SEQRA
Are actions funded or constructed prior to the adoption of SEQRA and would now be considered a Type II action exempt from consideration of SEQRA if they seek modification?
6NYCRR 617.5(43) actions undertaken, funded or approved prior to the effective dates set forth in SEQRA (see chapters 228 of the Laws of 1976, 253 of the Laws of 1977 and 460 of the Laws of 1978), except in the case of an action where it is still practicable either to modify the action in such a way as to mitigate potentially adverse environmental impacts, or to choose a feasible or less environmentally damaging alternative, the commissioner may, at the request of any person, or on his own motion, require the preparation of an environmental impact statement; or, in the case of an action where the responsible agency proposed a modification of the action and the modification may result in a significant adverse impact on the environment, an environmental impact statement must be prepared with respect to such modification;
An applicant submits for the expansion of a non-conforming use onto an adjacent parcel. The parcel has the same zoning designation and the municipality's code enables expansion of the non-conforming use. Does the applicant have to initially combine the parcels?
No combination requirement although beneficial to applicant and municipality. And, combination can be done through subsequent approval process.
Does SEQRA review of the installation of solar arrays on existing structures differ when the structure is on/eligible for the historic register?
6NYCRR 617.5(15) installation of solar energy arrays on an existing structure provided the structure is not:(i) listed on the National or State Register of Historic Places;(ii) located within a district listed in the National or State Register of Historic Places;
An applicant submits to its local land use board an application for work on a county highway making it subject to the 239m referral. Is the County Planning board subject to a SEQRA determination regarding the project?
No, 6NYCRR 617.5(19) the recommendations of a county or regional planning board or agency pursuant to General Municipal Law sections 239-m or 239-n;
An application has been received for a multi-unit residential subdivision. Some of the lots in the subdivision are sub-standard from the zoning ordinance and the municipality has determined the project should be considered through coordinated review. The planning board has been designated lead agency and the applicant requested SEQRA determination from the Planning Board to proceed to ZBA for area relief without full development plans for the subdivision. Is the applicant able to have a SEQRA determination for the subdivision without consideration of its construction?
Yes, applicant can proceed with vagueness. Court Street Development Project, LLC v Utica Urban Renewal Agency (2020 WL 6688830, November 13, 2020) Sandora v City of New York, (186 AD3d 1225 (September 2, 2020)
Marshall Enterprises is new to the convenience store game, but their head of operations is an up-and-comer with a chip on his shoulder who is ready to “go to war” with the most ubiquitous convenience store company in the area. Marshall Enterprises wants to build a bigger and better convenience store complete with outdoor amenities for patrons. To this end, Marshall Enterprises proposes to construct a 5,000 sq store with additional ancillary structures. The proposal includes the need to remove trees and regrade nearly the entire 3-acres parcel. Luckily, this clearing provides a much better view to the 1852 Victorian home directly across the street from the project site which proudly displays its placard declaring its inclusion on the National Register of Historic Places and its claim to fame for being the home of Esther Renier, the inventor of cucumber ice cream. No variances are needed, but there is a Site Plan review requirement. How should the Planning Board classify this project for SEQRA purposes?
But for the presence of the “listed” property, this would likely be an Unlisted Action. However, whenever an Action is “within, or substantially contiguous to, any historic building . . . that is listed on the National Register of Historic Places (or State Register or determined to be eligible for listing on the State Register)”, it is elevated from an Unlisted Action to a Type I Action provided that the project exceeds 25% of any threshold established for a Type I Action. Here, the physical alteration of 10 areas for a non-residential purpose is a Type I threshold. Since we know that Marshall Enterprises is re-grading almost 3 acres, we know that this is at least 25% of this threshold, making this a Type I Action. 6 NYCRR 617.4(B)(6)(i) and 6 NYCRR 617.4(B)(9).
A municipality receives an application for a 11,300 square foot office building. The project sits in a Commercial Office Residential (COR) zone which allows the use. The proposed layout requires area relief from the Zoning Board of Appeals, Site Plan and review from the municipality's architecture review board because its in an overlay district. The planning board is "first to act" considers the application Unlisted and commences uncoordinated review and approval. The ZBA subsequently issues a negative declaration and grants relief. The architecture review board finds the viewshed is impacted by the project and issues a positive declaration in its SEQRA consideration, what happens to the SEQRA findings of the initial two reviews?
