Landlord & Tenant

Supreme Ct., Nassau Cty

(Bucaria, J.)

In an article 78 proceeding, landowner challenged a zoning amendment enacted by the village as violative of the State Environmental Quality Review Act (SEQRA). The court granted the petition and invalidated the amendment, concluding that the village had improperly segmented environmental review of two related redevelopment projects.

The Village of Great Neck sought to redevelop 27 acres currently improved with commercial and industrial uses, including two sewage treatment plants, into a residential community with a park and promenade along Manhasset Bay. To accomplish the redevelopment, the village enacted two local laws, each of which amended the existing zoning ordinance. One created a new Waterfront Development District, and rezoned an existing industrial district into the new waterfront residential district. The second created a new Mixed Use District, and rezoned an existing business district into the mixed use district. The village board designated itself the lead agency for purposes of conducting SEQRA review, and commissioned a Draft Generic Environmental Impact Statement (DGEIS). The DGEIS included potentially inconsistent data about sewage treatment for the proposed redevelopment. First, the village planner referred to a letter from the Great Neck Water Pollution Control District indicating that the district's facilities could handle the sewage from the project. At the same time, the planner also indicated that one of the benefits of the proposed redevelopment would be relocation of the existing sewage treatment facilities. Site plans included in the DGEIS showed the replacement of a sewage treatment plant and its replacement with residential and retail space.

At a public hearing on the zoning amendments, the village mayor indicated that the development plan would not go forward without diversion of the existing sewage facilities. At a subsequent public hearing, however, the village attorney, in response to a question, answered that the rezoning was separate from the diversion of sewage facilities, and that the public hearing was solely on the rezoning, not on the diversion. After the public hearings, a final DGEIS was prepared, and took the position that the diversion project was a separate project that need not be considered in conjunction with the rezoning. The village board then adopted the zoning amendments, and landowner Wald-baum, owner of a 24-acre tract previously located in the industrial district, brought this article 78 proceeding, contending that the village had failed to comply with SEQRA by improperly segmenting its environmental review, and by failing to take a hard look at a variety of environmental issues.

In granting the petition, the court relied on the mayor's statements that diversion of the sewage was key to the redevelopment, and on the conceptual site plan that required showed relocation of the existing sewage plants. Based on these data, the court concluded that the village was not entitled to segment its environmental review, and was required to consider potential impact of relocating the sewage plants in its consideration of the impact of the zoning amendments. The court also held that the village had failed to take the requisite 'hard look' at the impact of noxious sewage odors on potential residential development, on the impact of the development on water quality in Long Island Sound, and on soil and groundwater contamination. As a result, the court invalidated the challenged rezoning of the industrial district.

COMMENT

Regulation 6 NYCRR 617.3(g) prohibits segmentation when conducting an environmental review under the State Environmental Quality Review Act (SEQRA). 6 NYCRR 617.2(ag) defines segmentation as 'the division of the environmental review of an action such that various activities or stages are addressed ' as though they were independent, unrelated activities, needing individual determinations of significance.'

Courts are more likely to reject a claim that an environmental review was inadequate for improper segmentation where the projects are planned separately, the completion of the different segments are not interdependent, and where there is doubt that the remaining segments will be completed. For example, Forman v. Trustees of State University of New York, 303 A.D.2d 1019, held that environmental review of a single student housing project was adequate even though the planning board failed to review the cumulative effect of five proposed housing projects. The court held that there was no evidence that the five projects were part of a cumulative development plan. Rather, since each segment was to be built independent of the construction of the others, the reviewed segment was not integral to the project as a whole. Similarly, in Village of Tarrytown v. Planning Board of Village of Sleepy Hollow, 292 A.D.2d 617, the court determined that the village planning board properly conducted an environmental review of a single segment when there was uncertainty as to whether the rest of the project would be developed. After a developer purchased five parcels in Tarrytown and one in neighboring Sleepy Hollow, the Tarrytown Board of Trustees enacted a building moratorium on new construction. The developer sought environmental review on the Sleepy Hollow parcel alone and received approval to develop it. The court determined that the Sleepy Hollow planning board was not in violation of SEQRA's requirement for cumulative review. Since plans to develop the Tarrytown parcels were speculative and hypothetical, the Sleepy Hollow parcel was not part of the larger, unified project.

