Discretionary permitting decisions made by public bodies in the State of New York often must go through a State Environmental Quality Review Act (SEQR) procedure to ensure the public body considers potential adverse environmental and community effects of the project before granting permission to build. One facet of the SEQR process often involves the holding of public hearings when local law requires them or under the state regulations where in circumstances that require an Environmental Impact Statement there’s a lot of community interest in the action, where there are significant adverse environmental impacts, and where a public hearing can assist the decision making body in its review. 6 NYCRR 617.9(a)(4). The purpose of these hearings is to inform the public body of any potentially overlooked environmental concerns and to allow members of the public to exercise a voice in the process.
In the increasingly distant past of pre-COVID-19 New York State, an essential feature of the public hearing process was that the public be informed of its location and afforded opportunity to attend, in person. This has now become problematic for obvious reasons. In an earlier blog post, we discussed changes to the Open Meetings Law and what those changes mean for public meetings. But those changes left some degree of ambiguity regarding changes to public hearings.
Executive Order 202.15 provided some useful clarification. It requires any local government with a public hearing scheduled in May to do so remotely using telephone conference, video conference, or similar technologies. Unless the locality can utilize those technologies to allow public access to and participation in the remote hearing, all hearings must be postponed until at least June 1st. The postponement would be “without prejudice,” meaning that any deadlines run over due to a postponement under the E.O. should not result in automatic approval or give rise to a remedy for the applicant.
The Order also suspended certain public hearing requirements under the Environmental Conservation Law, the authorizing statute for SEQR, so long as the public participation requirements can be met through the use of accepting public comments electronically or by mail. It also suspends the balancing test required under 6 NYCRR 617.9(a)(4), so that local bodies can forestall holding public hearings they might not otherwise wish to hold in favor of electronic or mail in public comments. It is still recommended that to the extend local bodies conducting SEQR reviews are able to conduct such hearings remotely, they should make every effort to do so.
In summary, public hearings for SEQR which are required by local law must be either suspended until June 1st (or later, if extended) or may be held remotely. SEQR hearings required under 6 NYCRR 617.9(a)(4) may either be suspended until June 1st, held remotely, or abandoned in favor of receipt of public comments via mail or electronic communications.
E.O. 202.15 was extended to be in effect through June 7 by E.O 202.29 (May 8, 2020). Other statutory time provisions applicable under SEQR were not affected.
Questions and Updates
Please do not hesitate to contact the Wladis Law Firm if you have any questions about the above information. We will do our best to provide you with updates and will be available to answer questions as circumstances change. We may be reached at (315) 445-1700 or by e-mailing your everyday firm contacts.
Christopher J. Baiamonte
Mr. Baiamonte concentrates his practice primarily on civil litigation. He counsels individual, corporate, and municipal clients on resolving disputes ranging from environmental liability to shareholders rights to creditor–debtor suits. He also works with clients to navigate various state and federal regulations relating to areas such as environmental protection, employment, and civil rights.