Adv Seqra Review of Zoning Law #without Underlying Project Not Segment!

Major residential, commercial and industrial developments throughout the country are subject field to an assortment of federal and state laws designed to protect the environs, buttressed most everywhere by local state-utilize regulations addressing the customs impacts of such projects.

In New York, however, these regulations are wrapped in the added red record of the Land Environmental Quality Review Deed, or SEQR.

In this, as in so many areas of regulatory policy, the Empire State is an outlier. Less than one-third of all states accept similarly comprehensive environmental review statutes —and fewer have laws as broadly applicable as New York'south SEQR.

Nearly forty years later its enactment, can SEQR exist reformed to strike a better residuum between environmental protection and economic growth? That'due south a crucial question when much of New York, peculiarly upstate, is suffering from what could be described as a severe development deficit.

While it would be difficult to quantify SEQR'south function in discouraging investment and chore creation in New York, the added regulatory imposition certainly does footling to expedite the edifice of new homes, businesses, factories and civic facilities. Every bit currently written and interpreted, SEQR can be exploited to produce plush delays and uncertainty for the kind of task-creating projects New York desperately needs. Several of the state's regional economic evolution councils have identified SEQR as an obstacle to development.

Governor Andrew Cuomo has responded to these complaints past allowing his state Department of Environmental Conservation (DEC) to float proposed dominion changes designed to improve SEQR in response to years of complaints from private-sector developers. Dec says information technology is aiming to make the process more efficient and anticipated "without sacrificing meaningful environmental review," but the ideas information technology is considering don't get in plenty to reach this goal.

This paper suggests that further changes are needed to truly streamline SEQR. At a minimum, the law should exist revised to:

• Reduce the potential for undue delays past imposing hard deadlines and incentives to ensure the process tin can be completed inside a year.

• Mandate "scoping" of environmental impacts at the first stage in the SEQR review process, but also more than tightly restrict the introduction of new issues by atomic number 82 agencies after in the process.

• Eliminate the law's reference to "community and neighborhood grapheme" equally an aspect of the broadly defined environment potentially afflicted by projects, since the concept already is divers by local planning and zoning laws.

Industry groups have proposed other, more specific changes that also deserve enactment as part of any meaningful SEQR reform process.

i.      ORIGINS AND BACKGROUND

The acme of America's postwar economic nail in the 1960s coincided with a growing public awareness of the increasingly troubling environmental impacts of untrammelled industrial, commercial and residential development.

The wellness hazards of air pollution in major metropolitan areas had been highlighted by incidents such as a four-day temperature inversion blamed for dozens of deaths in New York Metropolis in 1965. Water pollution was likewise a serious problem; in the nation's industrial heartland, portions of the Great Lakes were literally dying— becoming uninhabitable past fish or institute life. Stretches of storied major waterways such equally the Hudson River had become seriously polluted. During the aforementioned menstruum, perceived assaults on the built surround of neighborhoods and communities had led to a grassroots backlash confronting major highway expansion projects in some cities.

These concerns led to the enactment of the National Environmental Policy Act (NEPA), signed by President Richard Nixon on January 1, 1970. NEPA required federal agencies to prepare assessments and impact statements of proposed major projects and policy changes affecting the "homo environs," broadly defined to include both "the natural and physical environment and the relationship of people with that environs."[1]

NEPA would exist the primary model for laws in states including New York, whose Land Ecology Quality Review Act (SEQR) was enacted in 1975.

While NEPA applies only to federal executive branch agencies, SEQR applies to the actions of state and local agencies in New York. In relatively rare cases where the ii jurisdictions overlap, the respective reviews can be coordinated, so that the touch on argument required by NEPA can be used to fulfill obligations nether SEQR.[2]

It's important to note that these laws were non designed equally government's master line of defense against pollution—a purpose served by other statutes and regulations largely adopted after NEPA in the 1970s.[iii]

NEPA's overarching goals extend well beyond protecting the natural ecology of air, water, plants and animals to encompass the regulation of "aesthetic, historic, cultural, economic, social, or health [impacts], whether direct, indirect, or cumulative."[4] In similarly broad language, SEQR defines environmental factors to also include "racket, resources of agricultural, archeological, historic or aesthetic significance, existing patterns of population concentration, distribution or growth."[five]

New York's police goes a big footstep farther past also regulating potential impacts on "existing customs or neighborhood character"—an baggy concept that, in some cases, has been construed broadly enough to cake projects otherwise permissible under existing local country-use ordinances.[6]

NEPA and SEQR likewise differ in several other significant respects.

Federal courts have determined that NEPA mandates for federal agencies are "essentially procedural."[7] In other words, the constabulary's principal effect is to describe the process federal agencies must follow to implement a major new policy or projection—but non to shape outcomes consistent with its lofty aims.[8]

New York's SEQR, by contrast, can be used to forcefulness changes to "mitigate" ecology impacts—not only dictating how a project is built, simply effectively deciding whether it gets built at all. Perhaps even more importantly, SEQR requires an Environmental Touch Statement (EIS) if the projection "may" cause a significant adverse environmental impact, whereas NEPA effectively requires an EIS merely if a proposed actionwill"significantly affect the quality of the human environment."[ix] This farther expands the scope of actions covered past the state law. And before a project tin can win terminal approval, SEQR requires that adverse ecology impacts be "minimized to the maximum extent practicable."[10]

SEQR's broader scope and its requirement for "maximum extent practicable" mitigation as a condition for potential approval make it more expansive and stringent than its federal counterpart, NEPA; indeed, as volition be shown below, information technology is amongst the most expansive and stringent laws of its type in any land.

