A. General Applicability of SEQR to Local Governments
In This Section You Will Learn:
- which local government decisions are subject to SEQR; and,
- how a municipality can integrate SEQR into its decision-making process.
1. Which local government actions must comply with SEQR?
All local governments, including county legislatures and county agencies, city councils, town boards, village board of trustees, planning boards, zoning boards of appeal, school boards, and industrial development agencies, must comply with SEQR.
2. Which local government decisions are subject to SEQR?
Most local government "actions" are subject to SEQR. Determining whether a governmental activity is an "action" under SEQR is the first step in deciding if SEQR applies. As defined by SEQR, the term "action" includes all discretionary decisions to fund, approve or directly undertake projects or physical activities that may affect the environment by changing the use, appearance or condition of any natural resource or structure. The definition also includes adoption of local laws, ordinances, and resolutions that may affect the environment. Specific examples of local government actions are:
- Adoption or amendment of a comprehensive plan
- Adoption or amendment of zoning laws and ordinances and amendments to zoning laws and ordinances
- Special use permit approvals
- Site plan review approvals
- Subdivision approvals
- Bond resolutions for municipal development projects
- Capital improvements
- Acquisition or sale of public lands
Activities that do not meet the definition of "action" or that are classified as Type II actions (see Section 617.5 link leaves DEC website) do not require SEQR review. Type II actions include some typical local government activities such as:
- Construction or expansion of a single-family, a two-family or a three-family residence on an approved lot;
- Granting of individual setback and lot line variances, granting of area variance(s) for a single-family, two-family or three-family residence;
- Official acts of a ministerial nature involving no exercise of discretion, including building permits and historic preservation permits whose issuance is predicated solely on the applicant's compliance or noncompliance with the relevant building or preservation code(s);
- Collective bargaining activities;
- Adoption of a moratorium on land development or construction;
- Designation of local landmarks or their inclusion within historic districts.
No. The board should note the Type II classification of the action in the resolution approving the action or in a separate resolution prior to approving the action. The resolution should specify the item on the Type II list in Part 617.5 that applies to the action.
5. Is a municipality required to apply SEQR even if its present procedures incorporate environmental considerations (for example, a site plan review law containing performance standards for visual impacts)?
Yes. Though seemingly redundant or overlapping, SEQR review is still required for actions even though the local or state law governing the proposed action provides for the consideration of the environment. In fact, many zoning actions taken under the municipal enabling acts provide for varying consideration of environmental factors. As a practical matter, for example, the same information may form the basis for a SEQR decision to approve, reject, or approve a project with conditions and the basis for whether a project meets the locality's requirements for land use approval.
If the action involves the review of a subdivision, General City Law §32, Town Law §276 and Village Law §7-728 (the State subdivision review enabling laws) incorporate SEQR directly into the overall subdivision review process. For other local government actions, there are a few basic rules to follow:
- First, the SEQR process should be started at the earliest practicable time in the review of a project or legislative decision.
- Second, an agency cannot fund, approve, or undertake an action until it has complied with SEQRA.
- Third, an application to fund or approve an action is not complete until a negative declaration has been issued or a draft EIS has been accepted by the lead agency as satisfactory with regard to scope, content and adequacy.
With regard to third rule, there are some caveats. Historically, municipal boards used the public hearing forum to do fact finding on whether to require a draft EIS. At the same time, the public hearing ordinarily follows the determination that an application is complete. Because no application is complete until a negative declaration has been issued or the municipal board has accepted a draft EIS, the public hearing must follow the determination on whether to require a draft EIS. To satisfy the rule here and to allow fact finding on whether to require a draft EIS, where necessary, municipal boards can hold a separate public hearing on whether to require a draft EIS or accept public comment on its determination to require or not require a draft EIS at the hearing held subsequent to determining that the application is complete. If public input reveals new information or indicates errors in the characterization of the action that call the issuance of a negative declaration into question, the negative declaration can be rescinded and an EIS required.
Finally, the third timing rule does not apply to the adoption of local laws and ordinances since neither involves an "application." However, SEQR must be satisfied before any law or ordinance goes into effect.
7. May a municipal board delegate its SEQR duties to another board?
No. A municipal board may not delegate SEQR to a separate board or agency. if the other board or agency does not have decision making authority for the action being reviewed. SEQR is intended to make boards that are responsible for approving, funding or undertaking an action consider the environmental effects of their decisions. Delegating SEQR-review to a non-involved agency is not permitted. A board may be assisted in its review by other agencies and staff with expertise on environmental issues. An example is where a planning board is assisted in its review of a subdivision by a municipal planner or a conservation advisory council. If an action involves the approval of more than one board, a lead agency may be picked from among the boards and thereby be primarily responsible for the SEQR review of that action.
Because SEQR requires agencies to look at the whole action and not to segment the review of actions, the involved agencies of each municipality must participate in the SEQR process and consider the whole action, including impacts in neighboring communities. If coordinated review is initiated or required by an involved agency, and the initial phases of a development occur in only one of the municipalities, but one or more of the municipalities will be ultimately involved, then each agency should be treated as involved agency at the beginning of the process.
Yes. For example, a planning board reviewing a cellular communications tower visible from a neighboring community should consider the aesthetic impact of the tower on the neighboring community. A town planning board reviewing a big box development should consider the impact of the development on the community character of a neighboring village that might suffer business displacement as a result of the approval of the big box development. A third example would be a community reviewing a shopping plaza that generates traffic on an adjoining community's roadway system. In that case, the host community's review should consider the traffic on the adjoining community.
No agency can serve as the lead agency or be considered an involved agency on the basis of an advisory role. The same would apply to the county planning agencies, though their recommendations trigger special voting requirements.
11. If my board is reviewing, for example, a special use permit application, or any other type of application, what difference does it make if the applicant prepares an EIS or just submits a long-form EAF with heavy documentation?
The EIS process establishes a formal process for the identification and assessment of impacts, consideration of alternatives to the proposed action, and identification of mitigation measures for adverse impacts revealed in the EIS process. Through the various notice provisions of the SEQR regulations, the public is given the opportunity for a greater role in the project review over that which may be required by the General City Law, Town Law or the Village Law (municipal enabling statutes). For an action (or project) that is the subject of a final EIS, the lead agency (or board) must make the SEQR findings required by Section 617.11 (of 6 NYCRR). Notably, the findings require, based on a balancing of social and economic considerations with environmental considerations, the alternative that avoids or minimizes adverse impacts to the maximum extent practicable. In a nutshell, while SEQR does not change the jurisdiction of an agency (or board), it overlays a formalized process for the consideration of environmental impacts onto an agency's (or board's) jurisdiction. It then imposes a findings requirement that forces the lead agency to consider alternatives and to then pick the alternative with the least impact while balancing social and economic considerations with environmental considerations.
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