F. Judicial Review

• Jurisdiction: New York

F. Judicial Review

The courts have made it clear that a failure to comply with SEQRA, either through failing to prepare an EIS or doing so in violation of law, is grounds for halting the project, even ordering a new election for a sewer district, as in Tri-County Taxpayers Ass'n, Inc. v. Town Board of Queensbury,⁸⁸⁷ or ordering buildings to be removed, as in E.F.S. Ventures Corp. v. Foster.⁸⁸⁸ However, while giving a "hard look" to the EIS, the courts defer in large measure to the discretion and expertise of the lead agency as to the scope of the EIS and consideration of alternatives and mitigating measures.⁸⁸⁹

Standing to challenge compliance with SEQRA requires a showing of environmental injury. Economic harm will not suffice.⁸⁹⁰ The courts have upheld standing to plaintiff's alleging genuine environmental injury, such as contamination of drinking water or interference with their use of a nearby park.⁸⁹¹ A 1991 ruling that the injury must be different from that suffered by the public at large was overruled⁸⁹² and that requirement no longer bars standing to review SEQRA compliance.⁸⁹³

Compliance with SEQRA is judicially reviewed in a special proceeding under N.Y. Civil Practice Law and Rules article 78 (CPLR), where the test is whether the agency acted arbitrarily or capriciously. Note that in the case of article 78 proceedings of SEQRA decisions, this traditional test has the "hard look" standard superimposed upon it. Land use decisions involving religious structures, including schools, may, however, be subject to stricter judicial review. In 2000, Congress enacted the Religious Land Use and Institutionalized Persons Act (RLUIPA).⁸⁹⁴ This statute requires federal and state courts to subject any land use laws substantially burdening the free exercise of religion to strict scrutiny. The court can sustain such laws, as applied to religious institutions, only if the government proves the law narrowly tailored to serve a compelling governmental interest. This statute has been used to overturn zoning decisions denying permits to religious schools.⁸⁹⁵ But other courts have ruled that requiring the same permit for a religious school as a secular school imposes no substantial burden under RLUIPA.⁸⁹⁶ RLUIPA was upheld as constitutional by the Supreme Court in a suit involving not land use but institutionalized persons (prison inmates allegedly denied religious services).⁸⁹⁷

PRACTICE GUIDE

The period of limitations for bringing an article 78 proceeding is four months from the date...