Where, When and How SEQR Applies

In addition to development projects, actions that may affect the "environment," equally broadly defined in the SEQR statute, include the adoption of new land-use laws, rules and regulations, bail financing resolutions for public projects and other required permits for private projects. In those instances, SEQR "requires the sponsoring or blessing governmental body to identify and mitigate the significant ecology impacts of the activeness it is proposing or permitting."[eleven] As farther explained in the state'sSEQR Handbook:

In order for SEQR to be applied to whatsoever proposed action or related series of actions there must be at least one discretionary decision required past an agency. Ofttimes there are several such decisions necessary in order to carry out the activity. For example, the "activity" of developing a residential subdivision may require separate approval decisions by a town planning board for the subdivision plat, town board or zoning board of appeals if in that location is a zoning decision, or county health department if on-lot sewer and water facilities are required, and, perchance by the country Departments of Transportation or Environmental Conservation, if highway admission or stream or other ecology permits are needed. No conclusion to approve, fund or straight undertake any role of an activity should be made by any of these agencies until SEQR requirements are met. This SEQR review of an activity may exist washed as function of a coordinated review process that involves several governmental agencies.[12]

Whether a specific projection[13] volition actually be subject to SEQR depends on which of three categories it fits into: Type I, Type 2, or Unlisted. Blazon I mostly includes big projects involving pregnant changes that the law considers more likely to have significant "agin" impacts on the environment.[14] Sponsors of Type I deportment must file a more detailed "total" version of an Ecology Assessment Class, or EAF.[fifteen]  This form, in plough, is used by the atomic number 82 bureau as the ground for determining whether the project or proposal requires an EIS.

Blazon II includes smaller projects such as small subdivisions and additions to single-family homes, which are by and large considered exempt from the law.[16] Unlisted deportment essentially consist of everything else.[17] Sponsors of unlisted projects need to submit at to the lowest degree a "short" EAF.[18]

The SEQR process

When a proposal field of study to SEQR requires decisions by more one state or local bureau, the law requires that a atomic number 82 agency be designated to coordinate the SEQR review procedure, starting with a "significance of activity determination" of whether the project may have any "significant adverse environmental impacts."[19] A "negative" or "conditional negative" declaration ways the projection has no significant adverse impacts or only involves impacts that will be avoided or minimized as much equally possible, which effectively ends the SEQR process unless the circumstances change.

If the first phase of the process indicates the project may have meaning agin ecology impacts, the applicant must prepare a Draft Environmental Affect Argument (DEIS) fully describing the impacts along with whatever proposed mitigation measures.

The pb bureau also may add a requirement for "scoping," the goal of which is "to focus the EIS on potentially significant adverse impacts and to eliminate consideration of those impacts that are irrelevant or not-meaning."[20] The scoping process must include an otherwise undefined and open-concluded "catamenia of time for the public to review and provide written comments on a draft scope or provide for public input through the use of meetings, exchanges of written textile, or other means."[21]

One time the lead agency is satisfied that the applicant's DEIS describes a plan to sufficiently mitigate whatsoever significant agin environmental impacts, the lead agency submits the draft for public annotate, which tin can include a public hearing.[22] After the lead bureau adopts a Final Environmental Bear upon Statement (FEIS), it has 30 days to decide how to movement forward with the underlying action—for instance, issuance of a building permit.[23]

While the SEQR process does have some timelines, they don't guarantee the process is completed within any particular fourth dimension period. Most initial steps are given definitive time periods, including appointing a pb agency when multiple agencies are involved (xxx calendar days), the significance of activeness determination (xx calendar days from receipt of application or all data received) and the optional "scoping" procedure (60 calendar 24-hour interval period for consideration of a typhoon scope). But while the agency is given upwards to 45 calendar days to consider a DEIS, or 30 days to consider a resubmitted DEIS, at that place is no limit on the amount of time information technology may take to approve it.

One time a lead agency approves a draft impact argument, the clock starts ticking again on the SEQR process, starting with a minimum 30 calendar-day public comment menstruation.[24] Any additional public hearing must occur between 15 and 60 agenda days from the approving, with an additional 10 calendar days for comments afterward.[25]  The lead bureau has threescore calendar days from the DEIS approval or 45 agenda days following the public hearing (whichever is later) to event a final impact statement.[26]

2.      SEQR'S SELECT COMPANY

Thirty-seven states have adopted formal ecology review requirements based at least in part on the original federal NEPA statute, according to a 2009 cess of such laws in theJournal of Environmental Planning and Management.[27] In 21 of these states, nevertheless, environmental review provisions use only to certain types of development activities, specific natural resource sectors, or detail geographic areas, the article indicates.[28]

New York is one of just 16 states with more broadly applicable, comprehensive environmental planning laws. These laws mostly involve 3 steps: a determination of whether a proposed action is subject to review, an cess of the environmental affect, and a detailed review of the activity'south impacts and measures required to reduce or mitigate that impact.[29]

In addition to New York, states described as having comprehensive environmental planning statutes are California, Connecticut, Georgia, Hawaii, Indiana, Maryland, Massachusetts, Minnesota, Montana, New Bailiwick of jersey, N Carolina, S Dakota, Virginia, Washington, and Wisconsin.[30]

Some of those states adopted portions of the federal deed almost verbatim.[31] Others, the article said, imitate the federal law to varying degree. The about basic differences include whether the statute applies to undertakings or approvals past local governments, how piece of cake it is to trigger review, whether the statute has an action-forcing requirement, and whether it applies to private projects.

Even in this group, New York's SEQR stands out amid the most expansive and rigorous environmental planning laws in the nation.

Take, for instance, the issue of applicability. All sixteen states with comprehensive laws require their state governments to conduct an ecology impact review in some circumstances. Only New York is one of just eight states that apply this requirement to county or local government agency actions as well.[32]

Also, all 16 of the comprehensive environmental laws on the state level apply to development projects proposed or financially supported by state regime.[33] Withal, equally shown below, just nine apply to private projects requiring other forms of government permission or approval—for example, zoning variance. In improver, only seven apply to proposed country and local policy changes, such every bit amendments to local zoning laws.[34]

New York's state environmental review law is 1 of only iii applying to every  possible category of action in the article—policy changes every bit well as physical developments, local as well as state actions, private besides as public projects.[35]

As some other basis of comparison, SEQR is 1 of thirteen statewide review laws requiring training of an touch on argument for a projection or action that "may" significantly touch on the environment. The remaining 3, like the federal statute, require an affect argument only for projects or actions thatwilltake such an effect.[36] Every bit noted above, NEPA'south bear upon is mainly procedural — and while the process it dictates however can entail substantial expenditures of time and money, the authorities agencies involved are nonrequiredto have an activeness based on its ecology impact review.

