## Facts

- Erik Dunk filed a CPLR article 78 proceeding seeking to annul the City of Watertown City Council’s SEQRA determination regarding a proposed project to demolish three buildings in Watertown.
- The three buildings were listed on the State and National Registers of Historic Places.
- The City Council acted as SEQRA lead agency and classified the demolition project as a Type I action, which carries a presumption that the action is likely to have a significant adverse environmental impact.
- The City Council completed a full Environmental Assessment Form (EAF) and concluded the demolition would not have environmental significance.
- In issuing a negative declaration, the City Council stated, among other things, that the buildings were a relatively small part of the city’s historic district and that they were unsafe, an eyesore, and had little opportunity for rehabilitation.
- Supreme Court, Jefferson County (Gilbert, J.), dismissed the petition, and Dunk appealed to the Appellate Division, Fourth Department.

## Issues

1. Whether the City Council’s issuance of a SEQRA negative declaration for a Type I action involving total demolition of three registered historic buildings was arbitrary and capricious, affected by an error of law, or an abuse of discretion, such that an EIS was required.

## Decision

- The Appellate Division, Fourth Department unanimously affirmed the judgment dismissing the petition, without costs.
- The court rejected Dunk’s claim that the negative declaration was arbitrary and capricious based solely on the demolition of buildings listed on the State and National Registers.
- The court held that Type I classification creates a presumption of likely significant adverse impact, but does not make an EIS mandatory as a matter of law.

## Legal Principles

- In an article 78 challenge to a SEQRA determination, judicial review is limited to whether the determination was made in violation of lawful procedure, was affected by an error of law, or was arbitrary and capricious or an abuse of discretion.
- A court does not decide whether the proposed action is desirable or select among alternatives; the court checks whether the agency satisfied SEQRA and the implementing regulations.
- A SEQRA determination is sustained when the record shows the agency identified the relevant areas of environmental concern, took a “hard look,” and gave a “reasoned elaboration” for its conclusion.
- An EIS is required when the agency determines that a proposed action may have a significant effect on the environment (ECL 8-0109[2]).
- A Type I action carries a presumption that it is likely to have a significant adverse impact and may require an EIS (6 NYCRR 617.4[a][1]), but an EIS is not required in every Type I case; the presumption can be overcome by a supported negative declaration.

## Conclusion

The Fourth Department upheld the City of Watertown City Council’s negative declaration for the Type I demolition of three historic, listed buildings because the record supported the Council’s determination that the project would not have environmental significance, and Type I status did not, by itself, require preparation of an EIS.


Dunk v. City of Watertown, 11 A.D.3d 1024 (2004)