D E C banner
D E C banner

Disclaimer

The New York State Department of Environmental Conservation has added a link to a translation service developed by Microsoft Inc., entitled Bing Translator, as a convenience to visitors to the DEC website who speak languages other than English.

Additional information can be found at DEC's Language Assistance Page.

Notable Court Decisions on SEQR

This chapter contains brief summaries of some important court determinations regarding the SEQR process. This is not a comprehensive listing of all SEQR court decisions. Anyone seeking a specific legal interpretation, or considering a legal challenge, should consult an attorney.

These summaries give only a brief view of how the courts of the state and, in particular, the Court of Appeals, have interpreted SEQRA since its implementation. The case summaries are arranged by general topic for easier reference.

Action-Forcing Component

Town of Henrietta v. DEC 76 AD2d 215 (4th Dept 1980); Orchards Assocs. v. Planning Bd of N. Salem 114 AD2d 850 (2nd Dept 1985)
The cases make clear that an agency may impose conditions on a project outside its traditional area of jurisdiction and may even deny a project if the agency finds it must do so to avoid or mitigate significant adverse environmental impacts.

Alternatives

Webster Associates v. Town of Webster, 59 NY2d 220 (1983); Environmental Defense Fund v. Flacke, 96 AD2d 862 (2nd Dept 1983); Consolidated Edison v. DEC 112 AD2d 989 (2nd Dept 1985)
The courts have generally upheld the principle that only reasonable alternatives must be addressed and that such alternatives must be viable as well as technologically and economically feasible.

Community Character

Village of Chestnut Ridge v. Town of Ramapo, 45 AD3d 74 (2d Dept. 2007)
The Court held that villages located within the Town of Ramapo had standing to challenge the Town's enactment of a local law permitting adult student living facilities in certain residential zones adjacent to the villages. Relevant to community character and SEQR, the Court observed that, "[t]he power to define the community character is a unique prerogative of a municipality acting in its governmental capacity," and, that, generally, through the exercise of their zoning and planning powers, municipalities are given the job of defining their own character. The villages thus established a "demonstrated interest in the potential environmental impacts" of the adult student housing law inasmuch as the zone change may adversely affect the character of the village, and they therefore had standing to seek judicial review of the SEQR process that resulted in its adoption.

Lane Construction Corp. v. Cahill, 270 AD2d 609 (3rd Dept. 2000)
The Court upheld the Commissioner's determination to deny a Mined Land Reclamation Law and related permits to operate a hard rock quarry on the ground, among others, that the project's impacts on the historical and scenic character of the community could not be sufficiently mitigated. The subject mine would have reduced the elevation of a prominent topographic feature to the community of East Nassau, known as Snake Mountain, by approximately 270 feet. In denying permits for the mine, the Commissioner relied on the administrative law judge's conclusion that there was no way to mitigate the long term impact of removal of this prominent topographic feature on the community of East Nassau.

East Coast Development Company v. Kay, 174 Misc2d 430 (Sup. Ct. Tompkins Co. 1996)
The Court held that the City of Ithaca Planning Commission, in denying site plan approval for a Wal-Mart store, improperly considered the competitive economic effect of the store on downtown Ithaca where the project itself, though within the city was far removed from the central business district and would not affect any "coherent enclave or development." The City had based its decision on the impact of the proposed store on the City's downtown revitalization efforts. The Court nonetheless upheld the Planning Commission on its other basis for denial, namely the visual impact of the proposed development on view between Buttermilk Falls State Park and the project site.

Community Character and Visual Impact

Wal-Mart Stores v. Planning Board of the Town of North Elba, 238 AD2d 93 (3d Dept. 1998)
The Court sustained, as rational, the planning board's denial of a proposed Wal-Mart store on the twin grounds that the store would have undue adverse impacts on community character and on a "Scenic Preservation Overlay" district which was established to protect the view of Whiteface Mountain along a highly traveled corridor in what the Court described as a premier resort community. The Planning Board's finding on community character was premised on SEQR as well as its own special use permit condition as pertains to community character that the store, if constructed, could be expected to result in commercial displacement sufficient to have an undue adverse impact on the Lake Placid region and its tourist economy. Likewise, the planning board's finding regarding visual impact was also based on its conditional use permit criteria, the fact that a portion of the proposed store was to be located within the Town's scenic preservation overlay district, and the impact that a large berm proposed as mitigation for the visual impact of the store and a projected traffic light installation would have on the visual qualities of the travel corridor.