New York also is one of only 6 states whose environmental review laws include explicit "activeness-forcing" provisions, either requiring lead agencies or giving country agencies discretion to certify that adverse environmental impacts are either sufficiently mitigated or that reasonable alternatives are not available.[37]

In sum, New York'due south SEQR is amongst a scattering of comprehensive state environmental laws that are more widely applicable, more likely to impose a projection alter, and backed upwardly past comprehensive regulatory construction.[38] Near of the comparable country laws entail more limited applicability and largely procedural requirements, and thus appear "less dynamic in their relationship with state decision-making," according to one leading environmental economist.[39]

3. JUDICIAL REVIEW OF SEQR

Different federal anti-pollution laws such equally the Clean Water Act and Clean Air Act, NEPA did not include provisions allowing private citizens to file civil suits aimed at enforcing their provisions. Likewise, SEQR also does not contain a denizen suit or judicial review provision. The state Courtroom of Appeals read this omission equally reflecting the Legislature'southward intention that "some limitation on standing to challenge administrative activity was appropriate."[40]

Challenges to the outcome of a SEQR process can be filed in state Supreme Court under Article 78 of the state Ceremonious Do Law and Rules, following the lead agency'south final determination or decision.[41] Practically speaking, this ways a SEQR challenge must commence at the veryend of the procedure, afterwards the lead agency has either approved a final impact argument or made a "negative" proclamation (significant no impact statement is required). All authoritative remedies must be exhausted before an Commodity 78 proceeding can be initiated.[42]

This "ripeness" requirement commonly thwarts challenges to interim agency deportment. For instance, anyone challenging an agency for missing one of SEQR's deadlines will find out that "these limitations essentially are unenforceable."[43] Even an bureau's positive declarations are non considered to be final determinations; therefore, with few exceptions, they have not been held bailiwick to challenge.[44]

In addition, an Article 78 proceeding must embark within iv months of the agency's final determination —the only time flow when an bureau activeness is subject to challenge.[45]  Some cases propose that shorter time periods are acceptable if a separate statute governing the bureau determination has a shorter statute of limitations.[46]  There is also considerable disagreement over when the statute of limitations period begins, which further complicates matters.[47]

To challenge an bureau under SEQR a person or organization must first have "continuing," which means they take a correct to bring legal activeness nether the statute. Traditionally, New York courts relied on the 1991 decision inThe Society of the Plastics Industry, Inc. v. County of Suffolk."[48] Legal scholars notation that some lower courts have "simplified and express [this test] … into a requirement that a petitioner live in close proximity to the challenged projection."[49]

As long every bit thePlastics Manufacture standing exam applied, New York was "effectively ane of the most restrictive jurisdictions for ecology plaintiffs," every bit ane legal expert put it.[l] More recently, in the case ofSave the Pino Bush-league, Inc. five. Common Quango of the Urban center of Albany the state Courtroom of Appeals held that individuals could accept continuing to challenge a government action involving a natural resources if they could demonstrate "repeated, not rare or isolated" recreational use of that natural resource.[51]

AlthoughPine Bush was perceived to broaden SEQR's traditional continuing requirements, recent appellate sectionalization cases suggest that these broader standards may merely apply when the employ of natural resources is at consequence.[52] When the circumstances do not involve use of a natural resources, some lower courts have continued to apply the more than restrictivePlastics Industry standing test.[53]

For those with standing, Article 78 review is limited to whether the agency'due south decision was an error of law, an corruption of discretion, or arbitrary and capricious.[54] Courts interpreted this to mean they should "review the record to determine whether the agency identified the relevant areas of ecology concern, took a `hard look' at them, and fabricated a 'reasoned elaboration' of the ground for its determination."[55]

Courts in such cases take been deferential to lead agencies, holding that an FEIS does non need to consider every impact and every mitigation measure or alternative to satisfy SEQR.[56] Consequently, they rarely disturb agency decisions when the challenge is to a FEIS. At that place were 55 court decisions on SEQR in 2012, including a dozen involving challenges to completed affect statements.[57] In all 12 cases, the FEIS survived the claiming.[58] Government agencies were overturned in seven of 34 cases that were challenged for lack of an original or supplemental EIS.[59]

By the aforementioned token, courts typically insist on strict compliance with the SEQR process and let agencies picayune discretion as to the steps they must complete. Withal, some cases advise that this standard might be loosening, given instances where courts allowed pocket-sized procedural irregularities every bit long every bit the public had full involvement in the process.[60]

While New York has relatively restrictive continuing requirements and courts that typically defer to agency controlling, SEQR-related lawsuits take been filed and decided at a adequately steady rate. Betwixt 1975 and 2000, approximately two,000 such cases were decided, including 700 between 1990 and 2000, or an annual average of 63.[61]  In the wake of the Neat Recession, which began at the end of 2007, court rulings in SEQR cases declined to 45 cases in 2009, 37 cases in 2010, and 35 cases in 2011.[62]  In 2012, however, the number bounced back to 55.[63]

In sum, since the 1990s—despite the restrictions on standing and ripeness under Article 78—SEQR has given rise to enough litigation to generate an average of ane court determination a year for each of the 57 counties outside New York City.

Statistics have not been kept on the number of SEQR-related lawsuits dismissed or withdrawn before trial—much less the number of development disputes in which a SEQR lawsuit is threatened. All the same, thepotential litigation related to SEQR tin can be as significant as any precedents generated past cases pursued through trial.

As seen in the case of the Irondequoit Public Library (meet box, page 10), the threat of a lawsuit tin accept a significant outcome on the decision-making process. Although precedent and judicial deference probable would accept supported Irondequoit's initial conclusion, it still decided to spend $9,500 to complete a second full environmental cess form.[64] Such costs tin exist specially significant to small upstate municipalities.

iv. REFORMING SEQR

At best, the SEQR process can help local officials and planners analyze the issues surrounding certain types of projects, peculiarly those with a myriad of potential impacts on their surroundings – although such problems could also exist considered through the traditional country-utilize and permitting process alone, as is done in most states.

