Appendix IV. CAC Guide under NYS SEQR and Town Code

APPENDIX IV - CAC GUIDE UNDER NYS SEQR AND TOWN CODE

                            CONSERVATION ADVISORY COUNCIL GUIDE

                                  UNDER NYS SEQR AND TOWN CODE

                                                   January 14, 2021

          This Guide addresses the NYS law requirement for environmental review of virtually every proposed land use project.   The purpose of the state mandated environmental review is to identify the environmental impacts, and fairly assess which impacts can be avoided or mitigated and which cannot.    The process has several distinct stages:  formal land use application; classification of the proposed action; submission and evaluation of an environmental assessment form to help determine the environmental significance of the proposed action; and if required, an environmental impact statement.   This is designed to lead to an informed final decision.   

          The Guide also address the role of the Town’s environmental advisory body, the CAC, in the process.

         The process mandated by state law is somewhat complex.   CAC appreciates the review and comments of the Commissioner of the Dept. of Community Development & Conservation in preparing this Guide.

1.  SEQR; Role of CAC

2.  Interested Agency; SEQR Indicators; Segmentation

3.  SEQR Project Classification; Mandatory Adverse Presumption for Type I Actions; Applicant’s Burden under SEQR 

4.  Recreational Areas and Open Spaces

5.  Environmental Assessment Forms (“EAF”)

6.  SEQR Criteria for Determining Whether a Type I or Unlisted Action Require an Environmental Impact Statement (“EIS”)

7.  SEQR Lead Agency; Expert; Substantive Conditions

8.  Purpose and Required Compliance with the EIS Process

9.  Public Participation in SEQR

10. State Environmental Policy in Land Use Actions

11. Decision-Making Following Environmental Review

Appendix A - Common Type II Actions Arising in a Suburban Community 

Appendix B - Summary Outline of EIS Process 

     1.   SEQR; Role of CAC

          The State Environmental Quality Review (“SEQR”) regulation was enacted in 1975.   It is codified in Article 8 of the NYS Environmental Conservation Law (“ECL”).   Under SEQR, all state and local government agencies within the State of New York “have the obligation to protect the environment.”  SEQR 617.1(b).    

          SEQR broadly defines the environment as “the physical conditions that will be affected by a proposed action, including:

           - land, air, water, minerals, flora, fauna, noise, 

           - existing patterns of population concentration, distribution or growth, 

           - existing community or neighborhood character, and 

           - human health.”  SEQR 617.2(l).     

           Virtually all land use actions affect a physical condition which falls within SEQR’s broad definition of the environment and thus are subject to some level of SEQR analysis. 

           The Town Board established the Conservation Advisory Council (“CAC”)  in the 1970s.   It was formally added to the Town Code in 1991 by adoption of Chapter 520.    The legislative intent was based on the finding that preservation and improvement of the environment was of vital importance to Town residents.  CAC members are appointed by the Town Board.   The CAC operates under the NYS Open Meeting Law.  

          Town Code Chapter 520 assigns to the CAC a number of duties, principally to advise on matters affecting the Town’s environment.    This encompasses advice with respect to the environment regarding:  land use under the Town’s Zoning Code; land use concurrence with the 2016 adopted Comprehensive Plan; Town’s environmental ordinances such as those regulating disturbances in wetlands and their buffers, community tree management, disturbances on steep slopes, and excessive noise; applications for permits from a Town official or agency; and where applicable, SEQR.   It also encompasses advice with respect to matters requested by Town Board members, consultation with the Department of Community Development & Conservation, and environmental matters the CAC itself wishes to raise. 

          The NYS Dept. of Environmental Conservation (“DEC”) publication on CACs lists components of an effective CAC.    These include: 

          - asking questions; 

          - scientific perspective;

          - timely reviews and recommendations.   

Also, the DEC advises that a key component of a CAC having an effective role in the community is to “engage from the start of a project.”  This is clearly authorized by SEQR, as it provides that “the lead agency will make every reasonable effort to involve . . . other agencies . . . in the SEQR process” and “early consultations initiated by agencies can serve to narrow issues of significance.”   SEQR 617.3(d).  

     2.  Interested Agency; SEQR Indicators; Segmentation

          Under SEQR, the CAC is an “Interested Agency”, and may issue advice within the areas of its special expertise.  “Interested agencies are strongly encouraged to make known their views on the action, particularly with respect to their areas of expertise . . . .”  SEQR 617.3(e).

