Fleming v. New York City Dept. of Envtl. Protection, 66 AD3d 777 (2d Dept 2009)

The firm represented the developer-respondent, RFB, LLC. RFB and its contract-seller Kent Acres Development Co.,Ltd., who proposed to construct an approximately 280 residential condominium development project, with related infrastructure and a waste water treatment plant (“WWTP”), known as “Kent Manor”. The proposed development was located in the east-of-Hudson watershed for the City of New York. RFB had previously obtained approval from the City of New York to include the proposed WWTP in the City’s Phosphorous Offset Pilot Program (“POPP”), however, the City required that RFB prepare a supplemental environmental impact statement (“SEIS”) for the residential project under the State Environmental Quality Review Act (“SEQRA”). After performing a significant review of the project and making positive additions to the proposed plans that served to enhance the existing environmental benefits from the project for water quality, the City of New York accepted the SEIS and issued a SEQRA findings statement for Kent Manor.

Two not-for-profit organizations, including Riverkeeper, Inc., and several local residents, subsequently commenced a proceeding under CPLR article 78, challenging, among other matters, the City’s SEQRA review and findings statement for Kent Manor. The lower court dismissed the challenge entirely, determining, among other matters, that the applicant and the City of New York had conducted a thorough review and analysis of the project’s possible impacts, and that the City had fully complied with SEQRA. The Appellate Division, Second Department, affirmed the lower court decision entirely on appeal.