seqra challenge in New York

2024Although SMI, as the owner of a solid waste management facility, is entitled to a presumption that it would, in fact, suffer such economic harm, it failed to establish that it has standing to raise a SEQRA challenge because economic injury does not fall within the zone of interest SEQRA seeks to protect ( see Society of Plastics Indus. , 77 NY2d at 773-774 ; Matter of Peachin v City of Oneonta , 194 AD3d 1172, 1175 [3d Dept 2021]; Tilcon N.Y., Inc. v Town of New Windsor , 172 AD3d 942 , 945 [2d Dept 2019]; see generally Sun-Brite Car Wash , 69 NY2d at 412 ).

2024Although SMI, as the owner of a solid waste management facility, is entitled to a presumption that it would, in fact, suffer such economic harm, it failed to establish that it has standing to raise a SEQRA challenge because economic injury does not fall within the zone of interest SEQRA seeks to protect ( see Society of Plastics Indus. , 77 NY2d at 773-774 ; Matter of Peachin v City of Oneonta , 194 AD3d 1172, 1175 [3d Dept 2021]; Tilcon N.Y., Inc. v Town of New Windsor , 172 AD3d 942 , 945 [2d Dept 2019]; see generally Sun-Brite Car Wash , 69 NY2d at 412 ).

2024Although SMI, as the owner of a solid waste management facility, is entitled to a presumption that it would, in fact, suffer such economic harm, it failed to establish that it has standing to raise a SEQRA challenge because economic injury does not fall within the zone of interest SEQRA seeks to protect ( see Society of Plastics Indus. , 77 NY2d at 773-774 ; Matter of Peachin v City of Oneonta , 194 AD3d 1172, 1175 [3d Dept 2021]; Tilcon N.Y., Inc. v Town of New Windsor , 172 AD3d 942 , 945 [2d Dept 2019]; see generally Sun-Brite Car Wash , 69 NY2d at 412 ).

2024Although SMI, as the owner of a solid waste management facility, is entitled to a presumption that it would, in fact, suffer such economic harm, it failed to establish that it has standing to raise a SEQRA challenge because economic injury does not fall within the zone of interest SEQRA seeks to protect ( see Society of Plastics Indus. , 77 NY2d at 773-774 ; Matter of Peachin v City of Oneonta , 194 AD3d 1172, 1175 [3d Dept 2021]; Tilcon N.Y., Inc. v Town of New Windsor , 172 AD3d 942 , 945 [2d Dept 2019]; see generally Sun-Brite Car Wash , 69 NY2d at 412 ).

2026The two-judge dissent would have affirmed the order and judgment because, under applicable Court of Appeals precedent ( see Matter of Gernatt Asphalt Prods. v Town of Sardinia , 87 NY2d 668 [1996] [ Gernatt ]; Matter of Har Enters. v Town of Brookhaven , 74 NY2d 524 [1989] [ Har ]), SMI had standing to assert a SEQRA claim by virtue of its status as owner of the property subject to the proposed governmental action without the need to allege an environmental injury, and because the court properly determined that the Board failed to comply with SEQRA ( Seneca Meadows , Inc. , 233 AD3d at 1432-14

2026The two-judge dissent would have affirmed the order and judgment because, under applicable Court of Appeals precedent ( see Matter of Gernatt Asphalt Prods. v Town of Sardinia , 87 NY2d 668 [1996] [ Gernatt ]; Matter of Har Enters. v Town of Brookhaven , 74 NY2d 524 [1989] [ Har ]), SMI had standing to assert a SEQRA claim by virtue of its status as owner of the property subject to the proposed governmental action without the need to allege an environmental injury, and because the court properly determined that the Board failed to comply with SEQRA ( Seneca Meadows , Inc. , 233 AD3d at 1432-14

2014“The Court of Appeals has consistently stated that in a proceeding alleging a SEQRA violation in the enactment of legislation, the challenge must be commenced within four months of the date of its enactment” (Beneke v Town of Santa Clara, 36 AD3d 1195, 1197 [2007], lv dismissed 8 NY3d 938 [2007], citing Matter of Eadie v Town Bd. of Town of N. Greenbush, 7 NY3d 306, 316-317 [2006] and Matter of Save the Pine Bush v City of Albany, 70 NY2d 193, 202-203 [1987]).

