Separate “Plan B” Site Plans Require a Fresh SEQRA Hard Look or a Written Waiver; Minimal Discussion Is Insufficient, and OML Requires Media Notice

Introduction

In Matter of Bigelow v. Town of Willsboro Planning Board, the Appellate Division, Third Department, revisited the intersection of municipal site plan approval, State Environmental Quality Review Act (SEQRA) compliance, and the Open Meetings Law (OML). At stake was whether a planning board may approve a “Plan B” site plan application—filed while litigation over an earlier, related approval is pending—without conducting a fresh environmental review or issuing a formal, written waiver of site plan review. The court held that it may not.

The dispute arose from a proposal by Christine T. Benedict (and the Estate of Robert R. Benedict), through Willsboro Self-Storage, LLC, to construct a self-storage facility on a lot straddling two zoning districts in the Town of Willsboro, Essex County: Highway Commercial 1 (HC-1) and Residential Medium Density 2 (RM-2). Petitioners, led by Tammy Bigelow, challenged the Town Planning Board’s approval of a second, alternative application designed to keep all development within the commercial district (or within a limited 30-foot extension of that district), arguing that the Planning Board failed to satisfy SEQRA and OML.

The Third Department annulled the “Plan B” site plan approval for failure to demonstrate a SEQRA “hard look” and reasoned elaboration, and it clarified OML’s media-notice requirement while declining to annul on that ground alone. The decision establishes a clear rule: when a separate application is filed, a planning board must either conduct the site plan/SEQRA review anew or issue a written waiver (if authorized by local law) explaining why review is unnecessary; implicit waivers and perfunctory approvals will not survive judicial scrutiny.

Summary of the Opinion

The Benedicts first obtained site plan approval and then a special use permit for a two-building self-storage project that extended into the RM-2 district. A negative declaration under SEQRA was issued at that time. In ensuing Article 78 litigation, Supreme Court annulled the special use permit, holding that under the Town’s Zoning Law § 4.24, the facility could not extend into the RM-2 area beyond a 30-foot extension of the less restrictive district without a zoning map amendment.

While that litigation was pending, Christine Benedict submitted a separate “Plan B” site plan application with adjusted building dimensions so both buildings would lie wholly within the HC-1 district or its permissible 30-foot extension. The Planning Board approved that second application at a single meeting with minimal discussion, framing it as a backup if the prior approval failed in court.

Petitioners commenced a second Article 78 proceeding, alleging SEQRA and OML violations. Supreme Court found an OML notice violation (no media notice) but declined to annul on that basis, and it held the Planning Board’s environmental review adequate. On appeal, the Third Department reversed as to SEQRA, annulled the “Plan B” site plan approval, and remitted for further proceedings. The court also clarified that OML § 104(1) requires notice to the news media in addition to public posting, but that this defect did not, in itself, necessitate annulment given the public posting and open meeting.

Analysis

Precedents Cited and Their Influence

Matter of Elizabeth St. Garden, Inc. v City of New York, 42 NY3d 992 (2024): The court invokes the Court of Appeals’ articulation of the SEQRA judicial review standard—limited to whether an agency determination is arbitrary and capricious, an abuse of discretion, or affected by an error of law. Crucially, courts ensure agencies strictly follow procedures and give reasoned consideration to pertinent environmental issues, but do not substitute their policy preferences.
Matter of Creda, LLC v City of Kingston Planning Bd., 212 AD3d 1043 (3d Dept 2023): Creda is used as a comparator where iterative “give and take” within the same application can justify treating changes as modifications within a continuous review process. In Bigelow, by contrast, the applicant submitted a separate application to bypass pending litigation—distinguishing it from Creda’s continuous, iterative review.
Matter of Granger Group v Town of Taghkanic, 77 AD3d 1137 (3d Dept 2010), lv denied 16 NY3d 781 (2011), and Matter of West Branch Conservation Assn. v Planning Bd. of Town of Clarkstown, 222 AD2d 513 (2d Dept 1995): These cases characterize ordinary modifications as part of the “give and take” of a single application. Bigelow relies on this line to stress why the “Plan B” submission—filed as a separate application—could not be treated as a mere modification.
Matter of Bennett v Troy City Council, 231 AD3d 1386 (3d Dept 2024), and Matter of Adirondack Historical Assn. v Village of Lake Placid/Lake Placid Vil., Inc., 161 AD3d 1256 (3d Dept 2018): Both reaffirm the need for a SEQRA record showing identification of environmental concerns, a hard look at them, and a reasoned elaboration. Bigelow applies this standard to find the Planning Board’s record fatally thin.
Chestnut Ridge Assoc., LLC v 30 Sephar Lane, Inc., 169 AD3d 995 (2d Dept 2019); Matter of Fichera v New York State Dept. of Envtl. Conservation, 159 AD3d 1493 (4th Dept 2018); Matter of Wilson v Board of Educ. Harborfields Cent. School Dist., 65 AD3d 1158 (2d Dept 2009), lv denied 13 NY3d 714 (2009): These OML cases guide the remedy analysis, supporting the proposition that not every OML defect warrants annulment, particularly where meetings were open and the public was otherwise informed.

