Reducing Environmental Risk

Generalized Community Knowledge Does Not Trump Expert Conclusions

The Appellate Division of New York State Supreme Court, Third Department, upheld a lower court decision that it was improper for a local planning board to deny a special use permit based on “generalized community knowledge” in opposition to a development proposal, when an unchallenged expert report concluded that the proposal would not harm the environment.

In In re Kinderhook Development, LLC v. City of Gloversville, 2011 NY Slip Op 07550 (App. Div. 3d Dep’t Oct. 27, 2011), Kinderhook Development, LLC (“Kinderhook Dev.”) filed an Article 78 proceeding challenging the City of Gloversville’s (“City”) denial of a special use permit.

Kinderhook Dev. wanted to build affordable, multifamily housing in the City, which would be allowed under the City’s Zoning Ordinance with a special permit and site plan approval from the City’s Planning Board. At issue was Kinderhook Dev.’s plan to address stormwater runoff from the development. After reviewing three documents in support of the project – namely, Kinderhook Dev.’s stormwater management plan, a State Environmental Quality Review Act (“SEQRA”) full environmental assessment form for the project, and a letter from the design engineer concluding that the stormwater management plan would slightly reduce the rate of runoff – as well as hearing from community members opposed to the development, the City Planning Board denied Kinderhook Dev.’s application for the special use permit.

However, prior to making this decision, the City, as lead agency under SEQRA, had issued a negative declaration for the project (meaning that the proposed development did not significantly affect human health or the environment), finding that “[t]he Stormwater Management Plan for the [Kinderhook Dev.] site adequately addresses the potential stormwater impacts of this project.” In re Kinderhook Development, 2011 NY Slip Op 07550. Despite that finding, however, after a public hearing on the proposed development revealed “widespread neighborhood opposition,” the City Planning Board issued its denial of Kinderhook Dev.’s application, citing stormwater runoff issues as a ground for its decision (despite the City’s previous negative declaration on stormwater issues). Id. The trial court found that the City Planning Board’s decision was in error, and directed the City to grant Kinderhook Dev.’s application for special permit; the City appealed.

Upon review, the Third Department affirmed the lower court’s holding that directed the City to grant Kinderhook Dev.’s application, albeit with some necessary conditions. The Court first pointed out that: “The classification of a particular use as permitted in a zoning district is ‘tantamount to a legislative finding that the permitted use is in harmony with the general zoning plan and will not adversely affect the neighborhood.'” In re Kinderhook Development, 2011 NY Slip Op 07550 (quoting Matter of Twin County Recycling Corp. v Yevoli, 90 NY2d 1000, 1002 [1997]). Therefore, the Court continued, “if there were specific, reasonable grounds to conclude that the proposed special use was not desirable at the particular location, its determination in that regard must be supported by substantial evidence in the record.” In re Kinderhook Development, 2011 NY Slip Op 07550 (quotations omitted and emphasis added).

The Court concluded that the “conclusory opinions of neighbors opposed to the project” was not substantial evidence on which the Planning Board could properly base its decision to deny Kinderhook Dev.’s application. In re Kinderhook Development, 2011 NY Slip Op 07550. Rather, the “unchallenged empirical evidence” that the stormwater management plan would not increase, but actually reduce, stormwater runoff into the neighborhood – a fact upon which the City had relied to conclude that the project would not negatively affect the environment in its SEQRA analysis – was the only substantial evidence presented upon which the Planning Board could base a decision. Id. The fact that, as one Planning Board member put it, “people living in a particular neighborhood know more about the physical conditions of where they live than any experts brought in by an applicant,” is not a proper basis upon which a Planning Board can make a permit decision. Id.

Community Knows Best?

While it may be true that locals know much more about the physical conditions of their neighborhoods than outsiders, that knowledge is not legally equivalent to an expert study, analysis, and opinion on an issue. If you, as a member of a community, wish to challenge a project which has expert reports to support it, you must present your own expert report in response. A local planning or development board cannot deny a project based on your generalized “knowledge,” no matter how accurate your information in opposition may be.



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