2014“The Court of Appeals has consistently stated that in a proceeding alleging a SEQRA violation in the enactment of legislation, the challenge must be commenced within four months of the date of its enactment” (Beneke v Town of Santa Clara, 36 AD3d 1195, 1197 [2007], lv dismissed 8 NY3d 938 [2007], citing Matter of Eadie v Town Bd. of Town of N. Greenbush, 7 NY3d 306, 316-317 [2006] and Matter of Save the Pine Bush v City of Albany, 70 NY2d 193, 202-203 [1987]).

2024Those seeking to raise a SEQRA challenge must establish both "an environmental injury that is in some way different from that of the public at large, and . . . that the alleged injury falls within the zone of interests sought to be protected or promoted by SEQRA" ( Matter of Tuxedo Land Trust, Inc. v Town Bd. of Town of Tuxedo , 112 AD3d 726 , 727-728 [2d Dept 2013] [emphasis added]; see Matter of Sierra Club v Village of Painted Post , 26 NY3d 301, 310-311 [2015]; Matter of Save the Pine Bush, Inc. v Common Council of City of Albany , 13 NY3d 297, 308-309 [2009, Pigott, J., concurring]).

2024Those seeking to raise a SEQRA challenge must establish both "an environmental injury that is in some way different from that of the public at large, and . . . that the alleged injury falls within the zone of interests sought to be protected or promoted by SEQRA" ( Matter of Tuxedo Land Trust, Inc. v Town Bd. of Town of Tuxedo , 112 AD3d 726 , 727-728 [2d Dept 2013] [emphasis added]; see Matter of Sierra Club v Village of Painted Post , 26 NY3d 301, 310-311 [2015]; Matter of Save the Pine Bush, Inc. v Common Council of City of Albany , 13 NY3d 297, 308-309 [2009, Pigott, J., concurring]).

2017Moreover, although “rezoning is an 'action’ subject to SEQRA” (Matter of Neville v Koch, 79 NY2d 416, 426 [1992]; see Matter of Bergami v Town Bd. of the Town of Rotterdam, 97 AD3d 1018 , 1021 [2012]; Matter of Kirk-Astor Dr. Neighborhood Assn. v Town Bd. of Town of Pittsford, 106 AD2d 868, 869 [1984], appeal dismissed 66 NY2d 896 [1985]), and the future site plan approval process may also constitute an action under SEQRA (see Matter of Schweichler v Village of Caledonia, 45 AD3d 1281, 1282 [2007], lv denied 10 NY3d 703 [2008]; Matter of Ferrari v Town of Penfield Planning Bd., 181 AD2d 149, 1

2017Moreover, although “rezoning is an 'action’ subject to SEQRA” (Matter of Neville v Koch, 79 NY2d 416, 426 [1992]; see Matter of Bergami v Town Bd. of the Town of Rotterdam, 97 AD3d 1018 , 1021 [2012]; Matter of Kirk-Astor Dr. Neighborhood Assn. v Town Bd. of Town of Pittsford, 106 AD2d 868, 869 [1984], appeal dismissed 66 NY2d 896 [1985]), and the future site plan approval process may also constitute an action under SEQRA (see Matter of Schweichler v Village of Caledonia, 45 AD3d 1281, 1282 [2007], lv denied 10 NY3d 703 [2008]; Matter of Ferrari v Town of Penfield Planning Bd., 181 AD2d 149, 1

2017We therefore conclude that the adoption of the zoning amendment committed the Board of Trustees to a definitive position (see Red Wing Props., Inc. v Town of Milan, 71 AD3d 1109, 1110-1111 [2010], lv denied 15 NY3d 703 [2010]; Matter of Wing v Coyne, 129 AD2d 213, 217 [1987]; see generally Matter of Gordon v Rush, 100 NY2d 236, 242 [2003]) and, as a result of that position, petitioner is aggrieved by the Board of Trustees’ alleged failure to comply with SEQRA prior to the adoption of the zoning amendment (see 6 NYCRR 617.3 [a]; Young, 89 NY2d at 848-849 ).