Cumulative Impact

Chinese Staff & Workers v. City of New York 68 NY2d 359 (1986)
Where the City was reviewing the first of several large-scale luxury projects to be proposed in an ethnic neighborhood that it had recently rezoned to retain the low-scale neighborhood character, it was required to consider the cumulative and secondary impacts of this inconsistent project on the area.

Save the Pine Bush v. City of Albany 70 NY2d 193 (1987)
Where the City was reviewing 10 proposed projects in an ecologically unique area that it had recently rezoned to balance growth and environmental protection, it was required to review the cumulative effects of those projects in one EIS rather than review each one separately.

Long Island Pine Barrens Society, Inc. v Planning Bd. of Brookhaven, 80 NY2d 500 (1992)
After acknowledging the ecological importance of the Long Island Central Pine Barrens region, the Court went on to hold that local governments in three towns separately reviewing hundreds of discreet development projects proposed in the Central Pine Barrens region were not required to consider the cumulative impact of the applications where the applications were only connected by their geography and there was no larger governmental plan compelling cumulative impact assessment. The Court determined that mere policy expressions favoring protection of the Pine Barrens and SEQR were not a substitute for a governmental plan. The Court distinguished its earlier decisions in Save the Pine Bush v. City of Albany (70 NY2d 193) and Chinese Staff & Workers Assn. v. City of New York (68 NY2d 359) where cumulative impact assessment of discreet developments were compelled by the existence of overarching, adopted governmental land use plans for the preservation of the Albany Pine Barrens region and Chinatown, respectively. As a post script, in 1993, the New York State Legislature enacted Long Island Pine Barrens Protection Act to establish a regional planning body for the Central Pine Barrens region, known as the Long Island Pine Barrens Commission, and to create of a regional plan and accompanying generic environmental impact statement that would take account of cumulative impacts (Laws of 1993, chapters 262, 263, amending Environmental Conservation Law article 57). The Long Island Pine Barrens Joint Planning and Policy Commission adopted the plan in 1995.

North Fork Environmental Council, Inc. v. Janoski, 196 AD2d 590 (2d Dept. 1993).
In evaluating the potential environmental effect of a project before it, the lead agency must consider cumulative impacts of other simultaneous or subsequent actions which are included in any long-range plan of which the action under consideration is a part. Projects may be deemed related for requiring an assessment of cumulative impact if they take place in a geographic area which is subject to a larger plan for development as discussed in Long Island Pine Barrens Society, Inc. v. Planning Board of the Town of Brookhaven (above). In this case, the Town's designation of an area as a critical environmental area did not constitute a larger plan for requiring cumulative impact assessment of a condominium development.

Conditioned Negative Declaration

Shawangunk Mountain Envtl. Ass'n v. Planning Bd. of the Town of Gardiner, 157 AD2d 273 (3d Dept 1990).
The Court held that the planning board impermissibly cut short an environmental review of potential large impacts of a 13-lot subdivision on a tract of land in the Shawangunk Mountain region by failing to require the preparation of a environmental impact statement (EIS) for the project. The planning board classified the action as a Type 1 action, which, under the regulations of the Department of Environmental Conservation, are more likely to require the preparation of an EIS. Additionally, in the course of the subdivision review, the planning board identified potentially significant environmental impacts of the action due to its location. The developer subsequently submitted revisions of its proposal, incorporating new restrictions including those relating to lot clearing, grading, stormwater management, road design and a stipulation for site plan approval of individual lots. Considering the new modifications, the planning board issued a negative declaration without considering the safeguards that an EIS would provide in ensuring a comprehensive evaluation of the subdivision including alternatives. An EIS ensures a review of possible alternatives (including the no action alternative) and provides for public disclosure and feedback. The Court held that the negative declaration was tantamount to a "conditioned negative declaration" inasmuch as the conditions were clearly conditions precedent to a negative declaration, a procedure not permitted for Type I actions.

