Economic Feasibility Outside of the SEQRA Review, and Other Conditions Relating to Municipal Approvals

Land Use

In a Second Department case last year, In the Matter of Kirquel Development, LTD, 96 A.D.3d 754 (2d Dept. 2012), the Planning Board of the Town of Cortlandt approved a SEQRA findings statement and a preliminary subdivision allowing for a 16 lot subdivision, subject to conditions, where the Developer was seeking between 19 and 21 lots. The Developer challenged the SEQRA findings and approval requiring the reduction in the number of lots. The Developer also challenged certain other conditions of the subdivision approval. In challenging the SEQRA determination and the subdivision approval, the Developer argued, among other things, that the Planning Board did not take a “hard look” at the economic feasibility of the project, and that the conditions imposed were arbitrary and capricious and unconstitutional.

The Court concluded that, “Contrary to the petitioner’s contention, SEQRA does not require a lead agency to take a ‘hard look’ at the economic feasibility of a project.” While this language does not necessarily prohibit a Board from considering the economic feasibility of a project, it implies that considerations of economic feasibility are outside of the SEQRA review.


Additionally, relating to the conditions of subdivision approval, the Court concluded that “Conditions may be properly imposed upon subdivision approval ‘so long there is a reasonable relationship between the problem sought to be alleviated and the application concerning the property’”. While the Court did not specifically set forth in detail those conditions which were upheld, it is an important point for municipalities and developers to consider when dealing with conditions of municipal approvals.

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