The New York State Department of Environmental Conservation (“DEC”) has proposed a series of amendments to the State Environmental Quality Review Act (“SEQRA”), which the agency maintains are intended to streamline the review process, especially for projects that the agency considers to be in line with state public policy. Comments on the proposed changes will be accepted until close of business on May 19, 2017.  The DEC has established a regional public hearing schedule for March 31, 2017 in Albany, April 6th in New Paltz, April 13th in Hauppauge, and April 18th in Rochester.

Cuddy & Feder is a mid-size firm operating in the Hudson Valley, Long Island, and New York City’s outer boroughs. The firm exclusively and passionately represents project applicants. Our clients include both for-profit and not-for-profit property owners, and those whose underlying business is real estate, as well as those whose business operates from real estate. Thus, the firm’s perspective stems from extensive experience in representing our clients throughout the SEQRA process.

The following analysis shows that the proposed SEQRA amendments slightly improve the existing regulations for certain types of projects, but will in most instances lengthen the review process due to proposed mandatory scoping. The elephant in the room is what these regulations don’t do for applicants – provide any assurances as to SEQRA processes or timelines.

The number of caveats and restrictions based on local population, location/prior use of the parcel, and square footage limitations altogether provide that only a narrow range of projects will qualify as a Type II action under this provision.

We encourage our clients to contact the DEC about the lack of certainty in the review process as well as the timeliness of review, and how this impedes them from taking risks in growing their businesses and/or siting facilities in New York.  Further, we think it is time for DEC to provide dispute resolution provisions for applicants who find their projects at an impasse with the Lead Agency at key junctures, such as the determination of significance, and the completeness of either a DEIS or FEIS.

1.    Proposed Changes to the Type II List

The changes to the Type II list are a slight improvement over the existing exemptions of 4,000 SF for non-residential uses and 10,000 SF for educational uses (§ 617.5(c)(7),(8)), but either benefit only municipalities or specific and limited applicant projects.

A.    Solely Municipal Benefits

Many of the proposed Type II additions only provide a benefit to municipal processes and projects, and do not ease the burden on applicants. These include transfers and dedication of parkland and acquisition of less than 100 acres of dedicated parkland (§ 617.5(c)(44), § 617.5(c)(45)); land transfers of five acres or less to a public or nonprofit corporation from a municipality to construct 1- to 3-family homes § 617.5(c)(46)); selling/conveying property by public auction (pursuant to RPTL Art. II (§ 617.5(c)(47)); siting anaerobic digesters at publically-owned wastewater treatment facilities and municipal landfills (§ 617.5(c)(49)); and siting solar arrays of less than 5MW on mostly publically-owned sites such as landfills, brownfield sites, wastewater treatment facilities, industrial sites, canopies above residential/commercial parking facilities, and on existing non-historic structures (§§ 617.5(c)(15), (16)).

B.    Narrow Application and Limited Benefits for Applicants

There may be some very limited benefits from a few of the proposed amendments for certain types of applicants; e.g., nonprofit organizations such as Habitat for Humanity may benefit from the new land transfer addition. However, even the benefits aimed at applicants have limited application, or have almost uniformly long been treated as not having environmental significance despite technically being considered Unlisted. For example, applicants may benefit from the solar array Type II addition, but only for very specific types of solar; arrays must be less than 5MW, and the classification only applies to arrays sited on brownfield and industrial sites, parking facilities, or existing non-historic structures (§§ 617.5(c)(15), (16)).

The other proposed additions are likewise quite constricted in their application to development projects. Minor subdivisions (§ 617.5(c)(18)) are proposed to receive a boost to the Type II list. However, which subdivisions qualify is another very narrowly targeted provision: the subdivision must be either defined as “minor” in the local code or consist of 4 or fewer lots (whichever is less); involve 10 acres or less; may not have been part of a larger tract subdivided within the previous 5 years; and may not be within/substantially contiguous to a designated critical environmental area.

Reuse of a “commercial or residential structure” (§ 617.5(c)(23)), where the activity is consistent with the current zoning law – a measure aimed at adaptive reuse of the state’s many existing vacant and abandoned buildings – is another proposed Type II list addition. However, the proposed amendments do not define what constitutes a vacant “commercial or residential structure,” or provide any guidance beyond requiring consistency with the locality’s zoning. This addition could therefore do as much or more harm than good, as applicants will likely have to expend resources to achieve a determination that their adaptive reuse project can be classified under this provision.

