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Lead Agency Dispute: Town of Southeast Planning Board v. Town of Southeast Town Board

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

Project: Proposal by developer, Barrett Hill Associates, LLC, to develop a multifamily residential facility in The Town of Southeast, County of Putnam.

Disputing Agencies: Town of Southeast Planning Board v. Town of Southeast Town Board.

I have been asked to designate a lead agency to conduct an environmental review under the New York State Environmental Quality Review Act (SEQR; Article 8 of the New York State Environmental Conservation Law [ECL], 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]). The review is for the proposed development of a multifamily residential facility by Barrett Hill Associates, LLC within the Town of Southeast.

This designation of the Town of Southeast Town Board as lead agency is based on my finding that the Town Board has the broadest governmental powers to investigate the impacts of the proposed development.

Action and Site

The project, referred to as Barrett Hill, is a 168 unit multifamily residential development on 29.02 acres of land within an existing multi use Corporate Park. A prior iteration of the Barrett Hill development had been approved by the Town of Southeast Planning Board (Planning Board) as senior housing within zone OP-2 in 2006. At that time, the lead agency was the Planning Board and the project name was Mt. Ebo Corporate Park - Lot 6. The Planning Board issued a negative declaration and approved the project on March 27, 2006. Construction began in 2007 and was halted in 2009.

Barrett Hill Associates, LLC (Barrett Hill Associates) has petitioned the Town Board of the Town of Southeast (Town Board) to amend the text of the Town of Southeast zoning law to permit non-age restricted multifamily residential uses for the Barrett Hill project as well as five other parcels of land, which are all owned by Barrett Hill Associates. Barrett Hill Associate's petition also seeks a special use permit to establish 25% of the units as affordable housing for civil servants.

Regulatory Setting

On May 11, 2015, Barrett Hill Associates presented an Environmental Assessment Form (EAF) to the Town Board. The plan proposed a change in the project from age-restricted units to non-age-restricted units as well as the allocation of 25% of those units to be set aside for civil servants. To accommodate the change to non-age-restricted units and provision of a portion of the units for occupancy by civil servants, the Town Board must amend its zoning law and approve a special use permit for the proposed development. This action is indicated as being a text amendment to the Town's OP-2 zoning district. The text change contains proposed "Site Eligibility Requirements" that would restrict the applicability of the amendments to the project site as well as five additional parcels also owned by the project sponsor.

The Planning Board states that the layout and number of buildings as well as the provisions for parking are subject to its site plan review jurisdiction. The Town Board, on the other hand, is responsible for granting or denying amendments to the zoning law and issuance of special use permits subject to the advice of the Planning Board.

Potential impacts from the project include traffic and transportation, consistency with the 2014 Comprehensive Plan, community facilities such as schools and recreation areas, as well as physical impacts associated with construction.

Discussion

In resolving a lead agency dispute under SEQR's criteria for determining lead agency (6 NYCRR §617.6 [b] [5] [v]), I am guided by three questions listed in their order of importance as follows:

"(a) 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);

(b) which agency has the broadest governmental powers to investigate the impacts of the proposed action; and

(c) which agency has the greatest capability to provide the most thorough environmental assessment of the proposed action."

A. First Criterion

The first criterion favors neither the Town Board nor the Planning Board since the proposed development would occur solely within the boundaries of the Town of Southeast and the potential impacts from the project are of a local nature.

B. Second Criterion

As a general rule, the Town Board's zoning authority, which is legislative, constitutes a broader jurisdiction than site plan review since zoning dictates the allowable uses of land and permissible density while site plan review guides the design and development on an individual parcel of land. The Town Board must consider environmental impacts of the proposal not only on the proposed site but also on the five other parcels that meet the proposed eligibility requirements. The Town Board also has the discretion to extend the "Site Eligibility Requirements" to the remainder of the OP-2 zoning district. Ultimately, the project cannot proceed without the approval of the Town Board.

While the Planning Board's approval regarding plan layout will inform the SEQR process as to the potential impacts and mitigation associated with temporary construction impacts, stormwater retention/management and, possibly, long-term impacts on traffic, the review is restricted to the single parcel containing the revised project.

Conversely, the environmental implications from the zoning text change extend beyond the subject parcel. The Town Board has equivalent power to investigate these impacts and a greater capacity to investigate the additional impacts of the project on consistency with the Town's comprehensive plan, as well as community facilities. The Town Board, as the town entity solely responsible for legislative changes to the zoning law, has the broadest governmental powers to conduct the environmental review, and, hence, greater jurisdiction over the impacts inherent in a zoning change.

The second criterion therefore favors the Town Board to act as lead agency for the review of the proposed zoning amendment, special use permit and the anticipated site plan changes.

C. Third Criterion

The third criterion examines which agency has the greatest capability for providing the most thorough environmental assessment. Both the Town Board and Planning Board have in-house staff or the capability to engage consultants to assist their staff to manage the environmental review process. The third criterion therefor favors neither the Town Board nor the Planning Board.

Finding

I conclude based on the second criterion that the Town Board should assume the role of lead agency for the SEQR review of the development at Barrett Hill and the associated approvals required for that development, as discussed above.

The decision that the Town Board shall serve as lead agency in no way limits the jurisdiction and responsibilities of the Planning Board or that of any other involved agencies. The Town Board should consult with the Planning Board as to the environmental significance of the action as part of a meaningful coordinated review of the proposed development, in addition to the referral or consultation requirements between the Planning Board and the Town Board under the Town of Southeast zoning law.

Dated: February 11, 2016
/s/ Basil Seggos, Acting Commissioner
Albany, New York

Distribution of Copies:

Disputing Agencies/Applicant (First Class Mail and e-copy)
Thomas LaPerch, Chairman, Town of Southeast Planning Board
Robert S. Cullen, Deputy Supervisor, Town of Southeast Town Board
Charles Mantabano, Esq. (Attorney for the Barrett Hill Associates)
Willis Stephens, Jr., Esq. (Attorney for the Town of Southeast)

New York State Department of Environmental Conservation, 625 Broadway, Albany

Daniel Whitehead, Regional Permit Administrator, Region 3 (e-copy)
Lawrence H. Weintraub, Office of General Counsel, Central Office (e-copy)


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