New York Planning Federation

INTRODUCTION *

Vocabulary *

Application of SEQRA to Land Use Decisions *

Steps Involved in the Environmental Review Process: An Overview *

Consequences of SEQRA's Environmental Review Requirement *

Summary and References *

Quiz *

State Environmental Quality Review, or SEQR ("seeker") for short, is a procedure which applies to almost all land use decisions. The basic purpose of SEQR is built on the recognition that we are all stewards of our environment and, as such, we must include environmental considerations in our decision-making. SEQR's provisions provide the legal framework for assuring that such considerations are included in a board's decisions. Typically the board must directly activate SEQR procedures because in almost all cases involving the application of local planning, zoning and land use regulations, the local board will be the lead agency. So, if you desire to avoid all contact with SEQR, it's simple. Just don't bother joining a board.

SEQRA applies to most local land use decisions. The basic purpose of SEQRA is to incorporate environmental consideration into the planning, review, and decision-making processes of local governmental agencies at the earliest possible time. This is accomplished by requiring all agencies to determine whether the actions they undertake, fund, or approve may have a significant impact on the environment. Each of these terms is defined very broadly in the regulations. For example, environment means the physical conditions that will be affected by a proposed action, including land, air, water, minerals, flora, fauna, noise, resources of agricultural, archaeological, historic, or aesthetic significance, existing patterns of population concentration, distribution, or growth, existing community or neighborhood character, and human health. This definition is all-inclusive. All agencies must determine whether their actions may have a significant adverse effect on the environment. This includes local agencies such as legislatures, planning boards, and zoning boards of appeals, or any other land use permitting or policy-making body.

The SEQR process is required by SEQRA, the State Environmental Quality Review Act (Article 8 of the Environmental Conservation law) and is generally governed by the State SEQRA Regulations - 19 NYCRR Part 617, better known simply as Part 617 - which are promulgated by the Commissioner of the New York State Department of Environmental Conservation ("DEC"). Those regulations list types of projects, and categorize them according to their probable effect on the environment. Projects are divided into "Type I Actions" - those which have the potential for significant environmental impact, and "Type II Actions" - those which probably will not have a significant impact. These lists are not all-inclusive, so there is a large unlisted category of actions known as, you guessed it, "Unlisted Actions."

The State Environmental Quality Review Act (SEQRA) became effective in 1975. It requires local bodies such as legislatures, planning boards, and zoning boards of appeals to consider and mitigate the environmental impact of their actions. Local agency decisions on applications for site plan or subdivision approval, or the issuance of variances and special permits, must be preceded by an assessment of the environmental impact of the proposed project. The adoption of comprehensive plans and zoning laws, and their amendments, must also be accompanied by a review of their impact on the environment. SEQRA also applies to proposed plans of local governments to build capital projects or to provide funding for projects of any kind.

The essence of SEQRA is the requirement that the impact of all such local actions on the environment be considered in the decision-making process and that local agencies act effectively to lessen any possible environmental impacts. This environmental objective is to be balanced with social and economic objectives. Where a proposal is deemed to have no significant negative impact on the environment, no further environmental review is required and the project may proceed through the normal land use review process. Where it has been determined, however, that a proposed project may have a significant negative impact on the environment, the normal process is interrupted and either the local agency or the applicant must prepare an environmental impact statement as part of the application for a local land use approval. The local reviewing agency must then take a number of prescribed steps to review the statement under SEQRA's environmental standards. Until the Draft Environmental Impact Statement submitted by the applicant is deemed to be complete by the local reviewing agency, the underlying land use application is not complete and the time periods applying to that approval process do not begin to run.

