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Town of Oyster Bay Zoning Board of Appeals v. Incorporated Village of Roslyn Harbor Planning Board

New York State Department of Environmental Conservation Commissioner's Determination of Lead Agency Under Article 8 of the Environmental Conservation Law

PROJECT: Application by Country Club Developers to construct a six unit subdivision within the Town of Oyster Bay and the Village of Roslyn Harbor, County of Suffolk

DISPUTING AGENCIES: Town of Oyster Bay Zoning Board of Appeals v. Planning Board of the Incorporated Village of Roslyn Harbor

I have been asked to designate a lead agency to conduct an environmental review of a six-lot subdivision under the New York State Environmental Quality Review Act (SEQR; Article 8 of the New York State Environmental Conservation Law, with implementing regulations at Part 617 of Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York [6 NYCRR Part 617]). This designation of the Village of Roslyn Harbor Planning Board (Village Planning Board) to serve as lead agency is based on my finding that the Village Planning Board has broader governmental powers to investigate the impacts of the proposed subdivision than does the Town of Oyster Bay Zoning Board of Appeals (Town ZBA).

ACTION AND SITE

The project involves the development of a six-lot subdivision located on 3.44 acres of land in both the Town of Oyster Bay and the Village of Roslyn Harbor. Of the six lots, Lots 1-5 are located solely in the Town of Oyster Bay whereas Lot 6 is located solely in the Village of Roslyn Harbor.

REGULATORY SETTING

The Town ZBA and Village Planning Board identified the following agencies as having one or more discretionary decisions:

  • The Village Planning Board has subdivision review jurisdiction over the single lot located within its own territorial jurisdiction as well as extra-territorial jurisdiction over the portion of the subdivision located in the Town of Oyster Bay pursuant to Section 1610 (b) (1) of the Nassau County Charter. The Nassau County Charter grants the Village extra-territorial jurisdiction because the subdivision is located within 300 feet of the Village's boundary line.
  • The Town ZBA has jurisdiction over the five lots in the Town for area variance approvals, on account of a private roadway and a substandard cul-de-sac to serve the development.
  • The Nassau County Planning Commission, which serves as the planning agency for the Town of Oyster Bay, has concurrent subdivision review jurisdiction over the entire six-lot subdivision, pursuant to Section 1610 of the Nassau County Charter.

DISCUSSION

In resolving a lead agency dispute under 6 NYCRR §617.6 (b) (5) (v), I am guided only by the three criteria listed in order of importance as follows:

  1. whether the anticipated impacts of the action being considered are primarily of statewide, regional, or local significance (i.e., if such impacts are of primarily local significance, all other considerations being equal, the local agency involved will be lead agency);
  2. which agency has the broadest governmental powers to investigate the impacts of the proposed action; and
  3. which agency has the greatest capability to provide the most thorough environmental assessment of the proposed action.
A. FIRST CRITERION

The first criterion does not weigh in favor of either the Village Planning Board or the Town ZBA as the typical environmental impacts of a subdivision (e.g., traffic, sedimentation and erosion) would be local and both the Village Planning Board and the Town ZBA are local agencies.

B. SECOND CRITERION

The second criterion favors the Village Planning Board since it has both subdivision and site plan review authority whereas the Town ZBA's jurisdiction is limited to the issuance of area variances.

Subdivision review jurisdiction empowers a planning board to insure that the resulting lots from the subdivision can be used safely for building purposes and that adequate improvements exist or will exist to support building development (see Village Law §7-730). Site plan review is the power to review the arrangement, layout and design of a proposed use on a single parcel of land (see Town Law §274-a). Together, the two jurisdictions provide the Village Planning Board with a broad scope of land use and site design authority to consider impacts arising from the division of land as well as from its subsequent development.

The Town ZBA's area variance jurisdiction, on the other hand, has a more narrow focus. An area variance is an authorization to use land in a manner that is not allowed by dimensional or physical requirements of applicable zoning regulations (see Town Law §§267 [1] [b] and 267-b). In the case at hand, the Town ZBA derives its authority only on account of a comparatively narrower basis for jurisdiction, a planned private roadway and a substandard cul-de-sac - which are discrete aspects of the subdivision plan.

Additionally, the Village Planning Board has jurisdiction - derived from the Nassau County Charter - over all planned lots whereas the Town ZBA's jurisdiction is limited to the lots within the Town's territory.

C. THIRD CRITERION

This criterion does not favor either party. Both the Village Planning Board and the Town ZBA have the capability for providing a thorough environmental assessment of the subdivision. They both have dedicated planning staff or can engage professional staff to advise them - in addition to the fact that the subdivision is subject to the concurrent jurisdiction of the Nassau County Planning Commission.

FINDING

Given the broader authority of the Village Planning Board over that of the Town ZBA to investigate potential impacts of the subdivision, I conclude that the Village Planning Board should serve as lead agency.

This designation in no way changes or diminishes the authority or responsibilities of the Town ZBA or other involved agencies with jurisdiction over the subdivision. While designating the Village Planning Board as lead agency, I remind it to remain aware of potential impacts that have been identified during this lead agency dispute, or which may be identified during the course of the environmental review. In developing the record in the SEQR process, I am directing the Village Planning Board to ensure that the Town ZBA's concerns are given due consideration.

Dated: January 13, 2015

/s/ Joseph J. Martens, Commissioner

Albany, New York

Distribution of Copies:

Disputing Agencies/Applicant
Neil O. Bergin, Commissioner, Town of Oyster Bay Environmental Control Commission
Peter P. MacKinnon (Humes & Wagner, LLP), Counsel to the Village of Roslyn Harbor Planning Board

Involved Agencies
Nassau County Department of Planning

Interested Agencies
Roger Evans, Regional Permit Administrator, New York State Department of Environmental Conservation, Region 1

New York State Department of Environmental Conservation, 625 Broadway, Albany
Lawrence H. Weintraub, Assistant Counsel, Office of General Counsel, Central Office
Robert L. Ewing, Division of Environmental Permits, Central Office

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