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Appellate Court Discounts Procedural Missteps by Planning Board in Granting Site Plan Approval

By Steven Silverberg and Katherine Zalantis

In a case involving a challenge to site plan approval for a Wal-Mart, the Appellate Division Fourth Department found a number of challenges to procedural/technical oversights by the planning board to be insufficient to cause the court to overturn the approval. In Matter of Residents Against Wal-Mart v. Planning Board of Town of Greece, the court found that the granting of site plan approval by the planning board was not arbitrary and capricious. The decision lacks a great deal of detail but in a series of findings the court held: (1) the failure of the planning board to complete parts 2 and 3 of the SEQRA EAF was not fatal, because the planning board discussed ?the factors set forth in parts 2 and 3 of the full EAF;? (2) the planning board complied with the referral requirements of General Municipal Law sections 239-m and 239-n, because there was no ?substantial difference? between the materials submitted to the county department of planning and those used by the planning board for ?final action on the application;? and (3) there was no error in issuing a conditional negative declaration for a Type I action under SEQRA, as ?the conditions were not imposed in an attempt to avoid a determination that the project has a significant adverse environmental impact? and it was used only to address ?aesthetic aspects of the project...continue to full post

Full post as published by New York Zoning and Municipal Law Blog on May 11, 2009 (boomark / email).