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Environmental-impact statements and land-use development
Environmental-Impact Statements and
Land-Use Development If a development project requires filing an environmental-impact statement, be sure to leave no stone unturned COMMUNITY INTEREST IN LAND-USE development for hospitality operations and other purposes has been recognized and given legal protection. This protection takes the form of a required filing of an environmental-impact statement (EIS) by developers seeking permission to build a hotel, restaurant, or other structure within an existing neighborhood. The filing of an EIS is a precondition for approval of construction. I
by John E.H. Sherry, J.D., professor of law at the Cornell University School of Hotel Administration. Professor Sherry’s column “The InnSide of the Law” appears in The Cornell Quarterly in April, August, and December.
0 1993, Cornell University.
24
THE CORNELL
H.R.A. QUARTERLY
Another issue involves the definition of the term “environment.” For example, in the state of New York, “environment” is defined as physical conditions that will be affected by a proposed action, including: land; air; water; minerals; flora; fauna; noise levels; objects of historic or aesthetic significance; existing patterns of population concentration, distribution, or growth; and existing community or neighborhood character. The court of appeals in the Chinatown case held that the terms “population concentration, distribution, or growth” and “existing community or neighborhood character” were physical conditions of the environment under the express language of the New York SEQRA, regardless of whether there was any impact on the physical environment. Therefore, an analysis of those issues in light of the development project should have been part of the EIS. The flaw in the developer’s EIS, then, which led to nullification of the building permit, was the failure to report community opposition based on the acceleration of displacement of lowincome housing and businesses. The appropriate planning authority must be alerted to such situations and have the chance to review those concerns before making its decision. This does not mean, however, that community opposition is sufficient to block every development project. In those cases where the EIS fails to meet statutory requirements, the court of appeals may rule that already-approved permits are null and void. Such deficiencies cannot be corrected by the filing of an amended declaration by the city planning board, as such a procedure would, if permitted, frustrate the objectives of the law. It is essential for developers of hospitality projects to comply strictly with all applicable EIS requirements, even though some statutes may not be as precise as New York’s in regard to community input, and other courts may not interpret the law so as to nullify pre-approved projects. Whatever the outcome, the delay caused by litigation-even if the ruling is favorable-can be frustrating and costly to the developer. Therefore, careful attention to the environmental review laws in the local jurisdiction is needed at the outset to minimize those costs. CQ
The primary purpose of the EIS is to enable the government authorities responsible for implementing State Environmental Quality Review Acts (SEQRA) to review the project’s environmental effects on the surrounding neighborhood. The EIS must contain a statement of the proposed development’s environmental impact, including identifying any adverse environmental effects, alternative methods of development, and irreversible and irretrievable resource uses.’ This article focuses on two aspects of this mandated statutory policy: (1)the factors applicable to the physical impact of the proposed structure or project that must be considered in the review process, and (2) the consequences of failing to provide an EIS in full compliance with the reporting requirements. While not all statutes are as restrictive as those in New York State, New York’s regulations provide an indication of the direction of environmental procedures in many jurisdictions. The New York Court of Appeals reviewed these questions in the case of a luxury-apartment project in Chinatown that was halted after a construction permit was issued.2 This opinion sheds light on the critical importance of the EIS and should serve as a warning to developers who, despite receiving initial approval to proceed, fail to obtain local community input as part of the EIS. In the Chinatown case the remedy was harsh-nullification of the building permit. Whether an EIS is required depends on the degree of impact a development may have on the environment. In most instances this threshold is low. For example, McDonald’s Corporation sought to construct a new outlet adjacent to an existing mall in Ithaca, New York. Because of the unit’s small size and because McDonald’s had never before been asked to file an EIS, the company assumed that no EIS was needed. However, the Ithaca planning board required the filing of an EIS and, upon judicial review, that requirement was upheld by the Sixth District Supreme Court. Today, more than two years later, the store has yet to be built. ’ “Irreversible and irretrievable resource use” refers to acts that permanently damage the environment in such a way that the results cannot be mitigated, reduced, or reversed. 2Chinese Staff and Workers Association u. City of New York [68 NY 2d 359 (1986)l.
