2 No. 70
In the Matter of Edward S.
Gordon, et al.,
Respondents, v. Edward T. Rush, &c., et al.,
Appellants,
et al.,
Respondent.
2003 NY Int. 74
June 5, 2003
This opinion is uncorrected and subject to revision before
publication in the New York Reports.
Eric Bregman, for appellants. William W. Esseks, for respondents.
CIPARICK, J.:
This appeal presents two issues for our review. The
threshold question is whether the action of the Town of
Southampton Coastal Erosion Hazard Board of Review is ripe for
judicial review. If so, we must then address whether the Board
was bound by the prior negative declaration issued by the
Department of Environmental Conservation (DEC) acting as lead
agency in a coordinated State Environmental Quality Review Act
(SEQRA) review. We hold that the action of the Board is ripe for
review and that the Board is bound by the prior negative
declaration.
Storms during the winter of 1992-93 caused substantial
erosion to the beaches in Bridgehampton, in the Town of
Southampton. As a result, in March 1993 petitioners -- a group
of oceanfront property owners -- requested permission from the
Town to install shore-hardening structures, steel bulkheads, on
the seaward toe of the primary dune to prevent further erosion.[1]
Petitioners asked that this project be undertaken as an emergency
measure.
The Town of Southampton assume[d] the responsibility
and authority to implement and administer a coastal erosion
management program * * * [including] regulat[ing] the
construction of erosion protection structures in coastal areas
under its Coastal Erosion Hazard Area Law (CEHA) (Code of the
Town of Southampton § 138-3[E]). The Administrator of the CEHA
is the Town official responsible for implementing and enforcing
that law and issuing all permits ( see Code of the Town of
Southampton § 138-28[D]). The Administrator notified petitioners
that the proposed projects would not be eligible for emergency
status and that they would have to proceed through the standard
permitting process.
Petitioners then submitted permit applications to
install these structures indicating their willingness to bear the
responsibility for dune restoration when required after periods
of erosion. The permit applications were made both to the
Administrator under the CEHA and to the DEC. The Administrator
was the designated liaison with the DEC ( see Code of the Town of
Southampton § 138-28[H]), which also had jurisdiction over the
proposal since the bulkheads were proposed to be built on the
seaward side of the primary dune, within tidal wetlands. The DEC
is responsible for issuing permits for activities regulated by
the Tidal Wetlands Act ( see Environmental Conservation Law
article 25).
In April 1993, the Town, through the CEHA Administrator
advised the DEC that it did not wish to assume lead agency status
for coordinated SEQRA review purposes because the impacts of the
project could have significance beyond the local level and
requested that the DEC be lead agency, since it could provide a
more thorough environmental assessment. The DEC agreed to assume
lead agency status, classified the proposed action as unlisted
and in June of 1993 notified petitioners, copying the
Administrator, that based upon a preliminary review, a positive
declaration probably would be issued. The DEC further indicated
that there was also the possibility of a negative declaration if
any of three proposed mitigation measures was implemented.
Petitioners adopted the third suggestion and submitted modified
applications to the DEC, moving the site of the proposed
bulkheads landward of the primary dune.[2]
In August 1993, the DEC issued negative declarations
for the proposed activities, finding that an Environmental Impact
Statement (EIS) did not have to be prepared because there would
not be a significant impact on the environment and identifying
the Town and the Board of Trustees[3]
as involved agencies. Copies
of the negative declarations were provided to the Administrator.
The DEC issued wetlands permits to the petitioners in September
1993.
Petitioners then submitted the amended applications to
the Administrator, who denied the coastal erosion permits because
the modification to the proposal, placing the bulkheads landward
of the primary dune, was prohibited by the Town Code ( see Code of
the Town of Southampton § 138-12[B][1][f]). Petitioners appealed
this decision to the Board.[4]
They requested review of the
Administrator's determination and, if necessary, variances to
allow them to construct the bulkheads. After a public hearing,
the Board issued a resolution in February 1994 stating that it
would assume jurisdiction to conduct de novo SEQRA review of the
variance applications, would take steps to establish a lead
agency and would make a determination of significance. The Board
asserted it had not been included as an involved agency and did
not have a chance to contribute to the review process.
Petitioners then commenced an article 78 proceeding and
declaratory judgment action -- the Gordon v Matthew action --
challenging the Board's decision. Supreme Court granted
petitioners' request for an order of mandamus to compel the Board
to review the denial of permits by the Administrator. The court
also annulled the Board's determination that it had the authority
to conduct a new SEQRA review, because of insufficient facts and
evidence in the record to support the Board's decision, and
remitted the matter to the Board for further proceedings.