2016The Trust’s use of the previously permitted 2005 Pier 54 rebuild design as the “no action” alternative in its SEQRA analysis was “not irrational, an abuse of discretion, or arbitrary and capricious and, consequently, should not be disturbed” (Matter of Gordon v Rush, 100 NY2d 236, 244-245 [2003]).

1999But finding that the negative declaration in the case of the Civic Center project was tantamount to final project approval because no additional permit or approvals were required, it dismissed the SEQRA challenge as time barred (Matter of Wing v Coyne, 129 AD2d 213, 216, 217 ).

1999But finding that the negative declaration in the case of the Civic Center project was tantamount to final project approval because no additional permit or approvals were required, it dismissed the SEQRA challenge as time barred (Matter of Wing v Coyne, 129 AD2d 213, 216, 217 ).

2014“The Court of Appeals has consistently stated that in a proceeding alleging a SEQRA violation in the enactment of legislation, the challenge must be commenced within four months of the date of its enactment” (Beneke v Town of Santa Clara, 36 AD3d 1195, 1197 [2007], lv dismissed 8 NY3d 938 [2007], citing Matter of Eadie v Town Bd. of Town of N. Greenbush, 7 NY3d 306, 316-317 [2006] and Matter of Save the Pine Bush v City of Albany, 70 NY2d 193, 202-203 [1987]).

2014“The Court of Appeals has consistently stated that in a proceeding alleging a SEQRA violation in the enactment of legislation, the challenge must be commenced within four months of the date of its enactment” (Beneke v Town of Santa Clara, 36 AD3d 1195, 1197 [2007], lv dismissed 8 NY3d 938 [2007], citing Matter of Eadie v Town Bd. of Town of N. Greenbush, 7 NY3d 306, 316-317 [2006] and Matter of Save the Pine Bush v City of Albany, 70 NY2d 193, 202-203 [1987]).

2017Moreover, although “rezoning is an 'action’ subject to SEQRA” (Matter of Neville v Koch, 79 NY2d 416, 426 [1992]; see Matter of Bergami v Town Bd. of the Town of Rotterdam, 97 AD3d 1018 , 1021 [2012]; Matter of Kirk-Astor Dr. Neighborhood Assn. v Town Bd. of Town of Pittsford, 106 AD2d 868, 869 [1984], appeal dismissed 66 NY2d 896 [1985]), and the future site plan approval process may also constitute an action under SEQRA (see Matter of Schweichler v Village of Caledonia, 45 AD3d 1281, 1282 [2007], lv denied 10 NY3d 703 [2008]; Matter of Ferrari v Town of Penfield Planning Bd., 181 AD2d 149, 1

2017Moreover, although “rezoning is an 'action’ subject to SEQRA” (Matter of Neville v Koch, 79 NY2d 416, 426 [1992]; see Matter of Bergami v Town Bd. of the Town of Rotterdam, 97 AD3d 1018 , 1021 [2012]; Matter of Kirk-Astor Dr. Neighborhood Assn. v Town Bd. of Town of Pittsford, 106 AD2d 868, 869 [1984], appeal dismissed 66 NY2d 896 [1985]), and the future site plan approval process may also constitute an action under SEQRA (see Matter of Schweichler v Village of Caledonia, 45 AD3d 1281, 1282 [2007], lv denied 10 NY3d 703 [2008]; Matter of Ferrari v Town of Penfield Planning Bd., 181 AD2d 149, 1

2014Bldgs. v Greene County Legislature, 293 AD2d 907, 908 [2002], lv denied 98 NY2d 609 [2002]; see Matter of Sierra Club v Village of Painted Post, 115 AD3d 1310, 1311 [2014]; Matter of Rent Stabilization Assn. of N.Y.C., Inc. v Miller, 15 AD3d 194, 194-195 [2005], lv denied 4 NY3d 709 [2005]).

2014Bldgs. v Greene County Legislature, 293 AD2d 907, 908 [2002], lv denied 98 NY2d 609 [2002]; see Matter of Sierra Club v Village of Painted Post, 115 AD3d 1310, 1311 [2014]; Matter of Rent Stabilization Assn. of N.Y.C., Inc. v Miller, 15 AD3d 194, 194-195 [2005], lv denied 4 NY3d 709 [2005]).