In contrast, where the segment under review is an integral part of a long-term unreviewed future project, courts will require environmental review of the entire project before approval of the initial segment. In Teich v. Buchheit, 221 A.D.2d 452, the Appellate Division held that the village planning board's failure to consider the cumulative environmental impact of a hospital's long-range expansion plans rendered inadequate the board's environmental review of the hospital's proposed construction of a parking lot. The court relied on evidence from various hospital publications suggesting that the lot was an integral part of the long-range expansion plans. Similarly, the court in Sun Co., Inc. v. City of Syracuse Indus. Development Agency, 209 A.D.2d 34, invalidated environmental review of a proposed mall, which was to be part of the larger unreviewed Lakefront Area Project. The Draft Environmental Impact Statement for the mall acknowledged that construction of the mall would advance plans for the rest of the lakefront. In addition, the Lakefront Office Director stated that the mall was an integral component in the development of the Lakefront Area. Because this evidence showed that the mall was integral in the future development, the court found that the projects were 'reasonably related' and that the development agency's failure to review the cumulative effect of all development phases of the project constituted improper segmentation.

Challenge to Site Plan Approval

Matter of Falco Realty Inc. v. Town of Poughkeepsie Planning Board

NYLJ 3/1/06, p. 21, col. 1

Supreme Ct., Westchester Cty

(Lippman, J.)

Neighbors brought an article 78 proceeding challenging the planning board's site plan approval of a proposed Construction and Demolition Facility. The court dismissed the petition, concluding that the planning board's determination was rational and supported by substantial evidence.

The subject property is located in an area zoned for heavy industrial uses, and has been used as a ready-mix concrete plant. Landowner seeks to convert the property's use to a Construction and Demolition Facility, and sought site plan approval for the facility. Neighbor, who owns a 138-unit residential apartment complex 600 feet from landowner's parcel, contends that the facility will reduce property values, create traffic congestion, and create other noxious conditions. The State Department of Environmental Conservation, however, issued a negative declaration, finding that because of the historical heavy industrial use of the parcel, there would be minimal additional disturbance of the site. The Planning Board then granted final site plan approval, finding that the facility complied with the requirements of the town zoning code's standards for site plan approval. Neighbor then brought this proceeding.

In dismissing the proceeding, the court noted that neighbor had produced no expert or empirical evidence to controvert evidence in the record before the planning board. Instead, the court emphasized that the neighbor's complaints were 'generalized community objections' insufficient to rebut expert evidence submitted in support of site plan approval.

Village Improperly Segmented Environmental Review

Waldbaum, Inc. v. Incorporated Village of Great Neck

NYLJ 1/20/06, p. 22, col. 3

Supreme Ct., Nassau Cty

(Bucaria, J.)

In an article 78 proceeding, landowner challenged a zoning amendment enacted by the village as violative of the State Environmental Quality Review Act (SEQRA). The court granted the petition and invalidated the amendment, concluding that the village had improperly segmented environmental review of two related redevelopment projects.

The Village of Great Neck sought to redevelop 27 acres currently improved with commercial and industrial uses, including two sewage treatment plants, into a residential community with a park and promenade along Manhasset Bay. To accomplish the redevelopment, the village enacted two local laws, each of which amended the existing zoning ordinance. One created a new Waterfront Development District, and rezoned an existing industrial district into the new waterfront residential district. The second created a new Mixed Use District, and rezoned an existing business district into the mixed use district. The village board designated itself the lead agency for purposes of conducting SEQRA review, and commissioned a Draft Generic Environmental Impact Statement (DGEIS). The DGEIS included potentially inconsistent data about sewage treatment for the proposed redevelopment. First, the village planner referred to a letter from the Great Neck Water Pollution Control District indicating that the district's facilities could handle the sewage from the project. At the same time, the planner also indicated that one of the benefits of the proposed redevelopment would be relocation of the existing sewage treatment facilities. Site plans included in the DGEIS showed the replacement of a sewage treatment plant and its replacement with residential and retail space.

At a public hearing on the zoning amendments, the village mayor indicated that the development plan would not go forward without diversion of the existing sewage facilities. At a subsequent public hearing, however, the village attorney, in response to a question, answered that the rezoning was separate from the diversion of sewage facilities, and that the public hearing was solely on the rezoning, not on the diversion. After the public hearings, a final DGEIS was prepared, and took the position that the diversion project was a separate project that need not be considered in conjunction with the rezoning. The village board then adopted the zoning amendments, and landowner Wald-baum, owner of a 24-acre tract previously located in the industrial district, brought this article 78 proceeding, contending that the village had failed to comply with SEQRA by improperly segmenting its environmental review, and by failing to take a hard look at a variety of environmental issues.

