Development

SEQRA Does Not Require Examination of All Issues Identified in Scoping Session

Matter of Save the Pine Bush Inc. v. Common Council of the City of Albany

NYLJ 10/28/09, p. 25, col. 3

Court of Appeals

(Opinion by Smith, J; concurring opinion by Pigott, J.)

In an article 78 proceeding challenging a zoning amendment as a violation of the State Environmental Quality Review Act (SEQRA), the city appealed from the Appellate Division's affirmance of Supreme Court's grant of the petition. The Court of Appeals reversed and dismissed the petition, agreeing with the courts below that individuals and an environmental organization had standing to challenge the city's determination, but concluding that the city had complied with SEQRA even though it did not scrutinize the environmental impact of the amendment on certain rare species.

Landowner sought to build a hotel on a 3.6-acre parcel zoned for residential use. The parcel had been used as a parking lot, and adjacent parcels were occupied by shopping malls and office buildings. The parcel was near a habitat of the endangered Karner Blue butterfly. The city determined that the rezoning required preparation of an environmental impact statement (EIS), and the city's draft scoping checklist indicated that the EIS would consider impact on the butterfly. In response to the checklist, the state Department of Environmental Conservation wrote a letter asking that the city also consider the amendment's impact on two species of snake and one of toad. The city's draft EIS considered a variety of subjects, including impact on the Karner Blue butterfly. Included in the DEIS was a report by a biologist who had repeatedly visited the site and had been unable to find any Karner Blue butterflies. During public comment, no one raised concerns, or even mentioned, the snake and toad species. The city then approved the final EIS, and approved the zoning amendment. Save the Pine Bush (an environmental organization) and nine of its members then brought this article 78 proceeding challenging the city's environmental review of the proposed amendment. Petitioners alleged that they live near the site and use the Pine Bush for recreation and to study the unique habitat. Supreme Court concluded that the petitioners had standing, and on the merits concluded the that the EIS was flawed because it did not take a “hard look” at the project's impact on the snake and toad species.

A divided Appellate Division affirmed; the dissenters would have dismissed the proceeding for lack of standing. The city appealed.

In reversing, the Court of Appeals first held that the petitioners had standing because they had demonstrated that they used an affected resource ' the Pine Bush ' more than the general public. The court emphasized that it was highly likely that members of an organization called “Save the Pine Bush” are people who frequently visit and enjoy the Pine Bush. The court rejected the city's argument that only immediate neighbors should have standing to challenge the determination, observing that the immediate neighbors were owners and occupants of shopping centers and office buildings, who were likely to have fewer concerns about the environmental impact of the project than would persons who come from some distance away. Turning to the merits, however, the Court of Appeals rejected the implicit assumption of the courts below that the city was required to examine all environmental problems brought to the city's attention.

The court held instead that an agency complying with SEQRA may, within reasonable limits, use its discretion in selecting which issues are relevant. The court emphasized the absence of any comment on the omission of the snake and toad species from the draft EIS, and noted that even petitioners' brief indicated that the species are difficult to identify because they spend much of their time underground. The court emphasized the need to use common sense in evaluating compliance with SEQRA, and noted that with a relatively small project in a commercial area, the city's failure to investigate some matters of doubtful relevance should not prolong the process further.

Judge Pigott, concurring for himself and Judge Read, argued that the majority had construed too broadly the special harm requirement for SEQRA standing. He noted that petitioners had not alleged that they used the project site for any purpose, and that the site has no recreational value. He argued that the appropriate place for petitioners to voice their concern was before the “lead agency,” not before a court.

Applicant's Deceit Relevant In Determining Self-Created Hardship

Matter of Caspian Realty Inc. v. Zoning Board of Appeals

NYLJ 10/13/09, p. 19, col. 1

AppDiv, Second Dept.

(Opinion by Dillon, J.)

In landowner's article 78 proceeding to renew denial of its application for area variances, the zoning board of appeals (ZBA) appealed from Supreme Court's grant of the petition. The Appellate Division reversed, agreeing with Supreme Court that the ZBA was not entitled to rely on landowner's deceit as a ground for denying the variance, but holding that the ZBA had properly balanced the statutory factors in denying the area variance.

