See You In Court

Neither side in the battle over a proposed golf course resort development in East Quogue is likely to find ultimate satisfaction any time soon. The Long Island Pine Barrens Commission is weighing the project, but whichever way it rules this spring, the courts will be the ultimate arbiter — and, with the tectonic pace of the court system, that means it could be several years for even an initial ruling.

With that in mind, it’s instructive to consider the legal challenges, at least in a case of approval. It doesn’t take an attorney to see significant holes in the arguments that will be necessary for the Pine Barrens Commission to sign off on the Lewis Road planned residential development. They’re big enough to drive a golf cart through.

And though proponents have dismissed the commission’s role, make no mistake: It was set up with exactly this circumstance in mind — a local government that might overreach to allow development within the treasured Pine Barrens, despite the best efforts to treat it delicately. Whatever Southampton Town Hall thinks of the project, it still must pass muster with the commission.

Should the matter end up in court, there is a comfortable foothold for opponents, and it’s rooted in the state’s environmental review process. It’s a simple issue: The Lewis Road PRD application utilizes the State Environmental Quality Review Act conclusions from Discovery Land Company’s earlier application for a planned development district. The applicants argue that the costly, extensive environmental review doesn’t need to be done again, since the basics of the proposal, relating to both the golf course and the housing development, are unchanged.

But there are major issues with that conclusion. First, the lead agency for the SEQRA review for the PDD application, “The Hills at Southampton,” was the Southampton Town Board, since it would ultimately decide whether the special zoning designation would be granted. Now that the Lewis Road PRD is the active application, the Town Board remains the lead agency — but opponents note that the Town Board is no longer an “involved agency” in the basic PRD application. That’s just regulatory boards, and the lead agency status was never transferred.

In addition to the procedural flaw, there’s a major substantive difference between the SEQRA for the earlier PDD application and the current PRD application. Back when the Town Board was considering granting the special “anything goes” zoning designation, Discovery Land had to convince its members that the project was environmentally defensible. And so in a series of “benefits” offered as part of the PDD process, it included a series of measures, which included attempts to bring pollution numbers in check by preserving more land, adding the East Quogue School to its sewage treatment facility, spending money to clean up local waterways, etc. Ultimately, those measures were crucial in winning the backing of Dr. Christopher Gobler, a trusted environmental expert.

Those are gone in the PRD — there’s no need for “benefits” when you are arguing (so far, successfully) that you have every right, under existing zoning, to build the largest project ever proposed in Southampton Town, and in the Pine Barrens. Without those measures, though, and the mitigation they provide, the SEQRA conclusions are simply outdated. A new review is necessary.

In case the applicants think the process has been “close enough,” opponents point to an article in the New York Law Journal in September 2018, which looked at SEQRA in that light.

The Appellate Division, Second Department, in a lawsuit involving the Town of Rye, overturned a court ruling that said the town had complied with SEQRA, since “substantial, not strict compliance” is required, and the town had “closely examined the environmental impact factors,” though it did not do an official environmental impact statement. Essentially, the town decided it was “close enough.”

The appeals court said SEQRA’s language is that its policies must be followed “to the fullest extent possible,” which the court interpreted as “literal compliance” with the law and its regulations. Translation: Close enough isn’t enough.

The Town of Rye decision has been supported in several other decisions since, the article noted, to the point where “the ‘literal compliance’ standard is clear and well accepted. Yet local governments all too often fail to literally abide by SEQRA’s requirements, at the risk of having their decisions overturned.”

Let’s let the Law Journal repeat that: “Local governments that fail to strictly comply with SEQRA risk having their decisions overturned … failure to comply with SEQRA can doom a municipality’s zoning and land use decisions.”

The Pine Barrens Commission faces a tough decision in the near future. That ruling will end up in court either way, where it will languish for years. But only one ruling seems like it has a chance of standing up to rigorous — or even not-so-rigorous — examination by the courts.

Perhaps that provides some guidance in which way the initial ruling should go. To save time, if nothing else.