Editor’s Note: Urban planning is crucial to solving the ongoing housing crisis in America and around the world. In New York State, central to the process is a law called SEQRA. Like many laws, it is tedious and time-consuming to grasp. But developers understand it, and if you care about gentrification, so should you.
SEQRA: A Law That Can Stave Off Environmental Tragedy
For a developer, the process from blueprints to finished construction can be long and arduous.
In New York State, one major hurdle that builders deem especially burdensome is the State Environmental Quality Review Act, or SEQRA.
The law was enacted to avoid disasters such as pollution, destruction of endangered wildlife habitat, or building collapses when a nearby lot is excavated, to name only a few of the negative consequences that can ensue from careless development.
SEQRA provides a path for state and local agencies, with input from community groups, to require in depth studies and a so-called Environmental Impact Statement (EIS).
Developers complain that SEQRA can drag out the approval process for years and cost hundreds of thousands of dollars, and they accuse activists of abusing the law by asking for endless studies in order to derail development.
On the other side, community and environmental groups say the law guarantees them a voice to counterbalance influence wielded over state and local government employees by deep-pocketed developers.
Builders, the Kingstonian’s included, lobby for a negative declaration, or a “neg dec,” as it’s known. This means they can dodge the Environmental Impact Statement and studies required if a positive declaration (“pos dec”) were to be handed down.
In the case of the Kingstonian, the lead agency, i.e. the governmental body empowered to hand down a “pos dec” or a “neg dec” ruling, is the City’s Planning Board.
The engineer for the Kingstonian, Dennis Larios, wrote in a Facebook post on April 2 that the developers will pull the plug on the project if they receive a positive declaration (“pos dec”). The developers themselves have remained silent.
The April 10 meeting in Kingston’s Common Council was supposed to be a chance for the public to speak out for or against a “pos dec.” Instead, the hearing morphed into a popularity contest on the project itself, with business owners voicing support, while activists listed their complaints about the muddled parking math and the lack of affordable housing. Only a minority of speakers on both sides directly addressed the “pos dec/neg dec” SEQRA issue, with business community representatives reiterating fears that the project would collapse if a “pos dec” were issued.
Local community groups such as Kingston Citizens and Rise Up Kingston have asked the Planning Board to issue a “pos dec.” Moreover, 219 people signed a petition from KingstonCitizens.org asking for a “pos dec.”
Kingston’s Planning Board is unlikely to issue a pos dec, but if it did, the next step would be to engage in scoping, a process by which the public and government agencies decide which studies need to be done.
Alternative Strategy Skirts SEQRA’s “Hard Look” at Project
In a post on the Kingstonian’s website, project lawyer Michael Moriello outlined his plans to avoid a pos dec.
Moriello wrote that in order to avoid a pos dec, he is following a parallel strategy okayed by New York State’s highest court. According to a Court of Appeals ruling in Merson v. McNally, a neg dec is acceptable if appropriate studies have been conducted and a clear and open process with community involvement has been followed.
However, a closer look at Merson v. McNally shows several ways the developer may be skirting the criteria spelled out by the court.
The 7th edition of the NY Environmental Law Handbook devotes two paragraphs.
“In Merson v. McNally, a proposed soil and gravel mine was found [to pose the risk of] … “potentially large” environmental impacts… and the applicant modified its project plans in response to those concerns. The lead agency then issued a negative declaration…
“The Court of Appeals, however, held that in this case the modifications were examined openly and with input from all parties involved, and that this open public process is the overriding purpose of SEQRA. Therefore, because the modifications were made openly with the input of all parties, the Court of Appeals held that the negative declaration … was properly issued.”
It found that changes were incorporated to “mitigate the concerns identified by the public and the reviewing agencies….”
In this case, it is true that SOME of the identified concerns are being examined, but not ALL of the concerns, and certainly not the concerns identified by the public.
In Merson v. McNally, the Court of Appeals described the planning board’s action as “an open process that also involved other interested agencies and the public” rather than “a bilateral negotiation between a developer and lead agency.”
Crucially, it found that “open public process is the overriding purpose of SEQRA” and that the multi-party negotiating process met due process requirements.
City Hall is embracing the strategy, but this is not the “open public process.” On the contrary, it is a negotiation between a developer and lead agency, with input from Albany agencies, but with the expunging of undesired input from the HLPC and local residents.
City Hall Complicit in Effort to Sidestep SEQRA Provisions
Not only are the Planning Board members failing to give a hard look at issues raised by the community, they’re turning a blind eye.
With inconvenient members gone from the Landmarks Commission and public outcries about parking and affordable housing ignored, the Planning Board is currently engaged in a de facto scoping process of issues it chooses to look at, while ignoring social impact and the effects on community character, characteristics listed in SEQRA that would include the size of the project, population changes and the affordable component. The developers estimate that the project would bring 250-300 new residents to the Stockade District. Statutory and case law establish community character as one of the criteria that can trigger a pos dec.
Asked why the Planning Board failed to address the many written and spoken comments about affordable housing, which is called for in Kingston’s code, Planning Board Chairman Wayne Platts replied, “No comment.” (See Affordable Housing sidebar.)
Also not spelled out was the level of detail required of studies on the table. Nor was it clear whether they would be as in-depth as they would have been had they been the result of a positive declaration.
Completed studies include effects on traffic, water and sewer, changes to the visual profile of Kingston and its skyline, and a geotechnical report on the soil below the proposed site. For a full list and the reports, see the Physical Properties sidebar.
Curiously, the resolution the Planning Board voted on at the end of the June 3 special meeting had already been printed out and appeared to answer all the agencies’ concerns except, of course, the HLPC’s. (See Landmarks sidebar.) (See video where Planning Board declines to discuss HLPC letter on grounds that the new commission is still “deliberating.”)
FACT CHECKING VARIOUS SEQRA CLAIMS
Claim: SEQR is only for new construction on previously undeveloped land, not infill.
Yeah, but: Department of Environmental Conservation spokesman Jim Eldred said, “There’s nothing in the law that specifies one way or the other.” The 2018 revised version of SEQRA says reuse of a residential or commercial structure is now on the Type II list, which means it would not require the full review of an environmental impact statement. However, Eldred said this provision would not apply in the Kingstonian’s case, because this is new construction, as opposed to reuse of an existing structure.
Claim: A Positive Declaration will take years and cost hundreds of thousands of dollars.
Yeah, but: Eldred said it takes a minimum of six months but can be completed within a year.
Documents on the Kingstonian are published on the City website, but good luck finding them unless you’re familiar with its mapping. First, go to https://kingston-ny.gov/, and on the left side menu, click on Documents & Forms. The menu on the left will change, and this time, click on Planning Projects, which will open a sub-menu, where you can choose Planning Board. Use the dropdown menu to scroll to select Kingstonian. Or, you can check the Physical Properties sidebar.