In granting the petition, the court relied on the mayor's statements that diversion of the sewage was key to the redevelopment, and on the conceptual site plan that required showed relocation of the existing sewage plants. Based on these data, the court concluded that the village was not entitled to segment its environmental review, and was required to consider potential impact of relocating the sewage plants in its consideration of the impact of the zoning amendments. The court also held that the village had failed to take the requisite 'hard look' at the impact of noxious sewage odors on potential residential development, on the impact of the development on water quality in Long Island Sound, and on soil and groundwater contamination. As a result, the court invalidated the challenged rezoning of the industrial district.

COMMENT

Regulation 6 NYCRR 617.3(g) prohibits segmentation when conducting an environmental review under the State Environmental Quality Review Act (SEQRA). 6 NYCRR 617.2(ag) defines segmentation as 'the division of the environmental review of an action such that various activities or stages are addressed ' as though they were independent, unrelated activities, needing individual determinations of significance.'

Courts are more likely to reject a claim that an environmental review was inadequate for improper segmentation where the projects are planned separately, the completion of the different segments are not interdependent, and where there is doubt that the remaining segments will be completed. For example, Forman v. Trustees of State University of New York, 303 A.D.2d 1019, held that environmental review of a single student housing project was adequate even though the planning board failed to review the cumulative effect of five proposed housing projects. The court held that there was no evidence that the five projects were part of a cumulative development plan. Rather, since each segment was to be built independent of the construction of the others, the reviewed segment was not integral to the project as a whole. Similarly, in Village of Tarrytown v. Planning Board of Village of Sleepy Hollow, 292 A.D.2d 617, the court determined that the village planning board properly conducted an environmental review of a single segment when there was uncertainty as to whether the rest of the project would be developed. After a developer purchased five parcels in Tarrytown and one in neighboring Sleepy Hollow, the Tarrytown Board of Trustees enacted a building moratorium on new construction. The developer sought environmental review on the Sleepy Hollow parcel alone and received approval to develop it. The court determined that the Sleepy Hollow planning board was not in violation of SEQRA's requirement for cumulative review. Since plans to develop the Tarrytown parcels were speculative and hypothetical, the Sleepy Hollow parcel was not part of the larger, unified project.

In contrast, where the segment under review is an integral part of a long-term unreviewed future project, courts will require environmental review of the entire project before approval of the initial segment. In Teich v. Buchheit, 221 A.D.2d 452, the Appellate Division held that the village planning board's failure to consider the cumulative environmental impact of a hospital's long-range expansion plans rendered inadequate the board's environmental review of the hospital's proposed construction of a parking lot. The court relied on evidence from various hospital publications suggesting that the lot was an integral part of the long-range expansion plans. Similarly, the court in Sun Co., Inc. v. City of Syracuse Indus. Development Agency, 209 A.D.2d 34, invalidated environmental review of a proposed mall, which was to be part of the larger unreviewed Lakefront Area Project. The Draft Environmental Impact Statement for the mall acknowledged that construction of the mall would advance plans for the rest of the lakefront. In addition, the Lakefront Office Director stated that the mall was an integral component in the development of the Lakefront Area. Because this evidence showed that the mall was integral in the future development, the court found that the projects were 'reasonably related' and that the development agency's failure to review the cumulative effect of all development phases of the project constituted improper segmentation.

Challenge to Site Plan Approval

Matter of Falco Realty Inc. v. Town of Poughkeepsie Planning Board

NYLJ 3/1/06, p. 21, col. 1

Supreme Ct., Westchester Cty

(Lippman, J.)

Neighbors brought an article 78 proceeding challenging the planning board's site plan approval of a proposed Construction and Demolition Facility. The court dismissed the petition, concluding that the planning board's determination was rational and supported by substantial evidence.

The subject property is located in an area zoned for heavy industrial uses, and has been used as a ready-mix concrete plant. Landowner seeks to convert the property's use to a Construction and Demolition Facility, and sought site plan approval for the facility. Neighbor, who owns a 138-unit residential apartment complex 600 feet from landowner's parcel, contends that the facility will reduce property values, create traffic congestion, and create other noxious conditions. The State Department of Environmental Conservation, however, issued a negative declaration, finding that because of the historical heavy industrial use of the parcel, there would be minimal additional disturbance of the site. The Planning Board then granted final site plan approval, finding that the facility complied with the requirements of the town zoning code's standards for site plan approval. Neighbor then brought this proceeding.

In dismissing the proceeding, the court noted that neighbor had produced no expert or empirical evidence to controvert evidence in the record before the planning board. Instead, the court emphasized that the neighbor's complaints were 'generalized community objections' insufficient to rebut expert evidence submitted in support of site plan approval.