Table of Contents
 

I. SEQRA Basics

A. Actions
 

B. Environmental Assessment Form

C. Lead Agency
 

D. Determination of Significance
 

E. Cumulative Impacts
 

F. Segmentation
 

G. EIS Process
 

H. Findings
 

I. Timing of SEQRA Review
 

J. Notice Requirements
 

K. Judicial Review
 

II. Classification of School Projects Under SEQRA
 

III. Timing of SEQRA Review of School Projects
 

IV. Lead Agency for School Construction Projects
 

V. Hard Look By the State Education Department
 

VI. Procedural Issues
 

A. Appeal to the Commissioner
 

B. The Time to Litigate
 

C. Venue

D. Notice of Claim
 
 
 

I. SEQRA Basics.

The New York State Environmental Quality Review Act ("SEQRA" or "SEQR"), Environmental Conservation Law ("ECL") Article 8, was enacted in 1975 in order to:

declare a state policy which will encourage productive and enjoyable harmony between man and his environment; to promote efforts which will prevent or eliminate damage to the environment and enhance human and community resources; and to enrich the understanding to the ecological systems, natural, human and community resources important to the people of the state.
 

ECL §8-0101. SEQRA requires that "[s]ocial, economic and environmental factors shall be considered together in reaching decisions on proposed activities," ECL §8-0103(7), and that public agencies will give "due consideration... to preventing environmental damage." ECL § 8-0103(9). The primary purpose of SEQRA is "to inject environmental considerations directly into governmental decision making." Matter of Coca-Cola Bottling, Inc. v. Board of Estimate, 72 N.Y.2d 674, 679, 536 N.Y.S.2d 33, 35 (1988). The legislative intent is clear that "to the fullest extent possible the policies, statutes, regulations and ordinances of the state and its political subdivisions should be interpreted and administered in accordance with the policies set forth in" SEQRA. ECL §8-0103(6). The heart of SEQRA is ECL §8-0109(4), which requires "agencies" (including state and municipal, boards, agencies and authorities), "[a]s early as possible in the formulation of a proposal for action" to "make an initial determination whether an environmental impact statement need be prepared," and ECL §8-0109(2), which requires all state agencies and municipalities to prepare or cause to be prepared "an environmental impact statement on any action they propose or approve which may have a significant effect on the environment." Regulations set forth at 6 N.Y.C.R.R. Part 617 prescribe the procedures used under SEQRA. They last were revised effective January 1, 1996. 

A. Actions.All "actions," including all "projects or physical activities" that are undertaken, funded or approved by an agency, and planning, policy making, and enactment of laws, rules or regulations, 6 N.Y.C.R.R. §617.2(b), are subject to SEQRA. Actions involving federal agencies are subject to SEQRA unless a federal EIS is compiled. 6 N.Y.C.R.R. §617.15. 

If an action is classified as a "Type II action," no further SEQRA review is required. 6 N.Y.C.R.R. §§617.3(a), 617.6(a)(1)(i). The list of Type II actions is set forth at 6 N.Y.C.R.R. §617.5(c), and includes 37 categories of actions that are presumed to have only de minimis environmental impacts, including maintenance or repair or existing facilities, replacement in kind of existing facilities (below a specified threshold), construction of certain non-residential and educational facilities (below a specified threshold), school closings, agricultural farm management practices, permit renewals, individual setback variances, area variances for one to three-family houses, preliminary feasibility studies, moratoria on land development, judicial proceedings, acts of the Legislature, emergency actions, ministerial acts, certain actions subject to regulation under the Public Service Law or by the Adirondack Park Agency, and numerous other categories. 

The list of "Type I actions" is set forth at 6 N.Y.C.R.R. §617.4(b), and includes 11 categories of actions, including the adoption of a new land use plan, rezoning of 25 acres, and the physical alteration of more than 10 acres. "Unlisted actions" are action that are not specifically listed as Type I or Type II. 6 N.Y.C.R.R. §617.2(ak).

B. Environmental Assessment Form. The SEQRA regulations first require completion of an Environmental Assessment Form ("EAF"), which is ordinarily prepared by or for the applicant, and reviewed by a "lead" agency. 6 N.Y.C.R.R. §617.6(a)(2,3). For a "Type I action," use of the lengthy "full EAF" is mandatory. §617.6(a)(2); Farrington Close Condominium Bd. Of Managers v. Incorporated Village of Southampton, 205 A.D.2d 623, 626, 613 N.Y.S.2d 257, 259 (2d Dep't 1994). However, unlisted actions only require the "short EAF," although the full EAF may still be required. §617.6(a)(3). A "draft EIS may be treated as an EAF for the purpose of determining significance." 6 N.Y.C.R.R. §617.6(a)(4).

C. Lead Agency. If more than one agency is an "involved agency" which makes a decision on the action, a lead agency may be selected by agreement of the agencies through the "coordinated review process," which is required for Type I actions. 6 N.Y.C.R.R. §617.6(b)(3). If only one is involved, it automatically acts as "lead." §617.6(b)(1). The lead agency function cannot be delegated to an uninvolved agency. Coca-Cola Bottling v. Board of Estimate, 72 N.Y.2d 674, 536 N.Y.S.2d 33 (1988). Unlisted actions can, but do not have to go through coordinated review, so each involved agency can conduct its own separate SEQRA review. 6 N.Y.C.R.R. §617.6(b)(4).

D. Determination of Significance. The lead agency then makes a "determination of significance" by reviewing the EAF, and deciding whether the proposal "may include the potential for at least one significant adverse environmental impact." §617.7(a)(1); see West Branch Assoc. v. Planning Board, Town of Ramapo, 177 A.D.2d 917, 576 N.Y.S.2d 675 (3d Dep't 1991). If so, an environmental impact statement ("EIS") must be prepared. ECL §8-0109(2); 6 N.Y.C.R.R. §617.7(a)(1). If not, the lead agency must make a negative declaration that the project will not have a significant adverse environmental impact. §617.7(b)(2).

In making the determination of significance, the lead agency must:

(i) consider the action as defined in sections 617.2(b) and 617.3(g) of [the SEQRA regulations];
 

(ii) review the EAF, the criteria contained in subdivision (c) of this section and any other supporting information to identify the relevant areas of environmental concern;
 

(iii) thoroughly analyze the identified relevant areas of environmental concern to determine if the action may have a significant effect on the environment; and
 

(iv) set forth its determination of significance in a written form containing a reasoned elaboration and providing reference to any supporting documentation.
 

6 N.Y.C.R.R. §617.7(b). Thus, the lead agency "must identify 'the relevant areas of environmental concern' and take a 'hard look' at them." Merson v. McNally, 90 N.Y.2d 742, 665 N.Y.S.2d 605, 609 (1997) [citing Matter of Chemical Specialties Mfrs. Assn. v. Jorling, 85 N.Y.2d 382, 397, 626 N.Y.S.2d 1 (1995)]; Kahn v. Pasnik, 90 N.Y.2d 569, 664 N.Y.S.2d 584 (1997).

