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Lead Agency Dispute: Town of Mohawk Town Board v. Fulton County Board of Supervisors v. Montgomery County Legislature v. City of Johnstown

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

PROJECT: Proposed Annexation of 260 Acres from the Town of Mohawk, Montgomery County to the City of Johnstown, Fulton County to facilitate the construction of an industrial park

DISPUTING AGENCIES: Town of Mohawk Town Board v. Fulton County Board of Supervisors v. Montgomery County Legislature v. City of Johnstown

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 annexation of 260 acres of land from the Town of Mohawk (Town or Town Board) and Montgomery County to the City of Johnstown (City) and the County of Fulton.

This designation of the Town of Mohawk Town Board (the Town Board) as lead agency is based on my finding that the Town Board has the broadest governmental powers to investigate the potential impacts of the proposed annexation.

Action and Site

The action is the annexation of four parcels of land totaling approximately 260 acres (lands to be annexed or parcels) in the Town of Mohawk, Montgomery County, through a landowner initiated annexation petition, to the City and Fulton County. The purpose of the annexation is to make the City's municipal sewer and water services available to the lands to be annexed. The lands to be annexed would then be developed into a regional business park (the "Project"), the nature of which has not been disclosed to the Department. The parcels primarily consist of cleared agricultural fields with some woodland and wetland areas. Part one of the EAF, which was completed by Fulton County, does not provide specific information concerning the actual development of the site beyond that approximately 80 acres of active and fallow farm land will be converted to industrial uses. If the parcels to be annexed were in fact annexed to the territory of the City, the development pattern of the parcels would presumably resemble the contiguous industrial park in the City.

Regulatory Setting

The determination of public interest pursuant to General Municipal Law (GML) §711, which a municipality must make prior to granting or denying an annexation petition, is a discretionary approval subject to SEQR. City Council of City of Watervliet v. Town Board of Town of Colonie, 3 N.Y.3d 508 (2004). Here, all of the competing agencies must make the determination of public interest required by GML §711 and are therefore involved agencies under SEQR. See also, N.Y. Const. art. IX, § 1(d).

In contrast to the decision-making process found in the GML, the motivation of the agencies involved in the annexation and the merits of their arguments for or against annexation are not relevant to the choice of lead agency. See Lead Agency Dispute: Niagara Town v. Niagara Falls Council v. Niagara Falls Planning (March 12, 2003). 1

Presently, the Town of Mohawk has zoning authority over the four lands to be annexed. The lands to be annexed are currently zoned for agricultural use except for a 100-foot wide strip adjacent to the Fulton County Industrial Park. All four parcels lie within Montgomery County Agricultural District #2. The parcels include 45 acres of Prime Farmland and 117 acres of soils of Statewide Importance. The Town recently updated its Comprehensive Plan in April of 2015 (Town of Mohawk 2015 Comprehensive Plan or Plan). In that Plan, the Town identified maintaining and protecting the natural environment and agricultural industry as principal goals. The Town also expressed concern that it have sufficient land to accommodate light industrial development. Though vaguely worded, the Plan identified an area somewhere in the vicinity of the parcels to be annexed as a candidate for light industrial use.

By letter dated February 3, 2016, the City of Johnstown indicated that it did "NOT consent to be Lead Agency" (emphasis supplied in original) and initially declined the lead agency role, although it would be the provider of water and sewer service to the lands to be annexed, and, the land, if annexed, would be subject to the City's land use authority. By letter dated March 8, 2016, the City made a cursory request to be designated lead agency. In response, the Department subsequently asked the City to address the criteria set forth in 6 NYCRR 617.6(b)(5)(v). By letter dated March 22, 2016 the City indicated and supported its desire to be lead agency.

Fulton County, through the Fulton County Industrial Development Agency, does not have land use jurisdiction or a fee interest in the lands to be annexed. It does have options to purchase the lands to be annexed, but no other property interest. Montgomery County has neither land use jurisdiction over the lands to be annexed nor would it have any interest in the property if it were annexed. However, the governing of both counties must consent to the annexation pursuant to the New York State Constitution. N.Y. Const. art. IX, § 1(d).

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:

  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 Town Board argues that the potential impacts from the annexation are primarily local and consist of major increases to traffic volumes and types, traffic patterns, a significant loss of agricultural land and scenic open space, and increased noise, dust, water and air pollution. Montgomery County agrees with the Town Board that the impacts of the proposed annexation are primarily local. Fulton County, on the other hand, states without elaboration that the impacts are regional.

Municipal decisions on annexation are similar in their consequences to rezoning decisions; both decisions have the potential to change land use patterns and result in the types of impacts identified by the Town Board. I conclude that the impacts of the proposed action would be primarily of local significance. In this regard, the Department's regulations state that "… if such impacts are of primarily local significance, all other considerations being equal, the local agency involved will be lead agency." 6 NYCRR §617.6(b)(5)(v)(a). Montgomery County argues that it is a local agency and no distinction should be made between the counties and the Town Board in this regard. Rather than engage in semantical arguments, the impacts of annexation and any subsequent development of the parcels as an industrial park would clearly impact Town resources or those belonging to the City more than resources of county-wide significance. Thus, the first criteria favors the choice of the Town Board or the City as lead agency for the annexation and is not dispositive.  