2026The two-judge dissent would have affirmed the order and judgment because, under applicable Court of Appeals precedent ( see Matter of Gernatt Asphalt Prods. v Town of Sardinia , 87 NY2d 668 [1996] [ Gernatt ]; Matter of Har Enters. v Town of Brookhaven , 74 NY2d 524 [1989] [ Har ]), SMI had standing to assert a SEQRA claim by virtue of its status as owner of the property subject to the proposed governmental action without the need to allege an environmental injury, and because the court properly determined that the Board failed to comply with SEQRA ( Seneca Meadows , Inc. , 233 AD3d at 1432-14

2026The two-judge dissent would have affirmed the order and judgment because, under applicable Court of Appeals precedent ( see Matter of Gernatt Asphalt Prods. v Town of Sardinia , 87 NY2d 668 [1996] [ Gernatt ]; Matter of Har Enters. v Town of Brookhaven , 74 NY2d 524 [1989] [ Har ]), SMI had standing to assert a SEQRA claim by virtue of its status as owner of the property subject to the proposed governmental action without the need to allege an environmental injury, and because the court properly determined that the Board failed to comply with SEQRA ( Seneca Meadows , Inc. , 233 AD3d at 1432-14

2017The fact remains that, at the time the Board of Trustees issued the negative declaration and amended the zoning laws, the Board of Trustees’ “decision-making process with respect to [those issues] was complete and petitioner! ] became aggrieved by the SEQRA violation of which [it] complaints]” (Matter of Young v Board of Trustees of Vil. of Blasdell, 89 NY2d 846, 849 [1996]).

2017The fact remains that, at the time the Board of Trustees issued the negative declaration and amended the zoning laws, the Board of Trustees’ “decision-making process with respect to [those issues] was complete and petitioner! ] became aggrieved by the SEQRA violation of which [it] complaints]” (Matter of Young v Board of Trustees of Vil. of Blasdell, 89 NY2d 846, 849 [1996]).

2004However, a party who alleges an adverse impact on a scenic view from his or her residence has standing to raise a SEQRA challenge ( Matter of Save Our Main Street Bldg. , 293 AD2d 907, 908-909 ). "[A]esthetic or quality of life type of injuries have consistently been recognized by the courts as a basis for standing" ( Matter of Committee to Preserve Brighton Beach & Manhattan Beach v Planning Commission of the City of New York , 259 AD2d 26, 32 [1st Dept 1999]).

2004However, a party who alleges an adverse impact on a scenic view from his or her residence has standing to raise a SEQRA challenge ( Matter of Save Our Main Street Bldg. , 293 AD2d 907, 908-909 ). "[A]esthetic or quality of life type of injuries have consistently been recognized by the courts as a basis for standing" ( Matter of Committee to Preserve Brighton Beach & Manhattan Beach v Planning Commission of the City of New York , 259 AD2d 26, 32 [1st Dept 1999]).

1995Consequently, in Matter of Mobil Oil Corp., the Court of Appeals specifically held that "[t]o qualify for standing to raise a SEQRA challenge, a party must demonstrate that it will suffer an injury that is environmental and not solely economic in nature” (76 NY2d, supra, at 433, citing Matter of Niagara Recycling v Town Bd., 83 AD2d 335, 341 , affd 56 NY2d 859 ; Webster Assocs. v Town of Webster, 112 Misc 2d 396, 402 , affd 85 AD2d 882 , revd on other grounds 59 NY2d 220 ).

1995Consequently, in Matter of Mobil Oil Corp., the Court of Appeals specifically held that "[t]o qualify for standing to raise a SEQRA challenge, a party must demonstrate that it will suffer an injury that is environmental and not solely economic in nature” (76 NY2d, supra, at 433, citing Matter of Niagara Recycling v Town Bd., 83 AD2d 335, 341 , affd 56 NY2d 859 ; Webster Assocs. v Town of Webster, 112 Misc 2d 396, 402 , affd 85 AD2d 882 , revd on other grounds 59 NY2d 220 ).

2024To summarize, in the Court of Appeals' own words, "[i]n Har , we held that a property [*4]owner whose land was targeted for rezoning had a 'legally cognizable interest in being assured that the town satisfied SEQRA' and that the owner consequently had standing to bring a SEQRA challenge, even absent a showing of specific environmental harm" ( Mobil Oil Corp. , 76 NY2d at 434 ; see Gernatt , 87 NY2d at 687 ).

