B. SEQR and Land Use Decisions
In This Section You Will Learn about:
- SEQR and building permits
- SEQR and land use moratoria
- SEQR and comprehensive plans;
- SEQR and zoning, special use permits, variances and zoning board interpretations
SEQR and Building Permits
1. Does the building inspector's issuance of a building permit require SEQR review?
SEQR classifies as Type II actions official acts of a "ministerial" nature involving no exercise of discretion. (A "ministerial" act is one that involves direct adherence to a rule or standard with a compulsory result.) Issuance of building permits, where the issuance of the permit is determined solely on basis of the applicant's compliance with the building code would be included in this category. The building inspector's issuance of most building permits does not involve the exercise of discretion. In a typical situation, if an application meets the requirements of the New York State Uniform Fire Prevention and Building Code then the building permit must be issued. The building inspector does not have any discretion in the matter. (If a building permit is issued following site plan review approval or the issuance of a special use permit, or both, the building permit should have to meet the requirements of those approvals. However, the code enforcement officer or building inspector is merely enforcing conditions that have already been established by the planning or zoning board.)
2. When would the building inspector's or code enforcement officer's issuance of a building permit not be classified as a Type II action and therefore require review under SEQR?
There are instances where the issuance of building permit does involve the exercise of discretion by the building inspector. Some local laws give the building inspector some discretionary authority. For example, in some limited instances, building inspectors may have some authority to conduct site plan review. In that situation, the issuance of the building permit is no longer a ministerial action and SEQR review is required.
3. If issuance of a building permit for a project is ministerial and no local discretionary approvals are required, may SEQR be applied by the local government?
The local government has no opportunity to apply SEQR because it has no discretionary approvals to give. If SEQR review is conducted by a state or county agency, the local government may participate as an interested party, but not as an involved agency.
4. Can a ministerial permit be issued while SEQR review of an action is being conducted?
A ministerial permit can be issued while the SEQR review is ongoing if the permit can otherwise be issued. However, the activity allowed in the permit may not be undertaken because the SEQR regulations [6 NYCRRR §617.3(a)] state that no physical alteration related to an action shall be commenced by a project sponsor until the provisions of SEQR have been complied with. The issuing official should notify the project sponsor of this prohibition. This would be particularly applicable to the issuance of demolition permits associated with a subsequent development action subject to review under SEQR.
SEQR and Land Use Moratoria
5. Are municipal land use moratoria subject to SEQR?
Land use moratoria are classified as Type II actions, which means that a municipality adopting a moratorium is not required to undertake any SEQR review with respect to the moratorium. A municipality adopting a moratorium should merely note the Type II classification in its resolution adopting a moratorium.
6. If a municipality adopts a moratorium on development projects and includes projects that are currently in the review process does the SEQR review also stop for those projects in the pipeline?
Yes. This answer is based on the rule that SEQR does not change the existing jurisdiction of agencies. SEQR only applies when a board is authorized by some other statute to fund, approve or undertake an action (e.g., site plan, special use permit, or subdivision review). If the underlying review has been stayed by the moratorium then the SEQRA review is also stayed pending the end of the moratorium since the SEQR review does not have independent life. Therefore, a moratorium on development projects that are in the "pipeline" would stay the SEQR process.
SEQR and Comprehensive Plans (or land use "Master plans")
7. Does SEQR apply to the adoption of a comprehensive plan?
Yes. A municipality's adoption of a land use or "comprehensive plan" (as referred to in General City Law §28-a, Town Law §272-a, and Village Law §7-722) is not only subject to SEQR but is classified as a Type I action in the SEQR regulations. As a result, the adoption of a comprehensive plan is more likely to have a potentially significant, adverse impact on the environment, and, therefore, more likely to require the preparation of an EIS.
