When it Comes to SEQRA, Reasonable Agencies Are Allowed to Disagree

January 20, 2020

In SEQRA litigation, there is an oft-quoted proposition that the Lead Agency may not abdicate or defer its responsibilities under SEQRA to another agency. See Riverkeeper, Inc. v. Planning Bd. of Town of Se., 9 N.Y.3d 219, 234 (2007). To satisfy SEQRA’s requirements, the Lead Agency must conduct an independent study of the relevant areas of environmental concern and take the requisite hard look at them. Id. Consequently, there are times when a Lead Agency reaches a different conclusion on a matter of environmental concern than another agency opining on the same project. This very issue was raised before the Fourth Department in Matter of Davis v. Zoning Board of Appeals of City of Buffalo (App. Div. 4th Dept., Docket No. 18-01597).

In Matter of Davis, a company made applications to the City of Buffalo Planning Board and Zoning Board of Appeals for approvals to construct a new mixed-use building in a residential neighborhood. The project called for the demolition of 14 existing structures located within a district listed on the National Register of Historic Places. The Planning Board served as Lead Agency.

After the project was approved, the petitioners commenced an Article 78 proceeding seeking to annual the Planning Board’s and Zoning Board’s decisions. Among their claims, the petitioners alleged that the Planning Board, as the Lead Agency, failed to take the requisite hard look at the project’s impacts on the historic resources within the district. The Appellate Division disagreed.

As part of the environmental review on the project, the Planning Board contacted the New York State Office of Parks, Recreation and Historic Preservation (SHPO) as an interested agency. SHPO returned a letter indicating its belief that the project would “significantly and negatively alter the character of the surrounding historic districts.” The Planning Board rejected this finding, ultimately reached the opposite conclusion, and issued a negative declaration for the project. The trial court and Appellate Division upheld this decision. The appellate court wrote:

The Planning Board prepared a final environmental impact statement and addressed the concerns raised by SHPO, but ultimately disagreed with that agency and concluded that the demolition of the structures would not have a significant adverse impact on the historic resources on or adjacent to the site. The record reflects that the Planning Board conducted a lengthy and detailed review of the project, including its evaluation of the potential impacts to historic resources, and its written findings demonstrate that it provided a reasoned elaboration for its determination. Its determination must be upheld inasmuch as it is not arbitrary, capricious, or unsupported by substantial evidence.

Memorandum and Order, Nov. 8, 2019, at *3 (citations omitted).

The actions of the Lead Agency Planning Board in Matter of Davis stand in stark contrast to those of the Planning Board in Peterson v. Planning Bd. Of the City of Poughkeepsie, 163 A.D.3d 577 (2d Dept. 2018), a similar case that reached a different result. In Peterson, a developer sought approvals from the local Planning Board to build a condominium on real estate adjacent to a historic district. The Planning Board issued a negative declaration for the project, prompting legal challenge by a local historic neighborhood association.

On appeal, the Second Department reversed the trial court’s order dismissing the association’s petition. The Appellate Division ruled that the Planning Board failed to take the requisite hard look at the environmental issues associated with the project because, in reaching its determination that the project would not adversely affect the character of the adjacent historic district, the Planning Board relied exclusively on a letter it received from SHPO in which that agency summarily concluded that the project would not negatively affect the district. Thus, the Planning Board failed in its charge to conduct an independent investigation into that area of environmental concern. Moreover, the Court opined that the letter was conclusory and failed to satisfy the reasoned elaboration required under SEQRA.

The Fourth Department’s decision in Matter of Davis reminds us that although Lead Agencies are encouraged to consider the opinions of other agencies, they are not bound by them. Indeed, as the Peterson decision suggests, independent consideration and review is the better practice and provides greater assurance to the Lead Agency that it its satisfying SEQRA’s mandate.

A copy of the Court’s Memorandum and Order can be found on the Fourth Department’s website at https://www.nycourts.gov/courts/ad4/. If you have any questions or comments, please feel free to contact the author at pbutler@farrellfritz.com.