           SEQR Indicators:  SEQR contains a non-exclusive list of “indicators” of significant adverse impacts on the environment.   The CAC uses the SEQR definition of environment in combination with these indicators, as well as its knowledge of local conditions.   

         The indicators include:  “the creation of a material conflict with a community’s current plans or goals as officially approved or adopted.”  SEQR 617.7(c)(1)(iv).   Thus, a material conflict with existing Zoning Code standards (community’s “current plans”) or the recent 2016 Comprehensive Plan (community’s “goals”) would be a potential significant adverse impact.   That is why, in addition to studying potential environmental impacts on issues such as land, air, water, flora, noise, neighborhood character and human health, the CAC includes an analysis of the proposed action in relation to the current Zoning Code standards and the adopted 2016 Comprehensive Plan.

          Segmentation:  In scoping our SEQR reviews, the CAC also recognizes that “segmentation” is contrary to the intent of SEQR.   “The entire set of activities or steps must be considered the action, whether the agency decision-making relates to the action as a whole or to only a part of it.”   SEQR 617.3(g).   

          This includes “reasonably related long-term, short-term, direct, indirect and cumulative impacts.”   SEQR 617.7(c)(2).   Thus, the CAC tries to understand the context and totality of a proposed project and analyze in a holistic way, not merely mechanically.

      3.  SEQR Project Classification; Mandatory Adverse Presumption for Type I Actions; Applicant’s Burden under SEQR

          Classification:  SEQR classification of a project by the Lead Agency is crucial.   There are three classifications:

          Type I Actions:  SEQR lists 11 categories of actions as Type I Actions.   A project which comes within these categories “carries with it the presumption that it is likely to have a significant adverse impact on the environment and may require an EIS.”   SEQR 617.4(a).    This mandatory adverse presumption with respect to Type I Actions is a key aspect of the policy of SEQR to protect the environment. 

          Type II Actions:  SEQR also lists a number of actions, almost 50, (i) which it categorizes as not having a significant impact on the environment or (ii) which are precluded from environmental review under the Environmental Conservation Law.   These are automatically exempted from SEQR review.   SEQR 617.5.   Type II Actions are exempted from SEQR determination of environmental significance, an Environmental Impact Statement (“EIS”), and a SEQR findings statement.   SEQR 617.3(f).   Some common Type II Actions which typically arise in suburban communities such as the Town of Greenburgh are listed in Appendix A below.  

          Unlisted Actions:  These are “all actions not identified as a Type I or Type II action.”   SEQR 617.2(al).   These action may, or may not, require an EIS.

          Burden on Establishing No Significant Adverse Environmental Impacts of Type I Actions:  The burden is on the applicant to demonstrate the absence of substantial environment impacts.     In re Tubridy, Commissioner NYS Dept. of Environmental Conservation (DEC Case No. 2-6308-001162) at p. 25 (April 19, 2001) (“The Applicants have the burden of overcoming the presumption that the requested use is incompatible.”); Bowers (Ass’t Counsel for Regulatory Affairs/SEQRA Counsel, NYS Dept. of Environmental Conservation), “New York’s SEQRA in the Courts”, 5 Pace Environmental Law Review 25 at p. 45 (1987) (“The Type I presumption puts the burden on the project sponsor, in the first instance, to prove there will be no significant impact.”)

          This protects the public, since residents normally do not have the individual expertise or access to professionals as do project sponsors.    

          Similarly, when the CAC advises with respect to environmental issues, it is not up to the CAC to prove the environmental impact.   Rather, under SEQR, it is up to the applicant to demonstrate there will be no significant adverse environmental impact.

      4.  Recreational Areas and Open Spaces

          Unincorporated Greenburgh is largely built-out, except for presently-existing recreational areas and open spaces.  Much of the future potential non-Type II development in Unincorporated Greenburgh involving large acreage is likely to occur in what is now recreational areas or open spaces.   

          Physical alteration of 2.5 acres or more, wholly or partially within or substantially contiguous to a recreation area or designated open space, may be a Type I Action.   SEQR 617.4(b)(10); (b)(6)(i).   But arguably there may be some ambiguity in the wording of SEQR on this.   The CAC feels that, in keeping with the policy of SEQR that all state and local agencies “conduct their affairs” recognizing they have “an obligation to protect the environment,” the better view is that a project involving 2.5 acres or more, within or substantially contiguous to a recreational area or open space, is a Type I Action.  We understand that the Commissioner of the Department of Community Development & Conservation has considered the issue and to be conservative is of the same view.

