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March 22, 1996

Environmental Law - - Update on SEQRA Lawsuits for 1995

New York Law Journal
The courts decided 62 cases1 under the New York State Environmental Quality Review Act 2 in 1995. As in prior years,3 this column presents a statistical summary of these cases and discusses the most interesting ones.
The most important SEQRA event in 1995, however, was not any judicial decision. It was the extensive rewriting of the governing SEQRA regulations -- for the first time since 1987 -- by the New York State Department of Environmental Conservation (DEC). That, too, will be summarized here.
Statistical Results
SEQRA's principal requirement is the preparation of an environmental impact statement (EIS) for any discretionary state or local governmental action or approval that may significantly affect the environment. EIS preparation continues to be a big business. In 1995, DEC received 190 positive declarations (formal decisions that an EIS would be prepared), together with 169 drafts EISs and 131 final EISs.4 Whether or not an EIS is required for a particular action has always been, and remains, one of the major subjects of SEQRA litigation.
In past years, plaintiffs were rarely successful in SEQRA challenges to actions for which EISs had been prepared; the success rate has been much better for plaintiffs where there was no EIS. In 1995, however, plaintiffs did so well in challenging EISs that their success rate was almost as high as those in cases without EISs. Plaintiffs won five of the 18 cases (27.8 percent) where EISs were written, and 11 of the 37 cases (29.7 percent) of the cases without EISs.
In both cases with and without EISs the argument that accounts for the great bulk of defendants' victories is that the government agency involved took a hard look at the potential effects of the proposed action and was not arbitrary and capricious. Whereas in past years the defense that the plaintiff lacked standing to sue was also often successful, that was so in only two cases in 1995.
Rising to the top of the list of successful procedural defenses last year was the statute of limitations; that accounted for six of the defendants' victories in 1995. This should hardly be surprising, given the large number of treacherous 30-day statutes of limitations in this area.
Revised DEC Regulations
DEC has been considering comprehensive revisions to its SEQRA regulations (6 NYCRR Part 617) for several years.5 It finally issued the revisions on Sept. 20. They apply to projects for which no determination of significance (the decision whether to prepare an EIS) had been made before the effective date of Jan. 1, 1996.6
Most of the amendments are technical or codify existing practice, case law or recent minor amendments to the text of SEQRA. However, several provisions deserve special attention.
One of the most important elements of the new regulations is their expansion of the "Type II list" -- the list of kinds of actions that are entirely exempt from SEQRA and will never require an EIS.7 These new items include:
* construction or expansion of non-residential structures of less than 4,000
square feet of gross floor area if they comply with existing zoning (but not
including radio towers and the like);

* construction or expansion of one-, two- or three-family homes on an approved

* granting of an area variance for a one-, two- or three-family home;
* engaging in review of any part of an application to determine its compliance
with technical requirements;

