with Nicholas R. Williams of GT New York
The New York State Environmental Quality Review Act (SEQRA) requires actions that may have a significant adverse environmental impact to undergo review. The City Environmental Quality Review (CEQR) contains the City of New York’s procedures for complying with SEQRA. The State statute lists certain kinds of “Type II” actions that have been determined to have no significant adverse environmental impact, set forth in the New York State Department of Environmental Conservation’s regulations at 6 N.Y.C.R.R. Part 617.5(c). An agency is not required to prepare an Environmental Assessment Statement (EAS) prior to taking a Type II action, and consequently SEQRA can never require a more time-consuming and costly Environmental Impact Statement for a Type II action.
The New York City Planning Commission (CPC) has proposed an amendment to the Rules of the City of New York that would designate 13 new types of Type II actions for the purposes of CEQR. SEQRA authorizes municipalities within the State to adopt local Type II lists to supplement 6 N.Y.C.R.R. 617.5(c). Although CEQR includes a list of “Type I” actions that are considered more likely to require an Environmental Impact Statement, to date the City has relied entirely on the Type II list contained in SEQRA. All actions that are not listed as Type I or Type II are considered “Unlisted” for purposes of CEQR and therefore require an EAS before they may be approved by the relevant city agency, which in many cases is the Department of City Planning (DCP). The current rulemaking is long awaited and is the first time New York City agencies have adopted a Type II list.
The proposed rulemaking would list 13 actions as Type II actions for purposes of CEQR, many of which are land use approvals under the jurisdiction of CPC. The proposed Type II actions include Unlisted actions under SEQRA, which CPC believes, based upon past EASs, do not have the potential to result in significant adverse environmental impacts. Examples include special permits for health clubs of up to 20,000 gross square feet pursuant to Section 73-37 of the New York City Zoning Resolution (ZR) and special permits for radio or television towers pursuant to ZR Section 73-30. Because the EASs performed for these actions have consistently resulted in Negative Declarations, CPC has determined that continuing to require environmental review will be unnecessary in most cases.
One particularly noteworthy inclusion on the proposed CEQR Type II action list is the acquisition or disposition of real property by the City not involving a change of use, a change in bulk, or a ground disturbance. Eliminating the need for an EAS in connection with many real estate transactions involving the City has the potential save time and money for the government in cases where transfers are not in contemplation of redevelopment projects at the time of the disposition.
For a number of the proposed Type II actions, the designations differ somewhat from the ordinary treatment of Type II actions under SEQR. Ordinarily, Type II actions need no independent assessment of potential environmental impacts. If the proposed action falls within the category, the action is ordinarily deemed exempt from any further action under SEQRA. The City now proposes to adopt a number of proposed Type II actions as hybrids that would be deemed exempt if certain additional environmental factors are confirmed. For example, proposed Subsection (d) lists “Type II Prerequisites,” which include:
- that for certain of the new Type II actions, when the action involves “excavation of an area that was not previously excavated,” it shall “remain subject to environmental review, unless it is determined that the project site is not archaeologically sensitive”; and
- special permits, pursuant to ZR Section 73-66, to allow buildings and other structures near airports to exceed height limitations remain subject to environmental review “unless it is determined that any potentially significant noise impacts will be avoided.”
These and other “prerequisites” raise questions regarding the extent to which some of the 13 proposed Type II actions will truly be exempted from the need to conduct an environmental assessment. While there will be no formal requirement to complete an EAS, a clear benefit in streamlining the review process, the proposed rules are unclear as to the criteria for determining whether the Type II classification would apply. For example, there are no clear criteria for determining whether a site should be deemed “archeologically sensitive,” or for determining that a project has avoided significant noise impacts.
Despite these issues, if adopted, the proposed rule would streamline the review process in certain cases and thereby would reduce the time and cost of review of these particular government actions.
The City Planning Commission will hold a public hearing on the proposed rule on November 20, 2013.
View this post as a GT Alert in pdf here.
Mr. Williams is not yet admitted to the practice of law.