obtain permits from the Rockland County Department of Health during the building permit process, the Planning Board did not mention the gas station or petroleum storage in its determination that a second SEIS was not required. As such, the court held that the Planning Board failed to take the requisite hard look at the project change adding the gas station, and did not make a reasoned elaboration of its basis for determining that a second SEIS was not necessary.

Green Earth Farms Rockland, LLC v Town of Haverstraw Planning Board, 2017 WL 3611930 (NYAD 2 Dept. 8/23/2017)

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