Land Use Training Program
for Local Officials
Tutorial
Component VII - Environmental Review
New York Municipal Insurance Reciprocal
Land Use Law Center - Pace University School of Law
New York Planning Federation
TABLE OF CONTENTS
INTRODUCTION *
STEPS INVOLVED IN THE ENVIRONMENTAL REVIEW PROCESS: AN OVERVIEW *
VOCABULARY *
APPLICATION OF SEQRA TO LAND USE DECISIONS *
Classifying Agency Actions *
Type II Actions - No Environmental Review Required *
Type I Actions - Environmental Review Required *
Unlisted Actions - Local Agency Makes Determination of Significance *
Lead Agencies and Involved Agencies *
Determination of Significance *
Negative Declarations *
Conditioned Negative Declarations *
Positive Declarations *
Draft Environmental Impact Statement *
Scoping *
Contents *
Public Participation *
Final Environmental Impact Statement *
Findings Statement and Decision on the Action *
7 Practical Tips for Implementing SEQR *
CONSEQUENCES OF SEQRA'S ENVIRONMENTAL REVIEW REQUIREMENT *
Failure to comply literally with procedures leads to invalidation of any permit issued. *
SEQRA time periods take precedence over time periods applicable to land use approvals. *
Review must be done as early as possible *
Local Agencies Must Take a "Hard Look" *
The Application is not complete until the DEIS is found complete. *
Balance environmental impact with the social and economic benefits of actions. *
Mitigation conditions expand agency authority to impose conditions on land use actions. *
SUMMARY AND REFERENCES *
References *
QUIZ *
State Environmental Quality Review, or SEQR or SEQRA ("seeker") for short, is a procedure which applies to almost all land use decisions. The basic purpose of SEQR is built on the premise that we are all stewards of our environment and, as such, we must include environmental considerations in our decision-making. SEQR's provisions provide the legal framework for assuring that such considerations are included in a board's decisions. In almost all cases involving the application of local planning, zoning and land use regulations, the local board will be the lead agency and responsible for seeing that its provisions are followed. So, if you desire to avoid all contact with SEQR, it's simple. Just don't bother joining a board.
SEQRA applies to most local land use decisions. As stated above, the basic purpose of SEQRA is to incorporate environmental consideration into the planning, review, and decision-making processes of local governmental agencies – and to do so at the earliest possible time. This is accomplished by requiring all agencies to determine whether the discretionary actions they undertake, fund, or approve may have a significant impact on the environment. Each of these terms is defined very broadly in the regulations. For example, environment means the physical conditions that will be affected by a proposed action, including: land, air, water, minerals, flora, and fauna; resources of agricultural, archaeological, historic, or aesthetic significance; existing patterns of population concentration, distribution, or growth; existing community or neighborhood character; and human health. As you can see, this definition is all-encompassing. All agencies must determine whether their actions may have a significant adverse effect on the environment. This includes local agencies such as legislatures, planning boards, zoning boards of appeals, or any other land use permitting or policy-making body.
The SEQR process is required by SEQRA, the State Environmental Quality Review Act (Article 8 of the Environmental Conservation law) and is generally governed by the State SEQRA Regulations - 6 NYCRR Part 617, better known simply as Part 617 - which are promulgated by the Commissioner of the New York State Department of Environmental Conservation ("DEC"). Those regulations list types of projects, and categorize them according to their probable effect on the environment. Projects are divided into "Type I Actions" - those which have the potential for significant environmental impact, and "Type II Actions" - those which have been determined not to have a significant impact. These lists are not all-inclusive, so there is a large unlisted category of actions known as, you guessed it, "Unlisted Actions."
The State Environmental Quality Review Act (SEQRA) became effective in 1975. It requires local bodies such as legislatures, planning boards, and zoning boards of appeals to consider, identify and mitigate the environmental impact of their actions. Local agency decisions on applications for site plan or subdivision approval, or the issuance of variances and special permits, must be preceded by an assessment of the environmental impact of the proposed project. The adoption of comprehensive plans and zoning laws, and their amendments, must also be accompanied by a review of their impact on the environment. SEQRA also applies to proposed plans of local governments to build capital projects or to provide funding for projects of any kind.