The lead agency cannot merely set forth a "conclusory statement, unsupported by empirical or experimental data, scientific authorities or any explanatory information." Tehan v. Scrivani, 97 A.D.2d 769, 771, 468 N.Y.S.2d 402, 406 (2d Dep't 1983). A negative declaration is invalid if it was not supported by a written, narrative "reasoned elaboration." See, e.g., Board of Cooperative Educational Services of Albany-Schoharie-Schenectady-Saratoga Counties v. Town of Colonie, __ A.D.2d ___, 702 N.Y.S.2d 219 (3d Dep't 2000); Group for South Fork, Inc. v. Wines, 190 A.D.2d 794, 593 N.Y.S.2d 557 (2d Dep't 1993); West Branch Conservation Ass'n, Inc. v. Planning Board, Town of Ramapo, 177 A.D.2d 917, 576 N.Y.S.2d 675 (3d Dep't 1991); Morrell v. New York State Dept. of Environmental Conservation, 119 A.D.2d 1009, 500 N.Y.S.2d 586 (4^th Dep't 1986). Any analysis supporting a negative declaration should be adequately documented, and "should take into account (1) 'the impacts which may reasonably expected to result from the proposed action' 6 NYCRR [§617.7(c)(1)] as compared against the criteria listed in 6 NYCRR [§617.7(c)(1)(i-xii)]." Fernandez v. Planning Board of Pomona, 122 A.D.2d 139, 141, 504 N.Y.S.2d 524, 526 (2d Dep't 1986).

"The threshold at which the requirement that an EIS be prepared is triggered relatively low." Chinese Staff v. City of New York, 68 N.Y.2d 354, 509 N.Y.S.2d 499 (1986). When a Type I action is involved, the threshold for an EIS is especially low, since Type I actions "are more likely to require the preparation of an EIS" than other actions. 6 N.Y.C.R.R. §617.4(a); see also Shawangunk Mountain Environmental Association v. Planning Board of Town of Gardiner, 157 A.D.2d 273, 557 N.Y.S.2d 495 (3d Dep't 1990). Thus, for a "type I action an EIS is presumptively required." Town of Dickinson v. County of Broome, 183 A.D.2d 1013, 1014, 583 N.Y.S.2d 637, 638 (3d Dep't 1992); Kahn v. Pasnik, 231 A.D.2d 568, 647 N.Y.S.2d 279 (2d Dep't 1996).

A "conditioned negative declaration" can be made, after public comment, if impacts of an unlisted action can be mitigated by conditions, 6 N.Y.C.R.R. §617.7(d), but cannot be used for a Type I action. Ferrari v. Town of Penfield, 181 A.D.2d, 149, 585 N.Y.S.2d 925 (4th Dep't 1992); Shawangunk Mountain Environmental Association v. Planning Board of Town of Gardiner, 157 A.D.2d 273, 557 N.Y.S.2d 495 (3d Dep't 1990).

E. Cumulative Impacts. Cumulative impacts of the action must be considered. Chinese Staff & Workers Assoc. v. City of New York, 68 N.Y.2d 359, 509 N.Y.S.2d 499 (1986); Save the Pine Bush v. City of Albany, 70 N.Y.2d 193, 518 N.Y.S.2d 943 (1987). According to the SEQRA regulations:

. One criterion for the "significant effect" determination is the existence of "two or more related actions * * * none of which has * * * a significant effect * * * but when considered cumulatively would meet one or more of the [other regulatory significant effect] criteria" (6 NYCRR 617.11[a][11]). For purposes of determining whether an action meets any of those regulatory criteria, "the lead agency must consider reasonably related long-term, short-term and cumulative effects, including other simultaneous or subsequent actions which are: (1) included in any long-range plan of which the action under consideration is a part; (2) likely to be undertaken as a result thereof; or (3) dependent thereon." 
 

Long Island Pine Barrens Society, Inc. v. Planning Board of the Town of Brookhaven, 80 N.Y.2d 500, 513, 591 N.Y.S.2d 982, 987 (1993) [regulation has been recodified at 6 N.Y.C.R.R. §617.7(c)(1)(xii), (c)(2)]. However, in some cases it may not be necessary to consider cumulative impacts of independent actions that are not part of the same plan. Id.

F. Segmentation.The SEQRA regulations recognize that "[a]ctions commonly consist of a set of activities or steps," 6 N.Y.C.R.R. §617.3(g)(1), and provide that:

Considering only a part of segment of an action is contrary to the intent of SEQR. If a lead agency believes that circumstances warrant a segmented review, it must clearly state in its determination of significance and any subsequent EIS the supporting reasons and must demonstrate that such review is clearly no less protective of the environment. Related actions should be identified and discussed to the fullest extent possible.
 

6 N.Y.C.R.R. §617.3(g)(1). 

Thus, SEQRA generally prohibits "segmentation," which is defined as "the division of the environmental review of an action such that various activities or stages are addressed under this Part as though they were independent, unrelated activities, needing individual determinations of significance." 6 N.Y.C.R.R. §617.2(ag). See Sun Company, Inc. v. City of Syracuse Industrial Development Agency, 209 A.D.2d 34, 625 N.Y.S.2d 371 (4th Dep't 1995), app. dis'd 86 N.Y.2d 776, 631 N.Y.S.2d 603 (1995); Taxpayers Opposed to Floodmart, Ltd., v. City of Hornell Industrial Development Agency, 212 A.D.2d 958, 624 N.Y.S.2d 689 (4th Dep't 1995). See also DEC, The SEQR Handbook at 21-22.

G. EIS Process. If an EIS is required, the "scoping" process may be used to define the issues to be addressed. 6 N.Y.C.R.R. §617.8. If a positive declaration has been made, a draft EIS must be circulated, public comment allowed for at least 30 days, and a final EIS compiled which addresses public comments. §617.9. The lead agency may require a private applicant to prepare an EIS. §617.9(a)(1).

The lead agency may, but is not required to, hold a public hearing on the DEIS. 6 N.Y.C.R.R. §617.9(a)(4). If, "on the basis of the draft EIS, and comments made thereon, the lead agency has determined that the action will not have a significant adverse impact on the environment," the EIS process can be aborted, and a negative declaration prepared. 6 N.Y.C.R.R. §617.7(a)(5)(i)(b).

The SEQRA regulations prescribe the basic contents of an EIS, 6 N.Y.C.R.R. §617.9(b), and set procedures for a "generic" EIS, §617.10. In the EIS, the lead agency is required to (1) identify the relevant areas of environmental concern, (2) take a "hard look" at them, and (3) make a "reasoned elaboration" of the basis for its determination. H.O.M.E.S. v. New York State Urban Development Corp., 69 A.D.2d 222, 231-2, 418 N.Y.S.2d 827, 832 (4th Dep't 1979); Jackson v. New York State Urban Development Corp., 67 N.Y.2d 400, 417, 503 N.Y.S.2d 298, 305 (1986).

An EIS must assess "the environmental impact of the proposed action including short-term and long-term effects," "any adverse environmental effects," "any irreversible and irretrievable commitments of resources," and "growth inducing aspects" of the proposed action. ECL §8-0109(2). The DEIS cannot defer resolution of mitigation measures, "because it shields the [mitigation] plan from public scrutiny." Matter of Penfield Panorama v. Penfield Planning Board Area Community, Inc., 253 A.D.2d 342, 349, 688 N.Y.S.2d 848, 853 (4th Dep't 1999); see alsoTown of Red Hook v. Dutchess County Resource Recovery Agency, 146 Misc.2d 723, 552 N.Y.S.2d 191 (Sup. Ct. Dutchess Co. 1990).

