The Continuing Implications of Riverkeeper, Inc., 9 N.Y.3d 219 (2007)

Land Use

One of the most challenging aspects of the development approval process in New York is understanding and complying with the complex substantive and regulatory requirements of the New York State Environmental Quality Review Act (SEQRA). In the Riverkeeper case, the Court of Appeals stressed the deference courts must give to a planning board or other municipal agencies under the “hard look” standard. Riverkeeper, Inc. v. Planning Board of Town of Southeast, 9 N.Y.3d 219 (2007). SEQRA determinations ultimately rest with the lead agency. So long as the lead agency conducts a detailed review and takes the requisite “hard look” at the environmental concerns, the Court of Appeals made clear that lower courts should not substitute their judgment for the judgment of a lead agency. To this extent, the Court found that, “[t]he lead agency. . . has the responsibility to comb through reports, analyses and other documents before making a determination; it is not for a reviewing court to duplicate these efforts.” Id. Further, “[w]hile a lead agency is encouraged to consider the opinions of experts and other agencies, it must exercise its own judgment in determining whether a particular circumstance adversely impacts the environment.” Id. at 234 (emphasis added).

Taking into consideration the Court of Appeals decision in Riverkeeper, the Appellate Division, Third Department, this month upheld a determination of the Supreme Court, Ulster County in Shop-Rite Supermarkets, Inc. v. Planning Bd. Of the Town of Wawarsing, 2011 WL 814214 (N.Y.A.D. 3d. Dept. March 10, 2011). The Petitioners in Shop-Rite Supermarkets, Inc. challenged the Planning Board’s determination issuing a negative declaration and approving the development project which included a new 132,000 square foot Wal-mart “superstore”.

In affirming the Supreme Court’s dismissal of the petition, the Appellate Division reiterated that municipal agencies, when reviewing applications under SEQRA, are bound by the “hard look” standard, and that once the reviewing agency takes a “hard look” at an application, judicial review of the agencies decision is limited.  Quoting Riverkeeper, the Appellate Division held that “[j]udicial review of an agency determination under SEQRA is limited to whether the agency identified the relevant areas of environmental concern, took a hard look at them, and made a reasoned elaboration of the basis for its determination. It is not the province of the courts to second-guess thoughtful agency decision making and, accordingly, an agency decision should be annulled only if it is arbitrary, capricious or unsupported by the evidence.” Id.

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