In a recent decision, the Appellate Division, Second Department, held that the failure to challenge a planning board’s issuance of a determination under SEQRA not to require an environmental impact statement (i.e. a negative declaration) within four months was barred by the applicable statute of limitation under CPRL § 2017. Stengel v. Stengel v. Town of Poughkeepsie Planning Bd., 167 A.D.3d 752 (2d Dep’t 2018). Stengel is a warning to practitioners that the failure to challenge a SEQRA determination through an Article 78 proceeding within four months of the time it is made may bar a challenge in the future.
In Stengel, residential neighbors were opposed to the construction of a proposed motor vehicle service facility. After several public meetings regarding the construction of the facility where the opponents raised objections, the Town of Poughkeepsie Planning Board granted a negative declaration finding that the project would not have a significant adverse environmental impact and, therefore, a Draft Environmental Impact Statement was not required. Subsequently, the Town of Poughkeepsie Zoning Board of Appeals granted several variances and a special use permit and the Planning Board granted conditional site plan approval for the project. The opponents then filed an Article 78 petition seeking to nullify the Planning Board’s negative declaration under SEQRA and grant of conditional site plan approval.
The lower court denied the petition. On appeal, the Second Department held that “[t]o the extent that the petition alleges the Planning Board’s noncompliance with SEQRA, the four-month statute of limitations applies” citing CPLR §217. The Court then held that the claim challenging the SEQRA negative declaration was barred by the four month statute of limitation finding that the statute of limitations began to run with the issuance of the negative declaration, because this constituted the Planning Board’s final act under SEQRA and, accordingly, any challenge to the negative declaration had to be commenced within four months of that date. Stengel, 167 A.D.3d at 754. Because the challenge to the negative declaration under SEQRA did not occur within the four month timeframe it was determined to be time-barred.
What is puzzling is that Stengel conflicts with another Second Department case decided in 2014. Patel v. Bd. of Trustees of Inc. Vill. of Muttontown, 115 A.D.3d 862 (2d Dep’t 2014). In Patel, the Court held that issuance of a SEQRA findings statement did not inflict injury in the absence of an actual determination of the subject applications for a special use permit and site-plan approval and, thus, the challenge to the adoption of the findings statement is not ripe for adjudication. Id. at 864. Although the Court in Stengel mentioned the holding in Patel, it did not provide any explanation as to why the issuance of a negative declaration was considered a final action, while the issuance of a findings statement was not.
Cases determined by the New York State Court of Appeals shed little light on this issue. Compare Eadie v. Town Board of Town of North Greenbush, 7 N.Y.3d 306 (2006)(holding that proceeding challenging generic environmental impact statement was not barred by the statute of limitations because petitioners suffered no concrete injury until the Town Board approved the underlying rezoning application) and Stop-The-Barge v. Cahill, 1 N.Y.3d 218 (2003)(holding that issuance of a conditional negative declaration resulted in actual concrete injury to petitioners because the declaration allowed the developer to proceed with the project without preparing an environmental impact statement).
In view of the foregoing decisions and uncertainty, it is prudent to act as if the limitations period for challenging a negative declaration commences when the negative declaration is issued, and not wait until the underlying permits or approvals are granted. For this reason, all interested parties and their counsel are advised to be vigilant in monitoring land use applications and challenging the issuance of a negative declaration or risk a determination that the time to challenge such negative declaration is lost.