The essence of SEQRA is the requirement that the impact on the environment of all such local actions be considered in the decision-making process, and that local agencies act effectively to lessen any possible environmental impacts. This environmental objective is to be balanced with social and economic objectives. Where a proposal is deemed to have no significant negative impact on the environment, no further environmental review is required and the project may proceed through the normal land use review process. Where it has been determined, however, that a proposed project may have a significant negative impact on the environment, the normal process is interrupted and either the local agency or the applicant must prepare an Environmental Impact Statement as part of the application for a local land use approval. The local reviewing agency must then take a number of prescribed steps to review the statement under SEQRA's environmental standards. Until the Draft Environmental Impact Statement is deemed to be complete by the local reviewing agency, the underlying land use application is not complete and the time periods applying to that approval process do not begin to run.
SEQRA gives local land use agencies independent authority to impose conditions on land use approvals to mitigate the potential negative impacts of proposed projects on the environment. Since the environment is defined very broadly, SEQRA extends local agency authority to impose conditions on land use approvals well beyond the types of conditions that may be imposed to meet the standards of subdivision, site plan, or special permit regulations. Both with regard to the imposition of conditions and the procedures that reviewing agencies must follow, SEQRA amounts to a regulatory overlay on the local land use review and approval process. SEQRA also gives local governments additional authority to conduct studies and adopt plans for areas of environmental significance. Under SEQRA, localities may designate critical environmental areas, conduct cumulative impact analyses, and perform generic environmental impact statements. These environmental review tools expand the techniques available to counties, villages, towns, and cities to review future land use impacts in a more proactive manner.
STEPS INVOLVED IN THE ENVIRONMENTAL REVIEW PROCESS: AN OVERVIEW
The environmental review process can be generally described as a nine-step process, beginning with a landowner submitting an application for a land use approval or action:
1. Action proposed
2. Action classified: Type I, Type II, or Unlisted
3. Complete and submit EAF
4. Circulate application and EAF to Involved Agencies
5. Lead Agency is established; Determination of significance
6. Negative Declaraton or Draft Environmental Impact Statement is prepared
7. Comments submitted; Hearing held
8. Final Environmental Impact Statement is prepared - Comments submitted;
9. Proposed project is approved, approved with conditions, or disapproved.
Familiarity with a number of terms is essential to understanding the environmental review requirements and procedures established by SEQRA. Key terms under the SEQRA statutes and regulations include:
Approval - An approval is a “discretionary decision made by a local agency to issue a permit, certificate, license, lease, or other entitlement, or to otherwise authorize a proposed project or activity.”
Action - An action includes (1) any law, regulation, or policy adopted by a local agency; (2) any project directly undertaken or funded by a local agency, and (3) the approval of any proposed project by such agency that may affect the environment.
Type I Action - Actions that are more likely to have a significant negative impact on the environment are listed as Type I Actions in the regulations of the DEC Commissioner. These actions are more likely to require the preparation of an EIS than actions not contained on the list.
Type II Action - Actions that are not subject to environmental review under SEQRA are listed as Type II Actions in the regulations of the DEC Commissioner. These actions have been determined not to have a significant adverse impact on the environment.
Unlisted Actions - All actions that are not listed as "Type I" or "Type II" actions are considered Unlisted Actions under the SEQRA regulations. These actions are subject to review by the lead agency to determine whether they may cause significant adverse environmental impacts.
Agency - All state and local agencies, including any local agency, board, authority, commission or governing body. The zoning board of appeals, local legislative body, and planning board are common agencies that must comply with the statute and regulations requiring environmental review.
Involved Agency - An agency that has jurisdiction by law to fund, approve, or directly undertake an action.
Lead Agency - An involved agency principally responsible for undertaking, funding or approving an action, and therefore responsible for determining whether an environmental impact statement is required in connection with the action, and for the preparation and filing of the statement if one is required.
Environment - The physical conditions that will be affected by a proposed action, including: land; air; water; minerals; flora; fauna; noise; resources of agricultural; archeological, historic, or aesthetic significance; existing patterns of population concentration; distribution, or growth, existing community or neighborhood character; and human health.
