In Approving Large, Multi-family Developments, Consistency with the Comprehensive Plan and SEQRA is Key
November 27, 2017
In 2009, Scenic Development, LLC (“Scenic”) sought a zone change for the property formerly known as the “Patrick Farm” located in the Town of Ramapo to permit the development of multi-family housing. In three determinations adopted January 25, 2010, the Town Board resolved to (i) approve a findings statement pursuant to the State Environmental Quality Review Act (“SEQRA”) for the proposed zone change, (ii) amend the Comprehensive Plan to allow for the zone change, and (iii) approve the zone change. The Town’s determinations have led to a series of cases challenging these decisions, with three recent decisions discussed below.
Scenic purchased the property in 2001. The underlying zoning of the property was R-80 when Scenic purchased the property and was subsequently changed to R-40, or one house per 40,000 square feet, when the Town adopted its 2004 Comprehensive Plan. In 2009, when it sought the zone change, Scenic proposed to build 479 housing units on 197 acres of the former farm along the Route 202/306 corridor outside Pomona. Therefore, the zone change would have dramatically increased the density permitted on the property.
Although the project still has not come to fruition, with some additional environmental review as discussed below, the project may still be viable.
Youngewirth v. Town Board of Ramapo
In Matter of Youngewirth v. Town of Ramapo Town Board et al., decided November 8, 2017, the Appellate Division, Second Department reversed the Supreme Court’s, May 8, 2013 determination which denied the petition and dismissed the proceeding. The appellate court annulled the determinations of the Town Board and remitted the matter back to the Town Board for further proceedings consistent with the decision. Specifically, the Court found that the Town Board did not take the requisite “hard look” pursuant to SEQRA because of its (i) failure to review the environmental impact of the proposed development in close proximity to the existing Columbia Natural Gas Pipeline, (ii) failure to consider the combined impact of the development and pipeline on the environment, (iii) failure to list Columbia Gas as an “interested agency” pursuant to SEQRA, and (iv) failure to make a “reasoned elaboration” for the basis of its determination regarding this issue by not mentioning the potential impacts in its FEIS or findings statement.
The Court, however, sided with the Town on petitioner’s claim that the zone change was in conflict with the Comprehensive Plan and found that petitioner failed to establish a clear conflict with the Comprehensive Plan. The Court also found that petitioner failed to establish that the zone change constituted impermissible spot zoning. The Court further noted that requiring a certain number of affordable housing units was consistent with the Comprehensive Plan and was a reasonable condition related to and incidental to the property. However, because the Court found that the approval for the findings statement pursuant to SEQRA was required prior to amending the Comprehensive Plan or granting the proposed zone change, the annulment of the resolution approving the SEQRA findings statement required the annulment of the determinations regarding the Comprehensive Plan and proposed zone change. Ultimately, the Court remitted the matter back to the Town Board for preparation of a Supplemental Environmental Impact Statement (“SEIS”) to consider the issues related to the gas pipeline.
Shapiro v. Ramapo Planning Board
In the related case of Matter of Shapiro v. Planning Board of Town of Ramapo et al., decided November 8, 2017, the Appellate Division, Second Department likewise annulled the Supreme Court’s determinations and remitted the matter back to the Planning Board for further review consistent with its decision. The Planning Board approved Scenic’s three separate applications for final subdivision and site plan approval of three housing projects as part of Scenic’s proposed development of the property. Here, petitioner alleged that a SEIS was required in connection with the SEQRA review conducted for the proposed development because the applicant, Scenic, failed to obtain a jurisdictional determination from the United States Army Corps of Engineers (“ACOE”) validating the delineation of wetlands on the property. The Court outlined that a lead agency’s determination whether to require an SEIS is discretionary. Specifically, SEQRA in section 6 NYCRR 617.9(a)(7(ii) provides, “the lead agency may require a supplemental EIS limited to the specific adverse environmental impacts not addressed or inadequately addressed in the EIS that arise from (a) changes proposed for the project, (b) newly discovered information, or (c) a change in circumstances related to the project”. Here, petitioners alleged that the Planning Board failed to consider newly discovered information having received a letter indicating that the ACOE reviewed the development plans but not the wetlands delineation. The applicant was required to obtain the ACOE’s jurisdictional wetlands delineation and the Planning Board was required to rely on the ACOE’s federal wetland delineation since wetlands were excluded in part from the yield calculations related to the proposed development. Thus the Court found that the Planning Board failed to take the requisite hard look pursuant to SEQRA and remitted the matter back to the Board for the preparation of an SEIS regarding the presence of wetlands on the property.
Village of Pomona v. Town of Ramapo
The neighboring Village of Pomona also sued the Town Board and Planning Board of Ramapo in two separate actions in which the Supreme Court denied the petitions and dismissed the proceedings. On November 8, 2017, The Appellate Division, Second Department reversed these determinations related to the Scenic proposal as well in Village of Pomona v. Town of Ramapo et al. Here, although the Court found that the Town of Ramapo adequately considered the effect of the proposed development on community character and complied with General Municipal Law §239-m(3) by providing a point-by-point response to the Village’s comments on the application, the Court determined that the lower court should have granted the Village’s petition based on the reasons stated in the Youngewirth decision referenced above.
In all, there have been approximately ten challenges over the years related to the Town of Ramapo’s approvals of Scenic’s proposed development. Although the local land preservation groups claim the recent court decisions as a total win, the Appellate Division made significant findings in support of the Town of Ramapo’s review and reversed the Supreme Court’s determinations on very specific grounds, which, if addressed correctly by the Town, could result in the multi-family development being built.