Only SEQR as well can be an obstacle to environmentally acceptable evolution that would otherwise exist permitted by local laws. While some of SEQR's weaknesses are inherent in the statute's construction, others result from corruption of the statute'due south flexible terms and requirements.

Delay

Since its inception, the most common complaint about SEQR has been the way it can unnecessarily filibuster a projection—which, if the procedure takes long enough, can exist tantamount to denial. This is especially truthful for small developers or project sponsors who lack the financial wherewithal to pay for repeated rounds of technical changes and studies demanded by atomic number 82 government agencies.

While SEQR doescontain a number of deadlines for agencies and projection sponsors, information technology lacks a timeline for DEIS creation and does not take whatever terminal, drop-expressionless engagement on which the process must end. Even existing deadlines are effectively unenforceable, since the but legal recourse for project sponsors or applicants is an Article 78 claiming, which can only be filed after the process has ended.[65]

With such limited enforcement mechanisms, the statute'south deadlines become nothing more than guidelines—as the Fortress Bible Church learned when the town of Greenburgh delayed its proposed building project for five years (see box on page 8), which led to more than years of litigation.[66] Among other things, the town took more than a year and a half to produce an FEIS—a process that SEQR requires to exist completed in under 105 days.[67]

Similarly, the town of Cornwall in Orange County also took advantage of SEQR'south weaknesses when it purposefully delayed a determination on whether a developer would exist required to file an impact statement for an environmentally beneficial residential subdivision.[68] By delaying the project's public hearing for a twelvemonth, the boondocks managed to lookbut long enough that it's newly adopted zoning law practical.[69]

In contrast, proponents explain that the project sponsor dictates the process' speed because the sponsor controls the DEIS content. This certainly can be true when the agency and sponsor collaborate, every bit was the case with the Verizon projection described on folio 9. A programmer helps its crusade past being organized and responsive, but in that location is piddling it tin can do if the lead agency has no incentive to deed quickly.

Unpredictability

Project sponsors value predictability because it allows them to strategically use their time, money, and resources. However, a project sponsor in the SEQR process can spend fourth dimension and coin preparing for one major impact during the scoping stage only to have other concerns arise during later stages. That'south because SEQR makes it also easy to allow new concerns to exist raised after the scoping procedure, making it hard for project sponsors to programme their investments. While a DEIS is the responsibility of a project sponsor, a lead agency tin can effectively insist that new issues be included in the impact argument, since the agency ultimately decides whether the typhoon volition serve as the ground for a final statement.

This also sets up a scenario where an agency can too easily make its own further requests. In the Greenburgh example, the projection sponsor was asked for additional studies and data fifty-fiftyafter it submitted and the town accustomed its DEIS as complete.[lxx] Fifty-fifty though a court afterward found the boondocks's request for yetanothertraffic study was in bad faith, it was not a SEQR violation.

In the Cornwall instance, a town board member at ane point insisted that a public hearing to consider the environmental assessment be kept open up because he was "always thinking of things fun for consultants to do" ^[71] —including a written report on stonewalls at the development site, which he had not made a priority during initial conversations months earlier. ^[72]

While the fluidity of the discovery procedure makes increased flexibility helpful, any truly important consequence would still be admitted under a more stringent standard.  Instead, the ease with which new topics are added opens up the process for abuse and misuse and increases unpredictability for project sponsors.

The "community character" issue

Amid the 37 states with some class of NEPA-like constabulary, some restrict review to purely environmental concerns: impacts on air, land, water, flora and animate being. New York, however, is among those employing a more than expansive definition including consideration of "noise, resources of agricultural, archeological, historic or aesthetic significance, existing patterns of population concentration, distribution or growth, existing community or neighborhood character, and man health."[73]

Of these, the phrase "existing community or neighborhood character" poses particular problems, considering the phrase is otherwise undefined in both the statute and the regulations. In reality, "community character" is expressed in chief plans and zoning ordinances drafted by elected boondocks boards or city councils.

For example, a locality that opts for minimum one-acre lot sizes has finer decided, for better or worse, that a residential subdivision calling for quarter-acre lots is inconsistent with the community'due south character. And, in fact, state courts have suggested as much in SEQR cases.[74]

In exercise, however, customs character impacts accept been given a broader definition through the SEQR procedure. In the example of the St. Lawrence Cement Co. (see page 9), SEQR'south broad linguistic communication provided grounds for property upward a projection that would have replaced an aging industrial plant with a new, more efficient, environmentally cleaner facility.[75] State officials and local citizen groups argued that the new establish was not consistent with the surrounding customs'southward graphic symbol. Although the old plant already operated and employed residents on the Hudson's due west depository financial institution just vi miles downriver of the proposed site for a new plant, opponents said the project on the east banking company would be out of scope with the "existing mix of business concern and industries."[76]

If in that location is no comprehensive local plan, "a lead bureau has little formal basis for determining whether a significant affect upon community character may occur," theHandbook adds.[77] Notwithstanding, it doesn't necessarily stop agencies frominformally reading into the phrase.

For instance, localities can try to define "grapheme" in a way that restricts consumer choices and squelches competition for existing businesses. As theSEQR Handbookadvises, "a town planning board reviewing a big box development should consider the bear on of the development on the community grapheme of a neighboring village that might suffer business displacement as a outcome of the blessing of the big box development."[78] On the other mitt, courts have fatigued the line at applying apurely economic rationale in cases where the proposed development is physically farther removed from allegedly affected businesses.[79]

Similarly, a 2007 state Appellate Division ruling immune villages located within the Rockland County town of Ramapo standing to challenge a town SEQR process approving a zoning modify that would let educatee housingadjacentto the hamlet.[80]

TheSEQRHandbookalso includes this striking passage on 1 of the nigh sensitive issues facing any customs:

Examples of actions affecting community graphic symbol that have been found to be significant include: the introduction of luxury housing into a working-form ethnic community, and construction of a prison in a rural customs.