Scoping - A process by which the lead agency identifies the potentially significant adverse impacts related to the proposed action and how they are to be addressed in an EIS. This defines the scope of issues to be addressed in the draft EIS, including the content and level of detail of the analysis, the range of alternatives, the mitigation measures needed, as well as issues that do not need to be studied. Scoping provides a project sponsor with guidance on matters that must be considered and provides an opportunity for early participation by involved agencies and the public in the review of the proposal.
Environmental Assessment Form ("EAF") - A form used by an agency to assist it in determining the environmental significance of actions. A properly completed EAF must contain enough information to describe the proposed action, its location, purpose, and potential impacts on the environment. The regulations of the DEC Commissioner under SEQRA contain two model EAFs, one a short form, the other a full (sometimes referred to as the long form) EAF. These model EAFs may be modified by an agency to better serve it in implementing SEQRA, provided the scope of the modified form is as comprehensive as the model. All Type I actions require the completion of the long form EAF.
Environmental Impact Statement ("EIS") - A written document prepared by a lead agency or an applicant to provide involved agencies, project sponsors, and the public a means to systematically consider significant adverse environmental impacts, alternatives, and mitigation with respect to a proposed project. An EIS facilitates the weighing of social, economic, and environmental factors early in the planning and decision-making process. An EIS must be prepared when a lead agency determines that an action may have a significant adverse impact on the environment. A Draft Environmental Impact Statement (DEIS) is circulated to all involved agencies and the public for comment. A Final Environmental Impact Statement (FEIS) contains the DEIS, any revisions, and the agency's responses to all substantive comments received.
Negative Declaration - A written determination by a lead agency that the implementation of the action as proposed will not result in any significant adverse environmental impacts.
Conditioned Negative Declaration ("CND") - A CND is a declaration issued by a lead agency on an unlisted action indicating that an action which, as initially proposed, may have resulted in one or more significant adverse environmental impacts, has been mitigated by conditions imposed by the lead agency that will modify the proposed action so that no significant adverse environmental impacts will result. A CND may not be used if the action is defined as a Type I action.
Positive Declaration - A written determination indicating that the action as proposed may have a significant adverse impact on the environment and that an environmental impact statement will be required.
APPLICATION OF SEQRA TO LAND USE DECISIONS
Most local land use decisions fall within the definition of an action under SEQRA. An action includes any project or physical activity which is directly undertaken or funded by a state or local agency or approved by such an agency, and which may affect the environment. Actions of local planning or zoning boards approving applications for subdivision and site plan approval or issuing permits and variances are all subject to SEQRA. Also included is the local legislature's action in adopting or amending a comprehensive plan or zoning law, or approving a capital budget or capital project. Purely ministerial actions, such as the issuance of building permits, where no discretion is exercised, are not subject to SEQRA. An example is the issuance of a permit for an as-of-right use. In such a case, the building inspector has no discretion. The permit must be issued if the application meets the specifications of the code. If, however, the building inspector is given discretion, that decision is not ministerial and SEQRA will apply.
In
Pius v. Bletsch (1987), a contractor applied for a building permit to
construct an office building in a commercial zone. The Town had determined that
the project might have a significant adverse impact on the environment and that
an environmental impact statement would be required. The contractor brought a
suit claiming that the issuance of a building permit is "purely
ministerial," involving no discretion, and that no environmental review
would be required because there had been no "action" under SEQRA. The
building inspector, however, was specifically delegated site plan approval
power. Under these circumstances, the building inspector was acting in a
capacity similar to the local board exercising administrative discretion, and
thus SEQRA applied. The applicant was required to prepare an environmental
impact statement.
When SEQRA applies to a local land use decision, it means that the lead
agency (using the EAF as a tool) must take a hard look at possible
environmental impacts of the action and determine whether it is likely to have
a significant negative impact on the environment. When that determination is
positive, the agency or applicant must prepare an Environmental Impact
Statement.
When an agency receives a developer's application, it must determine whether the action is Type II and not subject to environmental review, or a Type I or Unlisted Action, which requires further SEQRA review. The SEQRA regulations issued by the DEC Commissioner contain the thresholds an agency must use to classify an action as Type I, Type II, or Unlisted. If the action is a Type I action, a full Environmental Assessment Form must be used by the agency to determine whether the action may have a significant negative impact on the environment. If it is an Unlisted Action, the short environmental assessment form may be used at the agency’s discretion.