Supreme Court, however, denied petitioners' request for an order
of prohibition to enjoin the Board from taking any further acts
concerning these permits under SEQRA.
On remand, the Board conducted further public hearings
and in January 1995, issued a resolution declaring itself lead
agency to conduct its own SEQRA review and a positive
declaration, finding that the proposed structures could have
significant effects on the environment and requiring petitioners
to prepare a Draft Environmental Impact Statement (DEIS).[5]
Petitioners then commenced the present article 78 proceeding
challenging the Board's determination. Supreme Court found that
the proceeding was ripe for review and annulled the Board's
resolution, noting that the DEC had strictly complied with SEQRA
when it conducted the coordinated review. The court also stated
that in light of the Board's failure to object or to bring its
concerns to the DEC's attention it could not be allowed to
commence its own subsequent SEQRA review.
The Appellate Division affirmed, agreed that the issue
was a justiciable controversy ripe for review, and held that the
Board was bound by the DEC's negative declaration, and may not
perform their independent subsequent SEQRA review (299 2 20,
28 [2002]). The court also found that the Board should have
commenced a timely article 78 proceeding if it wished to
challenge the determination of the DEC. This Court granted the
Board leave to appeal, and we now affirm.
The first question presented for review is whether this
proceeding challenging the Board's January 19, 1995 issuance of a
positive declaration is ripe for judicial review. Whether the
agency action is ripe for review depends upon several
considerations. First, the action must impose an obligation,
deny a right or fix some legal relationship as a consummation of
the administrative process ( Matter of Essex County v Zagata, , 91 NY2d 447, 453 [1998] quoting Chicago & S. Air Lines v Waterman
Corp., 333 US 103, 113 [1948]).[6]
In other words, 'a pragmatic
evaluation [must be made] of whether the decisionmaker has
arrived at a definitive position on the issue that inflicts an
actual, concrete injury' ( Essex County, 91 NY2d at 453
[citations omitted]). Further, there must be a finding that the
apparent harm inflicted by the action may not be 'prevented or
significantly ameliorated by further administrative action or by
steps available to the complaining party' ( Essex County, 91 NY2d
at 453 [citations omitted]).
Here, the decision of the Board clearly imposes an
obligation on petitioners because the issuance of the positive
declaration requires them to prepare and submit a DEIS.
Conducting a pragmatic evaluation of these facts and
circumstances, the obligation to prepare a DEIS imposes an actual
injury on petitioners as the process may require considerable
time and expense. The Board would like us to adopt a bright-line
rule, adopted by some appellate courts, that a positive
declaration requiring a DEIS is merely a step in the agency
decisionmaking process, and as such is not final or ripe for
review ( see e.g. Matter of Rochester Tel. Mobile Communications v
Ober, 251 AD2d 1053, 1054 [4th Dept 1998]). Here, the Board
issued its own positive declaration for the project after the DEC
had previously conducted a coordinated review resulting in a
negative declaration, in which the Board had an opportunity but
failed to participate. Certainly in this circumstance the
bright-line rule advanced by the Board would be inappropriate.
In addition, further proceedings would not improve the situation
or lessen the injury to petitioners. Even if the Board
ultimately granted the variances, petitioners would have already
spent the time and money to prepare the DEIS and would have no
available remedy for the unnecessary and unauthorized
expenditures.
We recognize that the Board may not have had
jurisdiction to conduct its own SEQRA review and an agency's
erroneous assertion of jurisdiction may ultimately never cause
any real injury ( Essex County, 91 NY2d at 455). Here, the mere
assertion of jurisdiction alone was not the actual, concrete harm
that was inflicted upon petitioners. Rather, the harm was the
issuance of the positive declaration directing petitioners to
prepare a DEIS, involving the expenditure of time and resources,
after petitioners had already been through the coordinated review
process and a negative declaration had been issued by the DEC as
lead agency. As a result, the Board's action in issuing a
positive declaration is a final administrative action ripe for
judicial review.