SEQRA gives local land use agencies independent authority to impose conditions on land use approvals to mitigate the potential negative impacts of proposed projects on the environment. Since the environment is defined very broadly, SEQRA extends local agency authority to impose conditions on land use approvals well beyond the types of conditions that may be imposed to meet the standards of subdivision and site plan regulations or special permits, for example. Both with regard to the imposition of conditions and the procedures that reviewing agencies must follow, SEQRA amounts to a regulatory overlay on the local land use review and approval process. The requirements of SEQRA are found in the 1975 statute enacted by the state legislature and the regulations adopted by the commissioner of the State Department of Environmental Conservation. SEQRA also gives local governments additional authority to conduct studies and adopt plans for areas of environmental significance. Under SEQRA, localities may designate critical environmental areas, conduct cumulative impact analyses, and perform generic environmental impact statements. These environmental review tools expand the techniques available to villages, towns, and cities to review future land use impacts in a more proactive manner.

Steps Involved in the Environmental Review Process: An Overview

Although the environmental review process is highly complex, it can be generally described as a nine-step process, beginning with a landowner, submitting an application for a land use approval or action:

1.  Action proposed

2.  Action classified: Type I, Type II, or Unlisted

3.  Complete and submit EAF

4.  Circulate application and EAF to Involved Agencies

5.  Lead Agency is established; Determination of significance

6.  Draft Environmental Impact Statement is prepared

7.  Comments submitted?; Hearing held?

          8. Final Environmental Impact Statement is prepared - Comments submitted?;

Vocabulary

Familiarity with a number of terms is essential to understanding the environmental review requirements and procedures established by SEQRA. Key terms under the SEQRA statutes and regulations include:

Application of SEQRA to Land Use Decisions

Most local land use decisions fall within the definition of an action under SEQRA. An action includes any project or physical activity which is directly undertaken or funded by a state or local agency or approved by such an agency which may affect the environment. Actions of local planning or zoning boards approving applications for subdivision and site plan approval or issuing permits and variances are all subject to SEQRA. Also included is the local legislature's action in adopting or amending a comprehensive plan or zoning law, or approving a capital budget or capital project. Purely ministerial actions, such as the issuance of building permits, where no discretion is exercised, are not subject to SEQRA. An example is the issuance of a permit for an as-of-right use. In such a case, the building inspector has no discretion. The permit must be issued if the application meets the specifications of the code. If, however, the building inspector is given discretion to vary or request modifications of such permit application, that decision is not ministerial and SEQRA will apply.  

In Pius v. Bletsch (1987), a contractor applied for a building permit to construct an office building in a commercial zone. The Town had determined that the project might have a significant adverse impact on the environment and that an environmental impact statement would be required. The contractor brought a suit claiming that the issuance of a building permit is "purely ministerial," involving no discretion, and that no environmental review would be required because there had been no "action" under SEQRA. The building inspector, however, was specifically delegated site plan approval power. Under these circumstances, the building inspector was acting in a capacity similar to the local board exercising administrative discretion, and thus SEQRA applied. The applicant was required to prepare an environmental impact statement.

When SEQRA applies to a local land use decision, it means that the lead agency must take a hard look at possible environmental impacts of the action and determine whether it is likely to have a significant negative impact on the environment. When that determination is positive, the agency or applicant must prepare an Environmental Impact Statement.

When an agency receives a developer's application, it must determine whether the action is a Type II or Exempt Action, and not subject to environmental review, or a Type I or Unlisted Action. The SEQRA regulations issued by the DEC Commissioner contain the thresholds an agency must use to classify an action as Type I, Type II, or Unlisted. If the action is a Type I action, a full Environmental Assessment Form may be used by the agency to determine whether the action may have a significant negative impact on the environment. If it is an Unlisted Action, the short environmental assessment form may be used.

State regulations list certain actions as Type II Actions. The Type II list includes area variances for one, two, and three family houses, the construction of noncommercial structures of less than 4,000 square feet, area variances for setback, and the construction or expansion of one, two, or three family homes on an approved lot. If an action is found to fall into the Type II category, no environmental review is required. This is the end of the SEQRA process for that proposal and the project review can continue as usual.

The Department of Environmental Conservation (DEC) has issued the regulations for SEQRA. These regulations can be obtained from the DEC. They are published in the New York Code of Rules and Regulations (NYCRR). Title 6 contains the SEQRA regulations. Section 617.5 of that part contains a list of Type II actions - those which have been determined to have no significant impact on the environment or are otherwise precluded from environmental review.