If any of the involved agencies issues a positive declaration, requiring an EIS, all other determinations of non-significance are superseded and a coordinated review must commence. If an involved agency has made its determination, they are not subject to coordination.
A Zoning Board of Appeals member applies for a subdivision to the Planning Board, the Code Enforcement Officer rejects the application because the member failed to disclose their status as a City Officer? Does the CEO have grounds?
Yes, as an officer of the municipality you must disclose any time you appear or submit to the municipality. You are prevented from appearing before the board you sit on but must disclose status before others.
An applicant has submitted an area variance application for the construction of a new barn in an established agriculture district pursuant to Article 25-AA of the NYS Agriculture and Markets law, is that action subject to 239m referral?
No, GMU 239-m(3)(b)(vi) the boundary of a farm operation located in an agricultural district, as defined by article twenty-five-AA of the agriculture and markets law, except this subparagraph shall not apply to the granting of area variances.
A project is occurring within 500 feet of a municipal boundary. The applicant is directed to notify the adjoining municipality of the proposal by host community planning staff, who is the appropriate recipient of the notification?
General Municipal Law 239-nn(4) - such notice shall be given by mail or electronic transmission to the clerk of the adjacent municipality at least ten days prior to any such hearing. 5. Such adjacent municipality may appear and be heard
An applicant has submitted a PUD application that will add farmland to an existing agriculture district. The zoning enforcement officer indicates that the window for amending the agriculture district is not open, does the zoning enforcement officer have this authority?
NYS Ag and Markets Law Section 303(b)(1) - 1. The legislative body of any county containing a certified agricultural district shall designate an annual thirty-day period within
which a landowner may submit to such body a request for inclusion of land which is predominantly viable agricultural land within a certified agricultural district prior to the county established review period
A 12-lot residential subdivision application has been submitted to the Planning Board which includes six (6) lots of 5.2 acres and six (6) lots of 4.8 acres. Based on the NYSDOH Realty Subdivision definition would this application be considered a Realty Subdivision? If so, what is the SEQR classification and how many lots would the NYSDOH have authority over?
A Realty Subdivision per Public Health Law (PHL), Environmental Conservation Law (ECL), Part 74 "Approval of Realty Subdivisions", is any tract of land, under one ownership or common scheme, which has been subdivided into five (5) or more residential lots, each comprising of five (5) acres or less within any three (3) year period. The common phrase used is the "5, 5, 3” rule. A Realty Subdivision is a Type I action under SEQR and NYSDOH will only have jurisdictional review on the 6-lots that are smaller than five (5) acres
The Planning Board sends out an intent to act as lead agency letter to all involved agencies. They received correspondence from the neighboring community wanting to also act as lead agency. Can multiple entities act as lead agency and if not who determines the acting lead agency.
In a coordinated review under SEQR, there are times when the involved agencies are not able to agree which one of them will become the lead agency. When this happens, any of the involved agencies or the project sponsor can request the Commissioner of the Department of Environmental Conservation to designate a lead agency 617.6(b)(5).
Surprisingly, the answer is not “direct the applicant to seek a use variance”. Schools and places of worship are presumed to have a beneficial effect on the community and they have historically been present in residential areas. Therefore, such uses may not be excluded “wholesale” from a residential neighborhood under a zoning code. However, they may be regulated (Site Plan/Special Use Permit) and where there is evidence of significant impacts on the community (ie traffic congestion/property values/municipal services) they may be excluded. However, this must be done on a case-by-case basis and the relevant facts should be clearly set forth in any land use application denial.
In Town X, the zoning law prevents houses of worship from being located in any residential zones. If a religious group seeks a building permit to construct a new house of worship in the R-1 zoning district of Town X, what should the zoning officer/code enforcement officer do?
A cell tower application has been submitted to the Zoning and Planning Boards to locate a tower in a low coverage residential zoning district for increase in public safety that requires a special use permit. Can the local Zoning/Planning Board deny the application because they do not want a tower in their municipality?
