SEQRA - Real Property & Environmental Law Alert

Jennifer Porter to Speak at New York CLE Program on the State Environmental Quality Review Act (SEQRA)

Gibbons P.C. — Fri, 01 Mar 2013 14:58:18 -0500

Jennifer M. Porter, Esq., a Director in the Gibbons Real Property & Environmental Department, will be a speaker at Lorman’s New York CLE Program SEQRA, on Friday, March 8, 2013, in Latham, New York.

The all-day program will provide a comprehensive overview of New York’s State Environmental Quality Review Act (SEQRA), including specific discussion on regulatory requirements and compliance, the integration of SEQRA with the project review process, cumulative impacts and segmentation, the new environmental assessment forms, the proposed amendments to SEQRA, as well as offer practical advice on how to use SEQRA to obtain a better project without bankrupting the applicant. Ms. Porter will be part of the afternoon panel and will be discussing SEQRA litigation issues including the statute of limitations, standing to sue, defending or attacking negative declarations and procedural and substantive judicial review.

The program is designed for attorneys, engineers, architects, city and county planners, environmental professionals, presidents, vice presidents, water resource specialists, public works directors, surveyors and project managers. For more information and to register for the program, click here.

New York Court of Appeals Clarifies Relationship Between SEQRA and Brownfield Cleanup Act

David J. Freeman — Tue, 20 Nov 2012 10:21:03 -0500

On October 23, 2012, the New York Court of Appeals handed down its decision in Bronx Committee for Toxic Free Schools v. New York City School Construction Authority. In it, the Court held that the public notice procedures that the School Construction Authority followed under the New York State Brownfield Cleanup Act (BCA) did not satisfy the related, but distinct public notice and comment obligations under the State Environmental Quality Review Act (SEQRA).

The issue arose in Bronx Committee because at the time of SEQRA review, remediation had not yet taken place. Accordingly the Authority did not include in its Environmental Impact Statement (EIS) a plan for long-term maintenance and monitoring, believing that any discussion of such procedures would be premature prior to completion of cleanup. When remediation was finished, the Authority took the position that a Supplemental Environmental Impact Statement (SEIS) was unnecessary in light of the extensive public notice requirements that it had followed pursuant to the BCA.

The Court disagreed with the Authority. Because “the long term maintenance and monitoring of … engineering controls were too important not to be described in an EIS,” the Court held that the plain language of SEQRA required their inclusion, either in the EIS or by the filing of an SEIS.

]]>The Court went out of its way to emphasize that it was not ruling on how much detail needs to be included in the SEQRA documents. It also noted that since the Authority did not dispute that long-term monitoring was essential for the protection of public health and the environment, it was not second-guessing the Authority’s judgment on what is “significant” for SEQRA purposes. It thus appears that the decision leaves a great deal of discretion to lead agencies with respect to these issues.

Judge Read’s concurring opinion noted the confusing language of implementing regulations under both SEQRA and the BCA, which provide that in certain circumstances, activities undertaken under the BCA are exempt from SEQRA compliance. Read noted that the Authority never argued that this exemption applied, so that the issue was not directly before the Court. She encouraged the Department of Environmental Conservation to clarify the interplay between these statutes in its upcoming revision of the SEQRA regulations.

The net result of the decision is this: where long-term monitoring (or, presumably, other remedial measures) will be required at a site enrolled in the Brownfield Cleanup Program but the specifics have not been determined at the time of an EIS, simply following the public notice and comment provisions of the BCA will not suffice. Either the EIS must contain a general description of the types of measures that will be implemented, or an SEIS must be filed after those methods have been determined.

David J. Freeman is a Director in the Gibbons Real Property & Environmental Department.

Significant Amendments to New York's SEQRA Regulations in the Works

Jennifer M. Porter — Wed, 25 Jul 2012 16:06:26 -0500

On July 11, the New York State Department of Environmental Conservation (NYSDEC) released the draft scope for the Generic Environmental Impact Statement (GEIS) on proposed amendments to the regulations that implement the State Environmental Quality Review Act (SEQRA). These amendments, intended to streamline the SEQRA process, would create a number of significant changes to the regulations, the first changes since 1996.