Type I Actions - Environmental Review Required

The regulations list certain actions as Type I, which are considered more likely to require the preparation of an Environmental Impact Statement than Unlisted Actions. Some examples of Type I actions are the adoption of a comprehensive plan or the initial adoption of a zoning law, changes in allowable uses in any zoning district affecting twenty-five acres or more, and the construction of fifty or more homes not to be connected to public water and sewage systems.

The Department of Environmental Conservation has issued SEQRA regulations. Section 617.4 contains a list of Type I actions - those which carry with them "a presumption that it is likely to have a significant adverse impact on the environment and may require and EIS."

In Save the Pine Bush, Inc. v. Planning Board of Town of Guilderland (1995), the applicant sought approval to subdivide a parcel of land into sixty-five lots. The planning board did not require the applicant to prepare an Environmental Impact Statement (EIS) even though the action was listed as a Type I action. A citizens group challenged that decision arguing that SEQRA had been violated because no EIS was required. The court held "an EIS is not a per se requirement of all Type I actions" and that the planning board's review of the reports regarding the potential impacts was sufficient for it to issue a declaration that no adverse environmental impacts were raised by the subdivision application.

All actions that are not Type I or Type II are Unlisted Actions. Depending on the size, location, and other characteristics of a proposal, an Unlisted Action may or may not have a significant adverse impact on the environment. Thus, Unlisted Actions may or may not require preparation of an Environmental Impact Statement. If adverse impacts are likely, an Environmental Impact Statement must be prepared and the action is subject to all of SEQRA's standards, procedures and time periods.  

Determination of Significance

Based on the information contained in the Environmental Assessment Form, the lead agency must make a determination of significance. To do this, it uses criteria contained in the SEQRA regulations that are indicators of significant adverse impacts on the environment. Included in these criteria, for example, are the removal of large quantities of vegetation or fauna and a substantial adverse change in ground or surface water quality. Considering all this information, the lead agency may decide that the proposed action will not have a significant adverse impact on the environment. This is known as a "Negative Declaration." Alternatively, it may determine that the project will have a significant adverse impact on the environment. This is known as a "Positive Declaration."

The regulations provide criteria for making a determination of significance in 6 NYCRR 617.7. The lead agency has 20 days from its establishment as lead agency to make a determination of significance. 6 NYCRR 617.6.

Negative Declarations

A Negative Declaration is a statement that ends the SEQRA process. It is a declaration that, after reviewing relevant information, the lead agency has found that the proposal will not have a significant adverse impact on the environment. This declaration of negative significance must be in writing, must identify and evaluate the relevant areas of concern, and must be filed so that it is available for review.

If a Negative Declaration is made for a Type I action, the agency must maintain a public file and distribute the declaration to all involved agencies, any person who requests a copy, and the applicant. For Unlisted Actions, the lead agency need only maintain a file that is accessible to the public.

Negative Declarations must be supported by facts that justify the lead agency's determination. Declarations made summarily and without adequate explanation are subject to challenge. When a lead agency finds that an action will not have a significant impact, it must support its findings with adequate detail to explain why there will be no significant impact.

A study of all legal challenges to SEQRA decisions from 1990 to 1997 indicated that only 11 percent of the challenges were successful where an Environmental Impact Statement was required. On the other hand, in cases where a Negative Declaration was made and no Environmental Impact Statement was prepared, the challenges were successful 29 percent of the time, nearly three times as often.

Conditioned Negative Declarations

Conditioned Negative Declarations can be made for Unlisted Actions when a Full EAF has been prepared. This declaration certifies that, while the original proposal may have resulted in one or more significant impacts on the environment, the lead agency has identified conditions that may be imposed on the proposal so that no significant adverse environmental impacts will result.

The Conditioned Negative Declaration must be published and the public must be allowed at least a thirty-day period for comment. After receiving public comments, information may surface indicating that the conditions will not sufficiently avoid significant adverse environmental impact. If that is the case, the lead agency must rescind the Conditioned Negative Declaration, make a Positive Declaration, and go forward with the preparation of an Environmental Impact Statement.

