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Land Use and Planning Litigation

Development

Discussion of two rulings of interest to you and your practice.

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Environmental Judgment Matter of Friends of P.S. 163, Inc. v. Jewish Home Lifecare, Manhattan NYLJ 1/23/17, p. 18, col. 6 AppDiv, First Dept. (3-1 decision; majority memorandum; dissenting opinion by Gesmer, J.)

In an article 78 proceeding by a parents group seeking to annul a findings statement issued by the Department of Health proposing to construct a 20-story nursing home adjacent to an elementary school, the Department of Health and the nursing home appealed from Supreme Court’s grant of the petition. A divided Appellate Division reversed, concluding that the trial court had improperly substituted its analysis for that of the lead agency.

Developer applied to the Department of Health (DOH) to build a nursing home in Manhattan adjacent to an elementary school. Parents raised questions about the noise levels the project would generate during construction. DOH issued a Draft Environmental Impact Statement concluding that the project would not generate adverse noise impacts. When parent groups retained experts who concluded that background noise in excess of specified decibel levels would interfere with wellness of students, and that central air conditioning would be necessary to abate the noise issues, DOH responded by requiring installation of new acoustical windows and new window air conditioning units on the façade facing the school. DOH conceded that even with those new windows and window units, the noise would exceed recommended decibel levels, but noted that the manual setting those levels provided that increased noise levels would not constitute a significant adverse impact if the noise lasted for less than two years.

DOH also concluded, after reviewing soil sampling from the site, that a two-foot cap of clean soil would have to be placed over ground left exposed after construction to reduce lead levels in children play areas. DOH also required dust control measures, including watering of the soil during demolition and excavation. The parents group then brought this article 78 proceeding challenging DOH’s findings. Supreme Court granted the petition, prompting this appeal by DOH and the nursing home developer.

In reversing and dismissing the proceeding, the Appellate Division majority concluded that DOH had taken a hard look at the project’s environmental impact, and had provided a reasoned elaboration of its basis for approving the project, and for requiring its mandated remedial measures. The majority noted that failing to respond to all of the conclusions of the consultants hired by the parents group did not mean that DOH had failed to take a hard look at the issues raised by those consultants.

Justice Gesmer, dissenting, argued that DOH had not provided evidence to support some of its findings, including its finding that installation of central air conditioning would be infeasible because of cost and timing considerations. She also contended that DOH had failed to comply with the CEQR technical manual on exposure to contamination by vulnerable populations.

Challenge to SEQRA Determination Ripe Matter of Cor Route 5 Co., LLC. v. Village of Fayetteville 2017 WL 460613 AppDiv, Fourth Dept., 2/3/17 (memorandum opinion)

In neighboring landowner’s article 78 proceeding to annul a zoning amendment for inconsistency with the State Environmental Quality Review Act (SEQRA), petitioner landowner appealed from Supreme Court’s dismissal of the petition. The Appellate Division reversed and remanded, holding that the petition was ripe for judicial review.

The Village Board of Trustees enacted a local law amending the zoning district classification of two parcels to permit a proposed retail development project. The village board issues a negative declaration under SEQRA at the same time it enacted the amendment. The local law approving the amendment and the SEQRA determination indicated that the amendment would take effect only after approval by the county department of transportation and after final site plan approval by the village planning board. Neighboring landowner then brought this article 78 proceeding challenging the rezoning. The village moved to dismiss the petition, and Supreme Court granted the petition, concluding that the proceeding was premature and the Board of Trustees’ action under SEQRA was not ripe for judicial review. Neighboring landowner appealed.

In reversing, the Appellate Division concluded that the board’s simultaneous issuance of a negative declaration and adoption of the zoning amendment rendered the challenges to the board’s action ripe for review. The court held that the board’s decision to condition effectiveness of the amendment upon successful reviews by other agencies did not alter the fact that the board’s determination became effective on the date it was filed. As a result, neighboring landowner’s challenge to the SEQRA determination was ripe.

COMMENT

In general, a negative declaration under SEQRA does not become ripe for review until a board’s determination is sufficiently final to impose a concrete injury upon the aggrieved party. For instance, in Patel v. Board of Trustees, 115 A.D.3d 862, the Appellate Division held that a challenge to a SEQRA findings statement was unripe because the statement was made in connection with an application for a special use permit and site plan approval, and the village board had not yet approved the special use permit or the site plan. In Guido v. Town of Ulster Town Bd, 74 A.D.3d 1536, another case dismissing a challenge to a findings statement unripe, the court observed that the ripeness doctrine is designed to avoid the delays inherent in piecemeal review of each determination made during the SEQRA process. Id. at 1537. In Guido, as in Patel, the board had not yet decided whether to grant landowner’s application for a special use permit and a site plan.

 

The views expressed in the article are those of the authors and not necessarily the views of their clients or other attorneys in their firm.

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