Turning to the merits, we conclude that the Board was
bound by the negative declaration issued by the lead agency, the
DEC. The DEC properly identified the involved agencies at the
beginning of the process and conducted an appropriate coordinated
review ( see 6 NYCRR 617.6[c] [November 1987 regulations; see also
6 NYCRR 617.6[b][3] [current regulations]). Under the
circumstances of this case, it is insignificant that the
modification to the permit application may have changed the
Board's status from that of an interested agency[7]
( see 6 NYCRR
617.2[u] [Nov 1987 regulations]; see also 6 NYCRR 617.2[t]
[current regulations]) to that of an involved agency[8]
( see 6
NYCRR 617.2[t] [Nov 1987 regulations]; see also 6 NYCRR 617.2[s]
[current regulations]). The DEC acted as lead agency for the
coordinated review at the request of the Administrator, who
surrendered the Town's lead agency status. The Administrator, as
the primary liaison with the DEC under the CEHA ( see Code of the
Town of Southampton § 138-28[H]), received copies of both the
DEC's letter to petitioners listing the modification options and
the negative declarations. As such, the Board had notice of
these matters and failed to advise the DEC of any relevant
concerns, as it should have done pursuant to the SEQRA
regulations ( see 6 NYCRR 617.3[i] [Nov 1987 regulations]; see also 6 NYCRR 617.3[e] [current regulations]).
The Board did not make its objections known until after
it received copies of the negative declarations and tidal
wetlands permits issued by the DEC. The Board's decision to
conduct its own SEQRA review was unauthorized as it was bound by
the DEC's negative declaration, which properly identified the
involved agencies through due diligence and apprised those
agencies of its decision ( see 6 NYCRR 617.6[b][3][iii] [current
regulations]; see also 6 NYCRR 617.3[h] [Nov 1987 regulations]).
In order to challenge the DEC's issuance of the tidal
wetlands permits, upon the completion of the coordinated SEQRA
review and issuance of the negative declaration, the appropriate
action would have been for the Board to commence a timely article
78 proceeding ( seeEnvironmental Conservation Law § 25-0404; CPLR 217 [1]).
However, as the Appellate Division found, there is
record evidence that the DEC took the necessary hard look at
the relevant areas of environmental concern ( see Merson v
McNally, , 90 NY2d 742, 751 [1997] [citations omitted]). The DEC
reviewed the relevant evidence and only approved the action on
condition that petitioners would be required to remediate any
damage caused by further erosion. The DEC's decision to issue
the negative declaration was not irrational, an abuse of
discretion, or arbitrary and capricious and, consequently, should
not be disturbed ( see Merson, 90 NY2d at 752, citing Matter of
WEOK Broadcasting Corp. v Planning Bd., , 79 NY2d 373, 383 1992]).
Since the Board was bound by the DEC's negative declaration, it
acted outside the scope of its authority when it decided to
conduct its own SEQRA review and issued a positive declaration.
Accordingly, the order of the Appellate Division should
be affirmed, with costs.
Footnotes
1 The bulkheads were to consist of 30 feet of steel
sheeting, of which 18 feet would be underground and 12 feet
aboveground. In addition, boulders, each two to five tons in
weight, would be placed in front of the sheeting and the entire
structure would be covered by sand.
2 The Bridgehampton Tennis and Surf Club, Inc. proposed to
install a stone revetment, an alternative protective structure.
3 To build a coastal erosion structure at that location, a
permit is also required from the Southampton Board of Trustees
who have a right of way between the high watermark of the
Atlantic Ocean and the crest of the primary dune (Code of the
Town of Southampton §§ 111-30, 111-31).
4 The Board, made up of the same members as the Town Zoning
Board of Appeals, has the authority to grant variance requests
and hear appeals of the Administrator's decisions pursuant to the
CEHA ( see Code of the Town of Southampton § 138-23).
5 A draft EIS is the initial statement prepared by either
the applicant or the lead agency and circulated for review and
comment (6 NYCRR 617.2[n] [Nov 1987 regulations]; see also 6
NYCRR 617.2[n] [current regulations]). The November 1987
regulations govern this proceeding because they were the
regulations in place at the time of the agencies' actions.
6 The considerations applied to the finality analysis in
Essex County also apply to a ripeness analysis ( see Essex County,
91 NY2d at 454 n).
7 An interested agency is an agency that lacks the
jurisdiction to fund, approve or directly undertake an action but
wishes to participate in the review process because of its
specific expertise or concern about the proposed action. An
interested agency has the same ability to participate in the
review process as a member of the public (6 NYCRR 617.2[u] [Nov
1987 regulations]).
8 An involved agency is an agency that has jurisdiction by
law to fund, approve or directly undertake an action. If an
agency will ultimately make a discretionary decision to fund,
approve or undertake an action, then it is an 'involved agency',
notwithstanding that it has not received an application for
funding or approval at the time the SEQR process is commenced (6
NYCRR 617.2[t] [Nov 1987 regulations]).