Legal Reasoning

1) A separate application requires fresh process or a formal written waiver

The court’s central holding rests on the character of the April 2022 filing: it was not a tweak within the same application to address issues flagged during review; it was a separate application designed to “bypass[] the challenge still pending” in Supreme Court. That distinction has consequences.

Under the Town of Willsboro Zoning Law:

The operation of a self-storage facility is a commercial use permissible in HC-1 upon site plan approval (Zoning Law art 2; § 4.10).
The Planning Board may waive site plan review only by a written determination stating the reasons for finding that impacts will be “minor or insubstantial” (§ 13.12[2]).
The site plan process itself triggers SEQRA steps: the Code Enforcement Officer specifies the EAF type (§§ 13.14[1]; 13.15[1][a]), the Planning Board classifies the action and issues a negative or positive declaration (§ 13.15[1][c]–[d]), and if positive, a DEIS is required (§ 13.15[1][e]). Critically, “[t]he Site Plan Application shall not be considered approved until the requirements of SEQRA are fulfilled” (§ 13.15[1][d]).

Because the April 2022 submission was a new application—not a modification within an ongoing review—the Planning Board had two lawful options: (a) conduct the site plan/SEQRA review anew; or (b) exercise its discretionary authority to waive site plan review via a written determination with reasons. It did neither. Instead, it adopted an approval “as a ‘Plan B’” with minimal discussion and no record-based explanation.

The court expressly rejected the notion (accepted by Supreme Court) that the Board had implicitly found the changes to be “minor” such that “additional environmental review was not necessary.” Under § 13.12(2), a waiver must be explicit and written, with stated reasons. The Planning Board “did not exercise that discretion and instead affirmatively granted site plan approval” (n.4).

2) SEQRA’s “hard look” demands a reasoned, record-based elaboration

Applying familiar SEQRA review principles, the court found an “utter failure” to document a hard look and reasoned elaboration. The record showed only fleeting consideration—one brief question about parking and a check-in on litigation status—insufficient to demonstrate the required:

Identification of relevant environmental concerns;
A substantive hard look at those concerns; and
A reasoned elaboration supporting the determination.

The Town’s own Zoning Law underscores the scope of review ordinarily expected in site plan proceedings (ZL § 13.17), including factors such as:

Building location, size, design, and site compatibility;
Parking and loading design and sufficiency;
Stormwater and drainage adequacy;
Landscaping and buffering, retention of existing vegetation;
Fire lanes, hydrants, and emergency access;
Risks of ponding, flooding, erosion; and
Overall neighborhood impact and design compatibility.

Nothing in the minutes or approval addressed these factors in a way that could satisfy a SEQRA hard look. Nor did the Board memorialize a determination classifying the action or issuing an updated negative declaration based on the new proposal. Consequently, the court annulled the site plan approval and remitted for proper proceedings.

3) The prior SEQRA negative declaration did not carry over by default

Although the first application had received a negative declaration, the court did not treat that determination as automatically transferable to a different, separately filed plan. The “Plan B” submission changed building footprints and relocation within the parcel to avoid the RM-2 portion (beyond the 30-foot extension authorized by ZL § 4.24). Treating the new submission as a distinct application, the court required either a fresh SEQRA review with record findings or a written waiver under the local code. This is a practical, administrable rule: each separate application triggers its own procedural predicates unless the board formally waives review in compliance with the code.

4) Open Meetings Law: Media notice is mandatory, but the defect here did not compel annulment

Public Officers Law § 104(1) requires that meetings scheduled at least one week in advance be both posted conspicuously and “given or electronically transmitted to the news media” at least 72 hours beforehand. The Planning Board conceded posting (website and Town Hall door) but not media notice. The court clarified that both are required. Still, consistent with precedent, the violation did not mandate annulment given that the meeting was open and the schedule had been posted in multiple locations. The court addressed this otherwise academic issue to guide the Planning Board on remittal.

Impact

For planning boards and municipal counsel

Separate applications are not “modifications.” When a new application is filed—even if similar to a prior submission—the board must:
- Restart the site plan review process, including SEQRA classification, EAF, and a negative or positive declaration supported by a reasoned record; or
- Issue a written waiver (if authorized) that sets out a record-based rationale for why impacts are minor or insubstantial (ZL § 13.12[2]).
Implicit waivers will not do. Waiver authority must be exercised in writing with articulated reasons; otherwise, approval must be preceded by full compliance with SEQRA and the local review framework.
Build the record. Minutes and determinations should address the ZL § 13.17 factors, identify environmental concerns, reflect the “hard look,” and provide a reasoned elaboration. Sparse references to parking or litigation posture are insufficient.
OML compliance is two-pronged. For meetings scheduled a week in advance, provide both public posting and media notice per POL § 104(1). While not every defect requires annulment, repeated or willful noncompliance risks invalidation and attorneys’ fees in some contexts.

