Zoning and land use
Environmental review of a land use application
Discretionary approvals trigger environmental review in New York City. As-of-right filings do not. Here is what the assessment covers and where it can go.
When does a New York City land use application trigger environmental review?
Quick Answer
Discretionary approvals
Who does this land on?
Any applicant before the City Planning Commission or the Board of Standards and Appeals, and any owner comparing an as-of-right plan against a plan that needs relief.
What governs it?
- The state environmental statute and its implementing regulations, which require review of discretionary actions
- The city environmental quality review rules, which apply that framework to New York City actions
- The lead agency, which is the agency taking the discretionary action and which runs the review
- The technical manual, which sets the methodology for each impact area the assessment covers
- The distinction between actions that are exempt, those assessed on a short form, and those requiring a full impact statement
How does the process run?
- Classify the action, because an exempt action needs nothing and a listed action starts at a higher threshold
- Prepare the environmental assessment, which screens impact areas including land use, socioeconomic conditions, historic resources, traffic, air, noise, shadows and hazardous materials
- Where no significant adverse impact is identified, the lead agency issues a negative declaration and the application proceeds
- Where an impact is identified, the applicant either commits to mitigation or the agency issues a positive declaration
- A positive declaration leads to scoping, a draft impact statement, a public hearing, and a final impact statement with findings
- Build the review into the schedule ahead of certification, because an application is not certifiable until the assessment has produced a negative declaration or a draft impact statement
Where does it bite in a transaction?
- A schedule assumes the public review clock and omits the months the assessment takes before it
- A hazardous materials screen on a former industrial site turns into testing and a remedial commitment
- A shadow or historic resources finding produces mitigation that changes the building
- An as-of-right alternative is abandoned in favor of relief without pricing the review the relief triggers
Does an as-of-right project need environmental review?
No. Review attaches to discretionary approvals. A filing that complies with the Zoning Resolution and the construction codes and needs no relief is ministerial, and it is not subject to the review. That is frequently the single largest schedule difference between two versions of the same project.
What is the difference between a negative and a positive declaration?
A negative declaration is the lead agency finding no significant adverse environmental impact, which lets the application proceed on the assessment alone. A positive declaration means an impact statement is required, which adds scoping, a draft, a hearing and a final document, and moves the schedule by a large margin.
Who is the lead agency?
The agency taking the discretionary action. For a rezoning or a City Planning special permit it is ordinarily the City Planning Commission; for a variance or a Board special permit it is the Board of Standards and Appeals. Where several agencies act, they coordinate and one takes the lead.
What else should you read before you file or sign?
In the glossary
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Legal Disclaimer: This page is general information about New York practice. It is not legal advice, it does not account for the terms of any particular contract, building or transaction, and reading it does not create an attorney-client relationship. This is attorney advertising. Prior results do not guarantee similar outcomes.