Object early and often

On his firm's New York Zoning and Municipal Law Blog, Steven M. Silverberg (Silverberg Zalantis LLP, White Plains, NY and Westport, CT) has posted an interesting review of a recent zoning case of administrative law interest, New York Court of Appeals Expands Criteria for Standing to Bring a SEQRA Challenge. Citizens who visited a nearby wild area challenged a zoning change for a nearby hotel under New York's State Environmental Quality Review Act on the grounds that the municipality had failed to consider the impact of the hotel on three of five rare species in the wild area. The city's environmental review had covered two species, finding no significant impact (actually, they couldn't find any of the two butterflies). A comment from the State environmental office mentioned the other three but made no objection to the results of the review, so the city didn't follow up on them.

The Court of Appeals said that the plaintiffs had standing to challenge the decision, even though they did not live near the wild area.

In finding that Petitioners in this case had standing the Court held "people who visit the Pine Bush, though they come from some distance away, seem much more likely to suffer adverse impact from a threat to wildlife in the Pine Bush than the actual neighbors of the proposed hotel development — the owners and occupants of the nearby office buildings and shopping malls. The neighbors may care little or nothing about whether butterflies, orchids, snakes and toads will continue to exist on or near the site. The City asks us to adopt a rule that environmental harm can be alleged only by those who own or inhabit property adjacent to, or across the street from, a project site; that rule would be arbitrary, and would mean in many cases that there would be no plaintiff with standing to sue, while there might be many who suffered real injury."

Although the plaintiffs got in to court, they lost on the merits. The Court of Appeals found that the city had complied with the Review Act's requirements.

[W]ith respect to the other species the Court found that while the "[state environmental agency] did identify them in a letter commenting on the scoping checklist, it offered no particular reason to believe that the project would threaten them, and no other commenter in the SEQRA process mentioned them at all. When they were omitted from the [final study] neither [the state agency] nor anyone else called attention to the omission....While it is essential that public agencies comply with their duties under SEQRA, some common sense in determining the extent of those duties is essential too....That it chose not to investigate some matters of doubtful relevance is an insufficient reason for prolonging the process further, and for adding to the expense. A "rule of reason" (Matter of Jackson v New York State Urban Development Corp., 67 NY2d at 417) is applicable not only to an agency's judgments about the environmental concerns it investigates, but to its decisions about which matters require investigation."

Thus, the Court's decision on the merits should serve as a warning to those challenging a review that they must do more than just raise an issue. Rather, to sustain a challenge under SEQRA they should articulate the basis for the concerns and object to any failure by a lead agency to address those concerns.

This lesson applies to many other challenges to administrative actions as well, due to short statutes of limitation and "rule of reason" findings as in this case. EMM