In June, a New York State appellate court — the Appellate Division, Fourth Department — struck down a town’s attempt to acquire certain private property rights (an easement) by eminent domain.

The Court’s decision didn’t address policy questions (like whether the Town’s reason for taking the easement outweighed the property owner’s interests), nor did the court’s decision involve a complex constitutional analysis of “Due Process” or the “Takings” clause. Instead, the Court found that the Town’s actions in acquiring the property failed to comply with New York’s Eminent Domain Procedures Law (the “EDPL”).

Under EDPL §207(C)(3), courts may review such condemnation decisions to determine whether “the condemnor’s determination and findings were made in accordance with procedures set fourth in this article and with article eight of the environmental conservation law.” In other words, a Town’s decision to use eminent domain must comply with the EDPL and the State Environmental Quality Review Act (“SEQRA”).

SEQRA imposes substantive and procedural requirements on agencies and municipalities considering certain types of actions in order to ensure that environmental impacts are taken into account in their decision making process. Substantively, it requires them to (1) identify the relevant areas of environmental concern; (2) take a “hard look” at areas of environmental concern; and (3) make a “reasoned elaboration” of the basis for its determination.

In the case above, the Court held that the Town violated SEQRA — and therefore also violated EDPL §207(C)(3) — by issuing a “negative declaration” of environmental significance (a determination that the proposed action will not have significant adverse environmental impacts) without taking a “hard look” at the proposed condemnation’s impact on wildlife. The Court further held that the Town failed to provide a reasoned elaboration for the basis for its determination that the action would have no significant impact on wildlife or surface water. Based on its holding that the Town failed to comply with SEQRA, the Court annulled the Town’s determination to acquire the easement.

Cases like this demonstrate the importance of ensuring that environmental reviews are conducted in a complete and proper manner. Project sponsors, developers, agencies, and municipalities can end up in litigation if a SEQRA review is not conducted properly. As this case shows, failure to fully comply can result in wasted time, costly attorneys’ fees, and the annulment of the subject approval.

Needless to say, the stakes can be high. That’s why local boards, municipalities, and agencies should ensure that they are conducting all environmental reviews properly and taking such concerns seriously. Cutting corners usually just makes things worse. Those opposing a project will almost certainly scrutinize an agency’s environmental review to determine whether its approval violated SEQRA.

If you find yourself involved in or affected by a project, and have concerns about whether the environmental review is being conducted properly, make sure you contact an experienced attorney who can help. This is especially important in SEQRA cases because the timeline for bringing such claims is very short.

For inquiries related to environmental, zoning, and land use matters, or questions about environmental reviews (such as SEQRA) in New York State, please contact Jacob H. Zoghlin, Esq. or Mindy L. Zoghlin, Esq.

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  See Frank J. Ludovico Sculpture Trail Corp. v. Town of Seneca Falls, 173 A.D.3d 1718 (4th Dept. 2019).

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