          If not a Type I Action, development within or contiguous to recreational areas or open spaces would be an Unlisted Action.    In the 2016 Comprehensive Plan, the Town Board recognized the potential for adverse environmental impacts from materially altering the use of a large recreational area or open space.   Comprehensive Plan, Section 7.6 at p. 7-20.   Thus, as discussed in Part 6 below, such potential development may require an Environmental Impact Statement.

     5.  Environmental Assessment Forms (“EAF”)

           An Environmental Assessment Form is a form used “to assist in determining the environmental significance of actions.”  SEQR 617.2(m).    Under the structure of SEQR, the EAF is the bridge between (i) an application and (ii) determining either (a) there are no significant environmental impacts, (b) significant environmental impacts can be avoided or mitigated or (c) an Environmental Impact Statement is required (as discussed in Part 6 below).

         The DEC publishes a short-form and long-form (full) EAF.   A long-form EAF is used for   all Type I projects.   As a matter of policy, the Dept. of Community Development & Conservation (“CD&C”) also requires an applicant to use the long-form EAF for Unlisted Actions unless they are very minor with little chance of significant environmental impacts.    The CAC supports this policy.   The long-form EAF is 13 pages, with questions regarding details about the project and its potential impacts on the environment.    

          Unfortunately, it is not uncommon for applicants to underestimate environmental impacts or, in some cases, simply state there are none.   CD&C and Town land use boards are required to ferret out the facts and analyze the potential environmental impacts.

          If the submitted EAF is insufficient to make a reasoned determination of the facts and their environmental impact, the Town may require an “expanded” long-form EAF (”Expanded EAF”).   NYS Dept. of Environmental Conservation, “SEQR Handbook” (Third Ed. 2010) at p. 74.   An Expanded EAF could require additional (i) factual information, (ii) technical studies and (iii) identification of potential environmental impacts and targeted analysis of which of those impacts could be avoided and mitigation measures for unavoidable impacts.

     6.  SEQR Criteria for Determining Whether a Type I or Unlisted Action Require an Environmental Impact Statement (“EIS”)

          After the EAF process, a determination must be made whether the environmental impacts and appropriate mitigation measures have been identified.  If not, an Environmental Impact Statement (“EIS”) may be required.  

          According to New York’s highest court:  “The heart of SEQRA is the Environmental Impact Statement (EIS) process.”   Jackson v. New York State Urban Dev. Corp., 67 N.Y.2d 400 at p. 415 (1986).   

          An EIS is not limited to Type I Actions.   An EIS may also be required for an Unlisted Action.  SEQR 617.7(a).     EISs for both are treated the same for purposes of review.    Bowers (DEC’s former SEQRA Counsel), 5 Pace Environmental Law Review at p. 45.   The applicant would have the burden of establishing there will be no significant adverse environmental impact.   NYS Dept. of Environmental Conservation, “Guide to Permit Hearings” (applicant “bears the burden of proof”).

           SEQR is quite specific as to the standard for determining whether or not there should be an Environmental Impact Statement:

          -  An EIS is required where the Lead Agency determines the proposed Type I or Unlisted Action “may include the potential for at least one significant adverse environmental impact.”  SEQR 617.7(a)(1).  

           -  To determine that an EIS will not be required, the Lead Agency must determine “there will be no” significant adverse environmental impacts resulting from the Type I or Unlisted Action.   SEQR 617.7(a)(2). 

          The difference between “may”, on the one hand, and “there will be no”, on the other, is significant:

          “Positive Declaration” > EIS Required:   The “may” standard for a “positive declaration” is set to be low.   New York’s highest court has made it clear:  “The threshold at which the requirement that an EIS be prepared is triggered is relatively low.”   Chinese Staff & Workers Ass’n v. City of New York, 68 N.Y.2d 359 at p. 364 (1986).   

          “Negative Declaration” > No EIS Required:   The “there will be no” standard is high.   Mere assertions of having taken a “hard look” are insufficient.    All of SEQR 617.7(b)(2),(3),(4) must be satisfied.      New York’s highest court has delineated these stringent requirements:  In order to issue a “negative declaration” that no EIS is needed, the Lead Agency must:

       (i) identify the relevant areas of environmental concern, and

       (ii) analyze these environmental areas and take a “hard look” at them, and 

       (iii) make a written “reasoned elaboration” as to why concerns regarding those environmental areas will have no significant adverse environmental impacts.   Chinese Staff & Workers Ass’n v. City of New York, 68 N.Y.2d at p. 363-364.   “Short-term and long-term effects, as well as primary and secondary effects” must be analyzed.  68 N.Y.2d at p. 364.