Merson v McNally, 90 NY2d 742 (1997).
The Court held that, under certain circumstances, a negative declaration may be issued for a Type I action under SEQR even when the project has been modified during the review process to accommodate environmental concerns. The legal issue in Merson v. McNally was whether the changes to the project involving a mine, which allowed the planning board to arrive at a negative declaration, amounted to a "conditioned negative declaration" or "CND." CNDs are defined in the SEQR regulations at 6 NYCRR 617.2(h); they are a form of negative declaration for Unlisted actions only where the action may have one or more potentially significant environmental impacts that can be eliminated or adequately mitigated by conditions imposed by the lead agency. In Merson v. McNally, which involved a Type I action, through what was characterized by the Court as an "open and deliberative review process," the applicant had eliminated traffic, noise and groundwater contamination concerns through various project design changes that clearly obviated the need for an EIS. To distinguish the facts of Merson from the situation involving an unlawful CND for a Type I action, the Court articulated a two-fold test to determine whether a CND has been unlawfully issued for a Type I action as follows: "Whether the project, as initially proposed, might result in the identification of one or more significant adverse environmental effects; and whether the proposed mitigating measures incorporated into part 3 of the EAF were identified and required by the lead agency as a condition precedent to the issuance of the negative declaration."

Findings/Balancing

Hudson River Fisherman's Assn. v. Williams 139 AD2d 234 (3rd Dept 1988).
Agencies retain discretion, within the limits set forth in SEQR to avoid or mitigate impacts, to choose among alternatives and balance environmental harm against social and economic need. In this case, the need for a drinking water supply outweighed some level of harm to fish life. See also Jackson v. UDC 67 NY2d 400 (1986).

Matter of WEOK Broad. Corp. v Planning Board of the Town of Lloyd, 79 NY2d 373 (1992).
The Court sustained lower court decisions that annulled the planning board's decision to deny site plan review for a radio transmitter tower based on its conclusion that adverse aesthetic environmental impacts to the FDR homestead revealed in the environmental impact statement could not be avoided or sufficiently mitigated. The applicant had applied to the Town of Lloyd Planning Board for site plan approval to construct an AM radio tower consisting of five transmission facilities. An analysis showed that there would be minor visual impact from six viewpoints and moderate impact from one viewpoint. The analysis was conducted during the leaf-off period in the spring. The applicant thereafter reduced the height of tallest proposed tower by nearly half, agreed to construct the towers with an open lattice works to make them less visible, and also agreed to paint three of the five towers gray to further decrease visibility. The Planning Board, nonetheless, denied site plan review based on the possibility that there may be a visual impact on the FDR homestead. In holding the Planning Board's site plan review denial to be arbitrary and capricious, the Court found that the Board had unlawfully relied on general community objection rather than expert or scientific evidence to counter the applicant's detailed analysis.

Hard Look Test

H.O.M.E.S. v. UDC 69 AD2d 222 (4th Dept. 1979).
The court held that, in order for a negative declaration to be upheld, the record must show that the agency identified relevant areas of environmental concern, thoroughly analyzed them for significant adverse impact and supported its determination with reasoned elaboration. In this case, the failure to consider the increased traffic from a proposed sports stadium resulted in a nullified action.

Lead Agency Responsibility

Yellow Lantern Kampground v. Town of Cortlandville, 279 AD2d 6 (3rd Dept. 2000).
The Town Board's rezoning action was annulled as it failed to complete Part 3 of the environmental assessment form (EAF) although in completing the form the board had classified certain impacts as potentially large. The EAF specifically directs the lead agency to complete Part 3 of the EAF if any impact is classified as potentially large in Part 2 of the EAF. Further, the failure to complete Part 3 of the EAF was not excused under the authority to modify the EAF. Although a lead agency may modify the EAF to better serve its implementation of SEQR provided the modified form is as comprehensive as the model form [6 NYCRR 617.2(m)], there was no evidence in the record to show that the Town Board had done so.

Coca-Cola Bottling Co. v. City of New York 72 NY2d 803 (1988)
The court clarified that a lead agency must be an agency with decision-making responsibility for an action. This role cannot be delegated to an advisory board or an agency with no part in approving, funding or undertaking an action.