8. What is the best way for a municipality adopting a comprehensive plan to comply with SEQR?
While it is possible to issue a negative declaration in connection with the adoption of a comprehensive plan, the generic EIS is the most appropriate way to analyze the environmental impacts of a comprehensive plan. The generic EIS is specifically designed to analyze actions that call for a series of subsequent actions such as a comprehensive plan. In most cases, the comprehensive plan will set out a series of follow-up actions such as the amendment or writing of zoning laws or ordinances. Second, the adoption of a comprehensive plan can be one of the most significant land use actions taken by a municipality. General City Law §28-a, Town Law §272-a, and Village Law §7-722 each provide that all city, town and village land use regulations must be in accordance with the comprehensive plan. Therefore, underlying all local land use regulations should be the comprehensive plan. The preparation of a generic EIS allows for a more searching review of the range of possible land use actions proposed in a comprehensive plan. Third, SEQR provides an important incentive for preparing GEISs, namely, if a GEIS has been prepared, no further SEQR compliance is required if a subsequent proposed action is carried out in conformance with the conditions and thresholds established for such actions in the generic EIS or its findings statement. In other words, the generic EIS can be used as a tool for preplanning actions that involve more than one step such as the adoption of a comprehensive plan which, in many cases, involves the re-drafting of zoning laws or ordinances.
If the municipality chooses to prepare a generic EIS for the comprehensive plan, the comprehensive plan and the generic EIS should be made available for public review as a joint document. Having both documents available at the same time provides for meaningful public review and assessment of the comprehensive plan along with consideration of the relevant environmental factors. Following public review and hearing, the final comprehensive plan and generic EIS and SEQR findings would be produced and the lead agency can proceed with implementing the plan.
9. Should a GEIS be prepared for all comprehensive plans?
As mentioned above, it is lawful to prepare a long-form EAF and then issue a negative declaration for a comprehensive plan if there are no potentially significant adverse environmental impacts as a result of the plan's adoption. If a municipality goes ahead and prepares a draft, generic EIS and then determines that there are no potentially significant, adverse environmental impacts as a result of the plan's adoption, the municipality can issue a negative declaration based on the draft GEIS. Despite these options, the comprehensive nature of comprehensive plans and the need to inform and gain input from the public on long-range plans make the comprehensive plan process very compatible with the GEIS. Additionally, the long-form EAF addresses itself more to analyzing projects than planning documents, which is another reason why both the Department of Environmental Conservation and the Department of State recommend the use of the generic EIS for comprehensive plans.
10. Are all municipal plans subject to SEQR?
No. Only those plans that may affect the environment and commit the municipality to a definite course of future decisions, such as a municipality's comprehensive plan. Sometimes municipalities engage in planning-like activities that affect the environment but do not commit the municipality to a definite course of conduct. For example, the establishment of a committee to do planning does not commit the municipality to a definite course of conduct.
SEQR and Zoning, Special Use Permits, Variances and Zoning Board Interpretations
a. Zoning (in general) and Rezonings
11. What zoning activities are subject to SEQR?
SEQR applies to local government decisions to adopt zoning laws and ordinances or to modify existing zoning laws and ordinances. Certain zoning actions receive special attention under SEQR. For example, zoning actions that change the allowable uses on twenty-five or more acres of land are classified as Type I actions. Special or conditional use permits also require SEQR review. Finally, variances are subject to SEQR, though, as mentioned below, certain types of variances are classified as Type II actions- making them exempt from SEQR review.
12. Which board is responsible for the conduct of SEQR when local zoning decisions are made?
The board with primary responsibility for making the zoning decision. Except with regard to subdivision regulations, which can only be administered by a planning board, there is significant variance among municipalities as to which of the various boards ordinarily established by a city, town or village will have primary responsibility for the various zoning decisions. If the zoning decision is legislative (such as a rezoning decision), then the board with primary responsibility, depending on whether the municipality is a city, town or village, will be the city council, the town board or the village board of trustees, respectively. If a municipality has zoning then it must have a zoning board of appeals. The statutory jurisdiction of the zoning board of appeals includes granting use and area variances as well as interpretations of the zoning law or ordinance. Thus, the zoning board of appeals will ordinarily be responsible for the conduct of SEQR with regard to variances (interpretations are classified as Type II actions). Jurisdiction to issue special or conditional use permits varies among municipalities. Typically, this function is usually given to either the zoning board of appeals or the planning board. Thus, for special or conditional use permits, the board with primary responsibility will usually be the zoning board of appeals or the planning board. Site plan review, which is a power given to municipalities separate and apart from zoning, is normally delegated to planning boards. Typically, planning boards have responsibility for making site plan review decisions. If more than one zoning-related decision is necessary for the same action and if the review is to be coordinated, then the boards must decide on which board is to be lead agency following SEQR procedures for establishing lead agency. These procedures are described in 6 NYCRR §617.6 (b).