Examples of actions found not to be meaning  include low-income housing and shelters for the homeless proposed to be located inside existing residential areas.[81] [accent added]

Should land or local laws make it more difficult to build luxury housing in a "working class" community than to build low-income housing or a homeless shelter inwhateverexisting residential area? It may surprise New Yorkers to learn that, nether the "character" clause, SEQR has been interpreted to come down squarely on one side of this politically charged question—classifying low-income housing as having a less significant impact than luxury housing—although it is difficult to see what that has to practise with "environmental quality review."

DEC weighs SEQR changes

Nether Governor Andrew Cuomo, New York State's Department of Environmental Conservation (Dec) has begun considering its commencement major regulatory overhaul of SEQR since the law was terminal amended in the mid 1990s. "The main purpose," the agency says, "is to streamline the SEQR procedure without sacrificing meaningful environmental review."[82]

Proposed changes include amendments that would lower the size thresholds for a Type I designation, which denotes projects likely to require an Ecology Impact Argument (EIS). At the same fourth dimension, it would designate more than projects as Type II and thus exempt from the law, and would crave that lead agencies provide projection sponsors with toll estimates for SEQR reviews. To the extent that the new regulations would actually ease SEQR requirements, 1 of the bureau's stated goals is to promote urban redevelopment.

Most significantly, the new rules would mandate the "scoping" of potential issues and impacts early in the process, and would require agencies to determine the adequacy of an EIS based solely on the impacts identified in the concluding scope. In an effort to prevent delays, the new rules would also require automated credence of an approved DEIS if the agency takes no action for 180 days.

Under Governor Cuomo, Dec also has promulgated new versions of the both the "short" and "total" environmental cess forms (EAFs), which are the basis for determining whether a projection requires a complete SEQR review culminating in a Final Environmental Affect Argument.

The revised full EAF—expanded from 21 pages to 25 pages (in a smaller font size)—requires lead agencies to respond new questions when because impacts and sponsors to provide greater item on how their projects affect the surrounding area, air quality, and natural and public resources.

The brusk form, expanded from 2 to four pages, at present requires sponsors to answer new and more pointed questions, such equally whether the project site is home to whatever endangered species. Dec has indicated that it intends longer forms to identify more problems earlier in the process.[83]

Private manufacture concerns

Manufacture groups take suggested other specific and technical reforms to SEQR that deserve consideration .[84] While not evaluated in-depth in this report, these ideas include the following:

• Dec should analyze when an awarding or EIS is deemed "complete" for the purpose of proceeding to public review and comment.

• There should exist a new, heightened standard of review to decide when to adjudicate a let hearing issue – requiring "clear and compelling show" to adjudicate where DEC has deemed the permit awarding complete and issued a tentative determination to approve the application. In improver, there should be fixed timeframes for the steps of the adjudicatory procedure.

• In that location should be an expedited SEQR review procedure to fast-track proposed projects or applications that run across sure criteria, as previously authorized for power plants under Article 10 of the Public Service Law.

• SEQR should not impose project mandates that would exceed other established regulatory or statutory standards such as the Clean Air Act.

• DEC should be given authority over the New York State Littoral Management Program, and any review under the programme should be undertaken simultaneously with SEQR review.

• In whatsoever instance where a project receives a negative declaration, indicating an touch statement is unnecessary, any boosted studies subsequently required by a lead agency should be undertaken at the agency's expense.

• Formulate thePlastics Industry standard for determining legal standing to challenge an agency activeness under SEQR, which limits standing to those who tin can demonstrate injury "unlike in kind or caste from the public at large."

Regional councils weigh in

Like concerns about SEQR and project delays have been cited or alluded to in strategic plans submitted by several of New York'south Regional Economic Development Councils, which Gov. Cuomo has assigned a more than important role in charting state policy to promote economical growth. For example, in its November 2011 strategic plan, the Capital Region council had this to say about the law:

SEQRA is seen as cumbersome, vague, with niggling certainty on timetables or grounds for determinations. SEQRA was written to protect separation of environmentally sensitive or residential uses of holding from industrial action. But this valuable objective, when implemented in daily practice, tin besides take unintended consequences — stymieing redevelopment even on previously industrial property and especially, lessening New York's power to win important "game changing" projects.[85]

5. RECOMMENDED REFORMS

While supporters and detractors of SEQR might incessantly debate its impact and consequences, the law undoubtedly adds to the expense of whatsoever project subject to its requirements, generating ample billable hours for planners, engineers and lawyers who specialize in advising project sponsors and atomic number 82 agencies on how to navigate its twists and turns. New York's four,790-give-and-take SEQR statute has spawned a bulky 16,850 words of regulations—further explained, along with dozens of notable court precedents applying the law, in the state'southward 88,000-word, 211 pageSEQR Handbook.

As noted earlier in this newspaper, most states manage to seek a balance between economic development and environmental protection without superimposing a law similar SEQR on existing environmental regulations and land-employ ordinances. Fifty-fifty amidst the states with by and large like laws inspired by the federal NEPA, New York'south approach is amidst the most stringent and broadly applicable in the nation.

Bold SEQR stays on the books, changes to the law would create a more than efficient procedure assuasive for public input and deliberation while ensuring evolution does non harm the environment.

Dec'due south ongoing consideration of proposed SEQR rule changes can provide a starting betoken for more than significant reform. What follows are recommendations for streamlining SEQR for specific projects in three central problem areas identified in the previous section. Some, such as timeline changes, would require statutory amendment, while others could be accomplished through regulatory revisions.

one. Reducing delay

With the submission of an ecology assessment form every bit the starting point, implement the following new timelines:

• Upwards to 60 days for a project sponsor to complete a draft scope

• Up to twoscore days for the pb agency to consider the typhoon scope and nowadays the project sponsor with a final scope

• Upwards to 180 days to complete the SEQR process, including preparation of both a draft and final EIS

Implement these rules to back-trail timelines:

• If the lead agency does not reach a significance of action determination within 20 days, a "negative" declaration automatically volition be issued for the project, essentially immigration the fashion for other needed approvals.

