NY Court of Appeals Affirms Approval of Subsurface Wastewater Sewerage System Finds Local Government Complies with SEQRA and Local Zoning Codification Laws

This post was written by Tyler Doan, Esq.

The plaintiff appealed against the decision of ZBA city, city council, and related defendants opposing dismissal by ZBA for a challenge to the zoning officer’s determination that the proposed subsurface sewage system is a permissible use of non-residential accessories that can be placed in split lots (one categorized some for residential and some for commercial use). The city council, while the petition is pending, adopted a local law on subsurface system problems on divided plots which effectively codifies the zoning officer’s decisions. The petitioners amending their complaint are also seeking to overturn local laws claiming it violates the State’s Environmental Quality Review Act. The Supreme Court rejected the amended petition and dismissed the trial. Petitioner filed an appeal.

In upholding the rejection of the request for amendment, the Court reasoned that “[j]udicial review of the main agency’s negative statements is limited to ‘whether the agency identifies relevant areas of environmental issues, examines them, and makes a reasonable elaboration on the basis of these determinations’” and because the City Council identifies relevant environmental problem areas, pays close attention to them, and makes a reasonable elaboration of the basis for a determination, a negative declaration not affected by error or law, or arbitrary or capricious, or an abuse of discretion. Thus the part of the complaint that attempted to overturn local laws has been duly dismissed.

Furthermore, the Court stated that because local laws had been codified, and not annulled, the ZBA determination was correct.

Tampone v City of Red Hook Zoning Appeals Board, 215 M 3d 866 (2 Dept. 14/4/2023)

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