Reducing Environmental Risk

New York Supreme Court Requires At A Minimum Some Explanation From Lead Agency For SEQRA Determination

New York Supreme Court Requires At A Minimum Some Explanation From Lead Agency For SEQRA Determination

What is one of the easiest ways for a court overturn a lead agency’s determination under the State Environmental Quality Review Act (SEQRA)? One way to fall short is when the lead agency provides limited or no reasoning for its decision-making. The Town of Hempstead Board of Appeals learned this the hard way in a recent Supreme Court decision.

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. During the initial stages to determine whether a project may have an adverse environmental impact, lead agencies are required to take a close look at the proposed action and typically issue reasoned explanation as to their ultimate decision. Projects are either flagged for further SEQRA investigation or determined to not require further review through the issuance of a “negative declaration.” Lead agencies are given a lot of deference, and courts rarely reverse lead agencies in SEQRA matters so long as a reason is given.

However, in a recent case, the Town of Hempstead Board of Appeals (“Board”) provided absolutely no reasoning for its decision for a negative SEQRA declaration. Matter of Healy v. Town of Hempstead Bd. of Appeals, Index. 3214/2017 (Sup. Ct. Nassau Co., Aug. 28, 2018). Rather than deferring to the Board, the New York Supreme Court (trial court) sitting in Nassau County overturned its determination, holding that “the Board’s zoning decision cannot support its environmental determination.” In this case, a group of homeowners brought this CPLR Article 78 petition in protest of South Nassau Hellenic Community’s (SNHC) construction project for a cultural center. SNHC operates an existing church in Merrick, NY and is planning to build a 25,806 square foot, two-story cultural center next to the church, which is opposed by various residents who live in the area. The Board granted SNHC’s zoning applications in June 2017, with certain conditions, and determined under SEQRA that the center would not have a significant impact on the environment on the character of the existing community. The Board declared that the proposed build “will not have a significant effect on the environment,” but did not articulate any basis for its determination. Upon review, the Supreme Court considered the Board’s failure to provide a reason a “fatal flaw.”

In Article 78 cases concerning SEQRA determinations, courts will only look to “whether the [lead] agency identified the relevant areas of environmental concern, took a ‘hard look’ at them, and made a ‘reasoned elaboration’ of the basis for its determination.” Despite support for the Board’s determination in the record, the court found that the Board’s SEQRA declaration lacked the required explanation. The court concluded that because the board’s SEQRA declaration must be vacated, its zoning resolutions could not stand. The court noted that where a lead agency fails to provide a reasoned explanation for its SEQRA declaration, as here, the determination may be annulled.

This case is a stern reminder to developers and their attorneys that they should remind lead agencies of their responsibility to provide reasoned explanations for SEQRA determinations at the public hearing. Even seemingly abstract considerations, i.e., ones for which metrics are hard to come by, such “community character,” for example, require at a minimum some level of discussion and analysis by the lead agency. If the lead agency does not provide the bare minimum explanation when it issues a SEQRA decision, attorneys for the project should demand that the lead agency amend its written final determination immediately and attempt to intercept a potential lawsuit by project opponents.

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.



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