New City Guidance On Qualified Action Determinations Under SEQRA And CEQR

As a result of recent changes to New York State law, certain housing, infrastructure, and public works actions may now be deemed "Qualified Actions" that are exempt from the requirements of the State Environmental Quality Review Act (SEQRA) and the City Environmental Quality Review (CEQR). The Department of City Planning (DCP) has released new process guidance for applicants seeking a determination that an action is a “Qualified Action” exempt from further environmental review pursuant to Section 8-0111 of the New York State Environmental Conservation Law.

What Is a Qualified Action?

Qualified Actions must be actions for the purpose of the construction of housing, such as a zoning map change to enable greater residential density, and may include any discretionary actions concerning land use, zoning, permitting, real property acquisition or disposition, or development financial assistance that would otherwise require review under SEQRA/CEQR.

Eligibility Criteria

To qualify, a proposed action must satisfy three categories of criteria:

1. Zoning and Density Limits: Actions in “low-density zoning districts” must not exceed 250 incremental units,¹ while actions “outside low-density districts” must not exceed 500 incremental units. Actions must not be located in M2 or M3 districts; must not facilitate more than 50,000 total incremental square feet of commercial, community facility, or other non-residential, non-industrial use; must not facilitate any incremental industrial floor area; and must not facilitate the construction of only one single-family residence on a parcel of one-half or more acres.
   • Low-density zoning districts are defined as: R1 through R5, C3 or C4-1, the Special Coney Island District/M1-2, M1-1D, M1-2D, M1-3D, M1-4D and M1-5D.
   • Outside low-density zoning districts are defined as: R6 through R12, C1-6 through C1-9, C2-6 through C2-8, C4-2 through C4-7, C5, C6, C7 C8, and all other M1 Districts.
2. Locational Criteria: Actions must be connected to existing public water and sewer systems at the commencement of habitation and must be located at a “previously disturbed site”, which is defined as a site that has been substantially altered by an occupied, formerly occupied, or demolished building or by another improvement or use at least two years prior to the application. The site cannot have recently been used for agricultural purposes, and must also be located outside of a Coastal Erosion Hazard Area.
3. Hazardous Materials Requirements: Qualified Actions must comply with all local requirements for hazardous materials remediation, including completion of a Phase I Environmental Site Assessment and, as appropriate, placement of an E-Designation, and must complete and submit a hazardous materials certification form.

2-Step Process for Obtaining a Qualified Action Determination:

1. Applicants seeking a Qualified Action Determination from DCP should submit additional materials in their Project Initiation Form (also known as a PIF), which must include:
   • An increment table that includes information on each site within the affected area of the proposed action, covering the No-Action condition, With-Action condition, and increment for each site, including lot area, existing and proposed zoning districts, square footage by use, number of units, and parking information;
   • For any sites that are not projected development sites, information on why they are not soft sites;
   • Information supporting a determination that the site of the proposed action is a "previously disturbed site"; and
   • For zoning actions, an up-to-date Phase I.
2. Upon the finalization of an applicant’s action(s) with DCP, an updated Qualified Action Determination Form should include information on the finalized action(s), a description of the site and why such site is a previously disturbed site, a description of the proposed development, and information on the No-Action and With-Action Conditions and project increment, for submission to DCP.

Issuance of the Determination

If the proposed action constitutes a Qualified Action, DCP will issue a Qualified Action Determination in the form of a memorandum that includes the Qualified Action Determination Form and Hazardous Materials Certification.

Important Limitations

A Qualified Action Determination exempts an action from further review under SEQRA and CEQR, but does not exempt projects from the land use approval process or other applicable federal, state, and local regulations, including NEPA, Coastal Consistency (Waterfront Revitalization Plan) Analysis, the National Historic Preservation Act, the New York State Historic Preservation Act, and Uniform Land Use Review Procedure or the Expedited Land Use Review Procedure.

*Sophie Huang is an Urban Planner in the firm's New York office.

Footnote

1. Incremental units refer to the additional residential units that an action would facilitate beyond what is allowed under existing zoning, i.e., beyond the no-action condition, with residential unit sizes typically ranging between 850 and 1,000 square feet (certain projects may warrant a different residential unit size assumption). The action must be considered as a whole, including the entire area subject to the action, as well as any non-applicant-owned sites that would be developable with the proposed action.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.