Among the proposed changes are to require public scoping of all Environmental Impact Statements (EIS). Currently this is not mandatory. Making the process mandatory recognizes the importance of public scoping as a tool to focus an EIS on key substantive and significant issues. In addition, there would be an automatic completion provision to the final EIS review process under certain circumstances. If the final EIS is not prepared within the 180-day period for completion, the EIS will be deemed complete on the basis of the draft EIS, public comment and the response to comments prepared and submitted by the project sponsor to the lead agency. This provision extends review periods and provides certainty for when the EIS process ends.

In addition, a lengthy expansion of the list of Type II actions (actions not subject to SEQRA) is proposed which includes:

minor subdivisions;
recommendations of a county or regional planning entity following a referral pursuant to General Municipal Law sections 239-m or 239-n;
a number of actions that encourage development in urban areas verses development in greenfields;
actions encouraging the installation of solar energy arrays;
and actions that allow for the sale, lease or transfer of property for a Type II action.

The proposed amendments also show NYSDEC’s embrace of the electronic age by allowing for electronic filing of EIS’s with NYSDEC and attempt to rectify problems associated with project sponsor uncertainty regarding the costs of SEQRA review by the lead agency and its consultants, by requiring that a lead agency provide a project sponsor with an estimate of the review cost by the lead agency and/or its consultants, if requested.

]]>The proposed changes, if enacted, would be the first amendment to the SEQRA regulations since 1996, and come on the heels of a number of other recent changes to SEQRA including the introduction of new, model short and long Environmental Assessment Forms that become effective as of October 1, 2012, and the release of a new SEQRA Handbook in 2010.

To maximize the opportunity for public participation, NYSDEC is using the GEIS to discuss the objectives and rationale for the amendments and present alternative measures under consideration. Comments on the draft scope will be accepted in writing or by email through August 10, 2012.

Written comments should be submitted to:
New York State Department of Environmental Conservation
Division of Environmental Permits & Pollution Prevention
625 Broadway
Albany, New York 12233-1750

Or emailed to: depprmt@gw.dec.state.ny.us with the subject line, "Comments on Part 617 Draft Scope."

Jennifer M. Porter is a Director in the Gibbons Real Property & Environmental Department.

Nancy Lottinville to Speak at PLI's NJ Basic Law CLE Marathon Program on Real Estate Closing Procedures

Gibbons P.C. — Mon, 09 Apr 2012 12:37:46 -0500

Nancy A. Lottinville, Esq., Counsel to the Gibbons Real Property & Environmental Department, will speak at the Practicing Law Institute’s New Jersey Basic Law CLE Marathon on May 29, 2012. Nancy will present on New Jersey real estate closing procedures.

The all-day program is designed to satisfy part of the newly instituted mandatory continuing legal education requirements in New Jersey and to hone legal professionalism. In accordance with New Jersey’s requirements, this one-day program will include New Jersey-specific instruction and discussion on topics authorized by the Supreme Court of New Jersey Board of Continuing Legal Education, including Civil Trial Practice, Criminal Trial Practice, Basic Estate Adminsitration, Real Estate Closing Procedures, Trust and Business Accounting and New Jersey Professional Responsibility and Ethics.

]]>Nancy’s presentation will cover Real Estate Closing Procedures, including:

Classes of property and types of ownership
Land use controls and regulations
Financing and the mortgage market mandated disclosures
Transfer of property

For those unable to attend, the program is also being webcast. For more information and to register for the program, click here.

Jennifer Porter to Speak at New York CLE Program on the State Environmental Quality Review Act (SEQRA)

Gibbons P.C. — Thu, 29 Mar 2012 11:12:52 -0500

Jennifer M. Porter, Esq., a Director in the Gibbons Real Property & Environmental Department, will be a speaker at Lorman’s New York CLE Program SEQRA, on Thursday, June 7, 2012, in Long Island (Carle Place), New York.

