SEQRA Challenge Rejected by Appellate Court Because of Lack of Standing and Untimeliness of the Challenge
November 11, 2019
Several prior blog posts discussed standing requirements under the State Environmental Quality Review Act (SEQRA) and the timeliness of challenging a SEQRA determination. A decision from the Appellate Division, Third Department, Schulz v Town Board of the Town of Queensbury, issued on October 24, 2019, involved both of these elements and was a one-two punch that knocked out a challenge to a municipal decision. Here are the pertinent facts.
The Town of Queensbury Sanitary Sewer Project
The Town of Queensbury began considering establishing a sanitary sewer district for a portion of the Town in 2013. The Town determined the project was an Unlisted Action under SEQRA and in January 2016, the Town Board adopted a resolution indicating it intended to serve as Lead Agency. At the conclusion of its September 12, 2016 public hearing on the proposal, the Town Board completed its review under SEQRA and issued a negative declaration, finding that the proposed sewer district would not have any potential significant adverse environmental impacts. The Town then approved a resolution to establish the sanitary sewer district, subject to a permissible referendum. Notice of the adoption of the resolution was thereafter published and no petition for referendum was filed.
In December 2016, the Town submitted an application for approval of the district to the State Comptroller, which was granted on November 10, 2017. The Town then adopted the final order establishing the sanitary sewer district on November 20, 2017. In January 2018, the Town Board adopted a resolution authorizing the issuance of approximately $1.9 million in serial bonds and bond anticipation notes to pay for the cost of the project. On March 1, 2018, the Town closed on $325,000.00 of the authorized financing. On July 2, 2018, the Town Board accepted a bid to construct the sanitary sewer project.
Mr. Schulz did not participate in the public hearing that preceded the SEQRA negative declaration and sewer resolution. Rather, at the October 2016 Town Board meeting, he read into the record and submitted a “Petition for the Redress of Grievances Regarding the Proposed [sewer district].” He submitted another “Petition for the Redress of Grievances” at the June 4, 2018 Town Board meeting. The Town did not respond to either of these documents.
On July 2, 2018, Mr. Schulz commenced an action against the Town Board and Town officials, seeking declaratory and injunctive relief and a temporary restraining order to stop the project. The Town cross-moved to dismiss the action, which cross-motion was granted by the trial court. In the Trial Court Decision, issued September 19, 2018, the trial court determined that Mr. Schulz’s SEQRA claims were time-barred. The trial court also ruled that his constitutional claims failed to state a claim. Mr. Schulz’s motion to reargue and renew was subsequently denied by the trial court.
The Appellate Division Decision
On appeal to the Appellate Division, Third Department, the Court first evaluated the SEQRA issue and determined that Mr. Schulz lacked standing. The Court noted that Mr. Schulz failed to show how he would suffer direct harm and also failed to demonstrate how his claimed injury was different from an injury to the public at large. The Court pointed out that Mr. Schulz did not reside in the Town and that while part of his homestead may have straddled the Town boundary line, his property was 15 miles away from the sanitary sewer district.
The Court was equally blunt about the untimeliness of his SEQRA challenge. The Court noted that the negative declaration was issued in September 2016 and the final approval of the sewer district occurred in November 2017. His lawsuit was commenced almost eight months later, in July 2018. The Court ruled that Mr. Schulz could not skirt the four-month statute of limitations applicable to a SEQRA challenge by casting his claims in the form of declaratory or injunctive relief causes of action. Furthermore, his allegations that he was entitled to a longer period of time to sue because he claimed the Town Board knowingly lied in the SEQRA documentation which prevented him from suing sooner was rejected by the Court because he had not included a separate cause of action for fraud.
The Court also rejected his constitutional claims, noting that Mr. Schulz was not prevented from filing his “grievance petitions,” but also noting that nothing required the Town to listen or respond to these petitions. The Court stated that “[r]equiring a response to every petition, especially in this digital age in which petitions can be copied and circulated with great speed and ease, could create a crushing burden on governmental agencies and officials and waylay them from performance of their duties.”