In two recent cases, the Appellate Division, Second Department, overturned determinations that a Supplemental Environmental Impact Statement (SEIS) was not required under SEQRA. The cases provide helpful illustrations of the type of new information and changed circumstances that lead agencies cannot overlook when determining whether an SEIS is required.
In Shapiro v. Planning Bd. of Town of Ramapo, 155 A.D.3d 741, 65 N.Y.S.3d 54 (2d Dep’t 2017), the court reversed a determination of the Supreme Court, Rockland County, which had upheld the Town of Ramapo Planning Board’s approval of a major subdivision and site plan application obtained by Scenic Development, LLC (Scenic). The Appellate Division held that Scenic’s failure to obtain a jurisdictional wetlands delineation from the United States Army Corps of Engineers (ACOE) should have prompted the Planning Board to require a SEIS. The court ruled that once this deficiency had been brought to the Planning Board’s attention, its failure to require the preparation of a SEIS violated SEQRA.
In Green Earth Farms Rockland, LLC v. Town of Haverstraw Planning Bd., 153 A.D.3d 823, 60 N.Y.S.3d 381 (2d Dep’t 2017), the Appellate Division ruled that the Town of Haverstraw Planning Board had erred when it approved the construction of a large gas station with 16 gas pumps, without requiring an SEIS. The proposed gas station was added to a previously approved residential and commercial development involving a 53 acre property. The court was not persuaded by the developer’s contention that a SEIS was not required because the gas station would be subject to review and approval by other agencies, including the Rockland County Department of Health. Despite the discretionary nature of the Planning Board’s determination, the Court held that “[u]nder these circumstances, the Planning Board failed to take the requisite hard look at the project change adding the gas station, and did not make a reasoned elaboration of its basis for determining that a second SEIS was not necessary to address that change or the changes proposed for the project after the issuance of the 2009 findings statement.”
These cases suggest that, even though an administrative board’s determination not to require a SEIS is discretionary and typically upheld even if the Court disagrees with the board’s determination, the failure to consider new information or changes regarding an issue of substantial environmental concern and include a reasoned elaboration of the basis for the board’s decision may result in the nullification of the determination.
Should you have any questions regarding whether an SEIS is required for your project or any issues relating to SEQRA, please contact Eric Gordon at egordon@kblaw.com or at 914-946-4777 for more information.