2024To summarize, in the Court of Appeals' own words, "[i]n Har , we held that a property [*4]owner whose land was targeted for rezoning had a 'legally cognizable interest in being assured that the town satisfied SEQRA' and that the owner consequently had standing to bring a SEQRA challenge, even absent a showing of specific environmental harm" ( Mobil Oil Corp. , 76 NY2d at 434 ; see Gernatt , 87 NY2d at 687 ).

2017We therefore conclude that the adoption of the zoning amendment committed the Board of Trustees to a definitive position (see Red Wing Props., Inc. v Town of Milan, 71 AD3d 1109, 1110-1111 [2010], lv denied 15 NY3d 703 [2010]; Matter of Wing v Coyne, 129 AD2d 213, 217 [1987]; see generally Matter of Gordon v Rush, 100 NY2d 236, 242 [2003]) and, as a result of that position, petitioner is aggrieved by the Board of Trustees’ alleged failure to comply with SEQRA prior to the adoption of the zoning amendment (see 6 NYCRR 617.3 [a]; Young, 89 NY2d at 848-849 ).

2017We therefore conclude that the adoption of the zoning amendment committed the Board of Trustees to a definitive position (see Red Wing Props., Inc. v Town of Milan, 71 AD3d 1109, 1110-1111 [2010], lv denied 15 NY3d 703 [2010]; Matter of Wing v Coyne, 129 AD2d 213, 217 [1987]; see generally Matter of Gordon v Rush, 100 NY2d 236, 242 [2003]) and, as a result of that position, petitioner is aggrieved by the Board of Trustees’ alleged failure to comply with SEQRA prior to the adoption of the zoning amendment (see 6 NYCRR 617.3 [a]; Young, 89 NY2d at 848-849 ).

2017Moreover, although “rezoning is an 'action’ subject to SEQRA” (Matter of Neville v Koch, 79 NY2d 416, 426 [1992]; see Matter of Bergami v Town Bd. of the Town of Rotterdam, 97 AD3d 1018 , 1021 [2012]; Matter of Kirk-Astor Dr. Neighborhood Assn. v Town Bd. of Town of Pittsford, 106 AD2d 868, 869 [1984], appeal dismissed 66 NY2d 896 [1985]), and the future site plan approval process may also constitute an action under SEQRA (see Matter of Schweichler v Village of Caledonia, 45 AD3d 1281, 1282 [2007], lv denied 10 NY3d 703 [2008]; Matter of Ferrari v Town of Penfield Planning Bd., 181 AD2d 149, 1

2017Moreover, although “rezoning is an 'action’ subject to SEQRA” (Matter of Neville v Koch, 79 NY2d 416, 426 [1992]; see Matter of Bergami v Town Bd. of the Town of Rotterdam, 97 AD3d 1018 , 1021 [2012]; Matter of Kirk-Astor Dr. Neighborhood Assn. v Town Bd. of Town of Pittsford, 106 AD2d 868, 869 [1984], appeal dismissed 66 NY2d 896 [1985]), and the future site plan approval process may also constitute an action under SEQRA (see Matter of Schweichler v Village of Caledonia, 45 AD3d 1281, 1282 [2007], lv denied 10 NY3d 703 [2008]; Matter of Ferrari v Town of Penfield Planning Bd., 181 AD2d 149, 1

2017Moreover, although “rezoning is an 'action’ subject to SEQRA” (Matter of Neville v Koch, 79 NY2d 416, 426 [1992]; see Matter of Bergami v Town Bd. of the Town of Rotterdam, 97 AD3d 1018 , 1021 [2012]; Matter of Kirk-Astor Dr. Neighborhood Assn. v Town Bd. of Town of Pittsford, 106 AD2d 868, 869 [1984], appeal dismissed 66 NY2d 896 [1985]), and the future site plan approval process may also constitute an action under SEQRA (see Matter of Schweichler v Village of Caledonia, 45 AD3d 1281, 1282 [2007], lv denied 10 NY3d 703 [2008]; Matter of Ferrari v Town of Penfield Planning Bd., 181 AD2d 149, 1