DEC considers that their proposed Type II actions to promote “sustainable development” on “previously disturbed urban sites” (617.5(c)(19), (20), (21), (22)), will provide a “sliding scale of development”; yet, these sustainable development exemptions still have a narrow scope. Only applicable to previously disturbed urban sites within municipal centers that have adopted zoning laws, the projects may not involve a change in zoning, a use variance, or the construction of new roads. The amendments add definitions for “municipal center” and “previously disturbed” which make it clear that the projects are limited to “central business districts, main streets, and downtown areas” and parcels within those areas that were “occupied by a principal building” once “used for residential or commercial purposes” where the building “has been abandoned or demolished.” These projects must also be subject to site plan review, and ultimately be connected to existing community-owned or public water/sewer systems that have capacity to provide service. The maximum square footage for projects meeting the above requirements is further broken down by the population size of the community in which it is to be sited, as follows:

  • a local population of 20,000 persons or less permits construction of a residential or commercial structure or facility involving less than 8,000 SF of gross floor area;
  • a local population of more than 20,000 persons but less than 50,000 persons permits construction of a residential or commercial structure or facility involving less than 10,000 SF of gross floor area;
  • a local population of than 50,000 persons but less than 250,000 persons permits construction of a residential or commercial structure or facility involving less than 20,000 SF of gross floor area; and
  • a local population of 250,000 persons or more permits construction of a residential or commercial structure or facility involving less than 40,000 SF of gross floor area. However, this project must additionally be located within a quarter mile of a commuter railroad station, be classified under a transit-oriented zoning district or overlay district.

The number of caveats and restrictions based on local population, location/prior use of the parcel, and square footage limitations altogether provide that only a narrow range of projects will qualify as a Type II action under this provision.

In sum, although the above proposed amendments present slight improvements and expansions beyond the existing Type II exemptions for non-residential and educational uses, it is not clear that any of these proposed additions will provide material additional benefits to the majority of project applicants.

C.    Provisions Merely Clarifying That Unlisted Actions Almost Always Treated to Have No Environmental Significance are Type II

Finally, several provisions merely clarify that some actions have clearly either never been subject to SEQRA (such as County planning board referrals pursuant to GML §§ 239-m, 239-n, which are advisory opinions), or that are Unlisted but when considered alone, are almost always determined to never have a significant impact on the environment. These include expansion of broadband services (§ 617.5(c)(7)) in existing highway or utility rights of way; co-location of cellular antennas and repeaters (§ 617.5(c)(14)) on any non-historic structures (clarifying that the current Type II item 617.5(c)(7) precluding the installation of radio communication and microwave transmission facilities as a Type II action should not likewise preclude co-location); brownfield site clean-up agreements pursuant to ECL (§ 617.5(c)(48); provided that design and implementation of the remedy do not commit DEC or any other agency to specific further uses or actions or prevent an evaluation of a reasonable range of alternative future uses of or actions on the remedial site); and any lot line adjustments/area variances not involving a change in allowable density (replacing existing items 12 and 13 in § 617.5(c); as these often have no significance alone and are just one step in the context of a larger project subject to SEQRA review).

2.    Proposed Changes to the Type I List

The proposed changes to the Type I list lower the thresholds so that more projects fall within the ambit of the Type I category. A brief summary of the proposed Type I actions are as follows:

A.    Reducing Threshold for Residential Units

DEC first proposes to reduce the §§ 617.4(b)(5)(iii),(iv),(v) threshold for residential units, maintaining that the threshold level was set too high in 1978 and that the threshold is therefore rarely triggered. The threshold reductions are broken down by local population/ triggering number of units as follows:

  • local population of 150,000 or fewer, 200 units (decreased from 250 units);
  • local population of more than 150,000 but less than 1,000,000, 500 units (decreased from 1,000 units);
  • local population of greater than 1,000,000, 1,000 units (decreased from 2,500 units).

Applicants will therefore be subject to Type I review at lower thresholds, whereas the project would previously have been considered an Unlisted action.

B.    Addition of Parking Space Threshold

Currently, the SEQRA regulations classify as a Type I action in § 617.4(b)(6)(iii),(iv) all activities that result in the parking for 1,000 or more vehicles. The proposed amendment would lower the parking thresholds based on local population as follows:

  • a locality having a population of 150,000 or less, parking for 500 vehicles;
  • a locality having a population of 150,000 or more, parking for 1,000 vehicles.

This amendment will result in many more commercial and industrial activities being classified as Type I actions, despite DEC’s assertion that many of these projects would have triggered the existing Type I threshold of 100,000 SF of gross floor area anyway.