If the agency determines that – after completion of the EAF --the action will not have a significant negative environmental impact, it issues a Negative Declaration and the action is no longer subject to environmental review and the procedures and standards contained in SEQRA no longer apply. A Positive Declaration means that an Environmental Impact Statement must be prepared and found complete before the application for the agency's approval is complete. Clearly, how an action is classified is a crucial step in the SEQRA process.
Type II Actions - No Environmental Review
Required
State regulations list certain actions as Type II Actions. The Type II list includes area variances for one, two, and three family houses, the construction of noncommercial structures of less than 4,000 square feet, individual setback and lot line variances, and the construction or expansion of one, two, or three family homes on an approved lot. If an action is found to fall into the Type II category, no environmental review is required. This is the end of the SEQRA process for that proposal and the project review can continue as usual.
The Department of
Environmental Conservation (DEC) has issued the regulations for SEQRA. These
regulations can be obtained from the DEC. They are published in the New York
Code of Rules and Regulations (NYCRR). Title 6 contains the SEQRA regulations. Section 617.5 of that
part contains a list of Type II actions - those which have been determined to
have no significant impact on the environment or are otherwise excluded from
environmental review.
Type I Actions - Environmental Review Required
The DEC regulations list certain actions as Type I, which are considered more likely to require the preparation of an Environmental Impact Statement than Unlisted Actions. Some examples of Type I actions are the adoption of a comprehensive plan or the initial adoption of a zoning law, changes in allowable uses in any zoning district affecting twenty-five acres or more, and the construction of fifty or more homes not to be connected to public water and sewage systems.
The Department of
Environmental Conservation has issued SEQRA regulations. Section 617.4 contains a
list of Type I actions - those which carry with them "a presumption that
it is likely to have a significant adverse impact on the environment and may
require an EIS." That does not mean an EIS must be prepared in all such
actions.
In Save the Pine Bush,
Inc. v. Planning Board of Town of Guilderland (1995), the applicant sought
approval to subdivide a parcel of land into sixty-five lots. The planning board
did not require the applicant to prepare an Environmental Impact Statement
(EIS) even though the action was listed as a Type I action. A citizens group
challenged that decision arguing that SEQRA had been violated because no EIS
was required. The court held "an EIS is not a per se requirement of all
Type I actions" and that the planning board's review of the reports
regarding the potential impacts was sufficient for it to issue a declaration
that no adverse environmental impacts were raised by the subdivision
application.
Unlisted Actions - Local Agency Makes
Determination of Significance
All actions that are not Type I or Type II are Unlisted Actions. Depending
on the size, location, and other characteristics of a proposal, an Unlisted
Action may or may not have a significant adverse impact on the environment.
Thus, Unlisted Actions may or may not require preparation of an Environmental
Impact Statement. If adverse impacts are likely, an Environmental Impact
Statement must be prepared and the action is subject to all of SEQRA's
standards, procedures and time periods.
Lead Agencies and Involved Agencies
Where more than one agency
is involved in approving, funding or undertaking an action, the agency that
receives a project application may circulate it and the Environmental
Assessment Form for the review of other involved agencies. Following this
transmittal, a lead agency must be
established by agreement of the involved agencies. The lead agency is the one
that is principally responsible for undertaking, funding, or approving the
action. The lead agency must be established within thirty days. The lead agency
is responsible for determining the significance of any Type I or Unlisted
Action and, thus, whether an Environmental Impact Statement must be prepared.
Based on the information contained in the Environmental Assessment Form, the lead agency must make a determination of significance. To do this, it uses criteria contained in the SEQRA regulations that are indicators of significant adverse impacts on the environment. Included in these criteria, for example, are: the removal of large quantities of vegetation or fauna; or a substantial adverse change in ground or surface water quality. Considering all this information, the lead agency may decide that the proposed action will not have a significant adverse impact on the environment. This is known as a "Negative Declaration." Alternatively, it may determine that the project will have a significant adverse impact on the environment. This is known as a "Positive Declaration."
The regulations provide
criteria for making a determination of significance. 6 NYCRR 617.7. The lead agency has 20 days from its
establishment as lead agency to make a determination of significance. 6 NYCRR
617.6.