* adoption of a moratorium on land development;
* designation of local landmarks or their inclusion within historical districts.
The new regulations also make more formal the procedures for scoping -- that is, the process by which the scope of an EIS is determined. As under the old regulations, scoping is optional and can be initiated by either the lead agency or the project sponsor.
Under the new rules, however, lead agencies are given strict time limitations in responding to draft scopes submitted by sponsors. Lead agencies are required to provide for public participation in the preparation of scopes, but the means of such participation are not specified (leading to concerns by some citizens groups that this process will not be sufficiently inclusive). The new rules raise the burden that an agency or other person must meet in seeking discussion of issues not included in the adopted scope.
The revised regulations were met with considerable disfavor by some environmental groups. As a result, the West Village Committee, the NYC Clean Air Campaign and the New York Public Interest Research Group instituted a proceeding in New York State Supreme Court, Albany County, challenging portions of the new regulations, primarily on the grounds that they lack support in the SEQRA statute itself and that they were not promulgated using proper procedures. The focuses of petitioners' attack are the new scoping procedure; the expansion of the Type II list; and the declaration that the governor is exempt from SEQRA. The case is expected to be argued in June.
One issue that received much attention during the regulatory revision process was the treatment of cumulative impacts -- actions that, although separate, can together affect some environmental feature or resource. DEC left these provisions untouched and deferred their revision. DEC has created a task force to consider how cumulative impacts should be handled in the Part 617 regulations and to propose any necessary revisions.
Closely related to the issue of cumulative impacts is segmentation -- the separation of one action into more than one, often in an attempt to avoid the necessity of an EIS for all the segments. Three appellate decisions in 1995 found actions to have violated the rule against segmentation.
Sun Co. v. City of Syracuse Industrial Development Agency8 concerned a 125- acre lakefront area known as the Inner Harbor. Redevelopment of this area has been contemplated since 1987. An EIS was prepared for the Carousel Landing Project, one portion of the Inner Harbor. The Fourth Department found that the Carousel Landing Project was so closely related to the overall Inner Harbor plan that it was improper segmentation to have considered one without the other.
The same court (and four of the same judges) also found impermissible segmentation in Taxpayers Opposed to Floodmart v. City of Hornell Industrial Development Agency.9 The city had annexed and rezoned an 80-acre parcel and had then approved an application to build a shopping center on the parcel. An EIS was prepared for the shopping center. While the shopping center EIS was being prepared, the annexation and rezoning were annulled because they had not been subjected to an EIS. In the subject decision, the court found that the approval of the shopping center must be annulled because, among other things, it was improperly segmented from the annexation.
The third segmentation decision arose after the Planning Board of the Village of Southampton approved, without requiring an EIS, construction of a 72-car parking lot for the Southampton Hospital. The Second Department found that "the proposed parking lot is an integral part of the Hospital's long-range plan for expansion," and the lot could not be considered apart from the expansion plans.10
On the other hand, no segmentation was found when various New York City agencies approved an above-ground streetcar line in midtown Manhattan without having selected among six possible sites for a maintenance and storage facility for the rolling stock.11
Failure to devote sufficient analysis to soil contamination was found in two cases. In one, a negative declaration for a proposed manufacturing building was annulled in part because the lead agency had paid too little attention to soil samples that contained elevated levels of total petroleum hydrocarbons.12
In the second, a dormant municipal landfill underlying a parcel of land adjacent to a proposed development site was apparently teaching polluted groundwater. The court found that the lead agency had not studied carefully enough the possibility that the construction could alter the spread of the pollution. Moreover, the landfill site was "part of an overall and interrelated development project" under unified ownership, so that the entire area must be considered together. Thus the court annulled the EIS.13
The lead agency subsequently went back, retested the water and found that no unacceptable levels of contamination were present. The court then, on a subsequent review of the project, concluded that a hard look at the pollution had been taken, and the project could be approved.14
Large Projects
Four appellate decisions considered the SEQRA procedures that had been followed in approving large New York City projects. All four affirmed the projects' approval.
The Court of Appeals dismissed a challenge to Donald Trump's proposed Penn Yards project in Coalition Against Lincoln West v. City of New York.15 Its discussion centered on the effect of certain restrictive declarations and did not focus on the SEQRA issues.
In Committee to Preserve Brighton Beach v. Council of the City of New York,16the First Department affirmed the approval of a large-scale residential project in Brooklyn. The Supreme Court had found that most of the petitioners lacked standing; the Appellate Division disagreed but went on to rule for the City on the merits.
