A transportation agency or municipality official can issue or receive all needed project approvals only to be notified later that the approvals are on hold and may be void. How can this happen? This can occur when someone challenges the decisions or authorizations made under New York State law, Chapter 8, Article 78. This challenge is commonly known as an Article 78 proceeding.

Can you avoid an Article 78? Yes. But, you need to plan, minimize or avoid variances to standards, and recognize and avoid the grounds upon which your project can be challenged.

Article 78 provides an opportunity for anyone (citizens, community groups, business associations, and even other federal, state, or local agencies) to challenge decisions made by approving agencies or government or municipal officers.

These challenges are typically made against the agency that has accepted lead agency status under the State Environmental Quality Review (SEQR) Act. An Article 78 can be used if one of these allegations is made:

• An agency or official failed to perform their required duties.


• An agency or official proceeded without, or in excess of, legal authority.


• The decision was arbitrary, capricious, or an abuse of discretion.


• The decision was not supported by substantial evidence.

For public works projects, these challenges are commonly focused on the extent to and the process by which environmental and social impacts were evaluated, minimized, and mitigated before any approvals were issued. Challenges can be based on an inadequate level of environmental review, permits (i.e., wetlands, air discharge) issued by regulating agencies, or zoning variances issued for your salt barn or maintenance facility.

If an appeal has merit and the petitioner is entitled to a legal review, a judicial hearing will be undertaken. A judge can annul or confirm the initial ruling, modify it, direct actions to be taken, or prohibit actions from being undertaken. The court may also grant restitution or damages to the petitioner.

Remember, if you are involved in progressing a public works project or are a lead agency on such, it is your responsibility to ensure that a thorough and timely review is conducted and that the public is provided with their legally required opportunity to participate in the review process. To break ground as soon as possible, don’t overlook any component of your project, conduct an inappropriate level of environmental review, or provide an opening for a legal challenge that could delay your project or cause you to lose your approvals entirely.

If you are faced with an Article 78 proceeding, immediately enlist the services of your legal counsel.

Take precaution to minimize the likelihood of your project approvals being challenged

The following steps will help a lead agency avoid an Article 78 challenge.

Conduct an appropriate level of environmental review. Do not create a self-imposed hardship by classifying a project as one that does not require an Environmental Assessment Form (EAF) or Environmental Impact Statement (EIS). If you proceed under these circumstances, the project is wide open for a legal challenge.

Minimize, clearly document, and justify any variances to design standards. Occasionally, correcting design features such as substandard lane widths or horizontal or vertical curves may cause unacceptable social, economic, or environmental impacts or cost too much to justify the project. When variances to design standards are needed to minimize impacts like these, meticulously detail the reasons and document the approvals for the variances.

Prepare a thorough EAF or EIS. Be detailed in describing the action, location and purpose, involved and permitting agencies, and potential impacts on the environment. Don’t overlook or underestimate an environmental impact. You will only delay your project.

Support your case with substantial evidence. Provide documentation that allows the public and courts to agree that potential negative effects on the environment can be mitigated. Use experienced professionals to collect and analyze your data.

Submit data that is clearly understandable and that provides a rational basis for and supports your action. Provide an executive summary of technical studies. Make it easy for laypeople and board members to understand your project and how you are addressing issues.

Avoid breaking a project into phases until you have prepared a complete EAF or EIS for the entire project. Addressing facets of a project as if they were unrelated and independent is called segmentation. Segmented approvals made without considering the impacts of the whole action can be easy targets for Article 78 proceedings.

Familiarize yourself with state and federal requirements. Sometimes the criteria that kick in an agency review are not well known. Don’t find out later that your approval is void because your project acquired prime or unique farmlands and that concurrence from Natural Resources Conservation Services (NRCS) was not obtained.

Invite reviewing and permitting agencies on a tour of your site to obtain personal knowledge of and gain familiarity with the issues.

Treat opponents with courtesy and respect. Expect debate and conflicts, particularly if your project is controversial. Don’t tempt someone to appeal your project approvals by losing your patience.

Maintain meticulous records of submittal materials and dates that support your application. Submit material via certified mail and keep your receipts. Prepare phone logs and save your fax transmittal verifications. Read over meeting minutes to ensure that the proceedings were properly documented. These materials will assist you and your legal council if your project approvals are challenged.

If you are having trouble with SEQR and need assistance, contact our expert, Carl Eller, P.E. at (585) 334-1310, ext. 223 or celler@fisherassoc.com.