B. Second Criterion

The Town Board's land use authority is legislative and broader than GML §711 alone for purposes of investigating the impacts of the proposed annexation inasmuch as zoning dictates the allowable uses of land and permissible density. The Town has also completed updates to its Comprehensive Plan that, in a general way, address some of the concerns raised by the annexation petition, including the status of the Town as an agricultural community. The City's authority at the present time is limited to the consideration of the impacts from the pending annexation pursuant to the GML since it has no property interest in the land nor does it provide municipal services to the property to the parcels. Thus, its ability to substantively condition its approval to mitigate identified impacts is constrained. The City would have similar land use powers to those of the Town of Mohawk if the subject lands become part of its territorial limits. The City would also become a provider of water and sewer service to the lands to be annexed. At this time, however, the City lacks the kind of broad legislative authority held by the Town Board. Therefore, it is reasonable to conclude that the Town of Mohawk's breadth of jurisdiction is greater than that of the City, and Montgomery and Fulton counties have no similar authority. The Fulton County Board of Supervisors has done preliminary site investigations and has purchase options on the properties, but no ownership or county infrastructure associated with the parcels. See, e.g., Commissioner's lead agency decision in Town Board of the Town of Niagara v. City of Niagara Falls City Council and City of Niagara Falls Planning Board, March 12, 2003.

The second criterion therefore favors the Town Board to act as lead agency. This conclusion is underscored by the Department's SEQR Handbook, which states "all other considerations being equal, the most logical choice for lead agency is the agency which has had the longest standing jurisdiction within the area. This is normally an agency of the municipality from which the annexed parcel may be taken." DEC, SEQR Handbook, p. 189 (PDF version), available from the Department's website.

I note that in annexation disputes, the jurisdictional distinctions disputants are more often than not fine grained. In past decisions, the key decisional factor has been the ability of a municipality to exercise its legislative authority over the use and occupancy of the subject parcel. Here, the Town of Mohawk is the only municipal entity that has the ability to exercise such authority over the use and occupancy of the subject parcels through its zoning process. Based on the second criteria the Town is best situated to assume the role of Lead Agency.

C. Third Criterion

The third criterion examines which agency has the greatest capability for providing the most thorough environmental assessment. Both Fulton and Montgomery counties have county planning agencies with professional planning staff who can competently manage the environmental review process. On the other hand, the Town of Mohawk has the ability to contract with private consultants as it did with its 2015 comprehensive plan or seek the assistance of the county planners. Presumably, the City could likewise contract with consultants. The third criterion therefore does not favor the Town, City or the counties for the role of lead agency.

Finding

I conclude based on the second criterion that the Town of Mohawk Town Board should assume the role of lead agency for the SEQR review of the proposed annexation.

Notwithstanding the foregoing, Fulton County contends that the Town Board should not be lead agency inasmuch as it is predisposed against the annexation. The issue of predisposition or bias has arisen in past lead agency determinations where the municipal sponsor of an action has been designated as lead agency. In those circumstances, my predecessors have indicated that a municipality's possible motivation and the merit of its argument regarding the annexation is not relevant to resolution of the dispute. See, e.g., Commissioner's lead agency decision in Town Board of the Town of North Greenbush v. Common Council of the City of Rensselaer, September 25, 2008, and Commissioner's lead agency decision in Town of Queensbury v. City of Glens Falls, April 14, 1997. The same reasoning applies here with equal force. Importantly, SEQR does have its own built-in checks and balances, namely its public process and disclosure requirements and the willingness of courts to scrutinize agencies' compliance with SEQR. See, Gerard, Ruzow and Weinberg, Environmental Impact Review in New York, §3.03[1].

Moreover, the decision that the Town Board shall serve as lead agency in no way limits the jurisdiction and responsibilities of any other involved agencies including the City and the counties pursuant to the General Municipal Law. The Town Board should consult with the counties and their county planning agencies and the City as to the environmental significance of the action as part of a meaningful coordinated review of the proposed annexation. If the Town Board determines that a draft environmental impact statement should be prepared then the Town of Mohawk Town Board should work closely with the county planning agencies and the City of Johnstown in the development of a draft environmental impact statement.

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1 Commissioner lead agency dispute decisions are published on the Department's website.

Dated: May 6, 2016
/s/ Basil Seggos, Acting Commissioner
Albany, New York

Distribution of Copies:

Disputing Agencies/Applicant (First Class Mail and e-copy)
Terry Bieniek, Chairman of the Montgomery County Legislature
Matthew Ossenfort, Montgomery County Executive
Charles Potter, Chairman, Fulton County Board of Supervisors
Edward Bishop, Supervisor, Town of Mohawk
Claudia K. Braymar, Esq. (Attorney for the Town of Mohawk)

New York State Department of Environmental Conservation, 625 Broadway, Albany
William Clarke, Regional Permit Administrator, Region 4 (e-copy)
Marc Migliore, Regional Permit Administrator Region 5, (e-copy)
Lawrence H. Weintraub, Assistant Counsel, Office of General Counsel, Central Office (e-copy)


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