An EIS must also contain an evaluation of "alternatives to the proposed action," ECL §8-0109(2). The analysis of alternatives has been called the "driving spirit" of the SEQRA process. Citizens For Preservation of Windsor Terrace v. Smith, 130 Misc.2d 967, 498 N.Y.S.2d 684 (Sup. Ct. Kings Co. 1986), rev. on other grounds 122 A.D.2d 827, 505 N.Y.S.2d 896 (1st Dep't 1986). The "range of alternatives must include the no-action alternative," and "may also include, as appropriate, alternative: (a) sites; (b) technology; (c) scale or magnitude; (d) design; (e) timing; (f) use; and (g) types of action." 6 N.Y.C.R.R. §617.9(b)(5)(v). Under the "rule of reason," an agency need only consider a "reasonable range of alternatives to the specific project." Town of Dryden v. Tompkins Co. Bd. of Supervisors, 78 N.Y.2d 331, 333-4, 574 N.Y.S.2d 930 (1991).

H. Findings. Neither the lead agency, nor any other involved agency, can take action until the public is given at least 10 days to consider the final EIS, and findings are made. 6 N.Y.C.R.R. §617.11(a,c). The findings must:

(1) consider relevant environmental impacts, facts and conclusions disclosed in the final EIS;
 

(2) weigh and balance relevant environmental impacts with social, economic and other considerations;
 

(3) provide a rationale for the agency's decision;
 

(4) certify that the requirements of [SEQRA] have been met;
 

(5) certify that consistent with social, economic and other essential considerations from among the reasonable alternatives available, the action is one that avoids or minimizes adverse environmental effects to the maximum extent practicable, and that adverse environmental impacts will be avoided or minimized to the maximum extent practicable by incorporating as conditions to the decision those mitigative measures that were identified as practicable. 

6 N.Y.C.R.R. §617.11(d); see also ECL §8-0109(8).

This is the "teeth" of SEQRA, and the only provision which clearly takes it beyond a mere environmental full disclosure procedure, and requires substantive results, including mitigation measures. Thus, in making findings, an agency must:

consider fully the environmental consequences revealed in an EIS and to take these consequences into account when reaching a decision whether or not to approve an action. Moreover, the statute authorizes the approving agency to implement measures designed to mitigate the adverse environmental impacts identified, so long as these measures are reasonable in scope and are reasonably related to the adverse impacts identified in the EIS.
 

Town of Henrietta v. DEC, 76 A.D.2d 215, 227, 430 N.Y.S.2d 440, 449 (4th Dep't 1980).

I. Timing of SEQRA Review.SEQRA requires that "consideration must be given at the earliest possible time (ECL §8-0109(a)) to the impacts which may be reasonably expected to result from any proposed action." Kirk-Astor Drive Neighborhood Assoc. v. Town of Pittsford, 106 A.D.2d 868, 483 N.Y.S.2d 526, 528 (4th Dep't 1984), app. dis'd 66 N.Y.2d 896, 498 N.Y.S.2d 791 (1985). The EIS is an "environmental 'alarm bell' whose purpose is to alert responsible public officials to environmental changes before they have reached ecological points of no return." Town of Henrietta v. DEC, 76 A.D.2d 215, 220, 430 N.Y.S.2d 440, 448 (4th Dep't 1980).

"No agency involved in an action may undertake, fund or approve the action until it has complied with the provisions of SEQR." 6 N.Y.C.R.R. §617.3(a). The "purpose of SEQRA is to assure the preparation and availability of an environmental impact statement at the time any significant authorization is granted for a specific proposal." Tri-County Taxpayers Assoc. v. Town Board of Queensbury, 55 N.Y.2d 41, 46-7, 447 N.Y.S.2d 699, 701 (1982). That way, "a decision maker [will] balance the benefits of a proposed project against its unavoidable environmental risks in determining whether to approve the project." Town of Henrietta v. DEC, 76 A.D.2d 215, 430 N.Y.S.2d 440, 447 (4th Dep't 1980); Briody v. Village of Lewiston, 188 A.D.2d 1017, 591 N.Y.S.2d 1017 (4th Dep't 1992).

"[C]ompliance with SEQRA must occur before the agency acts; after-the-fact compliance is of no avail." DiVeronica v. Arsenault, 124 A.D.2d 442, 507 N.Y.S.2d 541, 543 (3d Dep't 1986). Thus, before an agency can make a "significant authorization" for an "action," it must have before it either an accepted FEIS and findings, or else a valid negative declaration that the proposal will not have a significant environmental impact. Devitt v. Heimbach, 58 N.Y.2d 925, 460 N.Y.S.2d 512 (1983). Otherwise, the action is invalid. Tri-County Taxpayers Assoc. v. Town Board of Queensbury, 55 N.Y.2d 41, 447 N.Y.S.2d 699 (1982); Briody v. Village of Lewiston, 188 A.D.2d 1017, 591 N.Y.S.2d 1017 (4th Dep't 1992), app. den'd 81 N.Y.2d 710, 600 N.Y.S.2d 197 (1993). 

"Significant authorizations" required to be preceded by full SEQRA compliance have included such things as permit approvals, City of Schenectady v. Flacke, 100 A.D.2d 349, 475 N.Y.S.2d 506 (3d Dep't 1984), app. den'd 63 N.Y.2d 603, 480 N.Y.S.2d 1025 (1984), a referendum to approve a special district, Tri-County Taxpayers Assoc. v. Town Board of Queensbury, 55 N.Y.2d 41, 447 N.Y.S.2d 699 (1982), and an application for federal funding, Bardon v. Town of North Dansville, 134 Misc.2d 927, 513 N.Y.S.2d 584 (Sup. Ct. Livingston Co. 1987).

Furthermore, an application for a permit or funding is not complete until either a negative declaration is made, or a draft EIS is accepted. 6 N.Y.C.R.R. §617.3(c). "When the draft EIS is accepted, the SEQR process will run concurrently with other procedures relating to the review and approval of the action, if reasonable time is provided for preparation, review and public hearing with respect to the draft EIS." 6 N.Y.C.R.R. §617.3(c)(2).

J. Notice Requirements. The SEQRA regulations also include a variety of notice and filing requirements, 6 N.Y.C.R.R. §617.12. "Notice of a Type I negative declaration, conditioned negative declaration, positive declaration and completion of an EIS must be published in the Environmental Notice Bulletin." 6 N.Y.C.R.R. §617.12(c)(1). The ENB can be found on the DEC web site at http://www.dec.state.ny.us/website/enb/index.html, but is not available in hard print anymore. In addition, "[n]otice of a negative declaration must be incorporated once into any other subsequent notice required by law." 6 N.Y.C.R.R. §617.12(c). 

While notice of a public hearing on a DEIS must be published "at least 14 days in advance of the hearing date, in a newspaper of general circulation in the area of the potential impacts of the action," 6 N.Y.C.R.R. §617.12(c)(2), there is no requirement for publication in a local newspaper if the lead agency elects not to have a public hearing. 

K. Judicial Review. Compliance with SEQRA is subject to review by a special proceeding under CPLR Article 78, which is generally governed by the four-month statute of limitations set forth at CPLR §217. Save the Pine Bush v. City of Albany, 70 N.Y.2d 193, 518 N.Y.S.2d 943 (1987). In many cases, suit must be brought sooner if a shorter statute of limitations is applicable, such as 30 days under the Town or Village Law if a local planning or zoning board is involved, or a DEC wetlands permit is challenged. See, e.g., Purchase Environmental Protective Association, Inc. v. Town Board of Town/Village of Harrison, 207 A.D.2d 351, 615 N.Y.S.2d 444 (2d Dep't 1994).

