Development

Actions of Planning Board Do Not Estop DEC

State v. White Oak Co.

LLC, NYLJ 12/21/04, p. 27, col. 3

AppDiv, Second Dept

(memorandum opinion)

In an action by the state Department of Environmental Conservation (DEC) to enjoin a landowner from conducting any activities that would kill or disturb tiger salamanders, the DEC appealed from the Supreme Court's grant of summary judgment to the landowner. The Appellate Division reversed and granted summary judgment to the DEC, holding that prior actions of the town planning board and landowner could not operate to estop the DEC from exercising its power to protect tiger salamanders.

In 1988, the landowner's predecessor sought approval to build 116 homes on a 100-acre tract. The application prompted SEQRA review, during which the DEC acted as an “involved agency.” In 1998, the town board, acting as “lead agency” under SEQRA, certified that the project satisfied SEQRA requirements so long as the landowner took specified steps to mitigate environmental damage. One mitigation measure, recommended by the DEC, required that 50% of the land located within 1000 feet of a pond on the site would be left undisturbed. This mitigation measure was designed to ameliorate any adverse impact on tiger salamanders. Then, in 2000, the town planning board issued a final conditional approval of the project, and the landowner spent considerable time and money satisfying the conditions. Soon after the landowner began construction, the DEC brought this action to enjoin the landowner from engaging in any activities within 1000 feet of the pond without obtaining an “Endangered Species Permit.” The DEC alleged that if construction were to proceed without a permit, the tiger salamanders would be killed by construction vehicles or die as a result of destruction of their natural habitat. The Supreme Court granted summary judgment to the landowner, concluding that the DEC should have been precluded from requiring the Endangered Species Permit because the welfare of the salamanders was considered during the environmental review.

In reversing, the Appellate Division held that the provisions of SEQRA do not change the jurisdiction of the DEC. The court went on to note that state agencies cannot generally be estopped from performing governmental functions. Then, after searching the record, the court found no triable issue of fact about whether construction would result in an illegal “taking” of tiger salamanders. As a result, DEC was entitled to summary judgment.

Actions of Planning Board Do Not Estop DEC

State v. White Oak Co.

LLC, NYLJ 12/21/04, p. 27, col. 3

AppDiv, Second Dept

(memorandum opinion)

In an action by the state Department of Environmental Conservation (DEC) to enjoin a landowner from conducting any activities that would kill or disturb tiger salamanders, the DEC appealed from the Supreme Court's grant of summary judgment to the landowner. The Appellate Division reversed and granted summary judgment to the DEC, holding that prior actions of the town planning board and landowner could not operate to estop the DEC from exercising its power to protect tiger salamanders.

In 1988, the landowner's predecessor sought approval to build 116 homes on a 100-acre tract. The application prompted SEQRA review, during which the DEC acted as an “involved agency.” In 1998, the town board, acting as “lead agency” under SEQRA, certified that the project satisfied SEQRA requirements so long as the landowner took specified steps to mitigate environmental damage. One mitigation measure, recommended by the DEC, required that 50% of the land located within 1000 feet of a pond on the site would be left undisturbed. This mitigation measure was designed to ameliorate any adverse impact on tiger salamanders. Then, in 2000, the town planning board issued a final conditional approval of the project, and the landowner spent considerable time and money satisfying the conditions. Soon after the landowner began construction, the DEC brought this action to enjoin the landowner from engaging in any activities within 1000 feet of the pond without obtaining an “Endangered Species Permit.” The DEC alleged that if construction were to proceed without a permit, the tiger salamanders would be killed by construction vehicles or die as a result of destruction of their natural habitat. The Supreme Court granted summary judgment to the landowner, concluding that the DEC should have been precluded from requiring the Endangered Species Permit because the welfare of the salamanders was considered during the environmental review.

In reversing, the Appellate Division held that the provisions of SEQRA do not change the jurisdiction of the DEC. The court went on to note that state agencies cannot generally be estopped from performing governmental functions. Then, after searching the record, the court found no triable issue of fact about whether construction would result in an illegal “taking” of tiger salamanders. As a result, DEC was entitled to summary judgment.