Development

In reversing, the Appellate Division focused on the proposed development's proximity to the existing Columbia Gas pipeline, which bisects the developer's property. The court noted that the draft environmental impact statement (DEIS) contained only a brief mention of the pipeline, that the gas company was omitted from the list of interested agencies, and that nothing in the town board's determinations indicated that it had considered the pipeline outside the context of the DEIS and the final environmental impact Statement (FEIS). Moreover, the board's findings statement made no mention of the pipeline.

On these facts, the court held that the town board had not taken the requisite hard look at issues relating to the pipeline and had not provided a reasoned elaboration of the basis for its determination on those issues. As a result, the court annulled the board's determination. The court did, however, reject neighbor's spot zoning challenge and neighbor's contention that the amendment was inconsistent with the comprehensive plan. But because the SEQRA determination was a prerequisite to amendment of the comprehensive plan and the zoning amendment, the court annulled all three of the board's resolutions.

Jurisdictional Determination from Army Corps
Matter of Shapiro v. Planning Board
NYLJ 11/9/17, p. 24, col. 2
AppDiv, Second Dept.
(memorandum opinion)

In neighbors' hybrid article 78 proceeding and action for injunctive relief arising out of the planning board's site plan and subdivision approvals, neighbors appealed from Supreme Court's denial of the petition and dismissal of the proceeding. The Appellate Division reversed and granted the petition, holding that the town board had not obtained the requisite jurisdictional determination from the Army Corps of Engineers.

On March 22, 2013, the town planning board granted three applications for final subdivision and site plan approval of a planned housing development. Neighbors challenged the grants, contending that the approvals required a supplementary environmental impact statement (SEIS) because the developer never obtained a jurisdictional determination from the Army Corps validating developer's delineation of wetlands on the property. When Supreme Court denied the petition, neighbors appealed.

In reversing, the Appellate Division noted that both the developer and the Planning Board had relied on a 2007 letter from the Army Corps. That letter, however, never stated that the Corps had reviewed developer's wetlands delineation. Moreover, the letter stated that it was based on developer's proposed 139 home plan, and that if the project were modified in a way that might cause additional impact, additional written authorization would be necessary. The Appellate Division held that developer's subsequent expansion of the project to include 497 units required additional data from the Army Corps.

Moreover, the court noted that under the Army Corps' guidelines, jurisdictional determinations are valid only for five years. Here, the letter on which developer and the planning board relied was prepared more than five years before the Planning Board's determination, requiring a new jurisdictional determination — even if the 2007 letter did, in fact, constitute a jurisdictional determination. The court concluded that developer's failure to obtain the required jurisdictional determination constituted a failure to take a hard look under SEQRA, and therefore required invalidation of the board's action.

Developer Failed to Allege Concrete Injury
Matter of Equine Facility, LLC v. Pavacic
NYLJ 12/1/17, p. 26, col. 2
AppDiv, Second Dept.
(memorandum opinion)

In a hybrid article 78 proceeding/declaratory judgment action challenging a determination by the Central Pine Barrens Joint Planning and Policy Commission that it had jurisdiction over the proposed development, developer appealed from Supreme Court's dismissal of the proceeding and action as premature. The Appellate Division affirmed, holding that developer had failed to allege an actual concrete injury resulting from the commission's determination.

Developer owns 34 acres in Suffolk County's Central Pine Barrens. Developer sought to build 34 units on the parcel, which was previously used as a horse farm, and sought a determination from the commission that the proposed subdivision was not subject to its jurisdiction because the project did not constitute a development within the meaning of the Long Island Pine Barrens Protection Act of 1993. The commission adopted a resolution concluding that the development was within its jurisdiction, and that developer would have to apply for a hardship waiver to obtain approval for the project. Instead of applying for the waiver, developer brought this action/proceeding challenging the commission's determination. When Supreme Court dismissed the proceeding as premature, developer appealed.

In affirming, the Appellate Division held that mere participation in an ongoing administrative process does not constitute concrete injury that makes a claim ripe for judicial review. In this case, developer could have applied for a hardship waiver, which would have permitted the proposed development to go forward. As a result, the court held that the commission had made no final determination from which developer could obtain judicial review.