The courts mandate "literal" or "strict compliance" with the SEQRA process, and "substantial compliance" has been held insufficient. King v. Saratoga Board of Supervisors, 89 N.Y.2d 341, 653 N.Y.S.2d 233 (1996); Taxpayers Opposed To Floodmart, Ltd. v. City of Hornell Industrial Development Agency, 212 A.D.2d 958, 624 N.Y.S.2d 689, 690 (4th Dept. 1995), stay vac'd 85 N.Y.2d 961, 628 N.Y.S.2d 48 (1995), app. dis'd 85 N.Y.2d 812, 631 N.Y.S.2d 289 (1995); Matter of West Branch Conservation Ass'n v. Planning Bd. of the Town of Ramapo, 177 A.D.2d 917, 576 N.Y.S.2d 675, 677 (3d Dep't 1991).

However, judicial review of the content of the EIS and other "substantive obligations under SEQRA must be viewed in light of a rule of reason. 'Not every conceivable environmental impact, mitigating measure or alternative must be identified and addressed before an FEIS will satisfy the substantive requirements of SEQRA.''" Jackson v. New York State Urban Development Corp., 67 N.Y.2d 400, 417, 503 N.Y.S.2d 298, 305 (1986). Further, there need not be "scientific unanimity" with regard to the conclusions reached. Schodack Concerned Citizens v. Town Board of Schodack, 148 A.D.2d 130, 134, 544 N.Y.S.2d 49, 51 (3d Dep't 1989), app. den'd 75 N.Y.2d 701, 551 N.Y.S.2d 905 (1989).

An Article 78 proceeding is commenced by "delivery of the... notice of petition or order to show cause... together with any fee required" to the county clerk or "any other person designated by the clerk of the court." CPLR §304. Krenzer v. Town of Caledonia Zoning Board of Appeals, 233 A.D.2d 882, 649 N.Y.S.2d 863 (4th Dep't 1996). A petition must be attached to the notice of petition or order to show cause. Lebow v. Village of Lansing Planning Board, 151 A.D.2d 865, 542 N.Y.S.2d 840 (3d Dep't 1989). The petition must be verified. CPLR §7804(d); but see CPLR §3022. The papers must be served on at least 20 days' notice unless specified by order to show cause. CPLR §7804(c). An index number is mandatory, and must be on the papers. CPLR §306-a; Gershel v. Porr, 89 N.Y.2d 327, 653 N.Y.S.2d 82 (1996).

Failure to include a return date on the notice of petition when it is filed, as required by CPLR §403(a), is a fatal defect that cannot be remedied, Vetrone v. Mackin, 216 A.D.2d 839, 628 N.Y.S.2d 866 (3d Dep't 1995); Travis v. New York State Dept. of Environmental Conservation, 185 A.D.2d 714, 585 N.Y.S.2d 929 (4th Dep't 1992), but can be waived. Fry v. Village of Tarrytown, 89 N.Y.2d 714, 658 N.Y.S.2d 205 (1997). If the notice of petition is replaced by an order to show cause, it must be signed and filed. Krenzer v. Town of Caledonia Zoning Board of Appeals, 233 A.D.2d 882, 649 N.Y.S.2d 863 (4th Dep't 1996). In addition, failure to join all necessary parties within the statutory time limit can be a fatal defect. Baker v. Town of Roxbury, 220 A.D.2d 961, 632 N.Y.S.2d 854 (3d Dep't 1995), mot. den'd 87 N.Y.2d 807, 641 N.Y.S.2d 829 (1996); cf. Town of Preble v. Zagata, 250 A.D.2d 912, 672 N.Y.S.2d 510 (3d Dep't 1998).

Under the "broad rule of standing," Douglaston Civic Association, Inc. v. Galvin, 36 N.Y.2d 1, 6, 364 N.Y.S.2d 830, 834 (1974), where citizens "are within the 'zone of interest' protected" by a statute, they have standing to bring suit, because it is desirable that environmental disputes be resolved on their merits rather than by preclusive, restrictive standing rules." Ecumenical Task Force of Niagara Frontier, Inc. v. Task Force of Love Canal Area Revitalization Agency, 179 A.D.2d 261, 265, 583 N.Y.S.2d 859 (4th Dep't 1992), app. dis'd. 80 N.Y.2d 758 (1992). Thus, nearby residents who will be impacted by a project will have standing, Steele v. Town of Salem Planning Board, 200 A.D.2d 870, 606 N.Y.S.2d 810 (3d Dep't 1994), and adjoining landowners are automatically presumed to have standing. Crady v. Newcomb, 142 A.D.2d 940, 530 N.Y.S.2d 365 (4^th Dep't 1988); Karasz v. Wallace, 133 Misc.2d 520, 507 N.Y.S.2d 365 (Sup. Ct. Saratoga Co. 1986). However, if a petitioner's only interest in a case is economic and not environmental, he or she does not have standing to bring a SEQRA challenge. Society of Plastics Industry, Inc. v. County of Suffolk, 77 N.Y.2d 761, 773, 570 N.Y.S.2d 778, 785 (1991).

If an organization brings suit, at least one member must have standing in their own right, the interests it asserts must be "germane to its purposes," and it must be unnecessary to join individual petitioners. Society of Plastics Industry, Inc. v. County of Suffolk, 77 N.Y.2d 761, 773, 570 N.Y.S.2d 778, 785 (1991). An unincorporated association has the capacity to sue in the name of its president or treasurer. General Associations Law §12.

II. Classification of School Projects Under SEQRA.

Type II actions include "routine activities of educational institutions, including expansion of existing facilities by less than 10,000 square feet of gross floor area and school closings, but not changes in use related to such closings." 6 N.Y.C.R.R. §617.5(b)(8). This exception was upheld in West Village Committee v. Zagata, 242 A.D.2d 91, 669 N.Y.S.2d 674 (3d Dep't 1998). In Fishman v. New York City School Construction Authority, N.Y.L.J., June 8, 1990 at 27, col. 3 (Sup. Ct. Kings Co. 1990), the construction of a swimming pool at a high school was ruled to be a Type II action.

Therefore, a school closing, which is not coupled with a construction project of at least 10,000 square feet, is exempt from SEQRA review. Engle v. Pulver, 80 A.D.2d 598, 436 N.Y.S.2d 39 (2d Dep't 1981); Hopkins v. Board of Education of West Genesee Central School District, 99 Misc.2d 216, 415 N.Y.S.2d 774 (Sup. Ct. Onondaga Co. 1979). In McNerney v. Bainbridge-Guilford Central School District Board of Education, 155 A.D.2d 842, 548 N.Y.S.2d 103 (3d Dep't 1989), the reorganization of two schools, including the shifting of grade levels, was held a Type II action.

Since a project normally cannot be segmented under SEQRA, 6 N.Y.C.R.R. §617.3(g)(1), it would not be permissible to break a construction project up into increments of less than 10,000 square feet to avoid environmental review.

Type I actions include the acquisition of at least 100 acres of land, projects that are 100 feet high or involve either the physical alteration of at least 10 acres, parking for 1,000 vehicles, or in a city, town or village with a population less than 150,000, a building of at least 100,000 square feet, and in larger communities 240,000 square feet. 6 N.Y.C.R.R. §617.4(b)(4,6,7). In addition, for construction in a state agricultural area or within or substantially contiguous to public parkland, recreation area or designated open space, the thresholds are reduced to 25% of the stated levels. 6 N.Y.C.R.R. §617.4(b)(8,10). In addition, unlisted actions in or substantially contiguous to certain historically protected sites or areas are Type I actions. 6 N.Y.C.R.R. §617.4(b)(9).

