The Appellate Division, Fourth Department, handed down on June 7, 2019, one of those rare decisions, granting a petitioner’s proceeding to annul a determination authorizing a condemnation. In the Matter of the Frank J. Ludovico Sculpture Trail Corp. v Town of Seneca Falls, ___ AD3d ___, the petitioner commenced this original proceeding pursuant to EDPL 207 seeking to annul a determination of respondent to acquire an easement along a nature trail commemorating the women’s rights movement in order to install a sewer line. The Court agreed with petitioner that the determination must be annulled based upon respondent’s failure to comply with EDPL article 2. Specifically, respondent failed to comply with the provisions of the State Environmental Quality Review Act ([SEQRA] ECL Article 8) when its Town Board adopted a negative declaration pursuant to that act without taking the requisite hard look at the project’s impact on wildlife or providing a reasoned elaboration of the basis for its determination of no significant impact on wildlife or surface water (see EDPL 207 [C] [3]).
In determining whether the lead agency complied with the substantive requirements of SEQRA, judicial review is “limited to whether the lead agency … identified the relevant areas of environmental concern, took a hard look at them, and made a reasoned elaboration of the basis for its determination.” (Matter of Wellsville Citizens for Responsible Dev., Inc. v Wal-Mart Stores, Inc., 140 AD3d 1767, 1768 [4th Dept 2016]; see Matter of Friends of P.S. 163, Inc. v Jewish Home Lifecare, Manhattan, 30 NY3d 416, 430 [2017], rearg denied 31 NY3d 929 [2019]). The requirement that the lead agency “set forth its determination of significance in a written form containing a reasoned elaboration” is in the regulations (6 NYCRR 617.7 [b] [4]; see matter of Rochester Eastside Residents for Appropriate Dev., Inc. v City of Rochester, 150 AD3d 1678, 1680 [4th Dept 2017]).” SEQRA’s procedural mechanisms mandate strict compliance, and anything less will result in annulment of the lead agency’s determination of significance.” (Rochester Eastside Residents for Appropriate Dev., Inc., 150 AD3d at 1679; See Matter of City Council of City of Watervliet v Town Bd. of Town of Colonie, 3 NY3d 508, 515 [2004]).
On November 19, 2015, the New York State Department of Environmental Conservation (DEC) made respondent aware that its database indicated the presence of certain endangered, threatened, or rare animal and plant species on the project site. Those species included the northern long-eared bat, the imperial moth, and the northern bog violet. In addition, the database indicated the presence of inland salt marsh. The DEC recommended that respondent conduct a survey of the professional literature and determine whether the project site contains habitats favorable to such species and, if so, that respondent conduct a field survey to determine whether the species are present. The DEC instructed that, if respondent determined that such species are present, modifications should be considered to minimize impact. There is no indication that respondent conducted such a survey.
Hint, in reading an EDPL Sec. 207 challenge decision, if there was a negative declaration, count on an annulment of the right to condemn.
The Court concluded that the Town Board failed to take a hard look at the project’s impact on wildlife and failed to make a reasoned elaboration of the basis for its determination.
Therefore, it concluded that the negative declaration with respect to wildlife and surface water is arbitrary and capricious (see Wellsville Citizens for Responsible Dev., Inc., 140 AD3d at 1769-1770), and thus the determination of respondent to acquire an easement over petitioner’s real property must be annulled (see EDPL 207 [C] [3]).
Moral of the story…when adopting a “Determination and Findings” follow the required script to the letter. If the State Department of Environmental Conservation makes a condemnor aware of endangered, threatened or rare animal and plant species on the project site, pay attention and do a full SEQRA analysis. A negative declaration is asking for trouble.
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