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NY Lower Court Finds that Local Law to Promote Affordable Housing was Improperly Adopted Because of Inadequate SEQRA Review

This post was authored by Amy Lavine, Esq,

A recent decision from the Suffolk County Supreme Court, Matter of Save Sag Harbor v Village of Sag Harbor, involving the village’s adoption of a local law that expanded the definition of an apartment building in order to allow more affordable housing. The village attorney had drafted a negative declaration pursuant to SEQRA, which was given to the village board members at the public hearing, but there was no discussion by the board members or public commenters about the law’s potential environmental impacts.

After closing the public hearing, the board simultaneously adopted the negative declaration and the new local law. The court found that this procedure was insufficient. As it explained:

Clearly, the record in this instance indicates a de minimis, incomplete environmental review was undertaken at the same time (if not after) the decision was made to adopt the subject Local Laws. While the Court notes that a Negative Declaration allows for a limited environmental review, it does not change the fact that it must be done before the zoning law is adopted. The Court notes that simultaneous Negative Declaration/Local Law adoption is becoming more popular and, in some instances, may meet SEQRA’s requirements. However, such a practice runs the risk that the cart is placed in front of the horse. This is especially true if the agency formally finalizes the paperwork on its environmental review without recorded discussion and after adopting its legislative policy. In such an instance, the SEQRA requirement that environmental review must come first is violated.

Matter of Save Sag Harbor v Village of Sag Harbor2023 NY Slip Op 50347(U) (NY Sup Ct Suffolk County 4/10/23)