According to the State Education Department, "[m]ost reconstruction projects will be classified as 'Type II', and unless the project affects features such as a floodplain or a historic landmark, the project manager will 'sign off.'" State Education Department, SEQRA Process Reference Guide #A.4 (copy attached, and available on the World Wide Web at http://www.emsc.nysed.gov:9210/facplan/articles/B06.txt)("SEQRA Process Reference Guide"). Otherwise, according to the SEQRA Process Reference Guide, the following process is used:

1. An Unlisted Action with no significant environmental impacts identified on the EAF. In this case, a Notice of Determination - Negative Declaration will be issued which completes the SEQR process.
 

2. An Unlisted Action for which all impacts identified on EAF are to be satisfactorily mitigated. In this case, a Conditioned Negative Declaration will be issued. If public comment is received in 30 days, which would change the determination then the SEQR process is complete.
 

3. An Unlisted Action with unmitigated impacts identified on the EAF. In this case, the district will be directed to proceed as though the project were a Type I Action. See below.
 

4. A Type I Action, in which case the district will be directed to prepare a Draft Environmental Impact Statement (DEIS).
 

In some respects, this mechanical approach goes beyond SEQRA's requirements, since it requires an EIS for all Type I actions, when in fact there is only a presumption that an EIS is required for Type I actions. Town of Dickinson v. County of Broome, 183 A.D.2d 1013, 1014, 583 N.Y.S.2d 637, 638 (3d Dep't 1992); Kahn v. Pasnik, 231 A.D.2d 568, 647 N.Y.S.2d 279 (2d Dep't 1996).

III. Timing of SEQRA Review of School Projects. 

Under Education Law §416, the voters of a school district (other than a large city school district) must approve such a school construction plan. Education Law §416(1) provides:

School taxes and school bonds. 1. A majority of the voters of any school district, present and voting at any annual or special district meeting, duly convened, may authorize such acts and vote such taxes as they shall deem expedient for making additions, alterations, repairs or improvements, to the sites or buildings belonging to the district, or for altering and equipping for library use any former schoolhouse belonging to the district, or for the purchase of other sites or buildings, or for a change of sites, or for the purchase of land and buildings for agricultural, athletic, playground or social center purposes, or for the erection of new buildings, or for building a bus garage, or for buying apparatus, implements, or fixtures, or for paying the wages of teachers, and the necessary expenses of the school, or for the purpose of paying any judgment, or for the payment or refunding of an outstanding bonded indebtedness, or for such other purpose relating to the support and welfare of the school as they may, by resolution, approve.
 

In addition, regulations of the State Education Department require that plans and specifications for construction, enlargement, repair or remodeling of school facilities costing at least $10,000, other than in New York City or a BOCES district, must be submitted for approval of the Commissioner of Education. Education Law §408(1); 8 N.Y.C.R.R. §155.2(a). The Education regulations set forth various requirement for school construction projects. See 8 N.Y.C.R.R. §155.2(a)(1)(i).

Under SEQRA, environmental review must be completed prior to any "significant authorization" for an action. Tri-County Taxpayers Assoc. v. Town Board of Queensbury, 55 N.Y.2d 41, 447 N.Y.S.2d 699 (1982). In Tri-County, the Court of Appeals voided a town board's authorization of a sewer district, because it did not have before it a final EIS prior to its decision, even though it was contingent upon approval by the voters at a subsequent election, and could have been rescinded by the board:

To achieve this objective an environmental impact statement should have been prepared and made available to the members of the town board and the public prior to the adoption of the resolutions of authorization in July, 1979. It is accurate to say, of course, that by actions of rescission later adopted the town board could have reversed the action authorizing the establishment of the sewer district. As a practical matter, for several reasons, however, the dynamics and freedom of decision-making with respect to a proposal to rescind a prior action are significantly more constrained than when the action is first under consideration for adoption. Thus, although not legally conclusive the initiatory action by the town board might well have been practically determinative. In effect the purpose of SEQRA is to assure the preparation and availability of an environmental impact statement at the time any significant authorization is granted for a specific proposal.

55 N.Y.2d at 46-47, 447 N.Y.S.2d at 201. Similarly, the Court of Appeals recognized the need for proper completion of the SEQRA review prior to the referendum:

Aside from the significance of the availability of an environmental impact statement to the members of the town board at the time of action by the board (as well as to members of the public who might like to make their views with respect to the proposal known to members of the board prior to its vote), there can be little doubt that SEQRA commanded the preparation and filing of an environmental impact statement for public inspection prior to the special election held on August 17, 1979. As differentiated from actions by the town board, there was but a single opportunity for the district voters to express opinions in the electoral forum. There is no way the results of that special election could be reversed, and there would be no other necessity for a popular vote.

55 N.Y.2d at 47, 447 N.Y.S.2d at 201.

In the case of a school construction project, what is a "significant authorization" that must be preceded by completion of the SEQRA review? Under Tri-County, there can be no doubt that the SEQRA process must be completed prior to the referendum (district meeting) at which the voters decide whether to approve the project. Chase v. Board of Educ. of Roxbury Central School District, 188 A.D.2d 192, 593 N.Y.S.2d 603 (3d Dep't 1993). Likewise, there can be no doubt that the Commissioner's decision to approve a project, pursuant to Education Law §408, must be preceded by SEQRA review. SeeVillage of Skaneateles v. Board of Education, 180 Misc.2d 591, 689 N.Y.S.2d 865 (Sup. Ct. Albany Co. 1999).

What about the school board's own vote deciding to put the proposition up for a referendum? While this might be distinguished from an approval, like in Tri-County this "initiatory action" may be "practically determinative,"and therefore may be considered a "significant authorization." According to the State Education Department's SEQRA Process Reference Guide, SEQRA requires "[f]or public school districts, this means that propositions for authorization or bonding shall not be introduced until the SEQR process is complete." Clearly, the prudent school district attorney will advise his/her board to complete the SEQRA review process prior to even authorizing a referendum on a project.

In Chase v. Board of Educ. of Roxbury Central School District, 188 A.D.2d 192, 593 N.Y.S.2d 603 (3d Dep't 1993), the voters approved a proposal for a school bus garage. After the vote, the Education Department issued a negative declaration on the project, and still later it rescinded the negative declaration and required a final EIS. The Third Department invalidated the referendum, and held that a new referendum must be held, since Tri-County "clearly requires that plaintiffs be afforded the benefit of the information contained in the FEIS prior to voting on whether to approve the school building and bus garage projects." 188 A.D.2d at 199, 593 N.Y.S.2d at 608.

IV. Lead Agency for School Construction Projects.

Under its regulations, "[t]he State Education Department shall be lead agency for all" school construction projects undertaken by a school district (other than in New York City). 8 N.Y.C.R.R. §155.9. According to the State Education Department, "[t]he Education Department assumes lead agency status for administration of SEQR for those capital construction projects undertaken by school districts and BOCES which require the approval of the Commissioner." SEQRA Process Reference Guide. The process starts as follows:

To assure that the SEQR process is properly executed, school officials must contact the Office of Facilities Planning (Facilities) and be assigned a project manager and a project number for each proposed capital project. This must be done well in advance of seeking authorization for the project from either the board of education in a Big Five City School District or from the voters.
 