DECEMBER 1993
25
Land-Use Development If a development project requires filing an environmental-impact statement, be sure to leave no stone unturned COMMUNITY INTEREST IN LAND-USE development for hospitality operations and other purposes has been recognized and given legal protection. This protection takes the form of a required filing of an environmental-impact statement (EIS) by developers seeking permission to build a hotel, restaurant, or other structure within an existing neighborhood. The filing of an EIS is a precondition for approval of construction. I
by John E.H. Sherry, J.D., professor of law at the Cornell University School of Hotel Administration. Professor Sherry’s column “The InnSide of the Law” appears in The Cornell Quarterly in April, August, and December.
0 1993, Cornell University.
24
THE CORNELL
H.R.A. QUARTERLY
Another issue involves the definition of the term “environment.” For example, in the state of New York, “environment” is defined as physical conditions that will be affected by a proposed action, including: land; air; water; minerals; flora; fauna; noise levels; objects of historic or aesthetic significance; existing patterns of population concentration, distribution, or growth; and existing community or neighborhood character. The court of appeals in the Chinatown case held that the terms “population concentration, distribution, or growth” and “existing community or neighborhood character” were physical conditions of the environment under the express language of the New York SEQRA, regardless of whether there was any impact on the physical environment. Therefore, an analysis of those issues in light of the development project should have been part of the EIS. The flaw in the developer’s EIS, then, which led to nullification of the building permit, was the failure to report community opposition based on the acceleration of displacement of lowincome housing and businesses. The appropriate planning authority must be alerted to such situations and have the chance to review those concerns before making its decision. This does not mean, however, that community opposition is sufficient to block every development project. In those cases where the EIS fails to meet statutory requirements, the court of appeals may rule that already-approved permits are null and void. Such deficiencies cannot be corrected by the filing of an amended declaration by the city planning board, as such a procedure would, if permitted, frustrate the objectives of the law. It is essential for developers of hospitality projects to comply strictly with all applicable EIS requirements, even though some statutes may not be as precise as New York’s in regard to community input, and other courts may not interpret the law so as to nullify pre-approved projects. Whatever the outcome, the delay caused by litigation-even if the ruling is favorable-can be frustrating and costly to the developer. Therefore, careful attention to the environmental review laws in the local jurisdiction is needed at the outset to minimize those costs. CQ
The primary purpose of the EIS is to enable the government authorities responsible for implementing State Environmental Quality Review Acts (SEQRA) to review the project’s environmental effects on the surrounding neighborhood. The EIS must contain a statement of the proposed development’s environmental impact, including identifying any adverse environmental effects, alternative methods of development, and irreversible and irretrievable resource uses.’ This article focuses on two aspects of this mandated statutory policy: (1)the factors applicable to the physical impact of the proposed structure or project that must be considered in the review process, and (2) the consequences of failing to provide an EIS in full compliance with the reporting requirements. While not all statutes are as restrictive as those in New York State, New York’s regulations provide an indication of the direction of environmental procedures in many jurisdictions. The New York Court of Appeals reviewed these questions in the case of a luxury-apartment project in Chinatown that was halted after a construction permit was issued.2 This opinion sheds light on the critical importance of the EIS and should serve as a warning to developers who, despite receiving initial approval to proceed, fail to obtain local community input as part of the EIS. In the Chinatown case the remedy was harsh-nullification of the building permit. Whether an EIS is required depends on the degree of impact a development may have on the environment. In most instances this threshold is low. For example, McDonald’s Corporation sought to construct a new outlet adjacent to an existing mall in Ithaca, New York. Because of the unit’s small size and because McDonald’s had never before been asked to file an EIS, the company assumed that no EIS was needed. However, the Ithaca planning board required the filing of an EIS and, upon judicial review, that requirement was upheld by the Sixth District Supreme Court. Today, more than two years later, the store has yet to be built. ’ “Irreversible and irretrievable resource use” refers to acts that permanently damage the environment in such a way that the results cannot be mitigated, reduced, or reversed. 2Chinese Staff and Workers Association u. City of New York [68 NY 2d 359 (1986)l.
DECEMBER 1993
25