Litigation Ripeness

Gordon v Rush, 100 NY2d 236 (2003)
The Court of Appeals held that petitioners challenge to a positive declaration made by the Town of Southampton's Coastal Erosion Hazard Board's was ripe for judicial review. Prior to the board's positive declaration, the Department of Environmental Conservation (DEC), as lead agency, issued a negative declaration and tidal wetlands permit for the same project, namely a bulkhead. In issuing its negative declaration, the DEC had coordinated its review with the Town's Coastal Erosion Hazard Administrator. In holding that petitioner's challenge to the positive declaration was ripe for judicial review, the Court of Appeals found that the Board acted outside the scope of its authority when it decided to conduct its own SEQR review and then to issue a positive declaration. In holding that the Coastal Erosion Hazard Board's positive declaration was ripe for judicial review, the Court of Appeals indicated that it was doing so because of the circumstances present in that case where the board was redoing the SEQR process after the lead agency had coordinated review with the town and issued a negative declaration. Because of these circumstances, the Court indicated that it was not following the rule adopted by some appellate courts, namely that a positive declaration requiring a draft environmental impact statement is merely a step in the agency decision-making process, and as such is not final or ripe for review

Low Threshold

Inland Vale Farm v. Stergianopolous, 104 AD2d 395 (2nd Dept 1985)
Where a significant adverse impact has been identified, it cannot be ignored; an EIS must be prepared. See also Soule v. Town of Colonie, 95 A.D.2d 982 (3rd Dept 1983), in which a negative declaration for a sports stadium was upheld, even though the court recognized the low threshold for an EIS resulting from the regulatory language requiring an EIS where there "may" be a potential significant impact.

Procedural Compliance

Rye Town/King Civic Assn. v. Town of Rye 2 AD2d 474 (2nd Dept. 1981)
The Town's informal review of environmental impacts, not conducted according to SEQR's procedures was found to be inadequate. Strict (or "literal") compliance with the procedures was held to be required to ensure that the mandates of the law were met.

Schenectady Chemicals v. Flacke 83 AD2d 460 (3rd Dept. 1981)
DEC conducted a permit review under the mining law of a mining permit application prior to issuing a negative declaration. Its SEQR review, conducted only after the negative declaration was issued, failed to comply strictly with the procedures of SEQR.

Remedy for Noncompliance

Tri-County Taxpayers v. Town Board 55 NY2d 41 (1982)
The Court found that the remedy for an agency's failure to comply with SEQR was to nullify the action taken or approved by that agency. In most cases, the matter is sent back to the agency for it to make a determination of significance; in a few cases, courts have ordered that EISs be prepared.

Rule of Reason

Coalition Against Lincoln West v. City of New York 94 AD2d 483 (1st Dept. 1983); Environmental Defense Fund v. Flacke, 96 AD2d 862 (2nd Dept 1983)
This rule limits the consideration of impacts solely to reasonably related potential impacts and states generally that not every conceivable alternative or mitigation measure needs to be considered; speculative impacts may be ignored.

Akpan v. Koch, 75 NY2d 561 (1990)
The Court held that the New York City Board of Estimate ("BOE") took a hard look at the impact of the Atlantic Yards Terminal Project, a residential and commercial urban renewal project, on secondary displacement of low income residents in the surrounding neighborhood. In determining that the BOE's had met its substantive obligations under SEQR, the Court stated: "As plaintiff's concede that the agency 'looked' at the issue of secondary displacement, this case requires this court to determine when an agency has given sufficient consideration to an environmental issue to constitute the required 'hard look' at the subject. Since it is not the court's role to evaluate de novo the data presented to the agency, the court must, as with substantive SEQRA obligations generally, be guided by a rule of reason and refrain from substituting its judgment for that of the agency. Thus challenges to the conclusions drawn from the data presented requiring such substitution of judgment will likely fail. Nevertheless, an agency, acting as a rational decision maker, must have conducted an investigation and reasonably exercised its discretion so as to make a reasoned elaboration as to the effect of a proposed action on an environmental concern [citation omitted]. Thus, while a court is not free to substitute its judgment for that of the agency on substantive matters, the court must ensure that, in light of the circumstances of a particular case, the agency has given due consideration to pertinent environmental factors. This determination is best made on a case by case basis..." Id. at 571.