Positive Declarations

After reviewing the Environmental Assessment Form, if the agency determines that the action as proposed may have a significant adverse environmental impact, the agency must issue a Positive Declaration. This means that the preparation of an Environmental Impact Statement will be necessary.

A Positive Declaration must identify the significant adverse environmental impacts that require the preparation of an Environmental Impact Statement and state whether a scope of the Environmental Impact Statement will be prepared through a process called scoping. After a Positive Declaration, the environmental review process starts in earnest, including scoping, where conducted.

Draft Environmental Impact Statement

Scoping

The term "scoping" is used to define the process by which the scope of a Draft Environmental Impact Statement (DEIS) is determined. The purpose of scoping is to narrow the issues relating to the potentially significant adverse impacts of the proposed action. Through scoping, what is required in the DEIS can be clarified, including the environmental issues to be addressed, level of detail required, identification of mitigation measures, and elimination of non-relevant issues. Scoping may be initiated by the lead agency or by the project sponsor. A draft scope is prepared containing the prominent environmental issues that have been identified, reasonable alternative actions and mitigation measures to be considered, and the extent and quality of information required.

The draft scope is circulated to all involved agencies and interested individuals. In fact, scoping must include reasonable efforts to involve the public by holding meetings, requesting comments, or providing for the exchange of material. A final written scope of the DEIS is to be provided by the lead agency to the project sponsor, involved agencies, and interested individuals. Any agency or individual that raises issues after the circulation of a final scope must explain in writing why the information was not identified during scoping and why it should be included at this stage of the review process.  

Contents

The Draft Environmental Impact Statement must assemble relevant facts on which a lead agency's decision will be based. It must describe and discuss the proposed action and its environmental setting. It must analyze the significant adverse impacts and evaluate all reasonable alternatives and mitigation measures that are available. It should analyze only those negative impacts that can be reasonably anticipated or have been identified in the scoping process.

The DEIS should consider all relevant environmental issues in sufficient detail to allow the agency to make an informed final decision on the project. This means that in order to weigh environmental concerns with the social and economic benefits of a proposed project, the agency must have sufficient information regarding the potential extent of any environmental impacts. If the DEIS is not prepared in sufficient detail, it can be returned, along with a written statement that identifies any deficiencies that must be corrected.

When a DEIS is submitted, the lead agency has thirty days to determine whether or not the DEIS is adequate. When it is deemed adequate, the lead agency prepares and files a "Notice of Completion" for the DEIS. It is at this point that the developer's application for the underlying land use approval is deemed complete and that the time periods applicable to that approval begin to run.  

Public Participation

After the Notice of Completion is filed, a public comment period of not less than thirty days must be provided. Any members of the public who have comments on the DEIS may submit them. The lead agency may also determine that a public hearing on the DEIS is appropriate, notify the public of the hearing, and accept public comments at the hearing.  

If held, a hearing must commence no more than sixty days following the filing of the Notice of Completion.

Final Environmental Impact Statement

The lead agency is responsible for preparation of the Final Environmental Impact Statement (FEIS). This document is prepared by compiling the DEIS and its revisions, public comments that were received, and the lead agency's response to those comments.

The Final Environmental Impact Statement is prepared within sixty days after the filing of the draft Environmental Impact Statement, or if a public hearing is held, forty-five days after the close of the public hearing. Then, a Notice of Completion for the FEIS is prepared, filed, and distributed just as was done for the Notice of Completion for the DEIS. At least ten days must be allowed for involved agencies and the public to consider and comment on the Final Environmental Impact Statement.

Findings Statement and Decision on the Action

Within thirty days of the filing of the Final Environmental Impact Statement, the lead agency must file a written findings statement and decision on whether or not to approve the action. This final statement must consider all the relevant environmental impacts, balance them with social and economic considerations, provide a rationale for its decision and certify that the action avoids adverse environmental impacts by incorporating conditions into its decision that mitigate the negative impacts identified. These conditions became conditions that are imposed on the land use approval originally requested. The decision of the lead agency can be to approve the proposed project, approve it on certain conditions, or to deny it.

