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Developers should prepare to face SEQRA questions.

Developers in a rush to get a land-use project approved by the local municipality often mistakenly pay short shrift to what they consider an annoying, unnecessary detail -- the New York State's Environmental Quality Review Act (known as SEQRA). But if the developer doesn't prepare for the reviewing municipality, or worse, if the reviewing municipality makes errors, the results can spell disaster for the project.

"When a project faces opposition by neighbors or community groups, SEQRA can become a major weapon in their arsenal to kill the project in the courts. One misstep under SEQRA can be fatal to a project," says Jon Ward, a partner at the law firm of Sahn & Ward, Long Island-based-land use and real estate firm. "What most people don't understand is that the SEQRA process requires active participation from both the developer and the municipality. Usually, the developer has a greater financial stake in getting through the SEQRA process, so when the town has completed its portion of the process, it's in the developer's best interest to dot all the 'i's and cross all the 't's -- and that includes checking on what the town has done."

Ward's firm helps developers navigate their way through the SEQRA process every' day, and in many situations, it's not a big deal. But even the slightest hint of controversy can turn a simple process into a costly nightmare.

In an upstate case, for example, a rezoning would have permitted the development of a Wal-Mart Super Center on a large tract of land. The rezoning was not a big issue, and could very easily have taken place, except that the town made a simple, yet very significant error. It stopped the SEQRA process before completely resolving traffic and wetlands issues associated with the project, delegating the final resolution of these issues to other government agencies.

When the rezoning was challenged in a lawsuit, the court found that by delegating final resolution of the traffic and wetlands issues to other agencies, the town had abdicated its decision-making authority under SEQRA. The court ruled that it was the town's responsibility to exercise critical final judgment on these issues. As a result, the project was stopped in its tracks.

In another upstate New York case, a rezoning for an existing asphalt plant was annulled when it was discovered that the town failed to finish filling out a portion of the Environmental Assessment Form (EAF) required to evaluate the potential environmental impacts of the project before approval.

The suit was brought on by a neighbor who wanted to stop the rezoning because it would have eliminated the need for the plant owner to obtain additional zoning variances every time he wanted to expand or change the existing facility. The lawsuit charged, among other things, that the rezoning was in valid because the town failed to complete a portion of the Environmental Assessment Form (EAF) submitted by the plant owner at the time it originally applied for the rezoning. Under SEQRA, a fully-completed EAF must be used by the municipality to evaluate the potential environmental impacts of the project before it is approved. The Appellate Division sided with the neighbor and struck down the proposed rezoning.

According to Ward, "These cases drive home the point that developers must take SEQRA very seriously. They must carefully scrutinize the SEQRA review process and make sure that the reviewing municipality is complying with all aspects of the statute. Otherwise, the door is left wide open for project nullification in the courts."
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Publication:Real Estate Weekly
Article Type:Brief Article
Geographic Code:1USA
Date:May 2, 2001
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