SEQRA reviewing court must use reasonableness and common sense to tailor "hard look" to complexity of actually existing problems in project.

Issues for court in SEQRA review: Were potential adverse impacts ID'd? Was there a reasonable elaboration of basis for decision after 'hard look"?

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The proposed rezoning of an area of approximately 128 blocks in Brooklyn was reviewed environmentally under the State Environmental Quality Review Act (SEQRA) and New York City Environmental Quality Review (CEQR)by the Department of City Planning (DCP), the lead agency. A Negative Declaration was issued. The purpose of the rezoning was to preserve existing neighborhood character and scale by placing limitations on height of buildings, by creating opportunities and incentives for affordable housing and supporting local retail corridors, while protecting the residential character of nearby side streets. The court found, with one dissent, that the Environmental Assessment Statement (EAS), similar to the Environmental Assessment Form (EAF) elsewhere in the state, was sufficient on its own, had a rational basis, and that the issuance by DCP of a negative declaration was a proper exercise of discretion. The court restated the concept that the function of a judicial review of a SEQRA determination was to assess whether potential adverse environmental impacts had been identified, whether there had been a "hard look" at those potential impacts, and whether the determination was supported by a reasonable elaboration of its basis. The court said "[i]t is not the role of the court to weigh the desirability of th eproposed action or to choose among alternatives, resolve disagreements among experts, or to substitute its judgment for that of the agency...." (citing Matter of Merson v. McNally, 90 NY2d 742, 752 [1997]). The court also ruled that the lower court's consideration of affidavits from DCP explaining and expanding on its determination was proper where the EAS was sufficient on its own.

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Published In: Civil Procedure Updates, Civil Remedies Updates, Environmental Updates, Commercial Real Estate Updates, Zoning, Planning & Land Use Updates

Reference Info:Decision | State, 2nd Circuit, New York | United States

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Reuben Ortenberg, Woods Oviatt Gilman, LLP | Attorney Advertising

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