After the project number is assigned, the project manager will send appropriate forms to the school officials, including a Project Description, form (FP-PD). The Project Description form must be completed by the school officials and submitted to the project manager.
 

The project manager will review the narrative description on the Project Description form to determine the proper course of the SEQR process.

SEQRA Process Reference Guide. At present, Carl T. Thurnau, Supervisor of Facilities Planning, is responsible for the SEQRA review process in the State Education Department.

In the author's opinion, this unilateral and automatic designation is illegally inconsistent with SEQRA. See, e.g., New York State Superfund Coalition, Inc. v. Department of Environmental Conservation, 75 N.Y.2d 88, 550 N.Y.S.2d 879 (1989) (regulation inconsistent with statute must be annulled).

Environmental Conservation Law §8-0111(5) requires that:

When an action is to be carried out or approved by two or more agencies, the determination of whether the action may have a significant effect on the environment shall be made by the lead agency having principal responsibility for carrying out or approving such action and such agency shall prepare, or cause to be prepared by contract or otherwise, the environmental impact statement for the action if such a statement is required by this article.

This statutory mandate is implemented by the procedure for coordinated review set forth at 6 N.Y.C.R.R. §617.6(b)(3)(i), which requires that the involved agencies voluntarily agree to the lead agency designation. However, although a local school district generally has "principal responsibility for carrying out or approving [the] action," the Education Department, which merely performs an administrative review of the plans, automatically takes the lead agency function, and the process for designation of lead agency under the SEQRA regulations is ignored. What if a local school district or another involved state agency (like NYSDOT or DEC) had its own regulation requiring that it be the lead agency - how would the conflict be resolved?

Under SEQRA, if an involved agency objects to the lead agency designation, "any agency may submit the question to the commissioner and the commissioner shall designate the lead agency, giving due consideration to the capacity of such agency to fulfill adequately the requirements of this article." ECL §8-0111(5). In making that determination, the DEC Commissioner must consider:

('a') whether the anticipated impacts of the action being considered are primarily of statewide, regional, or local significance (i.e., if such impacts are of primarily local significance, all other considerations being equal, the local agency involved will be lead agency); 
 

('b') which agency has the broadest governmental powers for investigation of the impact(s) of the proposed action; and 
 

('c') which agency has the greatest capability for providing the most thorough environmental assessment of the proposed action.
 

6 N.Y.C.R.R. §617.6(b)(5). While all of these factors may point to a local school district as the best lead agency, particularly the preference of a "local agency," there is no opportunity to utilize this procedure, since the Education Department's designation purports to be free from any challenge. 

Thus, "the courts have made it clear that... the establishment of permanent lead agencies, particularly ones that are not vested with decisionmaking authority, violates SEQRA's statutory direction that the lead agency be that agency which has "principal responsibility for carrying out or approving [the] action." Gerrard, Ruzow & Weinberg, Environmental Impact Review in New York §3.03[1][a][iii]. Thus, in Coca-Cola Bottling v. Board of Estimate, 72 N.Y.2d 674, 536 N.Y.S.2d 33 (1988), the Court of Appeals rejected a New York City rule that designated the Departments of Environmental Protection and Planning as permanent co-lead agencies, since the rule "transgressed SEQRA's spirit, as well as its form." Similarly, in Glen Head v. Town of Oyster Bay, 88 A.D.2d 484, 493, 453 N.Y.S.2d 732 (2d Dep't 1982), the designation of a permanent lead agency by local law "amounted to an evasion of SEQRA responsibilities."

While individual agencies may implement their own regulations to assist in their implementation of SEQRA, those procedures must be "consistent with the rules and regulations adopted by the commissioner." ECL §8-0113(3). Thus, "[i]ndividual agency procedures to implement SEQR must be no less protective of environmental values, public participation and agency and judicial review than the procedures contained in" 6 N.Y.C.R.R. Part 617. 6 N.Y.C.R.R. §617.14(b). However, the automatic designation of the Education Department is less protective of public participation, and requires that the lead agency not be the local agency, which is favored under the criteria set forth at 6 N.Y.C.R.R. §617.6(b)(5), and is inconsistent with the Legislature's direction that the lead agency have "principal responsibility for carrying out or approving" the action.

Another possible, although perhaps technical, deficiency is that the Commissioner of Education, and not the Education Department, is vested with the authority to approve the construction projects. By doing so, the Commissioner may have illegally delegated lead agency status to an agency that is not the ultimate decisionmaker. Coca-Cola Bottling v. Board of Estimate, 72 N.Y.2d 674, 536 N.Y.S.2d 33 (1988).

V. Hard Look By the State Education Department.

SEQRA mandates a "hard look" at the relevant areas of environmental concern, which requires a "systematic balancing analysis in every instance" where potential adverse environmental impacts are identified. Matter of Town of Henrietta v. Dept. of Envtl. Conservation, 76 A.D.2d 215, 223, 430 N.Y.S.2d 440 (4^th Dep't 1980). However, the State Education Department's own SEQRA Process Reference Guide, indicates that its SEQRA review process may be fatally flawed:

If it is decided that a public hearing is not required and there are no comments received which reveal significant unmitigated environmental effects, Facilities files a Notice of Determination - Negative Declaration which completes the SEQR process.
 

Thus, it is the official policy of the Education Department to abort the EIS process without a final EIS and SEQRA findings requiring mitigation "to the maximum extent practicable," if no public hearing is held by the Department, and no comments are received -- even if the draft EIS itself reveals potentially significant impacts. This is contrary to the requirement of SEQRA that such a procedure can only be used if "on the basis of the draft EIS, and comments made thereon, the lead agency has determined that the action will not have a significant adverse impact on the environment." 6 N.Y.C.R.R. §617.7(a)(5)(i)(b).

It is not surprising that the State Education Department may not receive public comments on a draft EIS on a school construction project. If the State Education Department is the lead agency, it generally decides not to hold a public hearing, see 6 N.Y.C.R.R. §617.9(a)(4), and the only public notice of the SEQRA review is on the World Wide Web in the Environmental Notice Bulletin, 6 N.Y.C.R.R. §617.12(c)(1), a publication that only environmental engineers and consultants are generally familiar with. No notice needs to published in a local newspaper. While community opposition alone is not a sufficient basis to make a positive declaration, Matter of WEOK v. Planning Board, 79 N.Y.2d 373, 583 N.Y.S.2d 170 (1992), the State Education uses the lack of comment as an indication of the lack of environmental impacts.

Furthermore, "mitigation" of significant impacts is not equivalent to eliminating their significance, since "mitigation" is defined as "a way to avoid or minimize adverse environmental impacts." 6 N.Y.C.R.R. §617.2(w). It may only mean that the severity of impacts has been "minimized," even if they are still "significant." Mitigation measures are required for every EIS. 6 N.Y.C.R.R. §617.9(b)(5)(iv). At the end of the day, when a final EIS is reviewed, SEQRA findings require that all impacts be "avoid[ed] or minimize[d]... to the maximum extent practicable." 6 N.Y.C.R.R. §617.11(d)(5).

