Frank J. Ryan, Esq. Town Attorney, Cortlandt
This is in response to your request for an opinion as to whether the Town of Cortlandt's revision of its zoning ordinance is an action requiring preparation of an environmental impact statement pursuant to the State Environmental Quality Review Act, Environmental Conservation Law Article 8, and the regulations of the State Department of Environmental Conservation promulgated thereunder (6 NYCRR Part 617).
The Act requires the preparation of environmental impact statements for actions taken by State or local agencies following its effective dates. "Actions" are broadly defined in section 8-0105 (4), and, as interpreted by the Department's regulations (§ 617.2 [b]), include the enactment of a zoning ordinance, which by its nature will inevitably have significant impact on land-use. Indeed, the adoption of a zoning ordinance is expressly listed in section 617.15 of the regulations as a "Type I action" likely to require preparation of an impact statement.
However, the Legislature has determined that Article 8 should be implemented in phases. It has only taken effect, with regard to town activities, as to Type I actions (see § 8-0117 [2]). Thus, if the enactment of the ordinance is not a Type I action, in the language of the statute an action "identified by the department [of environmental conservation] as likely to require preparation of environmental impact statements," Article 8 is not effective as to it, and no impact statement need be prepared, so long as it is approved prior to September 1, 1978 (see § 8-0111 [5]).
Therefore, the answer to your question hinges on the nature of the proposed ordinance. A mere amendment to an existing zoning ordinance does not meet the criteria of Part 617. However, where the ordinance is substantially or wholly new it constitutes a Type I action and brings the statute into play.
We have examined the existing and proposed zoning ordinances, sent to us by the Cortlandt Conservation Association, Inc. It is plain that the proposed zoning ordinance is an entire revision of the existing one, creating new categories of land-use, such as the Planned Development district to which your letter refers. In our view, the enactment of this ordinance is legally tantamount to the enactment of a wholly new zoning law and thus constitutes a Type I action, as defined in the Part 617 regulations.
Your letter expresses concern about the difficulty of preparing "an environmental impact statement in conventional terms" without reference to a specific parcel. However, the Act is not limited to actions concerning specific parcels, and requires impact statements for numerous activities of a general nature, such as the adoption of building codes, comprehensive water quality plans and the like (see regulation 617.15, Type I [h]).