          Thus, an EIS is required for Type I and Unlisted Actions where the Lead Agency determines there may be significant environmental harm.   An EIS is not required for (i) Type II Actions  or (ii) Type I Actions or Unlisted Actions where the Lead Agency, after evaluating mitigation measures, is certain of no environmental harm.

     7. SEQR Lead Agency; Expert; Substantive Conditions

          The Lead Agency has the duty to make all key decisions.  SEQR Handbook at p. 60.    SEQR review and decision-making may not be delegated to another board.   SEQR Handbook at p. 178.      

          “The SEQRA regulations provide that a lead agency may charge the applicant for the costs of hiring the agency's own consultants to review, or even prepare, the EIS.  * * *   SEQR provides all involved agencies with the authority, following the filing of a final EIS and written findings statement, . . . to impose substantive conditions upon an action to ensure that the requirements of [SEQR]  have been satisfied.”   Gerrard, Arnold & Porter, “Municipal Powers under SEQRA”, New York State Bar Journal (Dec. 1, 1997).

     8.  Purpose and Required Compliance with the EIS Process

          An EIS allows for full, open and transparent exploration of (i) potential adverse environmental impacts, (ii) which impacts can be avoided, and (iii) whether any unavoidable impacts can be mitigated.   Some applicants say they do this (and, by implication, the Town does not have to), but applicants have an evident self-interest.   Nothing improper, but a self-interest.   

          When an EIS is required for a Type I or Unlisted Action, the sponsor’s application is not complete until either a draft EIS has been accepted by the Lead Agency or, after reviewing the draft EIS, the Lead Agency determines to issue a negative environmental declaration.   SEQR 617.3(c), 617.9(a)(5)(i).

          A Summary Outline of the EIS process is contained in Appendix B below.  

          Corners cannot be cut procedurally, and substantive standards must be honored.  The Lead Agency must “satisfy SEQRA, procedurally and substantially.”   Chinese Staff & Workers Ass’n v. City of New York, 68 N.Y.2d at p. 363.   “Literal compliance with both the letter and spirit of SEQRA is required, and substantial compliance will not suffice.”     Board of Cooperative Educational Services v. Town of Colonie, 702 N.Y.S. 2d 219 at p. 223 (3 Dep’t 2000); Rye Town/King Civic Ass’n v. Town of Rye, 82 A.D. 2d 474 (2 Dep’t 1981);  Beekman, 2014 N.Y. Slip Op. 51354 at p. 5 (Sup. Ct. Dutchess Cty. 2014).   

     9.  Public Participation in SEQR

           Public participation is a policy of SEQR and mandatory on the Lead Agency: “The Lead Agency will make every reasonable effort to involve . . . the public in the SEQR process.”   SEQR 617.3(d).    

           “Scoping [of an EIS] must include an opportunity for public participation.”   SEQR 617.8(d).   The public is afforded a comment period on both the draft EIS and final EIS.  Where the public has shown interest in the project, the Lead Agency can hold public hearings.   SEQR 617.9(a)(3)(4), 617.11.    

          Thus, SEQR provides specific public input at the scoping, draft EIS, final EIS and public hearing stages.  Participation by the public may also occur at other points in the SEQR process.     To make this meaningful, SEQR gives the Lead Agency the power to ensure the public has a reasonably adequate time to review and comment.

          Public participation by residents in Unincorporated Greenburgh is in keeping with the Town Board’s policy of open and transparent administration of Town affairs.

     10.  State Environmental Policy in Land Use Actions

          Virtually all land use actions fall within SEQR’s broad definition of the environment and thus are subject to some level of SEQR analysis.   The first level of analysis is classification.   Then, unless the action is a Type II Action and thus automatically exempt from SEQR, the action is a Type I Action or an Unlisted Action subject to the SEQR process.

          Guiding our statutory obligations under State and Town law to advise on the environment, the CAC is guided by the direction of New York’s highest court that all state and local government agencies must “honor their mandate regarding environmental protection by complying strictly with prescribed procedures and giving reasoned consideration to all pertinent issues revealed in the process.”  Jackson v. NYS Urban Dev. Corp., 67 NY2d at p. 417.   

          “Literal compliance is required because the Legislature has directed that the policies of the State and its political subdivisions shall be administered ‘to the fullest extent possible’ in accordance with SEQRA (ECL 8-0103, subd 6).”  Envir. Defense Fund v. Flacke, 96 A.D.2d 862 (2 Dep’t 1983).