The all-day program will provide a comprehensive overview of New York’s State Environmental Quality Review Act (SEQRA) including specific discussion on regulatory requirements and compliance, analysis methodologies and techniques of SEQRA, recent trends and case law, incorporating renewable resources into the planning process and environmental review of public/private partnerships. Ms. Porter will be part of the morning panel and will be discussing SEQRA basics, including applicable state and local regulations, SEQRA processes and procedures, agencies and decisions subject to SEQRA, determining “significance,” and EIS preparation and review.

The program is designed for attorneys, engineers, architects, city and county planners, environmental professionals, presidents, vice presidents, water resource specialists, public works directors, surveyors and project managers. For more information and to register for the program, click here.

Jennifer Porter to Speak at New York CLE Program on State Environmental Quality Review Act (SEQRA) Litigation Issues

Gibbons P.C. — Thu, 26 Jan 2012 09:10:43 -0500

Jennifer M. Porter, Esq., a Director in the Gibbons Real Property & Environmental Department, will be a speaker at Lorman’s New York CLE Program SEQRA, on Friday, March 9, 2012 in Latham, New York.

The all-day program will provide a comprehensive overview of New York’s State Environmental Quality Review Act (SEQRA) including specific discussion on regulatory requirements and compliance, the integration of SEQRA with the project review process, cumulative impacts and segmentation and how to use SEQRA to obtain a better project without bankrupting the applicant. Ms. Porter will be part of the afternoon panel and will be discussing SEQRA litigation issues including the statute of limitations, standing to sue, defending or attacking negative declarations and procedural and substantive judicial review.

The program is designed for attorneys, engineers, architects, city and county planners, environmental professionals, presidents, vice presidents, water resource specialists, public works directors, surveyors and project managers. For more information and to register for the program, click here.

Jennifer Porter to Speak at New York CLE Program on State Environmental Quality Review Act (SEQRA) Litigation Issues

Gibbons P.C. — Mon, 14 Feb 2011 16:33:20 -0500

Jennifer M. Porter, Esq., an Associate in the Gibbons Real Property & Environmental Department, will be a speaker at Lorman’s New York CLE Program, SEQRA, on Thursday, March 10, 2011, in Latham, New York.

The all-day program will provide a comprehensive overview of New York’s State Environmental Quality Review Act (SEQRA) including specific discussion on regulatory requirements, the integration of SEQRA with the project review process, cumulative impacts and segmentation and the benefits and uses of a generic environmental impact statement. Ms. Porter will be part of the afternoon panel and will be discussing SEQRA litigation issues including the statute of limitations, standing to sue, defending or attacking negative declarations and procedural and substantive judicial review.

The program is designed for attorneys, engineers, architects, city and county planners, environmental professionals, presidents, vice presidents, water resource specialists, public works directors, surveyors and project managers. For more information and to register for the program, click here.

New York Subdivision Law Amended to Allow Planning Boards Greater Flexibility in Granting Extensions

Howard D. Geneslaw — Fri, 05 Nov 2010 07:45:30 -0500

Due to the current economic climate and project financing difficulties, Section 276(7)(c) of the New York Town Law was recently amended to allow planning boards greater flexibility in extending subdivision approval beyond the two ninety (90) day extensions previously allowed.

Town Law 276(7)(c) provides that a conditional final subdivision plat expires 180 days following the date of the resolution of approval unless all conditions are satisfied. It further authorizes planning boards to grant two extensions, having a duration of ninety (90) days each, after expiration of the original 180-day timeframe for satisfaction of conditions of approval. The costs of satisfying conditions of approval can be significant. If the conditions are not satisfied by the end of the second extension, the subdivision approval becomes null and void, and the applicant would then be required to commence the approval process all over again at significant time and expense.