In 2000, landowner sought site plan approval for a proposed furniture store. The application was for a main floor showroom and a cellar. If the cellar had been included as retail space, the store would have nearly doubled the permissible floor area ration (FAR) for the site, and would required nearly twice the number of parking spaces landowner proposed. When the planning board inquired about landowner's intended use of the cellar, landowner advised the board that the cellar would be used for storage and mechanicals only. Landowner obtained site plan approval. When a town building inspector noticed improvements, including moldings, carpeting, and partitions, being made to the cellar, the town requested, and landowner provided, further revised plans expressly designating the cellar for storage. Nevertheless, when landowner opened the store, landowner began using the cellar as showroom space, and the town charged landowner with a violation. Landowner then applied to the ZBA for variances from the FAR and parking requirements of the zoning ordinance. The ZBA denied the variances, emphasizing landowner's deceit, but also focusing on the statutory factors listed in Town Law section 267-b(3), and noting that the retail use of the cellar had burdened neighbors in terms of noise and traffic, that the variances would be substantial and that any hardship was self-created as a result of landowner's deceitful conduct Landowner then brought this article 78 proceeding, and Supreme Court granted the petition, holding that landowner's deceit was not a permissible basis for denying an area variance. The ZBA appealed.

In reversing, the Appellate Division agreed with Supreme Court that when the legislature enacted section 267-b(3) (and Village Law section 7-712-b(3)), the legislature intended that the area variance factors listed in those statutes were to be the exclusive factors a zoning board of appeals could consider. As a result, a ZBA may not use an applicant's deceit as a basis for denying an application. But the Appellate Division noted that in this case, the ZBA had adequately relied on other statutory factors to deny the area variance. In particular, the court emphasized the substantiality of the variance and the fact that any hardship was self-created. As a result, the court concluded that Supreme Court should have deferred to the ZBA's balancing of the factors, and should therefore have denied the petition.

COMMENT

In Cohen v. Board of Appeals, 100 NY2d 395, the Court of Appeals construed the 1992 amendments to Village Law ' 7-712-b (3) (amendments parallel to Town Law section 267-b(3)) to bar towns and villages from enacting or applying variance standards different from those specified in the state statute. The court overturned the ZBA's denial of area variances, where the ZBA failed to consider the factors in Village Law ' 7-712-b (3), but rather based its determination on a “practical difficulties” standard set forth in the local village code.

Prior to the 1992 amendments, several cases held that a ZBA could deny an area variance based on an applicant's deceit. In Ostroff v. Sacks, 64 AD2d 708, the court upheld the denial of an area variance where it was manifest that the applicants had affirmatively misrepresented their intentions to the ZBA in seeking the variance. Misrepresentation is not, however, one of the factors enumerated under Town Law ' 267-b(3). Although the court in Caspian Realty suggested that deceit might be relevant to the finding of a self-created hardship (one of the enumerated factors), self-created hardship, standing alone, is insufficient to justify the denial of an area variance. Thus, in Matter of Easy Home Program v. Trotta, 276 AD2d 553, the court held a ZBA's denial of an area variance to be arbitrary and capricious, despite the fact that the developers' difficulty was self-created and the requested variance was substantial. Trotta, 276 A.D.2d 553. If self-created hardship is not by itself sufficient to justify denial of an area variance, deceit would not be sufficient either in light of the Caspian court's construction of the 1992 amendments.

As a result, a municipality can safely rely on deceit as a ground for denying an area variance only when it can point to some other factors to support its determination., For instance, in Matter of Merlotto v. Town of Patterson, 43 AD3d 926, the court upheld the ZBA's denial of an area variance to an applicant who had misrepresented to the ZBA that he would conform to the conditions of a previously granted area variance. But the court upheld the determination because the ZBA considered all five of the factors it was required to consider, noted that the requested area variance was substantial, and found that there was a self-created difficulty.

