Court Decision Creates Conflicting Case Law with Respect to When to Challenge a SEQRA Final Determination
September 30, 2019
The Appellate Division, Second Department, recently issued a decision that appears to be a departure from prior precedent and is certain to create confusion with respect to when to commence an Article 78 claim challenging a final State Environmental Quality Review Act (“SEQRA”) determination. In Stengel v Town of Poughkeepsie Planning Board, 167 AD3d 752 (2nd Dept. 2018), the court held that a challenge to a Negative Declaration under SEQRA issued by a planning board in connection with an application for site plan approval was barred by the applicable statute of limitations because it was not commenced within four months of that determination. The Second Department’s holding is difficult to reconcile with prior precedent, including the Court of Appeals’ decision in Eadie v. Town Board of the Town of North Greenbush, 7 NY3d 306 (2006), and with its own decision in Patel v. Board of Trustees of Inc. Village of Muttontown, 115 AD3d 862 (2nd Dept. 2014).
It is axiomatic that the time within which to commence an Article 78 proceeding is four-months, unless a shorter time is provided for in the law authorizing the proceeding. See, CPLR 217(1). However, Article 78 proceedings that challenge certain land use approvals, such as subdivisions, variances, special use permits and site plans, must be commenced within thirty days after the filing of the board’s decision in the office of the municipal clerk. See, Town Law §§ 267-c(1), 274-a(11), 274-b(9), 282; Village Law §§ 7-712-c(1), 7-725-a(11), 7-725-b(9), 7-740; General City Law §§ 27- a(11), 27-b(9), 38, 81-c(1). Applying these various statutes, several appellate courts have held that the time to challenge a SEQRA determination associated with a land use application is governed by the statute of limitations applicable to the underlying application. See, Matter of Guido v. Town of Ulster Town Board, 74 AD3d 1536 (3rd Dept. 2010); Matter of Southwest Ogden Neighborhood Assn. v. Town of Ogden Planning Board, 43 AD3d 1374 (4th Dept. 2007).
In Stengel, several residential neighbors were opposed to the construction of a convenience store and gasoline station that was proposed in close proximity to their homes. After multiple public hearings on the developer’s application for site plan approval with regard to the proposed facility, the Town of Poughkeepsie Planning Board determined that the project would not have a significant adverse environmental impact and adopted a Negative Declaration under SEQRA. Thereafter, the Town of Poughkeepsie Zoning Board of Appeals granted several variances and a special use permit, and the Planning Board granted conditional site plan approval for the project. Under Town Law § 274-a(3), the issuance of site plan approval was subject to a 30-day statute of limitations.
The opponents then commenced an Article 78 proceeding challenging the Planning Board’s actions seeking to annul the Negative Declaration and the grant of conditional site plan approval. The Dutchess County Supreme Court dismissed the petition.
On appeal, the Second Department held that “[t]o the extent that the petition alleges the Planning Board’s noncompliance with SEQRA, the four-month statute of limitations [CPLR 217(1)] applies.” With respect to the timeliness of Article 78 claims, the Court stated that an action taken by an agency pursuant to SEQRA can be challenged only when such action is final, and then cited the established principle that an agency action is final when the decision-maker arrives at a definitive position on the issue that inflicts an actual, concrete injury. According to the court, the statute of limitations began to run on February 19, 2015, with the issuance of the Negative Declaration for the project, as this constituted the Planning Board’s final action under SEQRA. It then concluded that because the petitioners failed to challenge the Negative Declaration within four months of that date, their claims were time-barred. This decision was apparently made without giving any consideration to the fact that the perceived injury from the Negative Declaration could have been prevented, ameliorated or rendered moot by the Planning Board’s subsequent decision on the site plan application, and without any discussion as to whether the shorter statute of limitations applicable to the site plan approval affected the timeliness of the SEQRA claims.
Although the court in Stengel cited its prior decision in Patel, it appears not to have followed that decision. In Patel, the Second Department held that the adoption of a SEQRA Findings Statement by a Village Board of Trustees did not inflict a concrete injury because the Board had not yet issued its final determinations with respect to the underlying applications for a special use permit and site plan approval. Citing several Court of Appeals decisions, the court explained that an agency’s action is not definitive and the injury is not actual or concrete if the injury purportedly inflicted by the agency could be prevented, significantly ameliorated, or rendered moot by further administrative action or by steps available to the complaining party. The Patel court concluded that the issuance of the Findings Statement standing alone did not inflict injury in the absence of an actual determination on the applications for a special use permit and site plan approval. It then dismissed the challenge on the ground that the matter was not ripe for adjudication.
While the limitations periods for Article 78 proceedings challenging a SEQRA determination once appeared to be fairly clear, the Stengel decision has raised an issue as to when the statute of limitations begins to run. Moreover, because that case involved a challenge to a SEQRA determination associated with a site plan approval that is subject to a thirty-day statute of limitations, the court’s holding that the petitioners’ SEQRA claim is subject to CPLR 217(1)’s four-month statute of limitations conflicts with the decisions from the Appellate Divisions of the Third and Fourth Departments.
On September 5, 2019, the Court of Appeals denied the petitioners’ motion for leave to appeal to the Court of Appeals. As a result, the current law, at least in the Second Department, is that the statute of limitations to challenge a SEQRA determination that concludes the environmental review process – i.e., a Negative Declaration or Findings Statement – is four months, which runs from the date upon which the final determination was adopted, regardless of whether the SEQRA review was associated with a land use application having a shorter statute of limitations.
Accordingly, practitioners who represent persons aggrieved by a final SEQRA determination no longer have the luxury of waiting until the underlying land use application is decided to assert a SEQRA claim. Instead, they must now pay closer attention to a board’s SEQRA actions in connection with an application and, depending on the timing of the final SEQRA determination, may have to commence multiple Article 78 challenges in connection with a single application or risk having their SEQRA claims dismissed as time-barred.