• If the atomic number 82 agency does not approve a draft telescopic within sixty days of the determination that at that place are significant adverse environmental impacts, the draft will be deemed the final scope for the purposes of EIS creation.

• If the lead bureau does not fix and file an FEIS within 180 days of blessing a final projection scope, the DEIS will be accounted the FEIS, as called for in DEC's proposed typhoon regulations.

• In line with existing regulations, any extension of the proposed new SEQR deadlines will simply be at the common agreement of the project sponsor and atomic number 82 agency.[86]

These changes effectively would dissever the SEQR review procedure into 2 phases: 120 days for conclusion of significance and scoping and 180 days for completing both a typhoon and terminal EIS.

Barring any mutually agreed-upon extensions, this would ensure that the SEQR procedure for any project is completed within 300 days—or virtually 10 months from offset to finish, later a project sponsor's initial EAF submission.

ii. Increasing predictability

A "scoping" process, resulting in a definitive listing of environmental impacts to be considered in the EIS, should exist mandatory for all deportment or projects unless waived by the lead agency, equally chosen for in DEC's proposed regulations. In addition:

• Once scoping is complete, new "touch" issues should only be admitted through the existing supplemental EIS process, subject to more stringent admission criteria; and

• Such bug must be pregnant plenty that, had the outcome been considered during scoping, the projection could not take proceeded without mitigation.

Whilemeaning ecology issues would nevertheless exist admitted afterwards scoping, this will curb the power of pb agencies to concur upwards projects by repeatedly introducing new issues late in the SEQR process.

3. Redefining "graphic symbol"

The law'south reference to "existing neighborhood and community character" should be eliminated. Equally broadly divers and applied through the SEQR process, this provision can too hands serve as a vehicle for imposing further restrictions on evolution, beyond those already found in local land-use laws.

For amend or worse, the "grapheme" of a particular neighborhood or community ultimately is reflected in planning and zoning ordinances determined and periodically updated through the democratic process, past locally elected officials.

Conclusion

The proposed reforms outlined above assume that the underlying SEQR statute is not inverse. But the issues cited hither likewise indicate to a bigger question: given the many other environmental protection and land-use laws enforced at the federal, land and local level, is SEQR really essential?

Nearly 40 years subsequently SEQR's enactment, as the Empire State continues to lose large numbers of residents to the residue of the country, information technology's time to consider whether New York should continue imposing this layer of added cost and complication on meaning residential, commercial and civic developments.

---

Endnotes

[1] xl C.F.R. §1508.fourteen.

[2] "The SEQR Handbook: iii^rd Edition – 2010," Sectionalisation of Environmental Permits, New York State Department of Ecology Conservation, pg. 188; bachelor at: http://www.dec.ny.gov/docs/permits_ej_operations_pdf/seqrhandbook.pdf.

[iii] Federal laws designed to protect the surroundings include the Clean Air Human activity (CAA), the Clean Water Human activity (CWA), the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA, or Superfund), the Endangered Species Act, the Oil Pollution Human activity, the Resource Recovery and Conservation Human action, and the Prophylactic Drinking Water Act, among others. Many of these laws have their counterparts on the state level or are enforced in part by the state DEC.

[4] 40 C.F.R. §1508.14.

[5] New York Environmental Conservation Law §eight-0105(half dozen).

[6]Ibid.

[7]Vermont Yankee Nuclear Ability Corp. v. NRDC, 435 U.S. 519, 558 (1978).

[8] Jeffrey Renz, "The Coming of Age of State Environmental Policy Acts," 5Pubic Land and Resource Law Review 31, pgs. 49-50 (1984)("that by just preparing, circulating and reviewing an EIS, an agency satisfies the acts' requirements that the agency consider environmental impacts").

[9] 42 U.South.C. §4332(c);meet also:SEQR Handbook, NYSDEC at pg. 188.

[10] Ecology Conservation Police force §8-0109(8);see also:6 N.Y.C.R.R. §617.11(d)(5)("[C]ertify that consistent with social, economical  and other essential considerations from among the reasonable alternatives available, the activity is one that avoids or minimizes adverse environmental impacts to themaximum extent practicable, and that adverse environmental impacts will exist avoided or minimized to the maximum extent practicable past incorporating as conditions to the decisions those mitigative measures that were identified every bit practicable").

[11] "SEQR: Environmental Bear upon Assessment in New York Land," New York State Department of Environmental Conservation website, (accessed 10/01/13), available at: http://www.dec.ny.gov/permits/357.html.

[12] "SEQR Handbook," NYDEC, at pg. 14.

[xiii] The word throughout this paper focuses on specific projects and project-specific bear on statements. Still, less frequently, SEQR also can require a "generic" impact statement, or GEIS, "if a number of divide actions are proposed in a given geographic area and which, if considered singly, may take modest effects, just if considered together may have meaning adverse environmental impacts; a sequence of related or contingent actions is planned by a single bureau or private; separate deportment share common (generic) impacts; or a proposed program or programme would have wide application or restrict the range of future culling policies or projects," SEQR Handbook, NYSDEC, at pgs. 99-100..

[xiv] 6 N.Y.C.R.R. §617.iv

[15] 6 N.Y.C.R.R. §617.four(a)(2). At that place is both a 'short' form EAF and a 'full' form EAF, the full form is onlyrequiredwhen the action/project is a defined as Type I (projects types likely to crave an EIS). Any lead agency or project sponsor can choose to do a total form EAF.

[16] 6 North.Y.C.R.R. §617.5. Type Ii actions are excluded from SEQR review – examples include maintenance or repair involving no substantial damage to an existing structure or facility, repaving of existing highways, construction of commercial space less than 4,000 square feet that does non require a zoning modify or variance, structure or expansion of single, ii-family, and three-family homes on canonical lots).

[17] 6 N.Y.C.R.R. §617.ii(ak).

