Posted by: Patricia Salkin | January 9, 2020

NY Appellate Court Upholds Approval to Construct a Four-Story, Mixed-Use Building Following SEQRA Challenge

This post was authored by Matthew Loeser, Esq.

Respondent Affinity Elmwood Gateway Properties, LLC proposed to construct a mixed-use, four-story building at the corner of Elmwood Avenue and Forest Avenue in the City of Buffalo. The project required the demolition of 14 existing structures within a district listed on the National Register of Historic Places. Respondent Zoning Board of Appeals of City of Buffalo (“ZBA”) granted eight variances for the project. The respondent Planning Board of City of Buffalo was the lead agency for purposes of the State Environmental Quality Review Act (“SEQRA”) and, after determining that the project was in compliance with SEQRA’s mandates, granted site plan and minor subdivision approval for the project. This case arose from petitioners CPLR article 78 proceeding to annul the determinations of the ZBA and the Planning Board. The Supreme Court of New York denied and dismissed the amended petition, and petitioners appealed.

            At the outset, the court noted that the notices of the public hearings held by the ZBA were adequate, as they listed the dates and times of the hearings, indicated that they were for “variances” or “variance applications” regarding the construction of a “mixed use building” at the relevant property address, and listed a website address, telephone number, and email address for the public to obtain further information. Due to the heavy attendance at these hearings, the ZBA imposed a three-minute time limit per speaker, and closed one hearing before every member of the public was able to speak. Despite this, the ZBA stated that it would accept all written comments. Accordingly, the court held that those restrictions were reasonable in nature and allowed the public an opportunity to be heard.

            Petitioners next contended that the Planning Board did not comply with the substantive requirements of SEQRA because it failed to take the requisite hard look at identified historic resources as an area of environmental concern or provide a reasoned elaboration for its determination. The record reflected that the Planning Board initially issued a positive declaration pursuant to SEQRA, as the project was found to have “the potential to result in a substantial impact on the neighborhood character.” As such, the Planning Board informed the New York State Office of Parks, Recreation and Historic Preservation (“SHPO”) of the project as an interested agency. The SHPO noted that the project involved the demolition of various structures, and recommended that the “impacts to important historic resources be considered in your review.” SHPO also noted the project would “significantly and negatively alter the character of the surrounding historic districts.” While the Planning Board prepared a final environmental impact statement and addressed the concerns raised by SHPO, it ultimately disagreed with it and concluded that the demolition of the structures would not have a significant adverse impact on the historic resources on or adjacent to the site. Because the record demonstrated that the Planning Board conducted a lengthy and detailed review of the project, and a written elaboration for its determination, its determination was upheld.

In the Matter of Susan Davis, 2019 WL 5851354 (NYAD 4 Dept. 11/8/2019)

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