The Second Department's recent decision in Stengel v. Town of Poughkeepsie Planning Board, et al., 2018 WL 6519207 (2d Dept. Dec. 12, 2018), unfortunately seems to confirm that the best advice when it comes to statutes of limitations for determinations issued under the State Environmental Quality Review Act (SEQRA) may simply be to sue “early and often.” See also Ward, “SEQRA Challenges and the Statute of Limitations: Sue 'Early and Often,'” 6 Albany L. Envtl. Outlook J. 89, 94 (2002). Conflicting case law has created confusion regarding when SEQRA determinations that conclude the environmental review process—i.e., negative declarations or findings statements—become ripe for judicial review. It shouldn't have to be this way. SEQRA practitioners, their clients, and agencies involved in SEQRA disputes all deserve a clear rule establishing when challenges to such SEQRA determinations ripen in order to avoid unnecessary litigation and motion practice. Legislative action may be required to resolve this issue.

Stengel concerned a challenge to a Planning Board's issuance of a determination under SEQRA not to require an environmental impact statement (i.e., a negative declaration). The negative declaration in Stengel preceded by several months the Planning Board's issuance of site plan approval for a gas station project. The Stengel court held that “the statute of limitations began to run with the issuance of the negative declaration … as this constituted the Planning Board's final act under SEQRA.” Stengel, 2018 WL 6519207, at *1. The Stengel court made no attempt to harmonize its decision with the Second Department's previous holding in Patel v. Board of Trustees of Muttontown, 115 A.D.3d 862, 864 (2d Dept. 2014). In Patel, the Second Department held that “the issuance of a SEQRA findings statement did not inflict injury in the absence of an actual determination of the subject applications for a special use permit and site-plan approval and, thus, the challenge to the adoption of the findings statement is not ripe for adjudication.” Thus, while Patel seemed to stand for the proposition that a SEQRA determination that concludes the environmental process is not, standing alone, ripe for adjudication, Stengel indicates that such a SEQRA determination is.

To be fair to the Second Department, much of the uncertainty surrounding SEQRA statutes of limitations issues can be attributed to the Court of Appeals, which has issued several seemingly conflicting decisions on this issue. For much of SEQRA's history, the Court of Appeals left unchallenged Appellate Court decisions holding that a SEQRA determination that concluded the environmental review process was just “'a preliminary step in the decision-making process' and, therefore, not ripe for judicial review.” See, e.g., In re Matter of Town of Coeymans v. City of Albany, 237 A.D.2d 856, 857 (3d Dept. 1997) (citation omitted), leave to appeal denied, 90 N.Y.2d 803 (Table) (1997).

In 2003, however, in Stop-The-Barge v. Cahill, 1 N.Y.3d 218, 223 (2003), the Court of Appeals held that a challenge to a SEQRA determination by the New York City Department of Environmental Protection (DEP) ripened when that agency's “SEQRA review ended,” and, accordingly, “to the extent that petitioners challenge the conclusions reached by DEP from its SEQRA review, the period of limitations must be measured at the latest from the time that” its SEQRA determination became final. The Court of Appeals in Stop-The-Barge appeared to be influenced by the fact that the petitioners in that case failed to alert DEP to its concerns during the underlying administrative proceeding, as well as the fact that there was a significant time lag between the issuance of DEP's SEQRA determination and the issuance of a challenged air permit by the New York State Department of Environmental Conservation. See id. at 223-24.

Regardless, Stop-The-Barge suggested that a final SEQRA determination would generally be ripe for review, regardless of whether the agency had actually taken action, such as by issuing the underlying permit or approval. In Jones v. Amicone, 27 A.D.3d 465, 469 (2d Dept. 2006), for example, the Second Department, citing Stop-The-Barge, affirmed the Supreme Court's dismissal of a SEQRA challenge as time-barred because the respondent City of Yonkers City Council's “adoption of the SEQRA findings statement was a final determination” with respect to that claim.

Just a few months after the Second Department's decision in Jones, however, the Court of Appeals held in Eadie v. Town Board of North Greenbush, 7 N.Y.3d 306, 316 (2006), that, where a Town Council issued SEQRA Findings before taking a rezoning action, “no concrete injury was inflicted until the rezoning was enacted.” The Eadie court distinguished Stop-The-Barge because the underlying agency action “did not involve 'the enactment of legislation,'” and because in Stop-The-Barge “the completion of the SEQRA process was the last action taken by the agency whose determination petitioners challenged.” Id. at 317 (citations omitted). Somewhat mysteriously, however, and frustratingly for SEQRA practitioners, the Eadie court added that “[t]his does not mean that, in every case where a SEQRA process precedes a rezoning, the statute of limitations runs from the latter event, for in some cases it may be the SEQRA process, not the rezoning, that inflicts the injury of which the petitioner complains.” Id.

Against this backdrop, in Patel v. Board of Trustees of Incorporated Village of Muttontown, 115 A.D.3d 862, 864 (2d Dept. 2014), the Second Department held that a Board's adoption of a findings statement pursuant to its obligations under SEQRA was not, standing alone, final agency action ripe for judicial review. The Second Department held in Patel that the SEQRA findings statement at issue “did not inflict injury in the absence of an actual determination of the subject applications for a special use permit and site-plan approval, and, thus, the challenge to the adoption of the findings statement is not ripe for adjudication.” Id. In Patel, the Second Department did not mention, must less distinguish, its seemingly contradictory decision in Jones.

The mixed signals coming from the courts may perhaps be understandable, but they still present real and present potential pitfalls to practitioners and their clients. So long as Stengel and seemingly contradictory decisions, such as Patel, remain unharmonized, the most prudent course for practitioners would appear to challenge final SEQRA determinations, regardless of whether or not they are accompanied by substantive agency action, such as a site plan or special permit approval. This obviously may cause unnecessary litigation and waste scarce judicial resources.

To avoid the cost and expense of unnecessary litigation where it remains unclear whether an agency will ultimately actually take a concrete action, parties may wish to consider entering “tolling” arrangements to avoid unnecessary litigation. Since it does not appear that parties can actually waive the applicable statute of limitations, (see John J. Kassner & Co. v. City of New York, 46 N.Y.2d 544 (1979)), the parties can consider allowing the petitioners to file a bare bones Article 78 Petition, and then adjourning the matter until such time as the agency may take more recognizably concrete action.

Ultimately, legislative action may be the best way to resolve this conundrum. The legislature could adopt legislation clarifying that a SEQRA determination that concludes the environmental review process remains unripe until an entitlement of some form is issued in connection with the action under consideration. Until clarity comes from either the courts or the Legislature, again, the most prudent course appears to remain to sue early and often.

Daniel M. Richmond is a partner at Zarin & Steinmetz, which concentrates in zoning, land use, and environmental law. Mr. Richmond has spoken on a variety of issues relating to the implementation of the New York State Environmental Quality Review Act (SEQRA).