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SEQRA Should Be Uniformly Applied But Rarely Is; Planning Boards Have Great Discretion To Decide Fate Of Projects
By Rick Tannenbaum
Let’s say I wanted to build a large warehouse distribution center in your community, generally near an industrial area and in some proximity to a major highway. Given the appetite for warehouses from ecommerce companies, I may build the warehouse on spec – that is, without a specific tenant, knowing that I can secure one at some point in the future.
So, I option or buy a piece of land in an industrial area already zoned for warehouse use and submit my plans to the local planning board for approval.
In New York, that planning board is charged with assessing the environmental impacts and weighing them equally with social and economic factors in deciding whether or not to approve my plan. That process is governed by the New York State Environmental Quality Act or SEQRA.
Before the planning board makes that assessment, the first step is categorizing the project as either Type I, Type II, or Unlisted.
Type I actions presume some environmental harm and require a hard look at the plans. Type II actions presume no harm and require no additional SEQRA review. And then there are “unlisted” actions, which generally force the planning board to fashion a hybrid review under SEQRA because the property and proposal don’t fit neatly into either category.
Type I actions are generally defined by the size of the project and location in which the project is proposed. Type II actions are generally smaller projects planned on existing properties, and unlisted actions run the gray line between the two.
What the planning boards do with this guidance generally determines the fate of the proposed project. A Type I action is more likely to lead to a full environmental impact statement, whereas a Type II never requires one.
Although there are guidelines for this process, planning boards enjoy wide discretion, and it can sometimes be confounding to witness how decisions are rendered. Two similarly-proposed projects, for example, can travel very different routes in different towns or villages.
Nevertheless, after a Type I, II, or unlisted determination is made, planning boards have three options for a proposed project: (1) a negative declaration; (2) a positive declaration; and (3) a conditional negative declaration. A negative declaration under SEQRA means that the planning board says the project will not have an adverse environmental impact and can proceed as planned. A positive declaration means that a more intensive and public environmental review must be undertaken, including a scoping document defining the depth of the environmental study, assessment of potential harms, mitigation, and an alternative to the plan. A conditional negative declaration is basically a negative declaration, except that the developer has to agree in advance to some limitation on its project to avoid the type of environmental harms that would trigger a more intensive review.
Now consider three different real-life scenarios.
In one case, an application to build a warehouse that exits onto an over-crowded two-lane road in a quasi-residential neighborhood sails through the SEQRA process and the local planning board makes a negative declaration saying the project will not have any adverse environmental impact on the community, despite a 24/7/365 operation with a multitude of diesel trucks adding to the existing overcrowded roads. The project (surprisingly) gets a green light from a development-friendly planning board.
In another community, before a different planning board, a warehouse proposal that sits adjacent to several major highways and is poised to replace an existing industrial use gets a positive declaration. If the developer wants to go forward, it must identify every possible harm, provide mitigating factors in its plans, and consider alternatives to the project to minimize the adverse impacts. The positive declaration triggers intensive environmental study and possibly years of delay before the first shovel hits the ground.
In a third scenario and in yet another jurisdiction, the warehouse project gets reviewed by the planning board. The board recognizes that the project is likely to have an adverse impact, but the municipality encourages commercial development and wants to find a way to move the project forward. It sees potential problems with noise, air quality issues, and traffic. So, the municipality makes the developer an offer and says, “limit your hours of operation. No weekends, no overnight trucks, and your good-to-go.” The developer can agree to this conditional negative declaration and horse trade with the planning board or face the dreaded positive declaration which will either stall or derail the project. It agrees to limit its hours of operation.
Experienced developers become familiar with the leanings of different jurisdictions by taking note of how projects are generally shepherded through the planning board process. In some municipalities there is more leniency or a greater appetite for development, while in others, planning board officials are more conservative, more protective. In theory, SEQRA should be applied uniformly but this is not the case, and savvy developers might be more inclined to steer their projects to municipalities that make the process easier, and steer them away from others.
Rick Tannenbaum brokers commercial properties with Houlihan Lawrence Commercial Real Estate. Phone: 917-689-1799 firstname.lastname@example.org
Read also, Local Codes Need To Become More Specific To Address A Variety Of Warehouse Uses (July 4, 2022)