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Lead Agency Dispute: Village of Millerton Planning Board v. Town of North East Planning 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 Getty Realty Corporation to construct a Mavis Tire Store and Dunkin Donuts partially within the Town of North East and partially within the Village of Millerton, Dutchess County

DISPUTING AGENCIES: Village of Millerton Planning Board v. Town of North East Planning 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 parcel of land with both a Dunkin Donuts and a Mavis Tire store (Project). The parcel of land, which appears to comprise two or more tax map parcels, is partially situated in the Village of Millerton and partially situated in the Town of North East. The designation of the Town of Northeast Planning Board as lead agency is based on my finding under 6 NYCRR §617.5(b)(v) that the impacts are local and primarily affecting the Town, and that the Town's Planning Board has the broadest governmental powers for investigation of the proposed impacts.

Action and Site

Getty Realty Corporation (Applicant) proposes to redevelop a 1.66 acre lot by removing a 1,430 square foot gasoline service station building and replacing it with a 1,765 square foot Dunkin Donuts restaurant in the Village of Millerton (Village) and a 5,495 square foot Mavis Tire store (Project) in the Town of North East (Town). The Project would mostly be located in the Town, including the Mavis Tire Store, parking for both the Mavis Tire Store and the Dunkin Donuts restaurant and two driveway entrances.

According to the Village Planning Board, the Project site is located in an area that serves as the gateway to the Village. The Project is also substantially contiguous to or near the Village's Main Street Historic District.

The Town Planning Board states that the Project site is located in the Town of Northeast's Boulevard District, which is an overlay district that runs from the State's border with Connecticut to the edge of the Village. According to the Town Planning Board, "[the] Boulevard District ... serves as a gateway district for the Town (and the Village) and its uses and design aspects are geared to fostering a higher aesthetic" and compatibility with the Town's culture and history.

Regulatory Setting

The Town Planning Board and the Village Planning Board both have site plan review authority under their respective codes.1 I also note that the Project requires discretionary authorizations from other agencies including variances from the Town and Village zoning boards of appeal.

Discussion

In resolving a lead agency dispute, under 6 NYCRR §617.6 (b)(5)(v), I am guided by 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 anticipated impacts of the Project are primarily local and both planning boards seeking lead designation are local agencies. Potential environmental impacts from the Project include noise, visual, traffic, and impacts to the nearby historic district and Boulevard District and would affect both the Village and Town. The Village Planning Board asserts that the Project would have greater impact on the Village because it is more densely populated and because stormwater runoff would flow to the Village and not the Town. The Village also points out that the potable water for the Project would come from the Village.

Although the Village has jurisdiction over that portion of the Project that lies within it, the entire Project is within the boundaries of the Town and the Town portion of the Project is larger than the Village portion. The Mavis Tire store and parking for the entire development would be located within the Town portion the site. The main driveway serving the entire Project and a second access driveway would also be in the Town while only an exit lane for the proposed drive-through for the Dunkin Donuts would be in the Village portion.

The environmental assessment form indicates that storm water will be contained in storm water management structures connected to the New York State Department of Transportation's drainage system, which drains through the edge of the Village to Kelsey Creek, which flows through the southern portion of the Village and back into the Town.

Although potential impacts are local in nature, and both the Town and Village Planning Boards are local agencies, the first criterion, favors the Town Planning Board since most of the impacts from the construction and operation of the Project will occur within the Town.

B. Second Criterion

Consideration of this criterion reveals a clear distinction between the scope of governmental powers of the Town Planning Board and the Village Planning Board. Both Planning Boards both have site plan review authority and similar zoning controls. The majority of the Project, however, is located within the jurisdiction of the Town, not the Village and, as the Town points out, implicates three different zoning classifications in the Town. The Town Planning Board through its site plan review has the authority to impose substantive conditions on the size and location of structures on a majority of the site and require mitigation should the environmental review disclose impacts that can be avoided or reduced by modifications to the Project. Thus, the second criterion clearly favors the Town Planning Board as the agency with the broader jurisdictional control of the Project area.

C. Third Criterion

The third criterion examines which agency has the greatest capability for providing the most thorough environmental assessment. The Village and the Town use the same professional engineering consultant. The Town Planning Board also uses the services of a professional planning consultant who has already performed an analysis of the application. Inasmuch, as the first two criteria clearly favor the Town Planning Board, I do not need to reach the third criterion.

Finding

I conclude that the Town Planning Board should be lead agency for the SEQR review of the Project based on the first and second criteria.

The decision that the Town Planning Board should serve as lead agency in no way limits the responsibilities of other involved agencies, including the Village Planning Board and the zoning boards that will be called upon to determine whether the Project is entitled to variances. In designating the Town Planning Board as lead agency, I am directing that it solicit and carefully consider the views of all other involved agencies including the Village Planning Board. All interested and involved parties to this action are encouraged to participate in the environmental review being conducted by the Town Planning Board.

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1. A site plan shows the proposed design and layout of the improvements to be placed on a parcel of land. Moriarty v Planning Bd. of Village of Sloatsburg, 119 AD2d 188, 190 [2d Dept. 1986].

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

Distribution of Copies:

Disputing Agencies/Applicant
Lance Middlebrook, Chairman Village of Millerton Planning Board
Salvatore D. Ferlazzo, Girvin and Ferlazzo, P.C. representing the Town of North East Planning Board

New York State Department of Environmental Conservation
Daniel Whitehead, Regional Permit Administrator, Region 3 (e-copy)
Lawrence H. Weintraub, Office of General Counsel, Central Office (e copy)

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