“If it looks like a duck, swims like a duck, and quacks like a duck, then it probably is a duck.” This simple idiom can be helpful in even the most complex circumstances. In a recent CPLR Article 78 case challenging a State Environmental Quality Review Act (SEQRA) determination out of Wayne County, the Power Authority of the State of New York and the New York State Canal Corporation (collectively, the “State Agencies”) should have considered it.
First a bit of background on SEQRA: as we have noted in a previous blog, in New York, any construction project that requires state “action,” including approval from a “state agency,” that may have a “significant effect on the environment,” must go through a SEQRA assessment to determine if the proposed project “may” have an adverse environmental impact. Part of the agency’s decision-making process under SEQRA is determining whether the action is classified as Type I or Type II. Type I actions are those that meet or exceed particular thresholds which experience has shown are more likely to have significant environmental impacts; such actions require SEQR review, and the preparation of an Environmental Impact Statement (EIS), to determine the action’s significant adverse impact on the environment and explore ways to avoid or reduce any such impacts. Type II actions, on the other hand, require no further environmental review as they are predetermined to not present a significant adverse environmental impact.
In the case of Town of Pittsford v. Power Authority of the State of New York, 2018 N.Y. Misc. LEXIS 766 (Sup Ct, Wayne County, Mar. 8, 2018), the Supreme Court determined that the State Agencies arbitrarily classified the proposed vegetation removal project as a Type II action, which would not require further review under SEQRA. The court noted that, under the applicable regulations, Type I actions include “a project that involves the physical alteration of 10 acres,” and held that the proposed project, which is expected to disturb more than 155 acres of land, should have been classified as such.
The State Agencies tried to argue that the clear cutting of trees was a “maintenance activity” of existing landscape involving “no substantial change” to a structure. The court rejected this argument, finding “[c]learly this project involves vegetation removal – clear cutting of trees,” which falls under the definition of “physical alteration.” The court added, “[t]his project is not maintaining the existing landscape growth,” highlighting that maintenance activities had not been performed at the property in over 60 years, and that “[t]he existing landscape is being completely altered by clear cutting of trees.”
If it looks like a Type I action and sounds like a Type I action, then it probably is a Type I action.
Call the attorneys of Periconi, LLC at (212) 213-5500 if you are a real estate developer looking for more information about the SEQRA process, are facing a SEQRA challenge to your project, or are considering challenging a project under SEQRA.