Posted by: Patricia Salkin | September 14, 2020

NY Appellate Court Upholds Site Plan Approval and Special Permit

This post was authored by Brian Linton, Touro Law Center

Petitioners, the owners of an automobile body shop and gas station abutting the lots to be improved, challenged the decision of the planning board of the town of Highlands granting Respondents’ application for a site plan approval and special exception use permit. Petitioners assert three grounds as basis for their challenge. First, Petitioners contend that the planning board was required to hold an additional public hearing after revising the site plan. Second, Petitioner contends that the planning board failed to comply with the general municipal law when it did not make a new referral to the county departments of planning after revising the site plan. Lastly, Petitioners contend that the planning board failed to comply with SEQRA when it issued a negative declaration removing the need for an environmental impact statement. On appeal, the Appellate Division affirmed the decision of the New York Supreme Court, rejecting Petitioners’ contentions for the following reasons.

As to Petitioners’ first contention: The court found that the record established that an additional public hearing was not required because the revisions made to the site plan after the original hearing were not substantial. The court did not find that the revisions made to the site expanded or changed the basic layout or dimensions of the project, noting that the previous public hearing was held after the planning board and its consultants were provided with revised site plans and requested documentation. As such, Petitioners first contention was found to be without merit.

As to Petitioner’s second contention: The court found that a new referral was not required. This is because the revised site plans did not substantially alter the site plan in a way that would require the planning board to make a full statement of its proposed action.

Lastly, as to Petitioner’s third contention: The court found that judicial review of a negative declaration under SEQRA is limited to whether the lead agency identified relevant areas of environmental concern, took the requisite hard look, and made a reasonable elaboration of the basis for its determination. The court found that the record established that the planning board had identified the relevant areas of environmental concern in relation to the project, taken the requisite hard look and made a reasoned elaboration for the basis of its determination. This contention was found to be without merit.

Favre v. Plan. Bd. of Town of Highlands, 128 N.Y.S.3d 21 (2 Dept 7/8/2020)


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