A Negative Declaration is a statement that ends the SEQRA process. It is a declaration that, after reviewing relevant information, the lead agency has found that the proposal will not have a significant adverse impact on the environment. This declaration of negative significance must be in writing, must identify and evaluate the relevant areas of concern, and must be filed so that it is available for review.
If a Negative Declaration
is made for a Type I action, the agency must maintain a public file and distribute
the declaration to all involved agencies, any person who requests a copy, and
the applicant. For Unlisted Actions, the lead agency need only maintain a file
that is accessible to the public.
Negative Declarations must
be supported by facts that justify the lead agency's determination.
Declarations made summarily and without adequate explanation are subject to
challenge. When a lead agency finds that an action will not have a significant
impact, it must support its findings with adequate detail to explain why there
will be no significant impact.
A study of all legal challenges to SEQRA decisions from 1990 to 1997 indicated that only 11 percent of the challenges were successful where an Environmental Impact Statement was required. On the other hand, in cases where a Negative Declaration was made and no Environmental Impact Statement was prepared, the challenges were successful 29 percent of the time, nearly three times as often.
Conditioned Negative Declarations
Conditioned Negative Declarations can be made for Unlisted Actions when a Full EAF has been prepared. This declaration certifies that, while the original proposal may have resulted in one or more significant impacts on the environment, the lead agency has identified conditions that may be imposed on the proposal so that no significant adverse environmental impacts will result.
The Conditioned Negative
Declaration must be published and the public must be allowed at least a
thirty-day period for comment. After receiving public comments, information may
surface indicating that the conditions will not sufficiently avoid significant
adverse environmental impacts. If that is the case, the lead agency must
rescind the Conditioned Negative Declaration, make a Positive Declaration, and
go forward with the preparation of an Environmental Impact Statement.
After reviewing the Environmental Assessment Form, if the agency determines that the action as proposed may have a significant adverse environmental impact, the agency must issue a Positive Declaration. This means that the preparation of an Environmental Impact Statement will be necessary.
A Positive Declaration must
identify the significant adverse environmental impacts that require the
preparation of an Environmental Impact Statement and state whether the scope of
the Environmental Impact Statement will be determined through a process called
scoping. After a Positive Declaration, the environmental review process starts
in earnest, including scoping, where conducted.
Draft Environmental Impact Statement
The term "scoping" is used to define the process by which the scope of a Draft Environmental Impact Statement (DEIS) is determined. The purpose of scoping is to narrow the issues relating to the potentially significant adverse impacts of the proposed action. Through scoping, what is required in the DEIS can be clarified, including the environmental issues to be addressed, level of detail required, identification of mitigation measures, and elimination of non-relevant issues. Scoping may be initiated by the lead agency or by the project sponsor. A draft scope is prepared containing the prominent environmental issues that have been identified, reasonable alternative actions and mitigation measures to be considered, and the extent and quality of information required.
The draft scope is circulated to all involved agencies and interested individuals. In fact, scoping must include reasonable efforts to involve the public by holding meetings, requesting comments, or providing for the exchange of material. A final written scope of the DEIS is to be provided by the lead agency to the project sponsor, involved agencies, and interested individuals. Any agency or individual that raises issues after the circulation of a final scope must explain in writing why the issue was not identified during scoping.
Contents
The Draft Environmental Impact Statement must assemble relevant facts on which a lead agency's decision will be based. It must describe and discuss the proposed action and its environmental setting. It must analyze the significant adverse impacts and evaluate all reasonable alternatives and mitigation measures that are available. It should analyze only those negative impacts that can be reasonably anticipated or have been identified in the scoping process.
The DEIS should consider all relevant environmental issues in sufficient detail to allow the agency to make an informed final decision on the project. This means that in order to weigh environmental concerns together with the social and economic benefits of a proposed project, the agency must have sufficient information regarding the potential extent of any environmental impacts. If the DEIS is not prepared in sufficient detail, it can be returned, along with a written statement that identifies any deficiencies that must be corrected.