Segmentation

Citizens Concerned for the Harlem Valley Environment v. Town Board of the Town of Amenia, 264 AD2d 394 (2d Dept 1999)
The Town Board of Armenia issued a negative declaration for the rezoning of a parcel of land for mining and the development of a light industrial park. The negative declaration did not consider the environmental impacts of the mining. The Court found that the rezoning was an integral part of the mining proposal and held that the impacts of the mining had to be considered at the same time as the environmental review of the rezoning for the industrial park.

Concerned Citizens for the Environment v. Zagata, 243 AD2d 20 (3d Dept 1998)
The Court found that the Department of Environmental Conservation (DEC) was justified in conducting a segmented review for a solid waste transfer station. The company submitted an application and a draft environmental impact statement to the DEC for a permit to construct and operate an integrated solid waste management facility consisting of 1) an incinerator, 2) a materials recovery facility and 3) a solid waste transfer station. Later the company submitted a new application seeking a permit for the construction and operation of only the transfer station. The record was found to contain ample support for the position that the solid waste transfer station would have independent utility from the incinerator and the materials recovery facility.

Stewart Park & Reserve Coalition v. New York State Department of Transportation, 157 AD 2d 1 (3d Dept 1990), affd 77 NY2d 970 (1991)
The Court determined that the Department of Transportation had rationally determined that it could conduct a separate review of the development of commercial air service at Stewart Airport from the development of plans for the surrounding buffer area based on the conclusion that the plans were not functionally dependent on each other.

Schodack Concerned Citizens v. Town Bd. of Schodack, 142 Misc 2d. 590 (Sup Ct, Rensselaer County 1989), affd 148 AD2d 130 (3rd Dept 1989)
An EIS was prepared for the construction of a proposed supermarket warehouse distribution facility. The facility was designed to serve 23 retail supermarkets that were part of the long range plan of the sponsor. Project opponents felt that the lead agency had improperly segmented the review because it failed to consider the environmental impacts from the construction of the 23 supermarkets. The Court held that to require the EIS to consider the environmental impacts from each of these 23 individual stores was beyond the scope of the review for the distribution center and that each of the sites would be subjected to its own environmental review by the agency required to approve the location.

Village of Westbury v. Department of Transportation, 75 NY2d 62 (1989)
DOT issued a negative declaration for the reconstruction of a highway interchange. The Court found that the interchange reconstruction was closely linked to the widening of the Northern State Parkway which was also in the planning process and ruled that the projects must be considered as one action for the purposes of conducting an environmental review since they were complementary components of DOT's plan to alleviate traffic.

Karasz v. Wallace, 134 Misc2d 1052 (4th Dept 1987) (Sup Ct, Saratoga County 1987)
The town board considered the construction of a single building on a large lot separately from other construction planned by the developer for the same site. The Court found that to allow piecemeal development of the site was impermissible segmentation.

Sutton v. Board of Trustees 122 AD2d 506 (3rd Dept 1986)
The Village approved the rezoning of a hospital property to allow two phases of construction of additional facilities. The negative declaration and approval was overturned because the Board considered only the impacts from the first phase of the project.

Kirk-Astor Drive Nbhd. Assn. v. Town Bd. of Pittsford 106 A.D.2d 868 (4th Dept 1984)
The Board rezoned 64 acres from residential to manufacturing/office. The court held that it failed to comply with SEQR because it considered only the impacts from the change in zoning classification and did not consider the impacts of the change from the current use (vacant) to manufacturing/office and that it failed to consider the impacts of the proposed project at the rezoning stage.