2017Moreover, although “rezoning is an 'action’ subject to SEQRA” (Matter of Neville v Koch, 79 NY2d 416, 426 [1992]; see Matter of Bergami v Town Bd. of the Town of Rotterdam, 97 AD3d 1018 , 1021 [2012]; Matter of Kirk-Astor Dr. Neighborhood Assn. v Town Bd. of Town of Pittsford, 106 AD2d 868, 869 [1984], appeal dismissed 66 NY2d 896 [1985]), and the future site plan approval process may also constitute an action under SEQRA (see Matter of Schweichler v Village of Caledonia, 45 AD3d 1281, 1282 [2007], lv denied 10 NY3d 703 [2008]; Matter of Ferrari v Town of Penfield Planning Bd., 181 AD2d 149, 1

2017Moreover, although “rezoning is an 'action’ subject to SEQRA” (Matter of Neville v Koch, 79 NY2d 416, 426 [1992]; see Matter of Bergami v Town Bd. of the Town of Rotterdam, 97 AD3d 1018 , 1021 [2012]; Matter of Kirk-Astor Dr. Neighborhood Assn. v Town Bd. of Town of Pittsford, 106 AD2d 868, 869 [1984], appeal dismissed 66 NY2d 896 [1985]), and the future site plan approval process may also constitute an action under SEQRA (see Matter of Schweichler v Village of Caledonia, 45 AD3d 1281, 1282 [2007], lv denied 10 NY3d 703 [2008]; Matter of Ferrari v Town of Penfield Planning Bd., 181 AD2d 149, 1

2017Moreover, although “rezoning is an 'action’ subject to SEQRA” (Matter of Neville v Koch, 79 NY2d 416, 426 [1992]; see Matter of Bergami v Town Bd. of the Town of Rotterdam, 97 AD3d 1018 , 1021 [2012]; Matter of Kirk-Astor Dr. Neighborhood Assn. v Town Bd. of Town of Pittsford, 106 AD2d 868, 869 [1984], appeal dismissed 66 NY2d 896 [1985]), and the future site plan approval process may also constitute an action under SEQRA (see Matter of Schweichler v Village of Caledonia, 45 AD3d 1281, 1282 [2007], lv denied 10 NY3d 703 [2008]; Matter of Ferrari v Town of Penfield Planning Bd., 181 AD2d 149, 1

2014Bldgs. v Greene County Legislature, 293 AD2d 907, 908 [2002], lv denied 98 NY2d 609 [2002]; see Matter of Sierra Club v Village of Painted Post, 115 AD3d 1310, 1311 [2014]; Matter of Rent Stabilization Assn. of N.Y.C., Inc. v Miller, 15 AD3d 194, 194-195 [2005], lv denied 4 NY3d 709 [2005]).

2014Bldgs. v Greene County Legislature, 293 AD2d 907, 908 [2002], lv denied 98 NY2d 609 [2002]; see Matter of Sierra Club v Village of Painted Post, 115 AD3d 1310, 1311 [2014]; Matter of Rent Stabilization Assn. of N.Y.C., Inc. v Miller, 15 AD3d 194, 194-195 [2005], lv denied 4 NY3d 709 [2005]).

2014“The Court of Appeals has consistently stated that in a proceeding alleging a SEQRA violation in the enactment of legislation, the challenge must be commenced within four months of the date of its enactment” (Beneke v Town of Santa Clara, 36 AD3d 1195, 1197 [2007], lv dismissed 8 NY3d 938 [2007], citing Matter of Eadie v Town Bd. of Town of N. Greenbush, 7 NY3d 306, 316-317 [2006] and Matter of Save the Pine Bush v City of Albany, 70 NY2d 193, 202-203 [1987]).

2014“The Court of Appeals has consistently stated that in a proceeding alleging a SEQRA violation in the enactment of legislation, the challenge must be commenced within four months of the date of its enactment” (Beneke v Town of Santa Clara, 36 AD3d 1195, 1197 [2007], lv dismissed 8 NY3d 938 [2007], citing Matter of Eadie v Town Bd. of Town of N. Greenbush, 7 NY3d 306, 316-317 [2006] and Matter of Save the Pine Bush v City of Albany, 70 NY2d 193, 202-203 [1987]).