On March 31, the New York Court of Appeals issued its decision in Ranco Sand and Stone Corp v. Vecchio.1 In Ranco, the court restricted its prior holding in Matter of Gordon v. Rush,2 which zoning practitioners and the courts3 had interpreted as holding that the issuance of a “positive declaration”4 by a “lead agency”5 reviewing a proposed project that mandates the preparation of a draft environmental impact statement (DEIS)6 pursuant to the State Environmental Quality Review Act (SEQRA)7 may be immediately challengeable in court as arbitrary and capricious.
As a practical matter, the ability to immediately mount a court challenge to a decision requiring a DEIS meant that developers and other property owners faced with such a requirement could weigh the costs (i.e., money and delay) associated with a lawsuit, on the one hand, against the likelihood of overturning the agency ruling and being able to proceed with the project without the need to prepare a DEIS, on the other. Indeed, decisions requiring the preparation of a DEIS have been challenged in court—and some have been overturned.8
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