Standing

Society of the Plastics Industries, Inc. v. County of Suffolk, 77 N.Y.2d 761 (1991)
The Court of Appeals rejected a challenge, based on lack of standing to bring the litigation, by a national trade organization of companies involved in plastic related businesses, for profit member corporations, and one local manufacturer of plastics to Suffolk County's adoption of a local law which banned retail food establishments from using certain non-biodegradable plastic containers and utensils. Suffolk County had issued a negative declaration under SEQR prior to adopting the local law. The petitioners challenged the County's negative declaration by alleging both economic injury from the ban and that the ban would result in various significant environmental impacts from the substitution of paper products including increased trucking traffic to and from disposal sites, with attendant noise, congestion and emissions, and that paper substitutes will increase waste in landfills, with attendant effects including possible hazardous leachate seeping into the aquifer. With regard to the law of standing, the Court held that in challenging an action where the alleged impacts are geographically local, the petitioner must show special harm to establish standing to bring the litigation, in addition to having to meet the traditional standing requirements of having suffered an "injury in fact and that the claim was in the zone of interests protected by SEQR. The special harm requirement, a requirement that the Court borrowed from standing requirements applicable to zoning challenges, means that the plaintiffs must show that they would suffer injury that is in some way different from that of the public at large. The Court went on to hold that the environmental interests asserted by the organizational petitioners with regard to the plastics ban were not germane to their corporate purposes and that the local manufacturer of plastics failed to demonstrate special injury as a result of the County's adoption of the plastics ban.

State Policy

EFS Ventures v. Foster 71 NY2d 359 (1988)
The Court refused to allow a lead agency reviewing a proposed modification to a completed project to require mitigation in the form of changes to the original project (which had improperly escaped SEQRA review). In its review, the court noted the important state purposes served by SEQRA and stated that if the mitigation proposed to be imposed by the Town had a demonstrable connection with the impacts of the proposed modification, the town might have been correct.

Jackson v. UDC 67 NY2d 400 (1986)
This case, involving the Times Square redevelopment project, is a mini- treatise on a wide range of SEQR issues, including substantive and procedural compliance, alternatives, the rule of reason and the scope of judicial review. The Court recognized the important state policy expressed in SEQR.

Substantive Compliance

Aldrich v. Pattison 107 AD2d 258 (2d Dept 1985)
Where the question is the adequacy or content of the environmental review conducted, rather than whether the right steps were followed, agencies need to substantially comply with both the letter and spirit of the law. Where an agency has made a reasoned decision on a thorough record, the court will not substitute its judgment, but will allow the agency to exercise some discretion. See also Jackson v. UDC 67 NY2d 400 (1986).

Supplements

Glen Head-Glenwood Landing Civic Council v. Town of Oyster Bay 88 AD2d 484 (2nd Dept 1982)
Subsequent to issuing a final EIS, the Town was informed that the developer-assured sewer hook-up with a neighboring town was not approved. The court held that a supplemental EIS was required to discuss such significant new information. See also Horn v. IBM 110 AD2d 87 (2nd Dept 1985).

Riverkeeper v. Planning Board of the Town of Southeast, 9 NY3d 219 (2007)
The Court affirmed the Planning Board's determination not to require the preparation of a second supplemental draft environmental impact statement ("SDEIS") for a large scale residential subdivision project. In 1988, the applicant had applied for approval to construct 104 clustered homes on a 309-acre parcel, and both a final environmental impact statement ("EIS") and a final supplemental EIS were prepared for the project. On February 25, 1991, the Planning Board issued a findings statement approving the development, which included a directive that the applicant develop a technologically advance sewage treatment plant. The Planning Board granted preliminary subdivision approval on August 10, 1998, and conditional final approval on June 10, 2002. Between the time of the findings statement and the approvals, there were various regulatory and design changes in the project along with changes in the surrounding area. For example, the Army Corp. of Engineers determined that the actual number of acres effected by the project was slightly larger, the Governor had designated the east of Hudson portion of the New York City Watershed (where the development was proposed) as a Critical Resource Water, and new regulations were issued limiting allowable discharge of phosphorous into the watershed. Petitioners commenced an Article 78 proceeding that challenged the Planning Board's approval on the ground that the changes required the Planning Board to prepare a second supplemental EIS pursuant to SEQR regulations relating to supplemental EISs [6 NYCRR 617.9(a)(7)]. The Supreme Court sent the case back to the Planning Board to determine whether another supplemental EIS should be prepared because of the changes. On remand, in 2003, after reviewing all the information that the applicant and the consultants had provided including independent assessments, the Planning Board determined that the changes were not significant so as to require the preparation of a second supplemental EIS. Petitioners challenged the determination on remand. Ultimately, the Court of Appeals sustained the Planning Board's determination as rational and supported by scientific and empirical evidence in the record and that none of the changes would have materially affected the design of the project that was ultimately approved. For example, the Court pointed out that the regulatory changes were not significant as they were anticipated by the design of the sewage treatment plant. The case underscores the need to rationally consider the significance of intervening changes especially in the case of large scale projects for projects that undergo lengthy review periods.