SEQRA Does Not Require Examination of All Issues Identified in Scoping Session

Matter of Save the Pine Bush Inc. v. Common Council of the City of Albany

NYLJ 10/28/09, p. 25, col. 3

Court of Appeals

(Opinion by Smith, J; concurring opinion by Pigott, J.)

In an article 78 proceeding challenging a zoning amendment as a violation of the State Environmental Quality Review Act (SEQRA), the city appealed from the Appellate Division's affirmance of Supreme Court's grant of the petition. The Court of Appeals reversed and dismissed the petition, agreeing with the courts below that individuals and an environmental organization had standing to challenge the city's determination, but concluding that the city had complied with SEQRA even though it did not scrutinize the environmental impact of the amendment on certain rare species.

Landowner sought to build a hotel on a 3.6-acre parcel zoned for residential use. The parcel had been used as a parking lot, and adjacent parcels were occupied by shopping malls and office buildings. The parcel was near a habitat of the endangered Karner Blue butterfly. The city determined that the rezoning required preparation of an environmental impact statement (EIS), and the city's draft scoping checklist indicated that the EIS would consider impact on the butterfly. In response to the checklist, the state Department of Environmental Conservation wrote a letter asking that the city also consider the amendment's impact on two species of snake and one of toad. The city's draft EIS considered a variety of subjects, including impact on the Karner Blue butterfly. Included in the DEIS was a report by a biologist who had repeatedly visited the site and had been unable to find any Karner Blue butterflies. During public comment, no one raised concerns, or even mentioned, the snake and toad species. The city then approved the final EIS, and approved the zoning amendment. Save the Pine Bush (an environmental organization) and nine of its members then brought this article 78 proceeding challenging the city's environmental review of the proposed amendment. Petitioners alleged that they live near the site and use the Pine Bush for recreation and to study the unique habitat. Supreme Court concluded that the petitioners had standing, and on the merits concluded the that the EIS was flawed because it did not take a “hard look” at the project's impact on the snake and toad species.

A divided Appellate Division affirmed; the dissenters would have dismissed the proceeding for lack of standing. The city appealed.

In reversing, the Court of Appeals first held that the petitioners had standing because they had demonstrated that they used an affected resource ' the Pine Bush ' more than the general public. The court emphasized that it was highly likely that members of an organization called “Save the Pine Bush” are people who frequently visit and enjoy the Pine Bush. The court rejected the city's argument that only immediate neighbors should have standing to challenge the determination, observing that the immediate neighbors were owners and occupants of shopping centers and office buildings, who were likely to have fewer concerns about the environmental impact of the project than would persons who come from some distance away. Turning to the merits, however, the Court of Appeals rejected the implicit assumption of the courts below that the city was required to examine all environmental problems brought to the city's attention.

The court held instead that an agency complying with SEQRA may, within reasonable limits, use its discretion in selecting which issues are relevant. The court emphasized the absence of any comment on the omission of the snake and toad species from the draft EIS, and noted that even petitioners' brief indicated that the species are difficult to identify because they spend much of their time underground. The court emphasized the need to use common sense in evaluating compliance with SEQRA, and noted that with a relatively small project in a commercial area, the city's failure to investigate some matters of doubtful relevance should not prolong the process further.

Judge Pigott, concurring for himself and Judge Read, argued that the majority had construed too broadly the special harm requirement for SEQRA standing. He noted that petitioners had not alleged that they used the project site for any purpose, and that the site has no recreational value. He argued that the appropriate place for petitioners to voice their concern was before the “lead agency,” not before a court.

Applicant's Deceit Relevant In Determining Self-Created Hardship

Matter of Caspian Realty Inc. v. Zoning Board of Appeals

NYLJ 10/13/09, p. 19, col. 1

AppDiv, Second Dept.

(Opinion by Dillon, J.)

In landowner's article 78 proceeding to renew denial of its application for area variances, the zoning board of appeals (ZBA) appealed from Supreme Court's grant of the petition. The Appellate Division reversed, agreeing with Supreme Court that the ZBA was not entitled to rely on landowner's deceit as a ground for denying the variance, but holding that the ZBA had properly balanced the statutory factors in denying the area variance.

