It is possible for a developer to submit plans to local reviewing agencies and receive all the needed approvals, only to be told a few days later that the approvals are on hold and may be void. How can this happen? Someone can challenge the reviewing agencies authorizations under New York State law, Chapter 8, Article 78, also known as an Article 78 proceeding.

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

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

These challenges are not made against you as owner or developer, but rather against the reviewing board or agency, which is typically the lead agency 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.

These challenges are commonly focused on either a zoning boards decision regarding area or use variances or a planning boards review of site and subdivision plans. Challenges may also be made against permits (i.e., wetlands, air discharge) issued by regulating agencies.

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, it is your responsibility to provide lead and reviewing agencies the information they need to conduct a thorough and timely review. To put your shovel in the ground as soon as possible, dont overlook a component of your project, cut corners, or provide an opening for a legal challenge that could delay your project or cause you to lose your approvals entirely.

Take precautions to minimize the likelihood of your project approvals being challenged. The following steps will also help a lead agency defend its approval if it is faced with an Article 78 proceeding.

Plan. Do not create a self-imposed hardship by buying a site too small to fit the improvements required, then try to get a variance for the problem you created. Bad business decisions are not grounds upon which planning and reviewing agencies should approve exemptions. And if you get one under these circumstances, the decision is wide open for a legal challenge.

Steer clear from a use or area variance whenever possible. Find a parcel where the development will not change the character of the neighborhood. Find a reasonable alternative, such as a smaller building or an alternate use that avoids or minimizes variance requests.

Submit a complete EAF. Be detailed in describing the action, location and purpose, involved and permitting agencies, and potential impacts on the environment. Dont overlook or underestimate an environmental impact. You will only delay your project, lose integrity, and potentially lose your project approvals.

Support your case with substantial evidence. Provide adequate documentation to allow reviewing agencies to agree that potential negative effects on the environment can be mitigated. Have extensive financial evidence and appraisals performed if, for example, an unnecessary financial hardship is the foundation of your variance request.

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

Avoid breaking a project into phases until you have submitted a complete EAF 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 or total build-out are easy targets for Article 78 proceedings.

Familiarize yourself with municipal and state ordinances. Sometimes the criteria that kick in an agency review are not well known. Dont find out later that your approval is void because your project was within 500-feet of a county-owned drainage channel and that the lead agency failed to refer the project to the County Planning Board for review.

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

Treat board members and opponents with courtesy and respect. Expect debate and conflicts, particularly if your project is controversial. Dont tempt someone to appeal a board decision 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. And read over meeting minutes to ensure that the proceedings were properly documented. These materials could become your defense 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.

In Our Next Issue: Lead agency decisions are frequently the subject of Article 78 proceedings. In our next issue we will talk about how a lead agency is determined, what their primary responsibilities are with respect to SEQR, and what can be done to minimize challenges to their decisions.