Posted by: Patricia Salkin | April 28, 2021

NY Trial Court Concludes That Suffolk County Legislature Improperly Included Parcels into an Agricultural District and Failed to Comply with SEQRA

This post was authored by Olena Botshtyen, Esq.

Respondent Pal-O-Mine Equestrian, Inc. (“Respondent”) owns four parcels in the Village of Islandia (“Petitioner”). Two of the properties, 891 and 899 Old Nicholas Road (“891” and “899”) are located in residential zones, and consist of residential structures and a farm. Two other properties, 829 and 867 Old Nicholas Road (“829” and “867”) contain a commercial equine facility and other premises.

In July 2017, the Suffolk County Legislature issued a resolution to include 891 and 899 into Agricultural District No. 3. In March 2020, the Respondent applied to the Suffolk County Board (“Board”) to renew its determination to add the parcels to the Agricultural District. The Respondent attached an Environmental Assessment Form (“EAF”) to its application and further stated that the subject parcels are a part of an equine operation, which is an agricultural use and a permitted accessory use on the property. This statement was misleading, as pursuant to the Village Zoning Ordinance, the only permitted use of the premises was residential.

In May 2020, the EAF was reviewed by the Council on Environmental Quality (“CEQ”) and it was advised to include the acreage of all four parcels in the EAF. John Corrall, CEQ Environmental Projects Coordinator, filled out EAF Part III as “Responsible Officer in Lead Agency”, although CEQ was not the Lead Agency.

In June 2020, the Petitioner addressed the County Legislature in its letter, where it stated that the subject use was not permitted under the Village Code. The Legislature then held a public meeting, where the Legislators recognized there was a zoning violation dispute, but they determined that Agricultural District would not void local zoning. They did not address the fact that the EAF improperly stated the properties were in compliance with the Village Code. The Legislature then approved the resolution to include the subject parcels in the Agricultural District and referred the matter to the Commissioner for review and certification, which was done in September 2020 without a separate SEQRA review. The Petitioner then sought judgment to vacate the Legislature’s determination on the grounds that it did not comply with SEQR.

After reviewing the parties’ claims, the court concluded that the County Legislature failed to make a proper determination when it issued the negative SEQR declaration as the Lead Agency.

First, the court concluded that the agricultural use is not a permitted use pursuant to the Village Code and a use variance would be required to establish such use in a residential zone. Further, the court determined that the Respondent required a special use permit for its educational programs on the property and a prior determination on whether the use is in harmony with the character of the community is required from the Board.

With regard to SEQR process, the court stated that the Lead Agency must “thoroughly analyze the identified relevant areas of environmental concern” and make a reasoned decision with references to supporting documentation, and the Legislature failed to do so. While the Lead Agency may rely on experts’ opinions, it must exercise its own judgement when making the determination. Here, the evidence showed that the negative declaration part of the EAF was signed by the CEQ Environmental Projects Coordinator before the Lead Agency passed its resolution. Since there were no substantive discussions of the possible environmental impacts of the proposed project by the Lead Agency, the court concluded that it merely signed off on the pre-filled out form and thus failed to make a proper SEQR determination.

“When Respondent’s Counsel admitted the Applicant had not even applied for the required Special Use permit at the June 9, 2020 hearing, it was manifest that claimed compliance with community character failed on its face.” The court further elaborated that the Legislature failed to address the content of the EAF at the public hearing and came to the overall conclusion that the Legislature failed to comply with SEQR process.

Village of Islandia v Commissioner Richard A. Ball and Suffolk County Legislature, 2021 Albany County Index No. 906725-20 (NY 04/28/2021)

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