GreenWatch: A Special Report

Today GreenWatch and The Public are pleased to bring you a piece by Art Giacalone, longtime Buffalo Attorney and expert on SEQRA (State Environmental Quality Review Act). Mr Giacalone posts frequent legal thoughts on his very informative Blog: With All Due Respect- Commentary on land use and development issues -and the legal system.

Todays piece is both a primer about SEQRA, and about the new Buffalo Unified Development Ordinace, aka Buttalo’s GreenCode, and the continuing opportunities for citizens of the city and region to comment on its development and implementation.

Two public hearings related to SEQRA and the Draft Generic Environmental Impact Statement (DGEIS) of the GreenCode are scheduled for March 15, 2015 at 5:30 p.m. at the City of Buffalo Common Council Chambers, and on April 2, 2016 at 10:00 a.m., at the Buffalo Academy of Visual and Performing Arts. The public comment period will end on April 22, 2016.

-Jay Burney, Editor

 

SEQRA and Buffalo’s History of (Non) Compliance

by Arthur J. Giacalone

I recently urged Buffalo residents to roll up their sleeves, and provide “substantive comments” to our Common Council members regarding the Green Code’s Draft Generic Environmental Impact Statement [DGEIS].

But I realize how daunting a task that might be for anyone not fully familiar with SEQRA, its intended role, and the alphabet soup of phrases and legal terminology that surrounds the environmental review process. So this post will offer the public and our public officials some background information concerning SEQRA, as well as my perspective on the City of Buffalo’s history of (non)compliance with this important law.

I.  State Environmental Review Act (SEQRA).

The Draft Generic Environmental Impact Statement [DGEIS] that was accepted by Buffalo’s Common Council in mid-February is an attempt by city officials to demonstrate compliance with the requirements of a state law enacted four decades ago, the State Environmental Quality Review Act, known commonly as SEQRA. [See ECL Article 8 SEQRA.] Hugh Carey, New York’s governor at that time, explained in his acceptance memorandum why the legislation was sorely needed:

… In recent years, it has become abundantly clear that state and local agencies have not given sufficient consideration to environmental factors when undertaking or approving various projects or activities…[Emphasis added.]

Gov. Carey also identified the goal of SEQRA: to create a mechanism to provide state and local agencies with objective information so they could “intelligently assess and weigh environmental factors” when deciding whether or not to approve new policies, laws and projects. SEQRA’s role was also described by our state’s highest court in a landmark 1986 court decision known as Jackson v. NYS Urban Dev. Corp.:

“… SEQRA makes environmental protection a concern of every agency. In proposing action, an agency must give consideration not only to social and economic factors, but also to protection and enhancement of the environment. SEQRA insures that agency decision-makers–enlightened by public comment where appropriate–will identify and focus attention on any environmental impact of proposed action, that they will balance those consequences against other relevant social and economic considerations, minimize adverse environmental effects to the maximum extent practicable, and then articulate the bases for their choices… factors when undertaking or approving various projects or activities…”  [Emphasis added.]

To assure protection and enhancement of the environment, SEQRA defines “environment” broadly to include not only the “physical conditions” that will be affected by a proposed action, such as land, air, water, minerals, flora, fauna, and agricultural and archeological resources, but also elements that are less tangible and may be considered socio-economic in nature, such as historic and aesthetic resources, existing patterns of population concentration, distribution or growth, existing community or neighborhood character, and human health. [See 6 NYCRR 617.22(l).] Notably, our state’s highest court held thirty years ago that an action’s potential impact on these socio-economic factors (which include the displacement of low-income residents through the process euphemistically known as “gentrification”) must be a matter of concern “with or without a separate impact on the physical environment.”   [See Chinese Staff and Workers Association v. City of New York, 68 NY2d 359, 365-366 (1986).]

The “heart” of SEQRA is the “environmental impact statement” or “EIS.” It is a document – when properly prepared – that provides government agencies, project sponsors, and the public a means to systematically gather and consider significant adverse impacts on the environment, alternatives to the proposal under consideration, and mitigation measures to eliminate or substantially reduce unavoidable adverse impacts. As expressed by our state’s highest court in the Jackson decision, the EIS process is designed as “a cooperative venture” whereby both the public and public agencies are informed, and an agency has “the benefit of public comment” prior to approving an action.

