Posted by: Patricia Salkin | December 1, 2019

NY Appellate Court Dismisses Environmental Review Challenges Brought by Residents and Neighboring Village

This post was authored by Amy Lavine, Esq.

The New York Appellate Division, Second Department dismissed two challenges to the environmental review process for a waterfront redevelopment project in 2019. The first case involved a claim that a supplemental environmental impact statement should have been completed when the project’s development plan was amended, but the court concluded that the planning board sufficiently complied with the “hard look” standard for environmental review actions. In the second case, a neighboring village claimed that the project had to be restricted to certain parameters that were included in a memorandum of understanding regarding the project, but the court found that the parameters weren’t binding and that the agreement couldn’t be enforced under the term limits rule. Matter of Berg v Planning Bd. of the City of Glen Cove, 169 A.D.3d 665 (Appellate Division, Second Department 2/6/19); Matter of Berg v Planning Bd. of the City of Glen Cove, 169 A.D.3d 669 (Appellate Division, Second Department 2/6/19).

The Planning Board of the City of Glen Cove declared itself the lead agency for a 56-acre waterfront redevelopment project, and after determining that there was a potential for adverse environmental impacts it issued a positive declaration under the State Environmental Quality Review Act (SEQRA). Over the next several years it conducted an extensive public hearing and review process, and it eventually adopted a final environmental impact statement and granted the developer a special use permit in 2011. In 2015, the planning board approved an amendment to the development plan that would decrease the project’s overall footprint and density while increasing the area devoted to parks, public amenities, and open space. The planning board found that a supplemental environmental impact statement was unnecessary because the proposed modifications wouldn’t result in any adverse environmental impacts that hadn’t already been studied and addressed. A group of concerned residents  and a neighboring village then commenced litigation to challenge the planning board’s environmental review decisions.

Preliminarily, the court found that the petition was time barred to the extent that it sought review of the decisions made by the planning board in 2011 that adopted the environmental impact statement and approved the project’s development permit. The petitioners failed to present any reason for barring the planning board’s statute of limitations defense, the court found, because they failed to demonstrate any improper conduct such as fraud or misrepresentation.

With respect to the planning board’s 2015 determination, the court explained that the decision to prepare a supplemental environmental impact statement must be based on two criteria: the importance and relevance of the new information, and the present state of information in the environmental impact statement. The court also emphasized that judicial review was limited in the context of environmental review determinations, including decisions regarding supplemental environmental impact statements, and it could only consider “whether the determination was made in accordance with lawful procedure and whether, substantively, the determination was affected by an error of law or was arbitrary and capricious or an abuse of discretion. In assessing an agency’s compliance with the substantive mandates of the statute, the courts must view the record to determine whether the agency identified the relevant areas of environmental concern, took a hard look at them, and made a reasoned elaboration of the basis for its determination.”

Applying these standards, the court upheld the planning board’s 2015 determination. As it explained, the record showed that the planning board identified the relevant areas of environmental concern, took a hard look at them, and provided a sufficiently reasoned elaboration of the basis for its decision. Matter of Berg v Planning Bd. of the City of Glen Cove, 169 A.D.3d 665 (Appellate Division, Second Department 2/6/19).

In a related action, the Village of Sea Cliff, along with its Mayor and Board of Trustees, sought declaratory and injunctive relief based on a memorandum of understanding that was executed between the village and the City of Glen Cove. The MOU provided that the village wouldn’t oppose the project as long as it complied with certain parameters, and the village claimed that the MOU was an enforceable contract that prohibited the planning board from going forward with the project to the extent that it exceeded those parameters. The court didn’t agree, however, and held that the MOU was unenforceable under the “term limits rule,” which prohibits one municipal body from contractually binding its successors in areas relating to governance unless specifically authorized by statute or charter provisions to do so.” The court additionally found that there were no express terms in the MOU that obligated the planning board to any particular parameters. Rather, the MOU merely stated that the village wouldn’t oppose the project as long as it didn’t exceed the parameters set forth in the MOU.

Matter of Berg v Planning Bd. of the City of Glen Cove, 169 A.D.3d 669 (Appellate Division, Second Department 2/6/19).


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