In the Jan. 29, 2019 issue of the New York Law Journal, Daniel M. Richmond had written an article titled “SEQRA Statute of Limitations: When Will the Courts Reach Finality on This Issue?” The well written article discusses the Dec. 12, 2018 Second Department decision in Stengel v. Town of Poughkeepsie Planning Board, 167 A.D.3d 752 (2d Dept. 2018). Stengel appears to be a departure from the prior 2014 pronouncement of the Second Department in Patel v. Board of Trustees of the Village of Muttontown, 115 A.D.3d 862 (2d Dept. 2014). Or is it?

It has been fairly common practice for land use attorneys to coordinate SEQRA litigation with the attendant zone change, site plan, special exception use permit, wetland or steep slope permit process which are the very subject of the SEQRA review. However, since 2003, the road has been perilous with many attorneys scratching their heads regarding when the statute of limitations begins to run on a SEQRA challenge. It is fundamental that a four-month statute of limitations is provided for an Article 78 proceeding unless a shorter time is provided for in the law authorizing the proceeding (CPLR 217[1]). For example, the period within which to challenge a SEQRA determination, where a Town agency or board must render an approval, is governed by the shorter 30-day period of limitation. See Town Law §274-a[3]. The issue is when does it begin to run?

The Court of Appeals in Stop-the-Barge v. Cahill, 1 N.Y.3d 218 (2003) determined that a final SEQRA determination, irrespective of later approvals which were the very subject of the SEQRA review, commences the limitation period. Once a SEQRA application is filed there are essentially one of two final acts, either a Negative Declaration, or a SEQRA Findings Statement which issues after a full environmental impact statement review, the issuance of a SEQRA Findings Statement.

The guiding principle is that an agency action is final when the decision-maker arrives at a “definitive position on the issue that inflects an actual concrete injury.” Id. After Stop-the-Barge, the decisions in the various judicial departments have been checkered. Long Island Contractors' Ass'n v. Town of Riverhead, 17 A.D.3d 590 (2d Dept. 2005) (the limitations period did not commence until the Town Board issued a negative declaration which concluded its SEQRA review); Coalition Against Lincoln West v. Weinshall, 21 A.D.3d 215 (1st Dept. 2005), lv. to appeal denied, 5 N.Y.3d 715 (2005) (holding that when the FEIS was certified as complete, agency action was final as to those components of the project, even if formal approvals were necessarily deferred until such time as construction of the project reached that point”); Uhlfelder v. Weinshall, 10 Misc.3d 151, aff'd, 47 A.D.3d 169 (1st Dept. 2007) (holding that the issuance of a negative declaration triggers the running of the statute of limitations period for SEQRA and City Environmental Quality Review (CEQR) claims); see also 6 NYCRR §617.11.

In 2006, the Second Department, citing Stop-the-Barge, affirmed a Westchester Supreme Court decision which held that the period of limitations within which to challenge a SEQRA determination had expired since it was not brought within four months of the issuance of a Findings Statement. See Jones v. Amicone, 27 A.D.3d 465, 469 (2d Dept. 2006) (City Council's adoption of a Findings Statement was ripe for adjudication since it completed the SEQRA review process and established the City Council's definitive positive on the issue that inflicted actual concrete injury on the Petitioners.”).

The Third Department, however, was reversed by the Court of Appeals when it followed Stop-the-Barge and determined that the four-month limitation period to challenge SEQRA commenced upon issuance of a Findings Statement. The Court of Appeals held that no “concrete injury was suffered until a later rezoning was enacted. Eadie v. N. Greenbush Town Board, 7 N.Y.3d 306 (2006). The Court of Appeals distinguished Stop-the-Barge on the grounds that Stop-the-Barge, unlike Eadie, did not involve the “enactment of legislation.” The Eadie court did leave open the fact that the period of limitation may, under some instances, run from the SEQRA determination. Apparently, in an effort not to create a bright line test, the court suggested that in some circumstances the final act under SEQRA does inflict definitive concrete injury and therefore commences the period of limitation.