Planning Board shall make recommendations consistent with the Congressional Telecommunications Act of 1996, which establishes a comprehensive framework for exercising jurisdiction by state and local zoning authorities over the construction, modification and placement of such facilities. Since the Telecommunications Act of 1996 was enacted in the US, local jurisdictions are not allowed to “prohibit” the placement of communication towers. They are allowed to regulate how and where the towers are placed as long as the overall impact is not to preclude wireless service. Also, the Telecommunications Act of 1996 prohibits local jurisdictions from denying a tower application on the basis that it is “unhealthy.” As long as the tower meets FCC regulations and guidelines, it is presumed to be safe.
A ZBA application is received for a parcel of land on a county highway. The ZBA meets the second Wednesday of the month and the County Planning Board meets on the third Thursday. The ZBA issues its determination favorable to the applicant and the adjoining neighbor immediately challenges indicating this improper procedure, is the decision defensible?
No, the County Referral must be issued before the governing body makes its decision and this cannot be a condition of approval.
What is the explicit number of days the Federal Tele-Communication Act requires for decision on application for cell tower application?
90
An applicant submits SEAF an Indiana Bats are identified under the threatened and endangered species. The Planning Board issues a Negative Declaration and subsequently Site Plan approval. The applicant draws a building permit and commences tree clearing on June 3rd. The code enforcement officer is notified by the neighbors that tree clearing has begun. The Code Enforcement Office stops at the site and issues a Cease and Desist order, is this action defensible.According to U.S. Fish and Wildlife: Seasonal restriction on tree cutting: Only cut trees when Indiana bats are hibernating or concentrated near their hibernacula. For project areas affecting Indiana bat swarming habitat (near hibernacula), only cut trees between November 15 and March 31.
Absent specific delegation, authority to implement federal and state wildlife protection regulations, the CEO would likely not have independent enforcement authority of restrictions on tree cutting (although she/he could certainly bring it to the attention of federal and/or state agency officials). Of course, the answer would be the exact opposite if the local planning board approval includes an express condition prohibiting tree cutting “out of season“ or requiring compliance with the seasonal tree cutting restriction
The Village DPW crew proceeds to install stop signs at various intersections throughout the Village. The neighbors on the streets where the signs are installed commence an Article 78 proceeding because the Village did not undertake SEQR review before the installation of the signs, was SEQRA review required?
6NYCRR 617.5(22) - Installation of traffic control devices are Type II SEQRA actions
A town has historically regulated its zoning district boundaries via Planned Unit Developments. After doing so without cohesion amongst the districts it attempts to enact Euclidian zoning. Does the town have the authority to remove the entitlements provided in the historic PUDs
PUDs are specified zoning districts and the removal of entitlements difficult because of potential for creating lawful non-conforming uses and grandfathered vested rights of applicants/owner
A ZBA consists of 7 members. During a snow storm, only five members are able to attend, still constituting a quorum. An application proceeds and receives an approval vote of 3-2. The applicant thanks the board for its support but later receives correspondence they've been placed on the subsequent agenda. They are confused by the correspondence because having received a majority of the quorum, what is applicants remedy?
The applicant did receive a majority of those present, however that doesn't represent a majority approval of the overall board's makeup. The applicant would need 4 votes in either direction to receive approval or denial of an application.
Can an applicant apply directly to a county planning board or agency?
No, 239-m (b) The term "referring body" shall mean the city, town or village body responsible for final action on proposed actions subject to this section.
The planning board has been asked to provide the town board of its municipality and advisory opinion for a zoning amendment. The request was submitted by a non-profit entity where one of the board members is a member of the non-profits board of directors. Does the membership in both entities require recusal of the planning board member?
NYSBA/MLRC Municipal Lawyer(Winter 2008)[Vol. 22, No. 1] citing See Cromarty v. Leonard Yes, a board member cannot be required to separate their fiduciary responsibility amongst the entities to which it’s a members
An applicant is seeking a Special Use Permit for the construction of a amphitheater, after closing the public hearing, the applicant introduces the demolition of an adjoining structure; should the public hearing be re-opened?
Yes, introduction of any new and substantial information shall require the re-opening of the public hearing.