     11.  Decision-Making Following Environmental Review

          Requiring an EIS, or even determining after the EIS process that a project has unavoidable and unmitigated impacts, does not necessary mean that a project cannot be approved.  Environmental factors are not the sole consideration in the ultimate decision-making.   The ultimate decision-making is a “balance of social, economic and environmental factors.”    What SEQR does is to ensure that unavoidable and unmitigated adverse environmental impacts are identified so that they can be given appropriate weight in the decision-making process.   SEQR 617.1(d).  

          Without SEQR being fairly applied according to the proscribed procedures and substantive standards, the Town’s ultimate decision-making authority is deprived of the full range of information, and derivatively Town residents are deprived of the environmental protections, intended by the NYS Legislature.

* * * * * 

Appendix A - Common Type II Actions Arising in a Suburban Community (SEQR 617.5)

-  Construction of a single-family, two-family or three-family residence on an approved lot

-  Rehabilitation or reconstruction of a structure 

-  Construction of minor accessories/appurtenances to a residential structure, such as garages, decks, or swimming pools

-  Maintenance or repairs involving no substantial changes in an existing structure

-  Maintenance of existing landscaping or natural growth

   Note:   If a Type II Action involves environmental issues under Town law (such as disturbance of regulated wetlands, trees or steep slopes), the CAC may have the responsibility or option under Town Code Chapter 520 to render environmental advice with respect to the action even if there is no SEQR review process under State law. 

Appendix B - Summary Outline of EIS Process (SEQR 617.8 -.12)

     SEQR prescribes both the procedure for formulating an EIS and the substance of its content, as well as the procedure and standards for decision-making by the Lead Agency.  Jackson v. NYS Urban Dev. Corp., 67 N.Y.2d at pp. 415-416. 

1.  Publication of SEQR Information - SEQR 617.12(c)(5)

    A.  Pursuant to the amendments to SEQR effective Jan. 1, 2019, the following must be published on the Town website:  (i) draft scoping, (ii) final scoping, (iii) draft EIS, and (iv) final EIS.   

2.  Scoping - SEQR 617.8

     A.   The purpose of “scoping” is to focus the EIS on potentially relevant adverse environmental impacts, in light of the particular facts and circumstances surrounding the project.

    B.  The project sponsor must submit a draft scope.  

    C.  Scoping must include an opportunity for public participation in the scoping.

    D.  The Lead Agency must provide the final scoping, which shall include: (i) the potentially significant adverse impacts as a result of review of the record and consultation with involved agencies, interested agencies and the public, (ii) reasonable alternatives to be considered, and (iii) potential mitigation measures.

3.  Draft EIS - SEQR 617.9

     A.  Lead Agency must determine whether to accept the initial draft of the EIS within 45 days after submission.

     B.  When accepted, the public must be allowed at least 30 days to comment.

     C.  The Lead Agency will determine whether to hold a public hearing based on a number of factors, including the degree of interest in the project shown by the public.

4.  Final EIS - SEQR 617.9, .11

     A.  After the draft EIS process in # 3 above, the Lead Agency will prepare a final EIS, unless it determines on the basis of the draft EIS that the action will not have a significant adverse impact on the environment.    The final EIS must be prepared within 45 days after the close of the hearing on the draft EIS. 

     B.  Prior to action on the final EIS, the Lead Agency shall afford the public a reasonable time, not less than ten days, to comment.

     C.  The Lead Agency must issue written findings on the final EIS within 30 days after its filing.   

     D.  The findings on the final EIS must: (i) certify that SEQR procedures have been met, (ii) certify that the proposed action avoids or minimizes adverse environmental impacts to the maximum extent practicable, and (iii) provide a rational for the conclusions reached.   

      E.   No final decision on the proposed project may be made until the SEQR written findings.  All avoidance and mitigation measures must be incorporated into any positive decision on the proposed action.   

5.  Generic EIS - SEQR 617.10

     A.  Generic EIS is required for zoning changes.   It analyzes the total area to be covered and impacted by the zoning change.

     B.  Where a final generic EIS has been filed for the zoning change, no further SEQR compliance is required for subsequent specific projects which are in conformance with the conditions established in the original action and the findings statement of the genetic EIS.

6.  Time Periods - SEQR 617.3(i)

     A.  Time periods in the SEQR process may be extended by mutual agreement between a project sponsor and the Lead Agency.

     B.  Time extension agreements are not required to be in writing, although a writing and publication of the writing is helpful to the public in framing their participation as well as in avoiding misunderstandings and disputes with the project sponsor.