The New York State Supreme Court (Westchester County) has dismissed an Article 78 proceeding that challenged the Village of Tuckahoe Planning Board’s State Environmental Quality Review Act (“SEQRA”) determination and Site Plan Approval, as well as the New York State Department of Environmental Conservation’s (“NYSDEC’s”) selected New York State Brownfield Cleanup Program (“BCP”) remedy for the redevelopment of a former marble quarry, later used as a landfill, with a hotel and restaurant.  The Court had previously denied a motion to preliminarily enjoin the project.  SPR represents the Village Planning Board in the litigation.

In what appears to be a case of first impression, the Honorable Larry J. Schwartz found that SEQRA permitted the Planning Board to amend its conditioned negative declaration (“CND”) to an unconditioned negative declaration, where the original CND’s conditions, regarding cleanup of hazardous materials in accordance with NYSDEC requirements, were satisfied by the development of a BCP remedial work plan.  In arriving at this holding, Justice Schwartz concluded that a CND is simply one type of negative declaration and that SEQRA specifically provides for the amendment of a negative declaration any time prior to an agency’s decision to undertake, fund or approve an action at its discretion.  See 6 NYCRR § 617.7(e).

This is one of the rare cases to date involving the intersection of SEQRA and the BCP, and the decision recognizes NYSDEC’s expertise in site remediation as an important consideration in judicial review of remedial actions.  Justice Schwartz found that the Planning Board satisfied SEQRA by properly identifying hazardous waste remediation as the environmental concern, analyzing the BCP documents (such as the Remedial Action Work Plan and Decision Document) and other information with the assistance of an environmental consultant, and issuing a negative declaration and site plan approval based on the conclusion that the BCP cleanup would remediate the hazardous contamination on site.  Petitioners’ substantive challenge was not that remediation would have an adverse environmental impact once complete, but rather that the remediation methods were insufficiently protective of the community.  However, having evaluated various remediation methods identified in the BCP process, the Planning Board reasonably found that NYSDEC’s chosen plan ensured that the Project would have no significant adverse environmental impacts.  In line with well-established case law, Justice Schwartz concluded that a disagreement among experts is not grounds for overturning a SEQRA decision.  The disagreement in this case centered largely on the protectiveness of a community air monitoring program modeled on those used at many remediation sites in the State.

Remediation of the landfill site and construction of the hotel are underway, with completion expected in 2018.

For additional information, contact Michael Bogin, Elizabeth Knauer, or Alexis Saba.