C.    Addition of 25% Historic Threshold and Expansion to Include OPRHP “Eligible” List

Currently, any Unlisted action occurring partly/wholly within or substantially contiguous to a historic resource is elevated to a Type I action, no matter the size of the action. This proposed amendment classifies as a Type I action any Unlisted action that exceeds 25% of any threshold in this section occurring wholly/partly within or substantially contiguous to a historic building, structure, facility, site, district, or prehistoric site that is listed on the National or State Register of Historic Places. It also expands this provision to include any historic property determined by the Commissioner of the Office of Parks, Recreation and Historic Preservation to be eligible for listing on the State Register of Historic Places. DEC has acknowledged here that it has been “unduly onerous for a project sponsor to have to complete a Full EAF for a relatively minor activity.” However, it is unclear given the other changes proposed whether adding a 25% threshold will lessen the burden on an applicant.

D.    Mandatory Scoping

The importance of DEC’s proposed amendment to § 617.8 that all Type I actions that receive a positive declaration now undergo mandatory scoping cannot be understated. Despite DEC’s assertion that this will be a benefit for project sponsors because EISs can become too “defensive” and result in “cooking the ocean” (in other words, unnecessarily including a discussion of impacts that are trivial or non-significant), making this additional step mandatory can greatly lengthen the EIS process and adds to applicant uncertainty as to the SEQRA timeline for a project.

All projects that will now fall under these proposed reduced thresholds will be subject to Type I review, which means that the project will then require a full environmental assessment form, need to undergo coordinated review, and be subject to the Type I presumption of significance. Ultimately, these reductions are greatly concerning for applicants as the proposed amendments may significantly lengthen the timeline for any project determined to be Type I.

3.    Takeaway: What is Missing is More Significant than What is Proposed

The ultimate takeaways from a review of the proposed amendments are that: (1) no procedural changes are proposed and (2) no new timelines have been provided. Meanwhile, the proposed amendments leave applicants in no better position than before, as the addition of a few narrowly targeted actions to the Type II list are negligible compared to the increased burdens that will be placed on project applicants by the reduction of several Type I thresholds and the imposition of mandatory scoping. The daily, practical difficulties of integrating SEQRA into a wide variety of different development activities, having varying timelines and myriad procedural steps, remain unaddressed.

Further, no dispute resolution processes are proposed, such as permitting the Commissioner of DEC to hear and resolve disputes over stages in the SEQRA process, particularly those that have gone outside the few existing timelines, or that have not necessarily yet resulted in an agency’s “final determination.” Litigation remains an applicant’s sole remedy. We see the need for dispute resolution occurring through the DEC Commissioner when: (i) a positive declaration is made that appears inconsistent with prior Lead Agency determinations or is intended as a means to delay or stop a project, or (ii) the review process exceeds any of the handful of mandatory timeliness in SEQRA such as the scoping process, or (iii) the SEQRA review process has exceeded 2 years since the establishment of a Lead Agency.

Alternatively, DEC should consider amendments to SEQRA to explicitly require the strict adherence to enumerated deadlines, or in other words, project benchmarks, including but not limited to existing SEQRA time frames such as the thirty (30) day period to establish lead agency, the sixty (60) day (optional) scoping period, and the forty-five (45) day period to accept the Draft Environmental Impact Statement (“EIS”).  Such benchmark violations would not result in default entitlement to receive the subject approvals. Instead, if the lead agency failed to comply with each deadline, the application would automatically move to the next stage in the process.

Additionally, it is worth noting an amendment to § 617.13 proposes to give applicants a clearer right to information about how their escrow funds are being used; but what is the remedy for applicants for excessive fees? Litigation is still the only way for an applicant to achieve a just determination and recoup costs after an abuse of the SEQRA process. SEQRA will continue to have few teeth.

The above conclusions are troubling, as SEQRA already adds a substantial layer of regulation for businesses interested in either putting down roots or remaining located in New York. With today’s technological advances such as telecommuting and the ongoing retail revolution of “clicks vs. bricks”, the state should be cognizant of staying competitive in attracting people, jobs, and commercial investment. It was “not the intention of SEQRA that environmental factors be the sole consideration in decision-making”; rather, it was the intention of the Legislature that the “protection and enhancement of the environment, human and community resources should be given appropriate weight with social and economic considerations in determining public policy, and that those factors be considered together in reaching decisions on proposed activities” (See SEQRA § 617.1(d)). What was sought was that a “suitable balance of social, economic and environmental factors be incorporated into the planning and decision-making processes of state, regional and local agencies” (See SEQRA § 617.1(d)). Therefore, for the benefit of businesses in New York as a whole, these proposed amendments fall far short of providing the clearer guidance needed to provide more certainty as to SEQRA’s process and timelines.

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