Courts Tackle Standing and SEQRA Review
May 29, 2014
Reprinted with permission from New York Law Journal, May 2014 issue.
In the first months of this year, the New York Court of Appeals and all four Appellate Divisions issued important decisions involving state environmental regulations. More than two decades after the Court’s landmark standing decision in Society of Plastics Indus. v. County of Suffolk
standing continues to bedevil parties and the courts – it was the subject most in dispute in these rulings. Another frequently-litigated issue, the required “hard look” under the State Environmental Quality Review Act (“SEQRA”),
also was addressed. This column explores these opinions and concludes with brief updates to two of my prior columns.
The Court of Appeals and Standing
Matter of Association for a Better Long Island, Inc. v. New York State Dept. of Envtl. Conservation
arose in November 2010 when the Division of Fish, Wildlife and Marine Resources of the Department of Environmental Conservation (“DEC”) adopted amendments to its regulations
pertaining to the protection of endangered and threatened species. The amended regulations provide that an incidental take permit must include a mitigation plan that minimizes impact to endangered or threatened species and results in a net conservation benefit to the species.
The Town of Riverhead and the Town of Riverhead Community Development Agency (together, “Riverhead”) brought a hybrid Article 78 proceeding/declaratory judgment action challenging the adoption of these amendments. Riverhead owns approximately 3,000 acres of property affected by the amendments as it is the habitat of at least two endangered or threatened species.
The Supreme Court, Albany County, dismissed the proceeding and the Appellate Division, Third Department, affirmed. The dispute reached the Court of Appeals. In a unanimous opinion, the Court reinstated three of the four procedural causes of action.
The Court explained that, as set forth in Society of Plastics
, standing requires an injury in fact that is within the zone of interests sought to be protected by the statute alleged to have been violated and that, in land use matters, a petitioner also has to show that it “would suffer direct harm, injury that is in some way different from that of the public at large.”
The Court decided that Riverhead had standing to maintain three of four procedural claims under Environmental Conservation Law Section (“ECL”) 3-0301(2)(a): that DEC failed to obtain the advice and approval of the State Environmental Board
prior to adopting the amendments; that DEC failed to conduct public hearings as required by ECL Section 3-0301(2)(a) and Section 202 of the State Administrative Procedure Act (“SAPA”); and that DEC violated the requirements of SAPA Section 202-a (3)(c) by failing to provide a regulatory impact statement that properly analyzed the projected costs of the amendments.
The Court determined that Riverhead faced a concrete injury within the zone of interests protected by the procedural statutes, adding that the case did “not present the risk that the courts will be adjudicating the rights of individuals who have only a tangential stake in the litigation.” The Court said that it was not
deciding whether land ownership, by itself, could satisfy the injury requirement, and that it “certainly” was not holding that an “individual who simply alleges a failure to follow SAPA requirements would have standing.”
As to the fourth procedural claim, the Court determined that Riverhead did not have standing under SEQRA to challenge the negative declaration because Riverhead failed to allege any environmental harm. Rather, Riverhead’s injury was purely economic.
It remains to be seen whether this decision will help clarify New York’s standing jurisprudence.
Standing in the Second Department
In Matter of Long Island Pine Barrens Socy., Inc. v. Central Pine Barrens Joint Planning & Policy Commn.
the Second Department found standing and reversed the ruling of the Supreme Court, Suffolk County.
The case involved property located within the “core preservation area” of the Long Island Central Pine Barrens owned by JCJC Holding Company, Inc. The land also was within a residentially zoned area of the Town of Southampton. A predecessor constructed a building on the property in 1970 and leased it to the State Police. JCJC purchased the site in 2003. In 2008, upon the State Police vacating the premises, JCJC began to operate its commercial landscaping business at the site. JCJC was told it needed a use variance from the town and a hardship waiver from the Central Pine Barrens Joint Planning and Policy Commission. The hardship waiver was granted, which was challenged by petitioners, a not-for-profit organization and its executive director.
Referring to Society of Plastics
, the Second Department found that the executive director, “in both his individual and professional capacities,” used and enjoyed the Pine Barrens to a greater degree than most other members of the public. It added that the fact that the executive director lived some distance from the property was “not dispositive.” The appellate court also found that petitioners established that the threatened injury caused by development within the core preservation area fell within the zone of interests sought to be protected by the Long Island Pine Barrens Protection Act of 1993.
The Second Department concluded the executive director had standing to sue individually. It also held that the not-for-profit had standing under Society of Plastics
because its interests in the proceeding were germane to its purposes, and neither the asserted claim nor the appropriate relief required the participation of individual members of the Society. Despite their victory on standing, petitioners ultimately lost on the merits, as the Appellate Division confirmed that the hardship waiver grant was not arbitrary or capricious.
The Fourth Department Rules
Matter of Sierra Club v. Village of Painted Post
arose after the Village of Painted Post enacted resolutions authorizing the sale and export of excess water from the municipal water supply. The resolutions permitted the construction of a transloading facility to load the water onto trains that then would transport the water to buyers.