After Eadie, the Third and Fourth Judicial Departments each decided that the statute of limitations begins to run after the land use determination which follows the SEQRA review. See, Matter of Guido v. Town of Ulster Town Board, 74 A.D.3d 1536 (3d Dept. 2010); Matter of Southwest Ogden Neighborhood Assn. v. Town of Ogden Planning Board, 43 A.D.3d 1374 (4th Dept. 2007).

In 2014, the Second Department issued its decision in Patel v. Bd. of Trustees of Inc. Village of Muttontown. In Patel, the Second Department held that a SEQRA Findings Statement did not inflict a concrete injury since site plan and special exception use permits had not yet been determined. The court held that the period of limitation did not begin to run until the attendant approval applications were issued. In December 2018, in either a reversal of, or a departure from, Patel, the Second Department, in Stengel determined that the issuance of negative declaration was the final act in the SEQRA process, and therefore inflicted concrete injury which resulted in a SEQRA challenge to be time barred when filed after the applicable limitation period from the SEQRA determination.

Since the Court of Appeals does not want to establish a clear bright line, it would appear that practitioners are in the dark on how to proceed. It seems that each case will be reviewed sui generis. How would this case-by-case analysis proceed?

Despite Stengel, a plain form negative declaration without further delineation, or explanation by way of justification, should not commence the running of the statute of limitations.

On the other hand, a detailed negative declaration or a findings statement which goes through each of the mitigation measures may in fact be definitive where it also discusses each of the local municipality' code requirements, and how they are satisfied or met, with respect to each approval or permit requirement (such as rezoning, wetland, steep slope, wetland, site plan or special exception use permit) which was the very subject of the SEQRA review process. This in turn would be a “definitive determination” which inflicts an actual concrete injury for several concomitant reasons.

First, where the lead agency is the same agency which must make a subsequent determination on the pending approval application, it is generally bound by the SEQRA determination by virtue of Knight v. Amelkin, 68 N.Y.2d 975, 977 (1986) and its progeny (in the absence of an explanation for departure the agency must, where it is reviewing essentially the same set of facts, follow its precedent).

In this regard, the local municipal reviewing agency “must rely upon the [final EIS] as the basis for [its] review of the environmental impacts that [it is] required to consider in connection with subsequent permit applications.” Matter of Guido v. Town of Ulster Town Bd., 74 A.D.3d 1536, 1537 (3d Dept. 2010), citing 6 NYCRR 617.6[b][3][iii].

Second, since zoning and planning boards perform a quasi-judicial function in land use approvals, there may exist administrative collateral estoppel. See Ryan v. New York Tile & Co., 62 N.Y.2d 494, 499 (1984); Brugman v. City of New York, 102 A.D.2d 413, 415 (1st Dept. 1984); Allied Chemical Co. v. Niagara Mohawk Power, 72 N.Y.2d 271 (1988); Zanghi v. Old Brookville, 752 F.2d 42, 46 (2d Cir. 1985). During the SEQRA process both proponents and opponents of an application, where there is a full hearing, have an opportunity to submit supporting affidavits and expert testimony which in an administrative proceeding is considered a “full and fair opportunity to litigate.” See U.S. v. Utah Constr. & Mining Co., 384, 422 (1966).

An application for leave to appeal has been filed by the attorneys in Stengel. While we are waiting for a review by the Second Department, the local municipality should issue its SEQRA determination immediately preceding the decision on the attendant permit applications which are the subject of the SEQRA review. This may be accomplished by having one public hearing held simultaneously for the SEQRA process and the attendant permit applications. Upon close of the public hearing, the SEQRA resolution would issue first and each permit application immediately after (and preferably at the same meeting). This would eliminate checkered and serial litigation and avoid unclear appellate determinations.

Albert J. Pirro Jr. is owner and principal consultant for The Pirro Group, LLC in White Plains, N.Y.