Time Period to Commence SEQR Litigation (Statute of Limitations)

Eadie v Town Board of the Town of North Greenbush, 7 NY3d 306 (2006)
The Court held that the four-month period during which an Article 78 proceeding may be commenced to challenge SEQR findings made as part of a rezoning action begins to run from the date the Town Board enacted the rezoning legislation rather than from the date the Town Board adopted SEQR findings in connection with the rezoning. Generally, an Article 78 proceeding to review a governmental decision must be commenced within a period specified by statute after the decision becomes final and binding upon the petitioner. This period runs from the date that the petitioner has suffered a concrete injury not amendable to further administrative review and corrective action. The adoption of findings was amenable to further administrative review and corrective action as the Town Board had the option of not adopting the rezoning. The case reaffirms the Court of Appeals earlier decision in Save the Pine Bush v. City of Albany, 70 N.Y.2d 1993 (1987), which held that a challenge to alleged SEQR violations in the adoption of local legislation must be commenced within four months from the City's adoption of the legislation. The Court distinguished its 2003 holding in Stop the Barge (discussed below) by noting that the Stop the Barge case did not involved legislation and no further action was required of the Board that adopted the conditioned negative declaration.

[A word of caution: when calculating the statute of limitations in rezoning actions preceded by SEQR findings, note that the Court stated that there might be some instances where it would deem the statute of limitations to run from the adoption of findings in a rezoning action, such as where "mitigation measures required by the final GEIS and adopted in the findings statement unlawfully burdened their [petitioners] right to develop their property."]

Stop-The-Barge v Cahill, 1 NY3d 218 (2003)
The Court held that the four-month period during which an Article 78 proceeding may be commenced to challenge the New York City Department of Environmental Protection's ("DEC") issuance of a conditioned negative declaration (CND) ran from the date the DEP issued the CND for the installation of a power generator on a floating barge. While SEQR determinations, such as negative and positive declarations, are regarded as preliminary steps in the decision-making process and as such are amenable to further administrative review and corrective action, the Court, nonetheless, held that the statute of limitations on the CND ran from its issuance of the CND as DEP had no further approvals to make or permits to issue. Stop the Barge, therefore, stands as an exception to the general rule, based on its peculiar set of facts, regarding when the statute of limitations begins to run for legal actions or proceedings involving SEQR.

Timing

Sun Beach Real Estate v. Anderson, 98 AD2d 367 (2nd Dept. 1983)
The court held that the time for the default provisions for subdivision plat approval does not begin to run until there is a complete application and such an application must include a draft EIS or a negative declaration. See also Long Island Pine Barrens Society v. Town of Brookhaven, 78 NY2d 608 (1991).

Visual Impact

Lane Construction Corp. v. Cahill, 270 AD2d 609 (3d Dept. 2000)
The Court upheld the Commissioner's determination to deny a Mined Land Reclamation Law and related permits to operate a hard rock quarry on the ground, among others, "that the project's impacts on the historical and scenic character of the community cannot be sufficiently mitigated." Id. at 610. The subject mine would have reduced the elevation of a prominent topographic feature to the community of East Nassau, known as Snake Mountain, by approximately 270 feet. In denying permits, the Commissioner had particularly relied on the ALJ's conclusion that there was no way to mitigate the long term impact of removal of this prominent topographic feature on the community of East Nassau.

E-mail us if you wish to submit comments. Please be sure to indicate which section or item you are commenting on, and include your name.


  • PDF Help
  • For help with PDFs on this page, please call 518-402-9167.
  • Contact for this Page
  • NYS DEC
    Division of Environmental Permits
    625 Broadway, 4th Floor
    Albany, NY 12233-1750
    518-402-9167
    Send us an email
  • This Page Covers
  • Page applies to all NYS regions