Development

In affirming, the Appellate Division noted that to prevail on a proceeding in the nature of mandamus, a petitioner must establish that a governmental official failed to perform a ministerial duty. The court then noted that nothing in the town code obligated the building inspector to issue a formal determination with respect to every complaint that comes before him. Because the condominium association did not have a clear legal right to the issuance of a formal determination, the association was not entitled to mandamus relief. Similarly, the ZBA had no legal duty to consider the merits of an application to review the building inspector's failure to issue a formal determination. As a result, Supreme Court properly dismissed the association's article 78 proceeding.

Town May Not Classify Actions As Type I When SEQRA Classifies Them As TYPE II
Miranda Holdings, Inc. v. Town Board of Town of Orchard Park
152 A.D.3d 1234 (AppDiv, Fourth Dept.)
(memorandum opinion)

In landowner's hybrid article 78 proceeding and declaratory judgment action challenging a local law and a SEQRA determination, the town appealed from Supreme Court's judgment declaring the local law invalid as inconsistent with SEQRA and overturning the town's SEQRA determination. The Appellate Division modified to remit to the town board for a new SEQRA determination, and otherwise affirmed, holding that the town could not classify actions as Type I when SEQRA classifies those actions as Type II.

Landowner sought site plan approval for construction of a commercial structure including a Tim Horton's restaurant with a drive-through window. The Town Board classified the project as an unlisted action under SEQRA, and requested that landowner prepare a draft environmental impact statement (DEIS). Landowner requested that the town reclassify the project as a Type II action under SEQRA, obviating the need for a DEIS. The town then enacted a local law providing that projects with drive-through windows would be designated as Type I actions under SEQRA, and then adopted a resolution designating landowner's project as a Type I action, requiring a DEIS. Landowner then brought this action challenging the local law and seeking a determination that the designation as a Type I action was invalid. Supreme Court awarded judgment to landowner, invalidating the local law and determining that the project is a Type II action. The town appealed.

In modifying , the Appellate Division first concluded that the declaratory judgment challenge had been timely commenced because it was subject to a six-year statute of limitations. Turning to the merits, the court held that even though SEQRA regulations do not explicitly include a restaurant with a drive-through window as a Type II action, the Department of Environmental Conservation intended that these restaurants be treated as Type II actions. As a result, the court concluded that the town's local law was invalid as inconsistent with SEQRA. Because classification of the project as a Type I action was based on the invalid statute, the court also held that the classification was invalid. The court modified, however, because it concluded that Supreme Court had improperly determined that the project was a Type II action without affording the board an opportunity for revised review.

COMMENT

The State Environmental Quality Review Act (SEQRA) authorizes local governments to expand the range of Type I actions beyond those classified as Type I actions under SEQRA (6 NYCRR 617.4), but local governments “may not designate as Type I any action identified as Type II in section 617.5.” Id.

A local government can enact a local law to include a broad range of actions as Type I actions so long as the local law contains qualified language that has the limiting effect of excluding any Type II actions under SEQRA. For example, in Harley Rendezvous, Inc. v. Town of Duanesburg Zoning Bd. of Appeals, 502 N.Y.S.2d 599, the town board enacted a local ordinance to classify as Type I actions all “[a]ctions requiring approval of the Zoning Board of Appeals.” Id. at 603. Although some actions requiring ZBA approval might have been Type II actions under SEQRA, the court upheld the ordinance because it contained qualified language indicating that it was enacted “[c]onsistent with Part 617 of Title 6 NYCRR and the criteria therein.” Id. The court held that the town ordinance was consistent with SEQRA because the qualified language effectively limited the Type I actions under the local ordinance to those requiring the Board's approval but not specified in the Type II action list under SEQRA. Id.

Planning Board's Failure to Require SEIS Overturned
Matter of Green Earth Farms Rockland, LLC v. Town of Haverstraw Planning Board
NYLJ 8/25/17, p. 31, col. 2
AppDiv Second Dept.
(memorandum opinion)

In neighbors' article 78 proceeding challenging the planning board's failure to require a supplemental environmental impact statement (SEIS), the planning board appealed from Supreme Court's grant of the petition. The Appellate Division modified to dismiss the petition with respect to a neighbor who lacked standing, and otherwise affirmed, holding that the planning board failed to take the requisite hard look at a change in the project.

Developer sought site plan approval and a zoning amendment for a proposed mixed use development of a 53.3 acre parcel located in the adjacent towns of Haverstraw and Ramapo. The Town of Haverstraw Planning Board was designated as lead agency for SEQRA purposes. Developer prepared a draft environmental impact statement (DEIS) for the project in 2006, and subsequently changed the project to eliminate residential development in the Town of Haverstraw to avoid the need for the zoning amendment.

The planning board required, and the developer prepared, an SEIS for the revised project, and, in 2009, the planning board adopted a findings statement certifying that the plan minimized environmental impact. The plan included residential development and a deli/coffee shop in the Town of Ramapo.

In 2012, a new owner, who acquired the property from the original developer, applied for site plan approval for the commercial phases of the project, but the deli/coffee shop in the Town of Ramapo had been changed to include 16 gas pumps and a 7,000 square-foot convenience store. The planning board concluded that the change did not require a second SEIS, and the board granted site plan approval.

Neighboring residential and commercial owners brought this proceeding, challenging the determination that a second SEIS was not warranted, and challenging the grant of site plan approval. Supreme Court granted the petition and annulled the determinations. The town planning board appealed.

In modifying, the Appellate Division first concluded that the commercial owners, all of whom owned or leased property within 500 feet of the site of the proposed development, had standing because they were entitled to an inference of injury in fact by virtue of their proximity to the development. But the court held that Supreme Court should have dismissed the petition with respect to a residential owner who lived more than 2000 feet from the project and who failed to demonstrate that he would suffer any environmental injury different from the public at large. Turning to the merits of the SEQRA determination, the court conceded that a lead agency's decision to require an SEIS is discretionary, but held that the Planning Board's failure to even mention the proposed gas station in its decision that a second SEIS was unnecessary established a lack of reasoned elaboration of the basis for the board's decision.