Development

Challenge to Positive SEQRA Determination Not Ripe

Matter of Ranco Sand and Stone Corp. v. Vecchio

NYLJ 12/2/14, p. 23, col. 1

AppDiv, Second Dept.

(Opinion by Dickerson, J.)

In landowner's article 78 proceeding, landowner appealed from Supreme Court's order and judgment dismissing, on ripeness grounds, landowner's petition challenging the Town Board's positive SEQRA determination. The Appellate Division affirmed, holding that the expense of preparing and environmental impact statement was not, by itself, sufficient to make landowner's claim ripe for judicial review.

Landowner owns the subject parcel, which has long been leased for use as a bus yard and trucking station. The parcel is in an area zoned for residential purposes. In 2002, landowner applied to have the property rezoned for heavy industrial use. The Town Planning Board recommended approval of the application in 2004, but it then languished for more than five years. In 2009, the Town Board adopted a resolution issuing a positive SEQRA determination on the application, giving a number of reasons, including potential incompatibility with residential uses in the vicinity. Landowner then brought this article 78 proceeding challenging issuance of the positive declaration, emphasizing that the town had earlier rezoned an adjacent parcel, used in conjunction with the subject parcel, without issuing a positive declaration. The town moved to dismiss the proceeding as unripe for judicial review because the town had made no final determination on landowner's application. Landowner appealed.

In affirming, the Appellate Division acknowledged that, in Matter of Gordon v. Rush, 100 N.Y.2d 236, the Court of Appeals had held that in some circumstances, the financial injury imposed by the requirement that landowner prepare an environmental impact statement could itself qualify as a final determination ripe for judicial review. The court noted that in this case, as in Rush , the positive declaration would cause landowner to incur significant time and expense in preparing an EIS, and that, as in Rush, the harm to landowner would not be ameliorated or prevented by any further steps available to landowner. But the court emphasized that in this case, unlike Rush, there had been no environmental review, and the town board has never foregone the opportunity to conduct an environmental review. The court concluded that the circumstances in Rush constituted an exception to the rule requiring finality of administrative action, and held that the exception was not applicable on the facts of this case.

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Challenge to Positive SEQRA Determination Not Ripe

Matter of Ranco Sand and Stone Corp. v. Vecchio

NYLJ 12/2/14, p. 23, col. 1

AppDiv, Second Dept.

(Opinion by Dickerson, J.)

In landowner's article 78 proceeding, landowner appealed from Supreme Court's order and judgment dismissing, on ripeness grounds, landowner's petition challenging the Town Board's positive SEQRA determination. The Appellate Division affirmed, holding that the expense of preparing and environmental impact statement was not, by itself, sufficient to make landowner's claim ripe for judicial review.

Landowner owns the subject parcel, which has long been leased for use as a bus yard and trucking station. The parcel is in an area zoned for residential purposes. In 2002, landowner applied to have the property rezoned for heavy industrial use. The Town Planning Board recommended approval of the application in 2004, but it then languished for more than five years. In 2009, the Town Board adopted a resolution issuing a positive SEQRA determination on the application, giving a number of reasons, including potential incompatibility with residential uses in the vicinity. Landowner then brought this article 78 proceeding challenging issuance of the positive declaration, emphasizing that the town had earlier rezoned an adjacent parcel, used in conjunction with the subject parcel, without issuing a positive declaration. The town moved to dismiss the proceeding as unripe for judicial review because the town had made no final determination on landowner's application. Landowner appealed.

In affirming, the Appellate Division acknowledged that, in Matter of Gordon v. Rush , 100 N.Y.2d 236, the Court of Appeals had held that in some circumstances, the financial injury imposed by the requirement that landowner prepare an environmental impact statement could itself qualify as a final determination ripe for judicial review. The court noted that in this case, as in Rush , the positive declaration would cause landowner to incur significant time and expense in preparing an EIS, and that, as in Rush, the harm to landowner would not be ameliorated or prevented by any further steps available to landowner. But the court emphasized that in this case, unlike Rush, there had been no environmental review, and the town board has never foregone the opportunity to conduct an environmental review. The court concluded that the circumstances in Rush constituted an exception to the rule requiring finality of administrative action, and held that the exception was not applicable on the facts of this case.

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