7 Practical Tips for Implementing SEQR

2.  Gain Expertise to identify and assess impacts

3.  Public participation is both valuable and required

4.  Learn the Type II list (Actions NOT subject to review).

5.  All other actions are subject to SEQR.

6.  Pay strict attention to procedures With SEQR, the product is more important than the process

7.  SEQR is more than disclosure

Consequences of SEQRA's Environmental Review Requirement

1.  Failure to comply literally with procedures leads to invalidation of any permit issued.

The penalty for failure to comply with SEQRA is the invalidation of the final decision made by a local land use agency on a landowner's application. As a result, the procedural requirements of the statute must be followed literally. This protects the decision from being challenged based on failure to follow mandatory procedures and the entire review process invalidated. When a decision is invalidated, the applicant and agency must start over and follow all required procedures literally.

2.  SEQRA time periods take precedence over time periods applicable to land use approvals.

3.  Review must be done as early as possible

 The fundamental policy of SEQRA is to inject environmental considerations into the land use decision-making process as early as possible so that agencies consider the environmental consequences of all of their decisions. One consequence of this requirement is that an agency cannot postpone its review of the impact of a zoning amendment until landowners apply for special permits provided for in those amendments.

In Eggert v. Town Board of Town of Westfield (1995), the town board classified a zoning amendment as a Type I action but found that the amendment itself would not have a significant impact on the environment as the rezoning required property owners to apply for special permits before developing their land under the amendments. The town board acknowledged that there would be adverse environmental impacts to be considered at that time, but reasoned that such impacts could be adequately addressed when applications for special permits were submitted. The court rejected this argument stating, "to comply with SEQRA, the town board must consider the environmental concerns that are reasonably likely to result from, or are dependent on, the amendments ... at least on a conceptual basis."

4.  Local Agencies Must Take a "Hard Look"

The degree of detail required in a SEQRA review depends on the circumstances involved. In Valley Realty Development Co, Inc. v. Town of Tully (1992), the rezoning of land in a mining district to residential use was upheld as in compliance with SEQRA. The court stated that, in reviewing an agency's issuance of a Negative Declaration, a court's inquiry is limited to whether the relevant areas of concern were identified, whether a hard look was taken at those areas, and whether a reasoned elaboration was given for the Negative Declaration. In making such review, the agency's obligations under SEQRA must be viewed in light of a rule of reason. The degree of detail required will vary with the circumstances and the nature of the proposal. Here, there was no evidence that the elimination of mining as an allowed use would harm, rather than benefit, the environment.

SEQRA regulations further provide: "SEQRA provides all involved agencies with the authority, following environmental review, to impose substantive conditions upon an action to ensure that the requirements of SEQRA have been satisfied." Thus, once an adverse environmental impact has been identified the agency must identify mitigating measures and use all practicable means to minimize the environmental impact by requiring an alternative that will have less of an impact or by imposing conditions that mitigate the impact. However, "nothing in the law requires an agency to reach a particular result on any issue, or permits the courts to second-guess the agency's choice, which can be annulled only if arbitrary, capricious or unsupported by substantial evidence."

5.  The Application is not complete until the DEIS is found complete.

7.  Mitigation conditions expand agency authority to impose conditions on land use actions.

Under SEQRA regulations, "mitigation" is defined as a way to avoid or minimize adverse environmental impacts. Lead agencies are required to mitigate any adverse environmental impacts to the maximum extent possible. Mitigation measures are used when any local action, including the approval of development applications, may have a significant adverse impact on the environment. There are two instances when local agencies may impose such conditions. The first is when an applicant for local approval has been required to prepare an Environmental Impact Statement, which must contain a description of mitigation measures, and the agency has determined that one or more such measures must be adopted to minimize the impacts of the project. The second is when an Unlisted Action is found to have potential adverse impacts and one or more mitigation measures may be identified that will minimize those impacts. In this instance the lead agency can issue a Conditional Negative Declaration, noting the impact and imposing the mitigation conditions, and thereby avoid the cost and time required in the preparation of an Environmental Impact Statement. Because the environment is defined very broadly under SEQRA and because the statute empowers lead agencies to impose conditions that minimize environmental impacts, a land use board may have its authority to impose conditions on land owner applications expanded.