The amended law now permits planning boards discretion to extend conditional final plat approval for additional ninety (90) day periods, with no limitation on the number of extensions available, “if, in a planning board’s opinion, such extension is warranted by the particular circumstances.” The bill, S07241, had a relatively quick turn-around time by the legislature after being sponsored by Senator Andrea Stewart-Cousins from the 35th Congressional District in March of this year. The bill received Senate approval in April, Assembly approval in June and was signed into law by Governor Paterson on September 17, 2010 as 2010 N.Y. Laws 522.

]]>The justification behind the legislation indicates that the current economic climate, coupled with the difficulty in obtaining project financing in many cases, argued for giving planning boards the discretion to extend conditional approval of the final plat. As further noted, “there are already significant hurdles and expenses generated in residential development which should not be compounded because of a time limitation that would effectively terminate a project.” The text of the bill is available at the New York State Assembly’s website which can be accessed by clicking here and the memorandum summarizing the bill and setting forth additional information regarding the justification behind the amendment can be accessed here.

Howard D. Geneslaw is a Director in the Gibbons Real Property & Environmental Department. Jennifer M. Porter, an Associate in the Gibbons Real Property & Environmental Department, assisted in the preparation of this post.

Jennifer Porter to Speak at New York CLE Program on the State Environmental Quality Review Act (SEQRA)

Gibbons P.C. — Thu, 21 Oct 2010 14:31:26 -0500

Jennifer M. Porter, Esq., an Associate in the Gibbons Real Property & Environmental Department, will be a speaker at Lorman’s New York CLE Program, SEQRA, on Tuesday, December 7, 2010 in Carle Place, New York.

The all-day program will provide a comprehensive overview of New York’s State Environmental Quality Review Act (SEQRA) including specific discussion on analysis framework and techniques, mitigation measures, interaction with other statutes and emerging fields in environmental review. Ms. Porter will open the seminar by discussing SEQRA basics including state and local SEQRA regulations, process and procedures, agencies and decisions subject to SEQRA, determining significance and environmental impact statement (EIS) preparation and review.

The program is particularly timely in view of New York Department of Environmental Conservation’s recent and long overdue release of the latest edition of the State Environmental Quality Review Act Handbook. The program is designed for attorneys, engineers, architects, city and county planners, environmental professionals, presidents, vice presidents, water resource specialists, public works directors, surveyors and project managers. For more information and to register for the program, click here.

The Wait is Finally Over for New York Land Use and Environmental Practitioners ... The New Edition of the SEQRA Handbook Has Arrived

Jennifer M. Porter — Wed, 25 Aug 2010 11:54:27 -0500

It has been almost two decades since the last edition of the State Environmental Quality Review Act (SEQR) Handbook was released by the New York State Department of Environmental Conservation’s (NYSDEC) Division of Environmental Permits. Despite significant amendments to the SEQR regulations, 6 NYCRR Part 617 in January 1996 and tens of hundreds of cases of distinction on SEQR substance and procedure, many land use and environmental practitioners have been left to fend for themselves without up-to-date technical regulatory guidance from NYSDEC until now.

For those who are unfamiliar with the SEQR Handbook, it is a practical reference guide for agencies, project sponsors and the public with respect to the procedures prescribed by the State Environmental Quality Review Act. It has a user-friendly table of contents and each topic in the handbook is addressed through question and answer format. The questions range from basic information such as “What is the Environmental Notice Bulletin (ENB)?” to “How should a generic environmental impact statement (EIS) address required content differently than a site or project specific EIS?” In addition, the handbook provides a roadmap of the Part 617 SEQR Regulations before and after the 1996 Amendments and several helpful charts including one which shows all of the relevant steps in the SEQR process, the number of calendar days in which those steps must be addressed and provides citations to the section of the regulations that govern each step. Although not available in hard copy, a .pdf version of the SEQR Handbook is available for download or printing from NYSDEC’s website. Get your copy today by clicking here.

Jennifer M. Porter is an Associate in the Gibbons Real Property and Environmental Department.