How and When to Challenge SEQRA Determinations: Addressing Ripeness and Finality in Article 78 Cases

June 22, 2020

How and when to challenge multiple municipal actions regarding a single project often perplexes Article 78 litigants. Varying statutes of limitations may apply to actions taken at various stages for one project, and the judicial concepts of finality and ripeness affect the viability of a challenge. For example, a litigant must challenge a lead agency’s determination pursuant to the State Environmental Quality Review Act (“SEQRA”) within four-months, but must challenge a zoning board’s decision within 30 days. Moreover, a planning may issue a negative declaration under SEQRA early in the process, but the project’s other approvals (e.g. area variances, site plan approval) may not be issued until later.

Last week, the Supreme Court, Ontario County, issued an illustrative decision in Concerned Citizen of Farmington v Town of Farmington, 2020 NY Slip Op 50690(U) [Sup Ct Ontario Co, Jun 16, 2020], which granted the respondents-defendants’ motion to dismiss the petitioners-plaintiffs’ challenge to a negative declaration issued pursuant to the SEQRA for lack of finality and ripeness where the planning board (as lead agency) issued a SEQRA negative declaration, but the planning board had not approved the subdivision plat, special permit or final site plan.

In 2018, Delaware River Solar LLC (“DRS”) proposed to build a large-scale solar farm on 135 acres in the Town of Farmington (“Farmington”), which required, among other things, subdivision plat approval, a special use permit, and site plan approval. The project is considered a Type I action under SEQRA and required environmental review to determine whether it would have one or more significant environment impacts. If the SEQRA lead agency answers in the affirmative, then it issues a positive declaration of environmental significance – requiring preparation of an environmental impact statement; otherwise, it issues a negative declaration concluding environmental review. Additionally, DRS applied to the Farmington Zoning Board for area variances seeking relief from setback requirements.

On August 7, 2019, after numerous public hearings, the Farmington Planning Board (acting as lead agency) issued a negative declaration under SEQRA. The petitioners-plaintiffs (“Petitioners”) commenced a hybrid proceeding-action on September 6, 2019, challenging the issuance of the negative declaration and seeking a temporary restraining order and permanent injunction to prohibit DRS from starting construction at the work site. Petitioners argued that the Farmington Planning Board’s negative declaration violated SEQRA’s procedural and substantive mandates. DRS, Farmington and others (“Respondents”) moved to dismiss.

During the pendency of the motions, the Farmington Zoning Board denied DRS’s application for the area variances. DRS, accordingly, revised its site plan to avoid the need for area variances. Thereafter, the Farmington Planning Board conducted additional public hearings on DRS’s revised site plan and issued a second negative declaration on December 18, 2019. The Petitioners filed an amended petition-complaint to address the same, and the Respondents filed their motion to dismiss (at issue herein) for failure to state a claim and for lack of ripeness.

Respondents argued that the Farmington Planning Board did not yet approve the subdivision plat, the special permit or the final site plan; therefore, there is no final agency action subject to judicial review. The Petitioners argued that the negative declaration is a final agency action by the Farmington Planning Board which caused an actual, concrete injury to them that cannot be ameliorated by further administrative action; therefore, a judicial controversy ripe for review exists as to whether the Farmington Planning Board violated SEQRA. The Court agreed with Respondents and granted the motion to dismiss, without prejudice, for lack of finality and ripeness.

Whether agency action is ripe for review depends on several considerations. “[A] pragmatic evaluation must be made of whether the decision maker has arrived at a definitive position on the issue that inflicts an actual, concrete injury”; that is, “the action must impose an obligation, deny a right or fix some legal relationship as a consummation of the administrative process and consideration must be given to the completeness of the action.” Moreover, “the injury purportedly inflicted by the agency may not be prevented or significantly ameliorated by further administrative action or by steps available to the complaining party.” The Court noted the ripeness doctrine is “closely related” to the finality requirement.

The Petitioners’ contended that they suffered a concrete injury because the negative declaration allows the project to proceed without the benefit of an environmental impact statement, which would identify significant adverse impacts to the community and require mitigation therefor. Further, the Farmington Planning Board will not necessarily be required to revisit its negative declaration at any subsequent time throughout the approval process, so the decision is final. The Court disagreed, relying largely upon Eadie v Town Bd. of Town of N. Greenbush, 7 NY3d 306 [2006].

In Eadie, the Court of Appeals heard a challenge to rezoning and addressed whether the four-month statute of limitations for Article 78 claims began to run from (i) the earlier time when the Town Board completed the SEQRA process by releasing a generic environmental impact statement or (ii) the later time when the Town Board adopted the proposed rezoning. The Court of Appeals held that the statute of limitations ran from the adoption of the rezoning – not from the earlier completion of the SEQRA process – because the petitioners did not suffer a concrete injury until the Town Board approved the rezoning; the injury was merely contingent upon the rezone, which could have been defeated by a protest petition or a failed vote.

In this present case, the Court analogized the Petitioners’ position to the petitioners in Eadie. The Petitioners’ injury is only contingent because the Farmington Planning Board could decline to approve the subdivision plat, the special permit or the final site plan. In these circumstances, the project could not proceed and no injury would accrue to the Petitioners. Notably, the Court emphasized that the Farmington Planning Board’s grant of preliminary subdivision plat approval and its posting of a draft resolution granting the special use permit do not change this conclusion because these preliminary steps do not constitute approval: “[a]n agency’s position will not be considered final if it is tentative, provisional or contingent, subject to recall, revision or reconsideration.”

The Court held the Petitioners’ challenge was neither final nor ripe for review under Article 78 (Article 78 precludes challenges to non-final determinations), and dismissed without prejudice. The Court also dismissed Petitioners’ declaratory judgment action because this is an inappropriate vehicle to challenge an administrative determination as arbitrary and capricious, an abuse of discretion, contrary to law or irrational – which challenge is limited to Article 78.