In Weok Broadcasting Corp. v. Planning Board of Town of Lloyd (1992), the owner's application for site plan approval of a radio transmission tower was denied based on aesthetic factors. The local planning board determined, after SEQRA review, that the petitioner had failed to adequately minimize or avoid adverse environmental effects to the maximum extent practicable. The Court of Appeals held that "aesthetic considerations are a proper area of concern in SEQRA balancing analysis inasmuch as the Legislature has declared that the 'maintenance of a quality environment ... that at all times is healthful and pleasing to the senses' is a matter of State-wide concern."

If the site plan regulations of the of the Town Lloyd did not authorize the planning board to consider aesthetic factors, it would not have been able to impose this condition if it were not for the authority given it under SEQRA.

Summary and References The following is a checklist of the matters that a local lead agency should know about SEQRA:

Most land use decisions made by local land use boards are considered actions under SEQRA.

When a landowner requests a land use approval, the agency that is principally responsible for approving the application is the lead agency and has the responsibilities that SEQRA imposes.


When an application is received, the local agency must classify it for SEQRA purposes. The choices are Type I, Type II or Unlisted.


If the action is a Type II action, no further environmental review is required.


Applicants for Type I and Unlisted Actions must submit an Environmental Assessment Form listing the potential environmental impacts of their projects or proposals.


If the action is a Type I or Unlisted Action, an assessment of the environmental impact of the action must be conducted by the lead agency.


If the project or proposal will not have a significant adverse environmental impact, then a Negative Declaration is issued and no further environmental review need be conducted. The lead agency, however, must take a "hard look" at the possible environmental impacts and set forth in writing a "reasoned elaboration" for its Negative Declaration.


If the project or proposal may have a significant adverse environmental impact, then a Positive Declaration must be issued and a Draft Environmental Impact Statement prepared.


The lead agency may require the preparation of a scope of the contents of the Environmental Impact Statement and may provide for public participation in its preparation of the scope.


The Environmental Impact Statement must consider and examine all relevant environmental impacts, including conditions that can be imposed on the action to mitigate any negative environmental impacts found and discuss any alternatives to the proposed action that would mitigate or avoid those impacts.


When the draft Environmental Impact Statement is accepted as complete, the application for the local land use approval is deemed complete.


A public hearing on the Draft Environmental Impact Statement may be held, but one is not required. Where practicable, such public hearings should be held in conjunction with public hearings required for the underlying land use decision under consideration, such as for subdivision applications and variances.


The lead agency must complete a Final Environmental Impact Statement within forty-five days of the close of the public hearing, if one is held, or within sixty days of the filing of the Draft Environmental Impact Statement, whichever occurs last.


Following the filing of the Final Environmental Impact Statement, the lead agency makes its findings statement and decision on the action. This statement considers the impacts discussed and the conclusions contained in the Environmental Impact Statement and balances them with social, economic and other essential considerations, selects mitigation conditions or alternatives to minimize any negative impacts, and determines whether the action, so mitigated, should be approved or denied.


The lead agency's findings statement must certify that the action will avoid or minimize adverse environmental impacts to the maximum extent practicable.

  References

1. The extensive provisions setting forth the procedures and requirements for the environmental review of local land use actions are found in the Environmental Conservation Law (ECL), Article 8, commonly referred to as the State Environmental Quality Review Act, or SEQRA.

The regulations of the Commissioner of the Department of Environmental Conservation are found in 6 N.Y.C.R.R. Part 617. The SEQR Cookbook, A Step-by-Step Discussion of the Basic SEQR Process, New York State Department of Environmental Conservation (May 1998).