In 2000, landowner sought site plan approval for a proposed furniture store. The application was for a main floor showroom and a cellar. If the cellar had been included as retail space, the store would have nearly doubled the permissible floor area ration (FAR) for the site, and would required nearly twice the number of parking spaces landowner proposed. When the planning board inquired about landowner's intended use of the cellar, landowner advised the board that the cellar would be used for storage and mechanicals only. Landowner obtained site plan approval. When a town building inspector noticed improvements, including moldings, carpeting, and partitions, being made to the cellar, the town requested, and landowner provided, further revised plans expressly designating the cellar for storage. Nevertheless, when landowner opened the store, landowner began using the cellar as showroom space, and the town charged landowner with a violation. Landowner then applied to the ZBA for variances from the FAR and parking requirements of the zoning ordinance. The ZBA denied the variances, emphasizing landowner's deceit, but also focusing on the statutory factors listed in Town Law section 267-b(3), and noting that the retail use of the cellar had burdened neighbors in terms of noise and traffic, that the variances would be substantial and that any hardship was self-created as a result of landowner's deceitful conduct Landowner then brought this article 78 proceeding, and Supreme Court granted the petition, holding that landowner's deceit was not a permissible basis for denying an area variance. The ZBA appealed.

In reversing, the Appellate Division agreed with Supreme Court that when the legislature enacted section 267-b(3) (and Village Law section 7-712-b(3)), the legislature intended that the area variance factors listed in those statutes were to be the exclusive factors a zoning board of appeals could consider. As a result, a ZBA may not use an applicant's deceit as a basis for denying an application. But the Appellate Division noted that in this case, the ZBA had adequately relied on other statutory factors to deny the area variance. In particular, the court emphasized the substantiality of the variance and the fact that any hardship was self-created. As a result, the court concluded that Supreme Court should have deferred to the ZBA's balancing of the factors, and should therefore have denied the petition.

COMMENT

In Cohen v. Board of Appeals , 100 NY2d 395, the Court of Appeals construed the 1992 amendments to Village Law ' 7-712-b (3) (amendments parallel to Town Law section 267-b(3)) to bar towns and villages from enacting or applying variance standards different from those specified in the state statute. The court overturned the ZBA's denial of area variances, where the ZBA failed to consider the factors in Village Law ' 7-712-b (3), but rather based its determination on a “practical difficulties” standard set forth in the local village code.

Prior to the 1992 amendments, several cases held that a ZBA could deny an area variance based on an applicant's deceit. In Ostroff v. Sacks , 64 AD2d 708, the court upheld the denial of an area variance where it was manifest that the applicants had affirmatively misrepresented their intentions to the ZBA in seeking the variance. Misrepresentation is not, however, one of the factors enumerated under Town Law ' 267-b(3). Although the court in Caspian Realty suggested that deceit might be relevant to the finding of a self-created hardship (one of the enumerated factors), self-created hardship, standing alone, is insufficient to justify the denial of an area variance. Thus, in Matter of Easy Home Program v. Trotta , 276 AD2d 553, the court held a ZBA's denial of an area variance to be arbitrary and capricious, despite the fact that the developers' difficulty was self-created and the requested variance was substantial. Trotta, 276 A.D.2d 553. If self-created hardship is not by itself sufficient to justify denial of an area variance, deceit would not be sufficient either in light of the Caspian court's construction of the 1992 amendments.

As a result, a municipality can safely rely on deceit as a ground for denying an area variance only when it can point to some other factors to support its determination., For instance, in Matter of Merlotto v. Town of Patterson, 43 AD3d 926, the court upheld the ZBA's denial of an area variance to an applicant who had misrepresented to the ZBA that he would conform to the conditions of a previously granted area variance. But the court upheld the determination because the ZBA considered all five of the factors it was required to consider, noted that the requested area variance was substantial, and found that there was a self-created difficulty.