13. In a community adopting zoning for the first time, what are the SEQR responsibilities of the zoning commission?
For towns and villages adopting zoning for the first time, Town Law §266 and Village Law §7-710 each require appointment of a zoning commission to formulate and recommend the law or ordinance. The zoning commission may be either a temporary, special board or the planning board - if one already exists. The town board or the village board of trustees, however, remains responsible for complying with SEQR since the legislative boards ultimately decide whether to adopt the zoning proposed by the zoning commission. Nonetheless, the legislative body may direct the zoning commission to assist it in preparing the environmental assessment form or the EIS.
14. Are there differences, for SEQR purposes, between a zoning change sought by a project sponsor and one initiated by the municipality?
When a zoning change is initiated by the municipality on its own recommendation or at the request of residents, but no specific development project is planned (e.g., the zoning is changed to be consistent with actual use), the rezoning itself is the whole action and is classified as a direct action of local government. The determination of significance must consider the consequences of such rezoning on the environment, but it is not necessary to speculate about specific projects (see the next question and answer). In contrast, if the zoning change is proposed by a project sponsor, in conjunction with a proposal, the impacts of both the rezoning and the specific development must be considered in determining environmental impacts.
15. When a zoning change is a direct action and no physical changes or projects are proposed, what should be considered in the SEQR review?
The SEQR review should consider the relative impacts based on the proposed changes. In other words, the analysis should compare the relative impacts of land use and development (based on the existing zoning) and the proposed zoning. For example, the rezoning of agricultural land to a commercial or residential use might significantly affect community character, aesthetics, traffic and stormwater runoff. A municipality should consider the most intensive uses allowable under the proposed zoning to judge potential impacts.
Keep in mind that rezoning itself may be more significant from the standpoint of SEQR than the individual permitting of projects since a zoning change triggers a change in the allowable use of land and ostensibly individual projects consistent with that change will be considered in the future in the rezoned area.
The use of a generic EIS is the best SEQR-tool to analyze the rezoning actions for large-scale or significant changes.
16. Can the environmental review of rezoning be segmented from the environmental review of any site specific projects that may come about as a result of the rezoning?
Segmentation is contrary to the intent of SEQR. (See [citation] for discussion of segmentation.) Under certain circumstances, however, certain forms of segmentation may be reasonable. For example, if a landowner is seeking to rezone a parcel of land to conform the parcel to changing uses in the surrounding area, segmentation may be justified if the owner has no present plan to develop the parcel for a particular use. Nonetheless, the lead agency should conceptually review the potential impacts for the maximum development that could be realized on the rezoned parcel of land. In general, segmented review should be justified in writing and used sparingly.
Project sponsors may be unwilling or financially unable to provide detailed information about a project until the zoning question is resolved. However, this does not justify a segmented review. For situations where there are uncertainties about the specifics of development projects, the following options are suggested:
- If the lead agency determines that neither the rezoning nor the project, taken together, may have a significant environmental impact, it can issue a negative declaration.
- If the project or the zoning may result in significant impacts, the project sponsor may be required by the lead agency to prepare a generic EIS that analyzes the impacts of the zoning change. The generic EIS should also conceptually analyze the impacts of the proposed development, based on current information and reasonable projections without the need for detailed engineering. If the zoning decision allows the proposed use, a supplemental EIS may be needed to discuss specific impacts of the project in detail.
b. Variances and Interpretations
17. What types of variances are classified as Type II actions, and, therefore, exempt from SEQR?
The granting of individual setback and lot line variances and area variances for a single-family, two-family or three-family residence.