When a DEIS is submitted, the lead agency has forty-five days to determine whether or not the DEIS is adequate. When it is deemed adequate, the lead agency prepares and files a "Notice of Completion" for the DEIS. It is at this point that the developer's application for the underlying land use approval is deemed complete and the time periods applicable to that approval begin to run.
After the Notice of Completion is filed, a public comment period of not less than thirty days must be provided. Any members of the public who have comments on the DEIS may submit them. The lead agency may also determine that a public hearing on the DEIS is appropriate, notify the public of the hearing, and accept public comments at the hearing.
If a hearing is held there
must be 14 days notice, and commence no less than 15 and no more than sixty
days following the filing of the Notice of Completion.
A 2005 amendment to SEQR (Chapter 641 of the NYS Laws of 2005) requires every Environmental Impact Statement (ES) – Draft EIS (DEIS) and Final EIS (FEIS) – to be posted on a publicly accessible Internet Web site, as of February 26, 2006. A DEIS should be posted as soon as it is accepted and remain posted until the FEIS is accepted. The FEIS should be posted when completed, and must remain posted until one (1) year after all final approvals have been issued for the project that is the subject of the FEIS. For actions where a Generic Environmental Impact Statement (GEIS) has been prepared, the Final GEIS should remain posted for at least one year or longer if reviews of the matter are still pending.
The new law provides an exception to the posting requirement in cases where an agency concludes that posting is “impracticable”, but it provides no definition of impracticable. Accordingly, any agency using the “impracticable” exemption should document the rationale in its records concerning that EIS.
Final Environmental Impact Statement
The lead agency is responsible for preparation of the Final Environmental Impact Statement (FEIS). This document is prepared by compiling the DEIS and its revisions, public comments that were received, and the lead agency's response to those comments.
The Final Environmental
Impact Statement is prepared within sixty days after the filing of the draft
Environmental Impact Statement, or if a public hearing is held, forty-five days
after the close of the public hearing. Then a Notice of Completion for the FEIS
is prepared, filed, and distributed just as was done for the Notice of
Completion for the DEIS. At least ten days must be allowed for involved
agencies and the public to consider and comment on the Final Environmental
Impact Statement.
Findings Statement and Decision on the Action
Within thirty days of the filing of the Final Environmental Impact Statement, the lead agency must file a written findings statement and decision on whether or not to approve the action. This final statement must consider all the relevant environmental impacts, balance them with social and economic considerations, provide a rationale for its decision and certify that the requirements of Part 617 have been met and that to the maximum extent practicable, the action is one that avoids or minimizes adverse environmental impacts by incorporating conditions into its decision that mitigate the negative impacts identified. These conditions become conditions that are imposed on the land use approval originally requested. The decision of the lead agency can be to approve the proposed project, approve it on certain conditions, or to deny it.
7 Practical Tips
for Implementing SEQR
1. Remember the purpose of SEQR
2. Gain expertise to identify and assess impacts
3. Public participation is both valuable and required
4. Learn the Type II list (Actions NOT subject to review).
5. All other actions are subject to SEQR to some extent.
6. Pay strict attention to procedures. With SEQR, the procedure is just as important as the product.
7. SEQR is more than disclosure
- Avoid impacts; Look at alternatives; Mitigate if necessary
- Say NO if you have to.
CONSEQUENCES OF SEQRA'S ENVIRONMENTAL REVIEW REQUIREMENT
1. Failure to comply literally with procedures leads to invalidation of any permit issued.
The penalty for failure to
comply with SEQRA is the invalidation of the final decision made by a local
land use agency on a landowner's application. As a result, the procedural
requirements of the statute must be followed literally. This protects the
decision from being challenged based on failure to follow mandatory procedures.
When a decision is invalidated, the applicant and agency must start over and
follow all required procedures literally.
2. SEQRA time periods take precedence over time periods applicable to land use approvals.
The SEQRA process can be a lengthy. On the other hand, state statutes imposing deadlines on land use decisions are relatively short. For example, a decision on a subdivision application must be made within sixty-two days of the public hearing. On their face, these time periods are in conflict. The courts have held, however, that the protection of the environment takes precedence over an applicant's right to a speedy decision and that SEQRA's lengthier time periods prevail.
