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Lead Agency Dispute: Tallman Fire District v. Village of Airmont Planning Board

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

PROJECT: A proposal by the Tallman Fire District to demolish an existing administrative building and garage and replace them with a new firehouse that would house its administrative operations and provide for additional reserve fire equipment storage (the Project). The Project is located on Route 59 in the Village of Airmont, Rockland County, New York.

DISPUTING AGENCIES: Tallman Fire District (Fire District) and the Village of Airmont Planning Board (Planning Board).

I have been asked to designate a lead agency to conduct an environmental review of the Project 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]). This designation of the Fire District to serve as lead agency is based on my finding that the Fire District has the broadest governmental powers for investigation of the impacts of the proposed action.

Action and Site

The Fire District presently operates out of two buildings. One building is used for administrative purposes only. The other building is used to house fire equipment and apparatus but is located on an adjoining tax map parcel. The Project would incorporate administrative operations and additional equipment storage into a one story substation where the administration building currently exists. The fire apparatus will exit onto the adjacent parcel where the current fire station/apparatus building exists and not directly onto the street. There will be no additional entrances or exits to the street. Additional work at the site as part of this project includes: construction of stormwater management structures; addition of an oil/water separator; parking improvements including additional paved/concrete areas and construction of six additional parking spaces; and grading and landscaping. The Fire District proposes to demolish the two existing buildings (administrative offices and a garage) on the parcel.

Regulatory Setting

The Fire District and the Planning Board were each identified as having one or more discretionary decisions that could affect one or more components of the proposed action. The Fire District is the sponsor for the Project and owner of the land where the Project is proposed. The Planning Board states that the Project will require site plan approval; a building/demolition permit; and variances from the Village of Airmont Zoning Board of Appeals.

Discussion

In resolving a lead agency dispute, under 6 NYCRR Part 617.6(b)(5)(v), I am guided 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 for investigation of the impacts of the proposed action; and
  3. which agency has the greatest capability for providing the most thorough environmental assessment of the proposed action.

My designation of a lead agency must be based strictly on applying these criteria to the facts of each individual case.

First Criterion

The Fire District identified potential issues that include stormwater pollution prevention and potential impacts to cultural resources (archeological area of sensitivity). Both the Fire District and the Planning Board are local agencies and the identified impacts are of local significance only. Accordingly, the first criterion favors neither agency.

Second Criterion

Here, I find distinctions between the disputing agencies that favors the Fire District. The Fire District, as sponsor, designer, construction overseer and the agency principally funding the proposed action, possesses through design and financing control a substantial ability to add, modify or even eliminate project elements. This becomes especially important if design changes would be needed to avoid or minimize project impacts. By contrast, the Planning Board's responsibilities under site plan review are limited to approval of the site layout and design for the new firehouse, which are substantial responsibilities, but not as great as that of the Fire District's abilities, as project sponsor, to investigate impacts of the Project and to then influence its design.1

Third Criterion

The Planning Board contends that it has greater experience with the SEQR process and expertise to conduct the environmental review of the Project than does the Fire District. The Fire District, on the other hand, states that it has access to engineers, architects, surveyors, attorneys, and all other specialists able to examine the impact of the proposed project. While it is true that planning boards are typically more experienced than Fire Districts in applying SEQR and assessing stormwater pollution and archeological impacts from building construction, the third criterion does not favor either agency here as the Fire District could obtain a similar level of expertise from consulting engineers and planners and the types of impacts present here are basic to almost all construction projects.

Finding

Given the broad range of authority of the Fire District as the project sponsor to investigate impacts and to avoid or mitigate them through its complete control of all aspects of the project funding, design, construction and operational decisions, I conclude that the Tallman Fire District should be lead agency for the review of the Project.

In designating the Fire District to serve as lead agency, I expect that the environmental review will be more than a "needs analysis" concerning the provision of fire protection but will also reflect consideration and analysis of issues and concerns raised during the lead agency coordination process. This decision in no way limits the jurisdiction or responsibility of any other involved agencies. The Fire District must still apply for and obtain all necessary approvals and permits from other agencies. I encourage the Fire District to seek and use the specific expertise of Planning Board as well as the other involved and interested agencies in evaluating potential impacts and developing viable alternatives to mitigate or avoid any unacceptable impacts.

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1 While the Fire District disputes the Planning Board's authority to review the project under the doctrine of governmental immunity from zoning and the New York Court of Appeals decision in Monroe County Airport Authority v. City of Rochester (72 NY2d 338), I am not empowered to resolve that disagreement. Governmental immunity from zoning is, as that concept is discussed in the Monroe case, often asserted in lead agency disputes involving state or local government-sponsored projects that are proposed within the territorial limits of another governmental entity. The Commissioner typically decides such disputes by assuming that the parties have the jurisdiction they assert to qualify them to be lead agency. See, e.g., Commissioner's Lead Agency Determination in Pine Island Fire District v. Town of Warwick Planning Board, March 6, 2015, published on the Department's website at http://www.dec.ny.gov/permits/6534.html.

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Dated: September 13, 2016
/s/ Basil Seggos, Commissioner
Albany, New York

Distribution of Copies

Disputing Agencies/Applicant:
Bradley M. Pinsky, Esq., representing the Tallman Fire District
Doug Whipple, Village of Airmont Planning Board

Potential Interested Agencies/Parties:
Town of Ramapo
Rockland County Sewer District
Rockland County Department of Health

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

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