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NY Appellate Court Affirmed Approval of Subsurface Sewage-Disposal System Finding Local Government Complied with SEQRA and Local Law Codifying Zoning

This post was authored by Tyler Doan, Esq.

Petitioner appealed a decision of the ZBA town, town board, and related defendants challenging a dismissal by the ZBA of the challenge to the zoning enforcement officer’s determination that a proposed subsurface sewage-disposal system was a permitted nonresidential accessory use that could be located on a split lot (one zoned partly for residential and partly for commercial use). The town board, while the petition was pending, adopted a local law on the subject of subsurface systems on split lots that effectively codified the zoning officer’s determination. The petitioner amended their complaint also seeking to annul the local law claiming it violated the State Environmental Quality Review Act. The Supreme Court denied the amended petition and dismissed the proceeding. Petitioner appealed.

In affirming the dismissal of the amended petition, the Court reasoned because “[j]judicial review of a lead agency’s negative declaration is limited to ‘when 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’” and since the Town Board identified as relevant areas of environmental concern, took the requisite hard to look at them, and made a reasoned elaboration for the basis of the determination, the negative declaration was not affected by an error or law, or arbitrary or capricious, or an abuse of discretion. Thus the portion of the complaint seeking to annul the local law was properly dismissed.

Further, the Court states that since the local law was codified, and is not annulled, the determination of the ZBA was correct.

Tampone v Town of Red Hook Zoning Board of Appeals, 215 AD 3d 866 (2 Dept. 4/14/2023)