"The need for an EIS [can] not be avoided merely by the adoption of a few mitigating measures, which do not negate the adverse effects to any great extent." Watch Hill Homeowners Association, Inc. v. Town Board of Town of Greenburgh, 226 A.D.2d 1031, 1034, 641 N.Y.S.2d 443, 446 (3d Dep't 1996), lv. to app. den'd 88 N.Y.2d 811, 649 N.Y.S.2d 378 (1996) [citations omitted]. Therefore, "mitigating measures will not obviate the need for an EIS unless they clearly negate the continued potentiality of the adverse effects of the proposed action." Merson v. McNally, 90 N.Y.2d 742, 754, 665 N.Y.S.2d 605, 611 (1997). Under Merson, only where "modifications [are] not conditions unilaterally imposed by the lead agency, but essentially [are] adjustments incorporated by the project sponsor to mitigate the concerns identified by the public and the reviewing agencies, with only minor variations requested by the lead agency during the review process," then mitigation of potential impacts can result in a negative declaration. 90 N.Y.2d at 755, 665 N.Y.S.2d at 611. Otherwise, a negative declaration premised on mitigation measures would be a conditional negative declaration, which is illegal for a Type I action. Ferrari v. Town of Penfield, 181 A.D.2d, 149, 585 N.Y.S.2d 925 (4th Dep't 1992); Shawangunk Mountain Environmental Association v. Planning Board of Town of Gardiner, 157 A.D.2d 273, 557 N.Y.S.2d 495 (3d Dep't 1990).

VI. Procedural Issues.

A. Appeal to the Commissioner.

"It is hornbook law that one who objects to the act of an administrative agency must exhaust available administrative remedies before being permitted to litigate in a court of law." Watergate II Apartments v. Buffalo Sewer Authority, 46 N.Y.2d 52, 412 N.Y.S.2d 821 (1978). In general, local school district decisions can be appealed to the Commissioner of Education, Education Law §310. However, courts have held that this procedure is optional, and that an Article 78 proceeding may be brought in the proper case. Helbig v. City of New York, 157 Misc.2d 487, 597 N.Y.S.2d 585 (Sup. Ct. Richmond Co. 1993), rev. on other grounds 212 A.D.2d 506, 622 N.Y.S.2d 316 (2d Dep't 1995); Lynch v. Clarkstown Cent Dist, 155 Misc.2d 846, 590 N.Y.S.2d 687 (Sup. Ct. Rockland Co. 1992); Matter of Ellis v. Dixon, 281 App. Div. 987 (2d Dep't 1953), aff'g on another ground 118 N.Y.S.2d 815; Coughlan v. Cowan, 21 Misc.2d 667, 190 N.Y.S.2d 934 (Sup. Ct. Suffolk Co. 1959). Nonetheless, Education Law §2037 provides:

Determination of meeting or election disputes. All disputes concerning the validity of any district meeting or election or of any of the acts of the officers of such meeting or election shall be referred to the commissioner of education for determination and his decisions in the matter shall be final and not subject to review. The commissioner may in his discretion order a new meeting or election.
 

The "courts have long interpreted Education Law §2037 and its predecessor statute as conferring exclusive original jurisdiction upon the Commissioner of Education regarding all disputes over validity of school district meetings and elections." Schulz v. State of New York, 86 N.Y.2d 225, 231, 630 N.Y.2d 978, 980 (1995), cert. den'd 516 U.S. 944, 116 S.Ct. 382 Id. at 231, 630 N.Y.S.2d at 980. According to the Commissioner:

In all cases except election disputes, you have the choice of commencing a proceeding in court rather than an appeal to the Commissioner. Election disputes, however, must be decided by the Commissioner.
 

Frequently Asked Questions Concerning Appeals to the Commissioner of Education, http://www.counsel.nysed.gov/appeals/faqs.htm.

An appeal to the Commissioner must be brought within 30 days. 8 N.Y.C.R.R. §275.16. "The commissioner, in his sole discretion, may excuse a failure to commence an appeal within the time specified for good cause shown. The reasons for such failure shall be set forth in the petition." 8 N.Y.C.R.R. §275.16. See NYSBA/NYSBA, School Law (27^th ed. 1998) §1:16. Therefore, it would be prudent to challenge a deficiency in the SEQRA review process by an appeal to the Commissioner within 30 days of a referendum, or perhaps within 30 days of a school board's decision to put a proposition up for a vote.

However, in our opinion such an appeal is not necessary for a SEQRA challenge to a referendum on a school construction project. Schulz and other cases mandating an appeal to the Commissioner have involved deficiencies in the way the school district held the election, and not collateral procedures like SEQRA. The Commissioner has ruled that he cannot address issues like "violations of the Open Meetings Law, Freedom of Information Law and the Family Education Rights and Privacy Act (Appeal of Miller, 36 Educ. Dep't Rep. 390 (1997); Appeal of Boyle, 35 Educ. Dep't Rep. 162 (1995); Appeal of Nolan, 35 Educ. Dep't Rep. 139 (1995); Appeal of Winchell, 35 Educ. Dep't Rep. 221 (1995))." New York State Bar Association/New York State School Boards Association, School Law (27^th ed.1998) §1:16. 

In Chase v. Board of Educ. of Roxbury Central School District, 188 A.D.2d 192, 593 N.Y.S.2d 603 (3d Dep't 1993) the Third Department held that no appeal under Education Law §2037 is necessary where a petitioner challenges the SEQRA review process underlying a school district referendum:

With regard to the Commissioner's argument that plaintiffs' action should be dismissed for failure to exhaust administrative remedies, we noted at the outset that plaintiffs are not challenging the validity of the May 1989 referendum per se. Rather, their argument rests on a failure to comply with the timing requirements of SEQRA. Accordingly, Education Law §2037, which provides in pertinent part that "[a]ll disputes concerning the validity of any district meeting or election * * * shall be referred to the commissioner", has no application here and the cases cited by the Commissioner are distinguishable.

188 A.D.2d at 199, 593 N.Y.S.2d at 608.

In addition, an administrative remedy need not be pursued when it would be futile. Counties of Warren and Washington Industrial Development Agency v. Hudson Falls Board of Health, 168 A.D.2d 847, 565 N.Y.S.2d 236 (3d Dep't 1990). An administrative remedy is futile "where the administrative appeal is to the same body or officer whose official conduct is challenged." 6 N.Y. Jur.2d Article 78 and Related Proceedings §26. See, e.g., Kaindlon v. County of Rensselaer, 158 A.D.2d 178, 558 N.Y.S.2d 286 (3d Dep't 1990); Love v. Grand Temple Daughters, 37 A.D.2d 363, 325 N.Y.S.2d 368 (1st Dep't 1971). An appeal to the Commissioner that the environmental review process conducted on his behalf would seem futile, and therefore unnecessary.

B. The Time to Litigate.

In general, the time limit for bringing a special proceeding under CPLR Article 78 to challenge the SEQRA for a school construction project is the four-month limitations period provided by CPLR §217. Save the Pine Bush v. City of Albany, 70 N.Y.2d 193, 518 N.Y.S.2d 943 (1987). This will apply to most school construction litigation, although a shorter time period could apply if certain approvals are involved. See, e.g., Local Finance Law §80.00 (20 days after estoppel notice for bonding); Environmental Conservation Law §24-1105 (30 days for freshwater wetlands).

However, the time limit does not begin to run if an action "is not final." CPLR §7801(1). When determining if a claim is ripe, "we must first ascertain what administrative decision petitioner is actually seeking to review and then find the point when that decision became final and binding and thus had an impact upon petitioner." Monteiro v. Town of Colonie, 158 A.D.2d 246, 732, 558 N.Y.S.2d 730 (3d Dep't 1990); see alsoWing v. Coyne, 129 A.D.2d 213, 217, 517 N.Y.S.2d 576, 579 (3d Dep't 1987); Rochester Telephone Mobile Communications v. Ober, 251 A.D.2d 1053, 1054, 674 N.Y.S.2d 189, 190 (4^th Dep't 1998).