Two First Department decisions are especially noteworthy because of their rather summary reversal of Supreme Court decisions that had disapproved of the SEQRA processing of large projects. In Hudson River Sloop Clearwater v. Cuomo, concerning a planned park along the Hudson River in Manhattan, then-Justice Glen had issued a lengthy opinion finding that the SEQRA process (by then well under way) had begun too late and that certain early approvals should be reconsidered. The Appellate Division overturned this ruling in a one-page decision.17
Similarly, in South Bronx Clean Air Coalition v. New York State Department of Transportation, Justice Crispino set aside approvals that had been granted by the Transportation Department for the development of the former Harlem River Yard in the South Bronx, on a portion of which Bronx Community Paper Co. plans to build a large paper manufacturing facility.18 His decision was based in large part on petitioners' assertion that too little attention had been paid to the possible use of the site for exclusively rail-and-truck purposes.
The First Department began its decision by stating that "[c]learly, petitioners, in commencing this proceeding, were less motivated by environmental concerns than by economic, political or other factors." The First Department then found that the trial court "engaged in economic impact analysis, which is an inappropriate basis for review of an environmental clearance" and that the court "should not have substituted its analysis for the expertise of the lead agency, simply because that agency rejected what it considered to be a less feasible alternative use.... DOT had every right to reject petitioners' alternative proposal, which had been fully aired in public debate."19
The First Department went on to state that, in any event, the proceeding should have been dismissed because it was brought far after the expiration of the applicable statute of limitations.
Other Decisions
Two decisions annulled actions that the City of New York had assumed were not subject to SEQRA, but in fact (according to the courts) should have undergone SEQRA review. One concerned the removal of fire alarm boxes from city streets;20 the other examined the protocol for removal of lead paint from City-owned bridges.21
Two other decisions annulled actions where misleading documentation had been submitted during the SEQRA process. In one, a negative declaration was based on environmental assessment forms that had erroneously stated that the proposed action (construction of a 24-unit apartment complex for elderly or handicapped individuals) complied with existing zoning and other land use restrictions.22
In the second, a negative declaration was annulled for an automobile race track, where the sponsor had greatly understated the number of required parking spaces and was planning to park the surplus cars on fields to which it had no rights. This decision is especially notable because the track was almost fully constructed and was scheduled to open in two weeks when the court enjoined the issuance of a certificate of occupancy, because of these SEQRA violations.23
The final decision that we will note involved the later stages of a dispute that began, but did not end, with SEQRA.
The Planning Board of the Town of Clarkstown issued a negative declaration for a 52-acre subdivision on the slopes of High Tor Mountain in Rockland County. A citizens' group, the West Branch Conservation Association, sued the planning board under SEQRA. The developer, Hi-Tor Realty, intervened on the side of the planning board and brought a counterclaim against West Branch for abuse of process.
West Branch won its motion to dismiss the counterclaim, on the grounds that it was a Strategic Lawsuit Against Public Participation (SLAPP) suit. However, the trial court refused to award attorneys' fees to West Branch under New York's anti-SLAPP suit law, Civil Rights Law §§70-a and 76-a. On appeal, the Second Department found that the award of fees was discretionary with the trial court and refused to overturn the denial of fees.24
1.. All these cases will be discussed in the forthcoming sixth annual update to Environmental Impact Review in New York by Michael B. Gerrard, Daniel A. Ruzow and Philip Weinberg (Matth ew Bender).
2.. N.Y. Environmental Conversation Law Art. 8.
3.. Prior reviews appeared in New York Law Journal on March 29, 1991; March 27, 1992; March 26, 1993; April 22, 1994; and March 24, 1995.
4.. Telephone interview with Charles Lockrow, DEC, March 15, 1996.
5.. See Stephen L. Kass and Michael B. Gerrard, "DEC's Proposed New SEQRA Regulations," NYLJ, March 25, 1994, at 3.
6.. For another discussion of th e new regulations, see Stephen L. Kass and Jean M. McCaroll, "The Conservation Department's New SEQRA Regulations," NYLJ, Nov. 2, 1995, at 3.
7.. New 6 NYCRR §617.5(c); old 6 NYCRR §617.13(d).
8.. 209 AD2d 34 (4th Dept.), appeal dismissed, 86 NY2d 776 (1995).
9.. ___ AD2d ___, 624 NYS2d 689 (4th Dept. 1995).
10.. Teich v. Buchheit, ___ AD2d __, 633 NYS2d 805 (2d Dept. 1995).
11.. Tud or City Ass'n v. City of New York (Sup. Ct. N.Y. Co.), NYLJ, June 6, 1995, at 25. 12.. Allens Creek/Corbetts Glen Preservation Grou p v. Town of Penfield Planning Board, Index No. 94/04855 (Sup. Ct. Mon roe Coun ty, Feb. 17, 1995).
13.. Caldor Corp. v. City of Yonkers (Sup. Ct. Westch ester County), NYLJ, March 30, 1995, at p. 32 col. 2. 14.. Caldor Corp. v. City of Yonkers (Sup. Ct. Westchester Cou nty), NYLJ, Aug. 29, 1995, at p. 32 col. 3. 15.. 86 NY2d 123 (1995).
16.. 214 AD2d 335 (1st Dept. 1995).
17.. ___ AD2d ___, 6 35 NYS2d 637 (1st Dept. 1995).
18.. The authors of this column have represented the Bronx Community Paper Company in certain matters. They also represented for a time the Hudson River Park Conservancy, on e of the respondents in the prior case discussed. 19.. ____ AD2d ___, 630 NYS2d 73 (1st Dept. 1995), leave to appeal denied, ___ NY2d ___ (1996 ). 20.. Powis v. Giu liani, ___ AD2d ___, 6 28 NYS2d 634 (1st Dept. 1995).
21.. Williamsburg Around the Bridge Block Ass'n v. Giuliani, Index No. 106235/94 (Sup. Ct. N.Y. County, Oct. 6, 1995).
22.. La Delfa v. Village of Mt. Morris, 213 AD2d 1024 (4th Dept. 1995).
23.. Richards v. Peryea, Index No. 95-0249 (Sup. Ct. Franklin County, May 4, 1995). 24.. West Branch Conservation Ass'n Inc. v. Planning Board of the Town of Clarkstown, 1995 N.Y. App. Div. Lexis 12796 (2d Dept. Dec. 11, 1995).