New York’s highest court has annulled an approval by the Town of Chili (Monroe County) Planning Board of a proposed metal shredding facility on the grounds that the environmental review of the facility, undertaken pursuant to the State Environmental Quality Review Act (“SEQRA”), was inadequate. The Court of Appeals held that the environmental review failed to consider the risk of fires and flying projectiles from explosions at the facility that could adversely impact aircraft at an adjacent airport. Anderson v. Town of Chili Planning Board, 2009 WL 1850972 (No. 173 SSM 17, June 30, 2009). The risks to aircraft had been raised in a public comment submitted after the Planning Board had received input from the Town’s fire marshal and airport approval from the country planning agency. Because the environmental review was never updated to account for this risk, the Court of Appeals remanded the matter to the Planning Board for further proceedings.
The metal shredding facility was proposed by applicant Metalico Rochester, Inc., and the environmental review was conducted by the Planning Board with input from other relevant agencies and officials. As part of the SEQRA review, the Town’s fire marshal required installation of a fire-suppression system, and identified other measures to minimize the risk of explosions. The facility complied with height restrictions, and received airport approval from the county planning agency. The public then raised the potential risk to the adjacent airport, and the Planning Board failed to respond. The SEQRA process was concluded when the Planning Board adopted a Negative Declaration for the facility and issued a conditional use permit. Petitioners sued to challenge the SEQRA review and Planning Board approval. The trial court dismissed the petition, finding the SEQRA review sufficient.
The Appellate Division Fourth Department affirmed, with two justices dissenting. Anderson, 59 A.D.3d at 1017. While the majority appellate opinion noted that, “[t]he risk to aircraft was not specifically addressed in the [Environmental Assessment Form] or at the public hearing” that fact did not sway its decision. Instead, the majority held over dissent that despite the fact that “the precise concern” of potential impacts to aircraft was not addressed, viewed in light of the SEQRA “rule of reason,” the approval should be upheld.
The Appellate Division dissenters—whose reasoning was adopted by the Court of Appeals—disagreed, writing that, “it is not enough that the Planning Board considered the views of the Fire Marshal … inasmuch as it appears that neither had considered the risk to airplanes using nearby runways.” Id. at 1020. The dissent noted that petitioners had raised the potential risk of “explosions in the shredder resulting in fires and the risk of flying projectiles from the shredder with respect to airplanes using nearby runways” only after the fire marshal’s review and recommendations on the project. Ultimately, these concerns were found by the dissent and the Court of Appeals to be “sufficiently serious that they should have been addressed explicitly” before the applications were approved.
The case highlights the need for lead agencies and applicants to carefully analyze comments in the SEQRA process for their significance and, if necessary, respond to comments with additional substantive analysis. Failure to respond to comments that raise potentially significant issues creates a litigation risk, which may result in reversal and remand of a project approval.