To comply with SEQRA’s purpose, consideration of environmental factors must be incorporated into the planning, review, and decision-making processes of government agencies “at the earliest possible time.” [See 6 NYCRR 617.1(c).] Although SEQRA does not state the precise time a DEIS must be prepared, the document is to be presented to the public “at a point ‘where genuine flexibility remains before bureaucratic momentum strips [it] of any real influence on decision-making.’” [See Sun Beach Real Estate Development Corp. v. Anderson, 98 AD2d 367 (2d Dept. 1983).

II.  City of Buffalo and SEQRA (Non)Compliance.

I have closely observed the City of Buffalo’s efforts to comply with the requirements and intent of SEQRA for a quarter century, as a citizen, as a lawyer representing informal groups of residents, and, in the mid-1990s, as a member of the City of Buffalo’s Environmental Management Commission (BEMC). I will be gracious and refer to the city’s approach to its obligations under SEQRA as less-than-diligent. But one need not rely solely on my assessment.

In 1994, James A. Smith, as Executive Director of the City’s Office for the Environment, served as the liaison between the Department of Community Development and the BEMC. In that capacity, Mr. Smith prepared a document entitled 1994 State of the Environment Report for the City of Buffalo. Although known for his diplomatic choice of words and non-confrontational demeanor, Jim Smith’s 1994 report concludes that, “there are serious problems with the City’s compliance with SEQR,” and states:

“… Due to a lack of procedural guidelines, and in some cases lack of commitment, the City of Buffalo does not fully obey New York state law regarding mandated environmental review procedures…”

The Common Council did adopt environmental review procedures in 1997. But serious problems remain with Buffalo’s compliance with SEQRA. In my opinion, there continues to be a lack of commitment to the statute’s goal of assuring the timely and informed assessment and consideration of environmental factors. This indifference to SEQRA’s mandates has manifested itself in a variety of ways, including:

A.  The failure of the City to require a Draft EIS for politically popular and fast-tracked projects, despite the fact that the proposed actions far exceed SEQRA’s thresholds for preparing an environmental impact statement. (See, for example, ENB 10-30-13 re Uniland’s 250 Delaware Ave. and ENB 02-24-16 re NorthlandCorridor.)

B.  An agency with the principal authority to approve or deny a proposed action (most often, Buffalo’s Common Council) deferring to other city agencies to oversee the DEIS process, and, in doing so, insulating itself from directly assessing potential environmental problems. (See, for example, Price v. Common Council 01-22-04.)

C. Delay in issuing a Draft EIS until a time when genuine flexibility no longer exists.

From my perspective, the City’s disinterest in adhering to SEQRA’s letter and spirit has emanated from the Mayor’s office, spreading throughout City Hall. SEQRA appears to be viewed by the current Mayor – as well as his predecessors – as an obstacle to be circumvented, an impediment to developers doing precisely what they want when they want to do it, and an unwanted constraint on the unfettered discretion of government agencies and officials. Without commitment from the head of the executive branch, and a steadfast effort by the City’s law department to educate and train city decision-makers on their duties and powers under SEQRA, it is not surprising that members of the Common Council, City Planning Board, Zoning Board of Appeals, etc., often fail to fully comprehend their role and obligations under SEQRA.

 

III. Green Code’s Draft Generic Environmental Impact Statement (DGEIS).

Buffalo’s Common Council – the city’s elected legislative body – has been designated “lead agency” for the proposed Green Code. It correctly holds that status because, as Buffalo’s legislative body, it alone has the authority to decide whether or not the new zoning and development ordinance will be enacted and become law. [See 6 NYCRR 617.2(u).] Under SEQRA, the “lead agency” is responsible for determining whether an Environmental Impact Statement (EIS) is required, and for preparing and filing the EIS.

Despite the fact that the Common Council holds the title of “lead agency” for the proposed Green Code, the Green Code is Mayor Byron Brown’s baby, and the actual task of writing this massive piece of legislation has been assumed by the Mayor’s Office of Strategic Planning (OSP). Given that fact, it was more important than ever to adhere to SEQRA’s mandate to prepare a Draft EIS “at the earliest possible time” and “at a point where genuine flexibility remains before bureaucratic momentum strips [it] of any real influence on decision-making.” Unfortunately, the exact opposite has occurred.