Thus, in Chase v. Board of Educ. of Roxbury Central School District, 188 A.D.2d 192, 195-6, 593 N.Y.S.2d 603, 606 (3d Dep't 1993), the Third Department considered a challenge to a school project, and held that "any challenge to the referendum on SEQRA grounds had to be commenced within four months of th[e] date" of the referendum. However, since the Commissioner subsequently corrected the SEQRA deficiencies on his own, a new referendum was required, since the SEQRA review for the earlier vote had been revised.

Nonetheless, in Village of Skaneateles v. Board of Education, 180 Misc.2d 591, 689 N.Y.S.2d 865 (Sup. Ct. Albany Co. 1999), Judge Ceresia held that a challenge to a district referendum on a bus garage project was not ripe, because "[u]ntil the project is finally approved" by the Commissioner, he "may choose to revisit any of the issues including the propriety of the SEQRA review which have been brought to his attention." 180 Misc.2d at 597, 689 N.Y.S.2d at 869.

What if the State Education Department has made a negative declaration, but no other approvals have been given by them, the local district, or anyone else? The negative declaration is not ripe for review, and no suit can be brought. Gerrard, Ruzow & Weinberg, Environmental Impact Review in New York §7.02[4][c]. See, e.g., Matter of Ogden Citizens v. Planning Board, 224 A.D.2d 921, 637 N.Y.S.2d 582 (4th Dep't 1996); Town of Yorktown v. New York State Department of Mental Hygiene, 92 A.D.2d 897, 459 N.Y.S.2d 891 (2d Dep't 1983), aff'd 59 N.Y.2d 999, 466 N.Y.S.2d 965 (1983 ); Matter of East Coast Prop. v. City of Oneida, 167 A.D.2d 641, 562 N.Y.S.2d 864 (3d Dept 1990). Thus, in Village of Skaneateles v. Board of Education, 180 Misc.2d 591, 689 N.Y.S.2d 865 (Sup. Ct. Albany Co. 1999), a negative declaration issued by the Education Department on a bus garage project was not ripe for review. Likewise, a positive declaration alone is not ripe for judicial review. Rochester Telephone Mobile Communications v. Ober, 251 A.D.2d 1053, 674 N.Y.S.2d 189 (4^th Dep't 1998); Town of Coeymans v. City of Albany, 237 A.D.2d 856, 655 N.Y.S.2d 172, 174 (3d Dep't 1997).

What if the lead agency -- the State Education Department -- has made a negative declaration, but not a substantive decision, but an involved agency -- the school district -- has made a decision by approving a school construction project at a district meeting? A challenge to the underlying negative declaration is probably ripe, even if the lead agency has not yet made a final decision. See, e.g., New York Northeastern Queens Nature & Historical Preserve Commn. v. Flacke, 89 A.D.2d 928, 453 N.Y.S.2d 773 (2d Dep't 1982); Matter of Friends v. Town of Woodstock, 152 A.D.2d 876, 543 N.Y.S.2d 1007 (3d Dep't 1989); see also Gerrard, Ruzow & Weinberg, Environmental Impact Review in New York §7.02[4][c].

C. Venue.

CPLR §506(b)(2) requires that a special proceeding against the Commissioner of Education must be brought in Supreme Court, Albany County. However, CPLR §504(2) requires that proceedings against school districts must be brought in the county where it is located. While typically an error in venue is not fatal, CPLR §7804(b) requires that an Article 78 proceeding "shall be brought in the supreme court of the county specified in subdivision (b) of section 506." Failure to comply with this requirement may be fatal. Nolan v. Lungen, 61 N.Y.2d 788, 473 N.Y.S.2d 388 (1984). Thus, the prudent petitioner's attorney will bring a case challenging a school construction project in Albany County.

D. Notice of Claim. Education Law §3813(1) provides that "[n]o action or special proceeding, for any cause whatever," may be brought against most school districts unless "a written verified claim upon which such action or special proceeding is founded was presented to the governing body of said district or school within three months after the accrual of such claim, and that the officer or body having the power to adjust or pay said claim has neglected or refused to make an adjustment or payment thereof for thirty days after such presentment." While this provision is not limited, like General Municipal Law §50-e, to tort actions, it does not apply where the petitioner brings an action in the "public interest," rather than seeking to enforce private rights. Union Free School Dist. No. 6 of Towns of Islip and Smithtown v. New York State Human Rights, 35 N.Y.2d 371, 362 N.Y.S.2d 139 (1974); Niagara Mohawk Power Corp. v. City School Dist. of City of Troy, 59 N.Y.2d 262, 464 N.Y.S.2d 449 (1983); Feinberg v. Board of Education of East Ramapo Central School District, 78 A.D.2d 889, 433 N.Y.S.2d 889 (2d Dep't 1980).

For example, in Rampello v. East Irondequoit Central School District, 236 A.D.2d 797, 653 N.Y.S.2d 469, 471 (4^th Dep't 1997), the Appellate Division, Fourth Department held that it was unnecessary for the petitioners (who successfully challenged payment for unused sick days to a principal) to file a notice of claim, since they were seeking to vindicate public rights, including a failure to comply with the Open Meetings Law. Thus, in Village of Skaneateles v. Board of Education, 180 Misc.2d 591, 689 N.Y.S.2d 865 (Sup. Ct. Albany Co. 1999), where a bus garage was challenged on SEQRA grounds, the court held that the "public interest" exception applied, since the petitioner was seeking to vindicate the public interest in protecting the environment, rather than raising a private dispute or seeking money damages. Therefore, it is not necessary to comply with the notice of claim provision in a SEQRA case where the petitioner seeks to vindicate the public interest.

ALAN J. KNAUF is a partner in the law firm of Knauf Koegel & Shaw, LLP, located at Suite 1250 in the Alliance Building, 183 East Main Street, Rochester, New York 14604. He concentrates his practice in the areas of environmental (including environmental impact review, brownfield development, hazardous and solid waste, Superfund and oil spills, and air and water pollution issues), municipal and land use law, and civil litigation. He represents corporations, landowners, governments, and citizens. He is attorney for the Town of Huron, and has represented numerous municipalities in land use matters.
 

Knauf is Co-Chair of the Internet Committee of the Environmental Law Section of the New York State Bar Association, is a former Co-Chair of its Toxic Torts Committee, and serves on the Executive Committee of that Section. He was founding Chairperson of the Environmental Law Committee of the Monroe County Bar Association, and is also Vice-Chair of the Public Service Committee of the Section on Environmental Law, Energy and Resources of the American Bar Association. Knauf served as Chairman of the Center for Environmental Information, Inc. (CEI) from 1994-1996, and has chaired the CEI Annual Survey Course in Environmental Law since 1986. Knauf is an Assistant Adjunct Professor of Environmental Law at the University of Rochester, is an Adjunct Professor of Emergency Preparedness Laws and Regulations at the Rochester Institute of Technology, and is Vice-President of American Recycling & Manufacturing Co., Inc. Knauf maintains the New York Environmental Law Center on the Internet at www.nyenvlaw.com. Knauf received a B.S.C.E. in Environmental Engineering from M.I.T. in 1977, and a J.D. from the University of Michigan in 1980. He is admitted to the bars of New York, Florida, and various federal courts.
 
 
 

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