An application is received for a Site Plan and Special Use Permit along a State Highway. The municipality's Planning Board initiates coordinated review, NYSDOT receives circulation and it is determined the Planning Board will serve as Lead Agency. Planning Board issues a Negative Declaration and in its evaluation of the Site Plan, the Planning Board restricts the access configuration further than NYSDOT authorized, is the restriction lawful?
There are two distinct principles here. First, the regulatory agency is not bound to its lack of SEQRA designation as lead agency or the fact a Negative Declaration was issued is that is separate and distinct from the regulatory authority. Applicant likely to push back on further restriction because of regulatory position.
A Site Plan review is submitted for an industrial user that immediately abuts an industrially zoned parcel with a non-conforming residential use. The residential owner submits an interpretation to the ZBA indicating that the applicant seek relief they are owed for separation because the zoning ordinance provides separation from industrially and residentially zoned properties.
No, the initial request must be made of the Zoning Enforcement Officer. However, the zoning map's indication that the parcels have the same zoning does not constitute the parcel residential as the map indicates it is also zoned industrial.
A Planning Board member applies for an Area Variance for a side yard setback for their home. The variance is granted and the member submits a Building Permit application. During the Building Permit review the inspector denies the permit recognizing the door does not face the throughfare as defined by Single Family Home in the zoning ordinance. What remedy does the member have?
The member can turn the door and make the house zoning compliant or seek a subsequent variance from the standard.
Are all zoning amendments subject to GMU 239-M referral?
An application is received for a residential subdivision from one to two lots in a single family zone. During the presentation the applicant shares that the existing structure is acting as an illegal non-conforming two-family residence. Can the planning board proceed with its review of the subdivision application?
This depends on local ordinance, the subdivision may return to the Code Enforcement Officer for verification that the site compliant with the ordinance before further approvals issued.
Can a Site Plan that needs an Area Variance be granted with receipt of the variance as a condition?
Yes but not advised.
Can a Planning Board issue a Negative Declaration and subsequently
Yes, so long as denial is not based on potential environmental impacts discussed during SEQRA review.
The municipality has accepted a redevelopment Site Plan application for a location that formerly utilized private septic for wastewater disposal. The Planning Board has requested the applicant connect to municipal sewer which is on the other side of a state highway. NYSDOT has requested the applicant place improvements on lands of an adjoining property owner who is not included in the Site Plan application. That owner is now not allowing improvements to be made, what remedies are available?
Project applicant must secure an easement from the adjoining landowner or request the municipality undertaking a condemnation for the property and make the land part of the public realm or seek Site Plan modification from Planning Board.
A Site Plan application was submitted for review along a county highway and within an archaeologically sensitive area. The Planning Board classifies the action Type I and initiates coordinated review and it is determined that they will serve as Lead Agency. Upon reviewing the application it is determined the use must be separated from an abutting residential zoning district which it does not satisfy. The ZBA did not receive notification of the coordinated review and issues a favorable determination for the applicant and the members of the residential zoning district challenge the ZBA determination for improper process, is the challenge going to be upheld?
No, failure to coordinate SEQR review with an involved agency does not constitute appropriate SEQRA review process.
An applicant is seeking an area variance and proceeds to the municipality. The municipality delays consideration of the applicant citing its proximity to county owned drainage courses and the applicant protests, demanding a vote...is municipality justified?
Yes, the real property (iv) the existing or proposed right-of-way of any stream or drainage channel owned by the county or for which the county has established channel lines
An applicant is developing a 1.5 acre site in an Archeologically Sensitive area. They have received their Site Plan approval contingent upon the issuance of the Notice of Intent from NYSDEC. In correspondence from NYSDEC they have denied the issuance of the NOI because there isn't a State Historic Preservation Office (SHPO) sign off.
Yes, NYSDEC has the authority to deny the NOI because SWPPPs ultimately discharge to waters of the US and designated such under the Waters of US and EPA provisions.
A Public Hearing is required for the review of a Use Variance Application. During the introduction of the application to the public, the ZBA chairman indicates each public speaker will receive 3 minutes. During the applicants presentation, a member of the Public stands indicating the applicant has spoken for 10 minutes and asks they be limited. Should chairman limit applicant's duration?
No, burden is on applicant and the public hearing requirement apply to members of the public participating.