Nearly five-and-a-half years elapsed between the time the Green Code planning process officially began in September 2010, and the public’s first access in February 2016 to the DGEIS, the heart of SEQRA.

 

Here’s a brief chronology of major Green Code and SEQRA-related events:

– September 2010: “Kick off” of the Land Use Plan project occurs.

– November 2010 – Summer 2011: Mayor’s OSP holds community meetings, workshops.

– October 2011: Mayor’s OSP releases the First Draft of Buffalo Green Code.

– April 2012: Mayor’s OSP releases “A New Zoning Direction for Buffalo – Technical Report,” and Mayor hosts a major forum entitled “Buffalo Green Code – A Form Based Unified Development Ordinance.”

– May 2012 – Mayor’s OSP takes first step to comply with SEQRA, filling out an informational form known as a Full Environmental Assessment Form (FEAF), and submitting it to the Common Council.

– July 2012: Common Council determines that the proposed Green Code may have a significant adverse impact on the environment and issues a “Positive Declaration” under SEQRA calling for a Draft Generic Environmental Impact Statement (DSGEIS); Mayor’s OSP prepares and releases a “Draft Scoping Document” to identify potentially adverse impacts that should be evaluated in the DGEIS.

– May 2014: Mayor’s OSP releases the second draft of the proposed Green Code for public review.

– October 2015: Mayor’s OSP releases the third draft of the proposed Green Code for public review.

-February 2016: On February 16, 2016, Common Council accepts as complete the Green Code DGEIS prepared by the Mayor’s OSP, and begins the public comment period (which ends April 22, 2016).  [Click here for the Green Code’s DGEIS.]

 

IV.  Flaws in the City’s Approach to the Green Code.

There are four basic flaws in the approach taken by the Mayor’s Office of Strategic Planning in enacting, in Mayor Brown’s words, “a historic revision of Buffalo’s land use and zoning policies”:

First, the decision to conduct the environmental review of four diverse projects, that is, Buffalo’s Land Use Plan and Unified Development Ordinance (“Green Code”), Local Waterfront Revitalization Program, Revised Urban Renewal Plans, and Brownfield Opportunity Areas, “as one package” greatly reduces the likelihood that any of the four sets of laws, policies and plans will be afforded the “hard look” mandated by SEQRA. The Mayor’s OSP further “softens” the assessment process by choosing to evaluate potential environmental problems through the gauzy lens of a generic draft environmental impact statement (GDEIS), rather than looking at site-specific impacts.

Second, contrary to SEQRA’s mandate that the environmental review process occur ““” in the planning process, the City and its consultants have spent years developing their comprehensive proposals without the benefit of the DGEIS. In doing so, the City has made it much more unlikely that any of the proposals constituting Buffalo’s new land use and zoning policies will be significantly modified in response to any environmental problems discovered through the EIS process. Bureaucratic momentum in favor of the “preferred” proposals, as well as the non-environmental [that is, political] considerations that have contributed to the shape of the various projects, will almost certainly eliminate any genuine flexibility in the decision-making process. In other words, by delaying its SEQRA review, the City has stripped the environmental impact statement of any real influence on the decision-making process.

Third, the much-touted “public outreach” the City has engaged in concerning its proposed land use and zoning plans occurred pre-SEQRA when residents were not armed with the information needed to insure fully informed commentary. Although it has taken “the experts” five-and-a-half years to amass the numerous and lengthy documents comprising the DGEIS and its nine appendices, Buffalonians have until only April 22, 2016 to assess and comprehend this mountain of information – and figure out what important information and evaluation is missing from the DGEIS.

Fourth, following the DGEIS public comment period, it will be the Mayor’s OSP and consultants, not the Common Council, responding to the public’s comments, and making revisions, if any, to the Green Code documents. As stated at the Green Code’s website, “Once the revisions are complete, the Green Code documents and the Final GEIS will be presented to the Common Council for adoption.” This approach further insulates the Common Council from the planning and review process, jeopardizing compliance with the letter and spirit of SEQRA. According to SEQRA, the Green Code’s Final GEIS must include “the lead agency’s responses to all substantive comments,” and it is the lead agency that is “responsible for the adequacy and accuracy of the final EIS, regardless of who prepares it.” [See 6 NYCRR 617.9(b)(8).]

I guess we really do have to roll up our sleeves!