18. Does a zoning board of appeals, when interpreting a zoning law or ordinance have to apply SEQR?
No. As part of their appellate jurisdiction, zoning boards are specifically authorized to render interpretations of local zoning laws. Interpretations of the local zoning law by zoning boards are classified as Type II actions, which are exempt from SEQR review.
19. Is a use variance that changes the allowable uses on 25 or more acres of land a Type I action?
No. The Type I classification for actions that change the uses allowable on 25 acres or more of land refers to legislative rezonings by either the city council, town board or the village board of trustees. Nonetheless, the practical effect of a variance that changes the allowable uses of land on 25 or more acres of land may be the same as a legislative rezoning that affected the allowable uses on 25 or more acres of land. Therefore, a zoning board would be prudent to scrutinize such a request to the same degree as if the action were classified as a Type I action. This can be done by, among other things, utilizing the long-form EAF and coordinating review with other involved agencies, if any.
20. Is a ZBA decision subject to SEQR when it is an interpretation of the zoning ordinance or the review of a decision of a zoning enforcement officer?
No. ZBA interpretations are classified as Type II actions. The rationale for classifying ZBA interpretations as Type II actions is that they are akin to judicial interpretations and do not directly result in a decision to approve, fund or undertake an action.
21. How should SEQR be applied to a zoning board's review of a use variance application?
SEQR applies to a ZBA's consideration of use variance requests. Unlike area variances, where in certain limited circumstances they are classified as Type II actions, there are no Type II categories corresponding to use variances. Use variances will be classified as either Type I or Unlisted actions.
There is an overlap between the criteria for granting use variances and SEQR considerations. To be eligible for a use variance under General City Law, Town Law and the Village Law, an applicant must demonstrate "unnecessary hardship." To prove unnecessary hardship the applicant must show, among other factors, that the variance, if granted, will not alter the essential character of the neighborhood. Also, under the General City Law, the Town Law and the Village Law, zoning boards, in granting use variances, are directed to preserve and protect the character of the neighborhood and the health, safety and welfare of the community. At the same time, closely akin to the use variance factors, SEQR factors include community character and aesthetics. Procedurally, however, the zoning board must still apply the use variance criteria factors even where it issues a negative declaration under SEQR.
Here is a suggested way to handle the overlap. The zoning board should determine based on the EAF and other information whether to require an EIS. This determination will come before the decision on the variance; in fact, this determination will be made as part of the determination on whether the application is complete for review purposes. Whether the variance, if granted, would alter the essential character of the neighborhood is something that the zoning board would consider in determining whether to require an EIS. If the zoning board were to determine that the variance, if granted, would not alter the essential character of the neighborhood, it would still have to determine whether based on the other SEQR criteria to require the preparation of an EIS. If an EIS is required based on impacts to the neighborhood or community character or for any other SEQR-relevant reason, the zoning board can proceed to consider the environmental related variance factors within the environmental impact statement process.
Another practical problem with variances is the potential for redundant SEQR reviews. Once a use variance is granted, most municipalities will provide for either site plan review or special use permit review, or both, of the project that has been granted the variance. This subsequent review often requires SEQR review unless the action is classified as a Type II action. This second review may result in needless repetition of the same SEQR issues that were addressed during the variance stage of the review. One solution is to coordinate SEQR review of the variance and the special use permit or site plan application, if coordinated is review is not otherwise required under the SEQR regulations. This approach may result in more immediate cost to the project applicant. However, coordinated review avoids segmented and repetitive review of the action.
22. How should SEQR be applied to area variance requests?
Certain area variances are classified as Type II actions, meaning that there is no SEQR review. Type II actions include granting of individual setback and lot line variances and granting of area variances for a single-family, two-family or three-family residence. All other area variances would either be classified as Type I or Unlisted actions. The comments on projects that require both area variances and special use or site plan review applications, mentioned in answer to the proceeding question, applies to area variances.
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