3. Review must be done as early as possible
The fundamental policy of
SEQRA is to inject environmental considerations into the land use
decision-making process as early as possible, so that agencies consider the
environmental consequences of all of their decisions. One consequence of this
requirement is that a legislative body, for example, cannot put off or postpone
its review of the impact of a zoning amendment until landowners apply for
special permits provided for under those amendments.
In Eggert v. Town Board
of Town of Westfield (1995), the town board classified a zoning amendment
as a Type I action but found that the amendment itself would not have a
significant impact on the environment, as the rezoning required property owners
to apply for special permits before developing their land under the amendments.
The town board acknowledged that there would be adverse environmental impacts
to be considered at that time, but reasoned that such impacts could be
adequately addressed when applications for special permits were submitted. The
court rejected this argument stating, "to comply with SEQRA, the town
board must consider the environmental concerns that are reasonably likely to
result from, or are dependent on, the amendments ... at least on a conceptual
basis."
4. Local Agencies Must Take a "Hard Look"
When applications for land use decisions are made, local agencies are required to take a "hard look" at the potential adverse environmental impacts before they proceed further with the review of the application. A hard look means that the agency identified the relevant areas of environmental concern, that facts were gathered and thoroughly analyzed regarding each environmental issue raised, and that a reasoned elaboration of its decision and any documentation that supported its determination of significance was set forth in its determination of significance.
The degree of detail
required in a SEQRA review depends on the circumstances involved. In Valley
Realty Development Co, Inc. v. Town of Tully (1992), the rezoning of land
in a mining district to residential use was upheld as in compliance with SEQRA.
The court stated that“[i]n reviewing an agency's issuance of a negative
declaration, a court's inquiry is limited to whether the relevant areas of
concern were identified, whether a hard look was taken at those areas, and
whether a reasoned elaboration was given for the Negative Declaration. In
making such review, the agency's obligations under SEQRA must be viewed in
light of a rule of reason. The degree of detail required will vary with the
circumstances and the nature of the proposal.” Here, there was no evidence that
the elimination of mining as an allowed use would harm, rather than benefit,
the environment.
SEQRA regulations further provide: "SEQRA provides all involved agencies with the authority, following [environmental review], to impose substantive conditions upon an action to ensure that the requirements of [SEQRA] have been satisfied." Thus, once an adverse environmental impact has been identified, the agency must identify mitigating measures and use all practicable means to minimize the environmental impact by requiring an alternative that will have less of an impact or by imposing conditions that mitigate the impact. However, "nothing in the law requires an agency to reach a particular result on any issue, or permits the courts to second-guess the agency's choice, which can be annulled only if arbitrary, capricious or unsupported by substantial evidence."
5. The Application is not complete until the DEIS is found complete.
SEQRA regulations state that a landowner's application for a land use approval is not complete until the lead agency makes a declaration that the action will not have any significant adverse impacts on the environment, or until a draft Environmental Impact Statement has been accepted by the lead agency as satisfactory with respect to scope, content, and adequacy. Once a draft Environmental Impact Statement is accepted as complete, other statutory time periods such as those applicable to subdivision application review will run concurrently with the remaining steps under SEQRA.
6. Balance environmental impact with the
social and economic benefits of actions.
SEQRA does not require lead agencies to make decisions that are the most favorable to the environment or to reach any particular result. SEQRA requires them to consider environmental impacts and to use all practicable means to realize SEQRA's goals. Local land use agencies should make decisions which, consistent with social, economic and other essential considerations, minimize or avoid identified adverse environmental effects to the maximum extent practicable. Where the lead agency proceeds carefully and makes its decisions deliberately and reasonably, courts will not require them to select any particular alternative or mitigation condition, or reach a decision that would be most protective of the environment. Remember that consideration of an issue in the Environmental Impact Statement does not dictate the ultimate outcome. The adverse impacts must be mitigated or avoided to the extent practicable. Even if some environmental damage may result, this may be acceptable if balanced by redeeming social or economic factors.
