IN RE: Save Sag HARBOR (2023)

UPON reading and filing the petition and related documents (NYSCEF Doc. No.1-20, #30-37), petitioner's memorandum of law (NYSCEF Doc. #29); respondent's memorandum of law in opposition (NYSCEF Doc. #39); petitioner's reply affirmation and memorandum (NYSCEF Doc. #41-43) and responsive answer (NYSCEF Doc. #26); it is hereby

ORDERED that petitioner's application (motion sequence no. 001) is granted.

This proceeding, brought pursuant to Article 78 of the Civil Practice Law and Rules (“CPLR”), seeks to annul, vacate and set aside the June 14, 2022 decisions by respondent Village of Sag Harbor Board of Trustees (“Village Board”) to adopt Local Laws #11 and #12 amending the Village of Sag Harbor's Municipal Code. See Verified Petition dated October 13, 2022 (“Petition”); Record pp. 154-167 (Local Law #11); pp. 184-191 (Local Law #12). Local Law #12 expands the definition of an apartment building to allow the establishment of three-story, mixed use apartment buildings within the Village's Office District and the Village's Business District.

The petitioners argue that the subject zoning changes are arbitrary and capricious; and that the Village Board failed to comply with the State Environmental Quality Review Act (“SEQRA”) in its review of the proposed zoning changes. The respondent Village of Sag Harbor (“Village”) opposes the subject petition asserting the petitioners lack standing to bring this action and that New York's SEQRA laws were complied with.

UNDISPUTED FACTS

There appears to be little dispute of the following facts:

(1) The Village Board introduced Local Laws #11 and #12 concerning the creation of affordable housing on February 8, 2022. Said laws created a special exception permit so as to allow high-density housing in the Village's Business and Office Districts.

(2) On March 8, 2022, the Village Board scheduled a workshop session to review the proposed affordable housing laws on March 11, 2022.

(3) On April 12, 2022, the Village Board scheduled a public hearing of said laws for May 10, 2022. The public hearing was adjourned to June 14, 2022.

(4) At the June 14, 2022 public hearing, the Village Attorney first distributed a proposed Negative Declaration of Environmental Impact for the subject legislation. Neither the public or the Village Board members discussed the environmental impact of the legislation. The public hearing was closed and the Village Board simultaneously adopted the legislation and the Negative Declaration SEQRA finding at the June 14, 2022, meeting.

(5) The subject legislation was filed with the New York Secretary of State on June 23, 2022. Said documentation contained a formal “Planning Analysis” for the legislation which was dated June 22, 2022, which is eight days after the Negative Declaration approved vote.

(6) The Village Board's consultant had prepared Part 1 of its SEQRA Environmental Assessment form (hereinafter “EAF”), which was dated June 9, 2023. While not conceded by the Village, it appears that Parts 2 and 3 of said EAF were not filled out at the time of the Negative Declaration vote. The Village Mayor signed and dated Part 3 of the EAF in July 2022.

STANDING

The Village's threshold challenge to the subject petition asserts that none of the petitioners are sufficiently aggrieved so as to have “standing” to assert a SEQRA challenge. To establish “standing”, the “Petitioner has the burden of establishing both an injury-in-fact and that the asserted injury is within the zone of interests sought to be protected by the statute alleged to have been violated. In land use matters a petitioner must show that it would suffer direct harm and injury that is in some way different from that of the public at large. These requirements ensure that the courts are adjudicating actual controversies and that the parties have a genuine stake in the litigation”. See Matter of Association for a Better Long Island, Inc. v New York State Department of Environmental Conversation, 23 NY3d 1, 6 (NY 2014), quoting Society of Plastics v County of Suffolk, 77 NY2d 796 (NY 1991).

In the instant case, all of the petitioners are village residents. The allegation of close proximity gives rise to an inference of damage/injury such that a nearby property owner may challenge a land use decision without proof of actual injury. However, the property owner is not entitled to judicial review in every instance but only when the property owner can establish that the interest asserted is different from that suffered by the public community at large, and is, thus, within the “zone of interests”. 159-MP Corp. v CAB Bedford LLC, 181 AD3d 758 (NYAD 2d Dept. 2020).

Fortunately, the Court need not consider the petitioners’ “zone of interest” claims as it is undisputed that petitioner Laura Grenning owns a business and property located in the Village's Business District which is the area affected by Local Laws #11 and #12. As at least one petitioner has standing, all have standing to challenge the SEQRA determination of the subject Local Laws. See generally in re West Branch Conser. Assn. v Town of Ramapo, 284 AD2d 401 (NYAD 2d Dept. 2001).

SEQRA

New York's “State Environmental Quality Review Act” is found in Section 8-0101, et. seq. of the Environmental Conservation Law. There also exist a plethora of regulations fleshing out the procedures for undertaking environmental review. The commentary to the SEQRA statute provides that “before approving or undertaking actions, agencies must consider environmental ramifications”. City Counsel of City of Watervliet v Town of Colonie, 3 NY3d 508 (NY 2004). Emphasis added.

Synthesized down to its most common denominator, SEQRA's fundamental premise is that governmental agencies must give a “hard look” at the environmental consequences of its development decisions. Chinese Staff Assoc. v Burden as Director of NYC Dept. Planning, 19 NY3d 922 (NY 2012); Aldrich v Pattison, 107 AD2d 258 (NYAD 2d Dept. 1985). Environmental review procedures require literal, strict compliance. See Glen Head Civ. Assoc. v Town of Oyster Bay, 88 AD2d 484 (NYAD 2d Dept. 1982); Pickerell v Town of Huntington, 45 Misc 3d 1208(A) (Sp. Ct. Suf. Co. 2014) citing to NYC Coalition et al. v Vallone, 100 NY2d 337 (NY 2003). SEQRA's primary purpose is to inject environmental considerations into governmental planning at the earliest possible time. See Pickerell v Town of Huntington, cite supra; citing to Neville v Koch, as Mayor of NYC, 79 NY2d 416 (NY 1992). Judicial review of the SEQRA process is limited to whether an agency's determination was made in violation of proper procedures or was arbitrary and capricious. Gernatt Asphalt Prods. v Town of Sardinia, 87 NY2d 668 (NY 1996). SEQRA is to be satisfied both procedurally and substantively. See Jackson v NYS Urban Development Corp., 67 NY2d 400 (NY 1986).

Clearly, the record in this instance indicates a de minimis, incomplete environmental review was undertaken at the same time (if not after) the decision was made to adopt the subject Local Laws. While the Court notes that a Negative Declaration allows for a limited environmental review, it does not change the fact that it must be done before the zoning law is adopted. The Court notes that simultaneous Negative Declaration/Local Law adoption is becoming more popular and, in some instances, may meet SEQRA's requirements. However, such a practice runs the risk that the cart is placed in front of the horse. This is especially true if the agency formally finalizes the paperwork on its environmental review without recorded discussion and after adopting its legislative policy. In such an instance, the SEQRA requirement that environmental review must come first is violated.

Accordingly, the Court grants petitioners’ petition and vacates and annuls Sag Harbor Village's Local Laws #11 and #12 of 2022, enacted June 14, 2022.

C. Stephen Hackeling, J.