For applicants and land use practitioners

Consider whether to amend rather than refile. If changes are responsive and occur within a continuous review of the same application, you remain within the “give and take” paradigm (e.g., Creda), which may allow reliance on the existing SEQRA record. Filing a separate “Plan B” will likely restart procedural obligations unless the board issues a written waiver.
If pursuing a separate alternative plan, prepare for: a new EAF; updated traffic, stormwater, and drainage documentation; landscaping and buffering plans; emergency access and fire protection details; and neighborhood compatibility analysis aligned with ZL § 13.17.
Do not assume a prior negative declaration will be imported to a new application. Even if environmental impacts are comparable or decreased, the agency must document its assessment for the new action.

For litigants

SEQRA challenges remain fertile where boards approve with minimal discussion. The absence of a classification decision, EAF identification, or reasoned elaboration can support annulment.
OML claims should be framed with remedy in mind. Absent prejudice or more serious violations, courts may decline annulment while still recognizing a violation. Nonetheless, OML relief may include prospective directives, and repeated violations could change the remedy calculus.

Complex Concepts Simplified

SEQRA basics

Environmental Assessment Forms (EAFs): Short or Full EAFs provide baseline information about a project’s potential environmental impacts. The local code directs the Code Enforcement Officer to indicate which EAF is required.
Action classification: Agencies must classify an action as Type I (presumptively more likely to have significant impacts), Type II (exempt from SEQRA), or Unlisted (all else). Classification informs the depth of review.
Negative vs. positive declaration: A negative declaration concludes that the action will not cause significant adverse environmental impacts (no Environmental Impact Statement required); a positive declaration triggers a Draft Environmental Impact Statement.
“Hard look” and “reasoned elaboration”: The agency must identify relevant environmental concerns, analyze them in good faith on the record, and explain its conclusion. Courts do not reweigh policy; they test the process and reasoning.

Site plan review and waivers

Site plan review evaluates layout, circulation, drainage, landscaping, buffering, safety, and neighborhood compatibility (see ZL § 13.17’s nonexhaustive factors).
Waiver authority (ZL § 13.12[2]) allows the Planning Board to skip full site plan review if impacts are minor or insubstantial—but only via a written decision explaining the basis. A waiver is not presumed and cannot be inferred from bare approval.
SEQRA linkage: The Town’s code provides that no site plan approval becomes effective unless SEQRA is fulfilled (ZL § 13.15[1][d]). If the Board waives site plan review entirely, there may be no discretionary action to trigger SEQRA; absent a valid waiver, SEQRA must be addressed before approval.

Multi-district parcels and the 30-foot extension

Under ZL § 4.24, parcels spanning multiple districts are governed by the regulations of the district in which each portion lies, with a limited 30-foot extension of the less restrictive district permitted into the more restrictive one. Beyond that, a zoning map amendment is required.
The “Plan B” application adjusted building footprints to keep construction within HC-1 or the permissible 30-foot extension, eliminating the need for a special use permit premised on use in RM-2. Nonetheless, fresh procedural compliance was still required for the new application.

Open Meetings Law (OML) notice

POL § 104(1) requires two forms of notice for meetings scheduled at least one week in advance: (a) conspicuous public posting, and (b) notice or electronic transmission to the news media, both at least 72 hours before the meeting.
Failure to provide media notice is a violation. Whether it warrants annulment depends on the totality of circumstances; courts often consider whether the meeting was open and whether the public otherwise had access to information.

Conclusion

Bigelow delivers a clear, administrable rule for municipal land use practice: when an applicant files a separate, alternative (“Plan B”) site plan, the planning board cannot simply approve it based on minimal discussion or on the implicit assumption that earlier environmental review suffices. The board must either restart the site plan/SEQRA process—classifying the action, requiring and reviewing an appropriate EAF, taking a documented hard look at environmental issues, and providing a reasoned elaboration—or issue a formal, written waiver with articulated reasons under the local code’s waiver provision. Implicit waivers and skeletal records will not pass SEQRA muster.

The decision also clarifies OML notice obligations: public posting and media notice are both required for meetings scheduled at least one week in advance. Although the violation here did not, standing alone, necessitate annulment, boards should expect courts to enforce OML’s twin-notice mandate.

On remittal, the Town of Willsboro Planning Board must build a record that addresses the Zoning Law’s site plan factors, classifies the action under SEQRA, and sets forth a reasoned analysis of environmental impacts before acting on the “Plan B” application. More broadly, Bigelow will influence how planning boards statewide document environmental review when applicants pursue separate, alternative proposals: fresh process or a formal waiver, and always a record that reflects the SEQRA hard look.