[18] 6 North.Y.C.R.R. §617.6(a)(3).

[19] 6 North.Y.C.R.R. §617.7. Bureau tin determine: "(i) To require an EIS for a proposed action, the pb bureau must determine that the action may include the potential for at to the lowest degree 1 pregnant adverse ecology touch. (ii) To determine that an EIS will not exist required for an action, the lead agency must determine either that there will be no adverse environmental impacts or that the identified adverse environmental impacts will not exist significant." Note that this is different than the language in New York Environmental Conservation Police force §8-0109. §8-0109 states that the agency shall prepare an EIS if the activity "may have a significant environmental consequence."

[20] vi N.Y.C.R.R. §617.8(a).

[21] 6 N.Y.C.R.R. §617.8(e).

[22] vi N.Y.C.R.R. §617.9.

[23] 6 N.Y.C.R.R. §617.11.

[24] half-dozen N.Y.C.R.R. §617.9(a)(3).

[25] vi North.Y.C.R.R. §617.9(a)(four).

[26] 6 N.Y.C.R.R. §617.9(a)(5).

[27] Zhao Ma, Dennis R. Becker, and Michael A. Kilgore, "Characterising the landscape of country environmental review policies and procedures in the Usa: a national cess"Journal of Ecology Planning and Direction, Vol. 52, No. 8, Pg. 1040 (Dec. 2009). States that accept no formal environmental review requirements are: Alabama, Arizona, Colorado, Idaho, Iowa, New Hampshire, N Dakota, Ohio, Oklahoma, South Carolina, Tennessee, West Virginia, and Wyoming.

[28]Ibidat 1040. Including: Alaska, Arkansas, Delaware, Florida, Illinois, Kansas, Kentucky, Louisiana, Maine, Michigan, Mississippi, Missouri, Nebraska, Nevada, New Mexico, Oregon, Pennsylvania, Rhode Isle, Texas, Utah, Vermont).See besides: Rolf Pendall, "Problems and Prospects in Local Environmental Assessment: Lessons from the Us,"Journal of Environmental Planning and Direction,41(1) pgs. 5-23, (1998)(At least iii of these 21 states—Texas, Utah, and New Mexico—initially adopted more widely applicable comprehensive ecology review laws in the 1970s but have since repealed them).

[29] Ma, Becker, and Kilgore, "Characterising the mural of country environmental review policies and procedures in the United States: a national assessment," at pg. 1039.

[30]Ibid at 1040;see also: "Land NEPA Contacts," The White Firm'south Council on Ecology Quality website; (accessed 1 Oct 2013), available at http://ceq.hss.doe.gov/state_information/States_NEPA_Like_22June2013.pdf.

[31]Indiana Superhighway Commission 5. Ziliak, 428 North.Due east.2d 275, 281 (1981 Ind. App.).

[32] The others are California, Georgia, Hawaii, Minnesota, New Jersey, North Carolina, and Washington.

[33] Ma, Becker, and Kilgore, "Characterising the landscape of state environmental review policies and procedures in the United states of america: a national cess," at pg. 1042.

[34]Ibid.

[35] Ma, Becker, and Kilgore, "Characterising the landscape of land environmental review policies and procedures in the United States: a national assessment," at pg. 1042. The California Environmental Quality Human action and Washington State Environmental Planning Act are the others.

[36] David Sive and Marking A. Chertok, ""Little NEPAs" and their Environmental Impact Assessment Procedures,"ALI-ABA: Environmental Litigation, pg. 9 (June 2005).

[37] While South Dakota'southward statute has this activity-forcing provision, the statute is applied only at the discretion of the agency reviewing the action. Thus, unlike the other states with this provision it is not a purely mandatory.

[38] Alan Gilpin,Environmental Affect Assessment: Cutting Edge for the 21^st Century, Cambridge University Press, pg. 117-118 (1995).

[39]Ibid.

[forty]The Lodge of the Plastics Industry, Inc. v. County of Suffolk, 77 Northward.Y.2d 761, 770 (1991)(stating that the Legislature intended to place some limitations on standing to challenge administrative action under SEQRA by failing to provide for citizen suits explicitly).

[41] N.Y. C.P.L.R.§7801.

[42]Rochester Phone Mobile Communications v. Cole,637 Northward.Y.S.2d 878 (iv^th Dep't 1996).

[43] Michael B. Gerrard, "Judicial Review Under SEQRA: A Statistical Study," 60Albany Law Review 2, pg. 378; available at: http://www.albanylawreview.org/archives/65/two/JudicialReviewUnderSEQRA-AStatisticalStudy.pdf.

[44]Sour Mountain Realty v. N.Y. Land Department of Ecology Conservation, 688 North.Y.Due south.second 842, 845 (App. Div. 1999)(holding that a positive announcement is only a footstep and non a concluding conclusion and that the case is not ripe for review).

[45] N.Y. C.P.L.R.§217.

[46]Haggerty 5. Planning Lath of Sand Lake, 166 A.D.2d 791, 792 (3d Dept. 1990)(holding that a 30 day statute of limitation independent in town constabulary applied when boondocks action was declared to have violated SEQRA).

[47]Gordon v. Rush, 100 N.Y.2d 236 (2003)(holding that the statute of limitations started to run when the negative annunciation was made);Stop-the-Clomp v. Cahill,771 N.Y.S.2d 40 (2003) (holding that the statute of limitations started to run when the positive proclamation was made).

[48]The Social club of the Plastics Industry, Inc. v. County of Suffolk,77 North.Y.2nd 761, 778 (1991).

[49] Mark A. Chertok and Ashley S. Miller, "Ecology Police force: Developments in the Law of SEQRA," 61 Syracuse L. Rev. 721, pg. 726, (2011);see as well:Thing of Sunday-Brite Car Launder v. Lath of Zoning Appeals of Town of Due north Hempstead, 69 Northward.Y.2d 406 (1987);Save Our Main Street Buildings five. Greene County Legislature, 77 North.Y.2d 761 (1991).

[fifty] Gerrard, "Judicial Review Under SEQRA: A Statistical Study," at pg. 372.