A resident, John Marvin, challenged the village’s actions. He contended his house was “one-half block from the railroad line” and, following commencement of the water shipments, he began to hear “train noises frequently, sometimes every night.” Marvin averred he “heard either the train whistle or the diesel engines themselves or both.” The noise allegedly was so loud it “woke [him] up and kept [him] awake repeatedly.” The Supreme Court, Steuben County, found Marvin had standing based on his “proximity and [his] complaint of train noise newly introduced into his neighborhood.”
The Fourth Department reversed. The appellate court explained Marvin had to establish that the injury of which he complained fell within the “zone of interests” or concerns sought to be promoted or protected and that he suffered a direct injury in some way different from that of the public at large.
The Fourth Department found that although noise fell within the zone of interests sought to be protected by SEQRA, the village had established that Marvin had not sustained an injury that was different from that of the public at large. The appellate court observed that the rail line ran through the entire village, along a main thoroughfare, and, as a result, the noise from the trains affected many village residents.
The appellate court indicated that it might reach a different result if Marvin’s objection were to stationary noise of the transloading facility, presumably because that would have affected Marvin more than other members of the community.
A Hard Look
When a lead agency in charge of reviewing a proposed development or other action determines that no adverse environmental impacts will result or that the identified adverse environmental impacts will not be significant, it can issue a negative declaration, obviating the need for an environmental impact statement under SEQRA. The issue before the Third Department in Matter of Gabrielli v. Town of New Paltz
was whether a negative declaration had been properly issued by the Town Board of the Town of New Paltz in connection with its adoption of a wetlands law.
A homeowner challenged the law and the Supreme Court, Ulster County, annulled the board’s determination, finding that it had failed to take the required “hard look” before it issued the negative declaration. The board appealed.
The Third Department reversed. It explained that before adopting the negative declaration, the board reviewed the full environmental assessment form (“EAF”) prepared by the town engineer, which identified five environmental areas on which the law would have “small to moderate impact,” including land, plants and animals, aesthetic resources, space and recreation, and “growth and character of community or neighborhood” while identifying no “potentially large” impacts. The Third Department pointed out that completion of part 3 of the EAF – in which such impacts are analyzed in detail – was not required.
Nevertheless, the appellate court noted, the board elected to complete part 3, in which the identified impacts were evaluated, and each was found to have either no impact or a beneficial impact. Moreover, the Third Department continued, the board also solicited input from the town’s environmental conservation board and from the Department of Agriculture. The board also considered the Wetlands Inspector’s report on the quantity and area of unregulated vernal pools in the town. The board issued its negative declaration following this review.
The Third Department concluded that the board had engaged in a “thorough and lengthy review process, identified relevant areas of environmental concern,” had taken the requisite “hard look” at these concerns, and had made a reasoned and detailed elaboration of the basis for its determination, thus satisfying its obligations under SEQRA.
As I discussed in my column on July 25, 2013,
in May 2013, the Supreme Court, Bronx County, rejected a challenge to the decision by the New York City Industrial Development Agency (“IDA”) to provide tax subsidies and financial assistance to Fresh Direct LLC for the purposes of relocating its operation to the Harlem River Yards in the Bronx. The First Department, in Matter of South Bronx Unite! v. New York City Indus. Dev. Agency
ruled that the IDA’s issuance of a negative declaration did not violate SEQRA, was not arbitrary and capricious, and was not an abuse of discretion. It also affirmed the dismissal of the remaining causes of action.
My column published on March 27, 2014
explored the significant changes to the state’s Brownfield Cleanup Program set forth by Governor Andrew Cuomo in his proposed budget. Last minute budget negotiations between the governor and the state legislature, however, resulted in brownfield reform being removed from the budget for 2014. As the Brownfields Cleanup Program sunsets in 2015, brownfield reform likely will be addressed in the coming months.
77 N.Y.2d 761 (1991).
SEQRA is codified at Environmental Conservation Law Section 8-0101 et seq.
No. 38 (N.Y. Apr. 1, 2014).
6 NYCRR part 182.
6 NYCRR § 182.11(a).
Although this board was eliminated and the statutory requirement was removed in 2012 (L 2012, ch 60, pt D, § 44), Riverhead alleged the board’s lack of approval in 2010 rendered the amendment invalid.
The Court upheld dismissal of Riverhead’s substantive claims, finding that they were not yet ripe.
113 A.D.3d 853 (2d Dep’t 2014). Also this year, the Second Department affirmed a ruling by the Supreme Court, Orange County, that found standing in Matter of Town of Woodbury v. County of Orange
, 114 A.D.3d 951 (2d Dep’t 2014).
L 1993, ch 262.
115 A.D.3d 1310 (4th Dep’t 2014).
No. 517051 (App.Div. 3d Dep’t Apr. 24, 2014).
Charlotte A. Biblow, “When Community Groups Oppose Government Development Decisions,” NYLJ
(July 25, 2013).
115 A.D.3d 607 (1st Dep’t 2014).
Charlotte A. Biblow, “Governor Proposes Sweeping Changes to Brownfield Program,” NYLJ
(March 27, 2014).
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