Posted by: Patricia Salkin | May 9, 2021

NY Appellate Court Finds No Violations in SEQR and Special Permit Review for Demolition and Reconstruction of Affordable Housing for Seniors

This post was authored by Olena Botshteyn, Esq.

Cobbs Hill Village is an affordable housing community for seniors owned by Plymouth Gardens, Inc. (“Plymouth”). Plymouth received this property from the City of Rochester (“City”) by a deed, which contained several restrictions, in particular, it provided that any plans for construction on the property be subject to the approval by the City’s Planning Commission (“CPC”). In 2016, Plymouth decided to redevelop the Village, demolish the existing complex and construct a new one with over 100 apartment units (“Project”). The City’s corporation counsel then provided a letter which outlined the steps, necessary for approving the Project, which included obtaining financing, SEQR process, site plan review and the CPC’s approval in the form of the special permit approval pursuant to the City Zoning Code.

With regard to financing, the City Council enacted an ordinance that allowed the Mayor to enter into an agreement that would provide Plymouth financing for the Project. With regard to SEQR review, there was a series of standing agreements, which provided that either a Mayor’s office or a Zoning Manager should act as a lead agency for actions involving both the City Council and the Mayor. The Zoning Manager ultimately acted as a lead agency and issued a negative declaration, concluding that the Project would not lead to any significant adverse effects on the environment. The CPC thereafter conditionally approved the Project, and Petitioners, who are current Cobbs Hill Village tenants commenced this action.

Petitioners argued (i) violation of SEQR process and sought annulment of the Zoning Manager’s negative declaration, (ii) violation of special permit standard and sought annulment of the CPC’s conditional approval of the project, (iii) violation of initial deed, by which the property was conveyed to Plymouth, and (iv) violation of the municipal law, because the revised application was not resubmitted to the Planning Department. The trial court dismissed the complaint, and petitioners appealed.

On appeal, the court affirmed the decision of the trial court.

When considering the first cause of action, the court concluded that the Zoning Manager properly acted as lead agency on the Project based on the standing agreements and that the record shows that the Zoning Manager properly evaluated the potential impacts of the Project on traffic and lead contamination. The Zoning Manager considered the traffic study and concluded that an additional road entrance could be added as a mitigation measure. The Zoning Manager also relied on a soil study, which showed no indication of any metals on the premises. The court further rejected the argument that the Zoning Manager improperly issued a conditioned negative declaration, as the record indicated that the proposed mitigation measures were not a condition of a negative declaration, but were incorporated into the Project after the negative declaration was issued.

With regard to the second cause of action, the court concluded that the CPC’s review of the Project under the special permit standard was not arbitrary and capricious, since the CPC made proper determinations with regard to the Project’s substantial or adverse effects on the neighborhood and the CPC’s approval was supported with concrete findings.

The court further concluded that petitioners lacked standing to assert violation of the deed, since they failed to establish that the initial “agreement was intended for the benefit of the tenants of Cobbs Hill Village or the surrounding neighbors” and that such benefits to them were “sufficiently immediate”.

Finally, with regard to the fourth cause of action, the court concluded that “the changes made to the Project after the initial referral to the Planning Department were not so substantial that a second referral was necessary”, as an overall footprint of the project did not substantially increase.

The court thus unanimously affirmed the decision of the trial court.

Coalition for Cobbs Hill by Pastecki v City of Rochester, 2021 WL 1826632 (NYAD 4 Dept. 5/7/2021)

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