[51]Matter of Save the Pine Bush-league, Inc. v. Common Council of the City of Albany, 13 Due north.Y. 3d 297, 305 (2009);see also: Chertok and Miller, "Environmental Police force: Developments in the Law of SEQRA," at pg. 725.

[52]Peconic Baykeeper, Inc. v. Lath of Trustees of the Freeholders & Commonalty of the Boondocks of Southampton, 2010 N.Y. Slip Op. 30182(U) (Sup. Ct. Suffolk Canton. 2010).

[53]Harris v. Town Board of Town of Riverhead,905 N.Y.South.2d 598 (2d. Dep't 2010)(property that petitioners did not accept standing to challenge a construction projection where they did not alive close plenty to the state an injury on the basis of proximity alone and that traffic congestion and negative furnishings on business organization are not individual injuries that are unlike than the general public).

[54]Akpan v. Koch, 75 N.Y.2d 561, 570 (1990);see likewise:N.Y. C.P.L.R.§7803. The SEQRA claiming must be based on one of these 4 grounds: "1. whether the body or officer failed to perform a duty enjoined upon it by law; or 2. whether the body or officer proceeded, is proceeding or is about to proceed without or in backlog of jurisdiction; or 3. whether a determination was made in violation of lawful process, was affected by an mistake of constabulary or was arbitrary and arbitrary or an corruption of discretion, including abuse of discretion equally to the measure or way of penalisation or discipline imposed; or 4. whether a decision made as a outcome of a hearing held, and at which show was taken, pursuant to direction past law is, on the unabridged record, supported by substantial bear witness…".

[55] Akpan at 570.

[56]Jackson five. New York State Urban Evolution Corporation, 67 N.Y.2d 400, 417 (1986).

[57] Michael B. Gerrard, "Survey of 2012 cases nether Land Environmental Quality Review Human activity," 250New York Police force Periodical 8 (11 July 2013).

[58]Ibid.

[59]Ibid.

[60]King v. Saratoga County Board of Supervisors, 675 Northward.Eastward.2d 1185, 1188-ix (1996)(SEQRA requires strict compliance with procedural requirements and that anything less than strict compliance offers "the incentive to cut corners");but come across:Merson v. McNally 688 North.E.2d 479 (N.Y. 1997)(belongings that an agency tin determine a conditional negative declaration for a Type I activeness even though regulations seem to prohibit information technology, as long as the public is involved).

[61] Gerrard, "Judicial Review Nether SEQRA: A Statistical Study," at pg. 365 and 366.

[62] Michael B. Gerrard, "Recent Developments Under Land Environmental Quality Review Act," 248New York Law Journal 8, pg. 1 (12 July 2012).

[63] Gerrard, "Survey of 2012 Cases Nether Country Environmental Quality Review Act," at pg. 1.

[64] "Lawsuit could concur upwards Irondequoit library project; require new vote,"Irondequoit Post, 20 May 2013, at:

http://www.irondequoitpost.com/x90718543/Lawsuit-could-agree-up-Irondequoit-library-project-require-new-vote.

[65] Presuming the pb agency is interim in proficient organized religion.

[66]Fortress Bible Church building five. Feiner, 694 F.3d 208 (2012), available at: http://www.leagle.com/determination/In%20FCO%2020120924061.

[67]Ibid.

[68]Downey Farms Development Corp. v. Town of Cornwall Planning Board, 2008 NY Slip Op 28186, (16 Apr 2008, Sup. Ct. Orange Canton), bachelor at: http://law.justia.com/cases/new-york/other-courts/2008/2008-28186.html.

[69]Ibid.

[seventy]Fortress Bible Church v. Feiner, 694 F.3d 208 (2012).

[71] Downey Farms Development Corp. five. Town of Cornwall Planning Board, 2008 NY Slip Op 28186, (16 Apr 2008, Sup. Ct. Orange County).

[72] Ibid.

[73] 6 N.Y.C.R.R. §617.1.

[74]Hamlet of Anecdote Ridge 5. Town of Ramapo, 45 A.D.3d 74 (2007, 2^nd Dept.).

[75] "St. Lawrence revises plans for proposed cement plant,"The Business Review, 18 Aug 2008, bachelor at http://www.bizjournals.com/albany/stories/2004/08/16/daily26.html.

[76] "Secretarial assistant of state rejects St. Lawrence Cement establish on Hudson,"The Business Review, 25 Apr 2005, available at: http://www.bizjournals.com/albany/stories/2005/04/25/story5.html?page=2.

[77] "SEQR Handbook," NYDEC at pg. 86.

[78]Ibid at pg. 177.

[79]East Coast Development Company five. Kay, 174 Misc.2d. 430 (1996).

[80]Hamlet of Chestnut Ridge v. Town of Ramapo, 45 A.D.3d 74 (2007, two^nd Dept.).

[81] "SEQR Handbook," NYDEC, at pg. 86.

[82] "State Environmental Quality Review Act – Proposed Amendments," New York Country Department of Ecology Conservation website; available at http://www.dec.ny.gov/permits/83389.html

[83] "Revised Model Environmental Assessment Forms: Negative Declaration," New York State Department of Environmental Conservation, (11/23/x); available at: http://www.december.ny.gov/docs/permits_ej_operations_pdf/eafnegdec.pdf

[84] See, for case, The Business Council'southward proposals at http://www.bcnys.org/inside/env/2011/SEQRA.pdf

[85]http://regionalcouncils.ny.gov/themes/nyopenrc/rc-files/capitalregion/CREDCStrategicPlan2011.pdf, 77 The other regional councils to cite or allude to SEQR delays were those for Long Isle, the Mid-Hudson, Primal New York, New York Metropolis, the Southern Tier and Western New York.

[86] 6 North.Y.C.R.R.§617.3(i). "Fourth dimension periods in this Part may be extended by mutual agreement between a project sponsor and the lead agency, with discover to all other involved agencies past the atomic number 82 agency."</modest>

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Source: https://www.empirecenter.org/publications/streamlining-seqr/

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