7. Mitigation conditions expand agency authority to impose conditions on land use actions.
Under SEQRA regulations, "mitigation" is defined as a way to avoid or minimize adverse environmental impacts. Lead agencies are required to mitigate any adverse environmental impacts to the maximum extent possible. Mitigation measures are used when any local action, including the approval of development applications, may have a significant adverse impact on the environment. There are two instances when local agencies may impose such conditions. The first is when an applicant for local approval has been required to prepare an Environmental Impact Statement, which must contain a description of mitigation measures, and the agency has determined that one or more such measures must be adopted to minimize the impacts of the project. The second is when an Unlisted Action is found to have potential adverse impacts and one or more mitigation measures may be identified that will minimize those impacts. In this instance, the lead agency can issue a Conditional Negative Declaration, noting the impact and imposing the mitigation conditions, thereby avoiding the cost and time required in the preparation of an Environmental Impact Statement.
In Weok Broadcasting
Corp. v. Planning Board of Town of Lloyd (1992), the owner's application
for site plan approval of a radio transmission tower was denied based on
aesthetic factors. The local planning board determined, after SEQRA review,
that the petitioner had failed to adequately minimize or avoid adverse
environmental effects to the maximum extent practicable. The Court of Appeals
held that "[a]esthetic considerations are a proper area of concern in
[SEQRA] balancing analysis inasmuch as the Legislature has declared that the
'maintenance of a quality environment ... that at all times is healthful and
pleasing to the senses' is a matter of State-wide concern."
If the site plan regulations of the Town Lloyd did not authorize the planning board to consider aesthetic factors, it would not have been able to impose this condition if it were not for the authority given it under SEQRA.
The following is a checklist of the matters that a local lead agency should know about SEQRA:
· Most land use decisions made by local land use boards are considered actions under SEQRA.
· When a landowner requests a land use approval, the agency that is principally responsible for approving the application is likely the lead agency and has the responsibilities that SEQRA imposes.
· When an application is received, the local agency must classify it for SEQRA purposes. The choices are Type I, Type II or Unlisted.
· If the action is a Type II action, no further environmental review is required.
· Applicants for Type I and Unlisted Actions must submit an Environmental Assessment Form listing the potential environmental impacts of their projects or proposals.
· If the action is a Type I or Unlisted Action, an assessment of the environmental impact of the action must be conducted by the lead agency.
· If the project or proposal will not have a significant adverse environmental impact, then a Negative Declaration is issued and no further environmental review need be conducted. The lead agency, however, must take a "hard look" at the possible environmental impacts and set forth in writing a "reasoned elaboration" for its Negative Declaration.
· If the project or proposal may have a significant adverse environmental impact, then a Positive Declaration must be issued and a Draft Environmental Impact Statement prepared.
· The lead agency may require the preparation of a scope of the contents of the Environmental Impact Statement and may provide for public participation in the preparation of the scope.
· The Environmental Impact Statement must consider and examine all relevant environmental impacts, including conditions that can be imposed on the action to mitigate any negative environmental impacts found. It must discuss any alternatives to the proposed action that would mitigate or avoid those impacts.
· When the draft Environmental Impact Statement is accepted as complete, the application for the local land use approval is deemed complete.
· A public hearing on the Draft Environmental Impact Statement may be held, but one is not required. Where practicable, such public hearings should be held in conjunction with public hearings required for the underlying land use decision, such as those required for subdivision applications and variances.
· The lead agency (or applicant) must complete a Final Environmental Impact Statement within forty-five days of the close of the public hearing, if one is held, or within sixty days of the filing of the Draft Environmental Impact Statement, whichever occurs last.
· Following the filing of the Final Environmental Impact Statement, the lead agency makes its findings statement and decision on the action. This statement considers the impacts discussed and the conclusions contained in the Environmental Impact Statement and balances them with social, economic and other essential considerations, selects mitigation conditions or alternatives to minimize any negative impacts, and determines whether the action, so mitigated, should be approved or denied.
· The lead agency's findings statement must certify that the action will avoid or minimize adverse environmental impacts to the maximum extent practicable.
- The extensive provisions setting forth the procedures and requirements for the environmental review of local land use actions are found in the Environmental Conservation Law (ECL), Article 8, commonly referred to as the State Environmental Quality Review Act, or SEQRA.
The regulations of the Commissioner of the Department of Environmental Conservation are found in 6 N.Y.C.R.R. Part 617. The SEQR Cookbook, A Step-by-Step Discussion of the Basic SEQR Process, New York State Department of Environmental Conservation (May 1998).
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