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Lead Agency Dispute: Town of Greenport Planning Board v. City of Hudson 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 A. Colarusso & Son, Inc. ("Project Sponsor") to renovate and expand an existing haul road ("haul road") between the Project Sponsor's limestone and shale mine in the Town of Greenport to the Hudson River Waterfront docks located in the City of Hudson (the "haul road project").

DISPUTING AGENCIES: Town of Greenport Planning Board (Town Planning Board) and the City of Hudson Planning Board (City Planning Board).

I have been asked to designate a lead agency to conduct an environmental review of the haul road 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 Town Planning Board to serve as lead agency is based on my finding that impacts as a result of the action would primarily occur in the Town and that the Town Planning Board has the broader governmental powers for investigation of the impacts of the haul road project.

Action and Site

The majority of the haul road project consists of upgrading an existing haul road, including: grading the roadway to reestablish the crown; placing and compacting new gravel and crusher run; and cleaning out drainage swales and installing check dams.

The purpose of the project is to route Hudson River dock truck traffic associated with the Project Sponsor's quarry more directly from the quarry to the Hudson River dock (where the material is then placed on barges) and off of City of Hudson streets.

The haul road project involves approximately 2.33 linear miles of roadway (8.8 acres of disturbance), described in three sections as follows:

  1. Improvements to an existing haul road through the Colarusso Quarry to State Route 9, including construction of a segment of new road within the Quarry totaling approximately one acre of disturbance, which includes realignment of the haul road and paving it at the RTE 9 intersection to meet NYSDOT standards (work on this section is completely within the Town);
  2. Renovation of the existing haul road beginning at NYS Route 9 to NYS Route 9G (this work would primarily occur within the Town); and
  3. Renovation and realignment of the haul road currently in use from NYS Route 9G through the South Bay causeway to the Hudson Waterfront Dock. The realignment would move the road nearer to the center of the causeway and result in approximately ¾ acres of new roadway outside the current footprint of the haul road. This section of work also includes realigning the haul road and paving it at the RTE 9G intersection to meet New York State Department of Transportation (DOT) standards. All work on this section of the haul road would be located within the City.

Regulatory Setting

The haul road project requires site plan approval1 from both the City Planning Board and the Town Planning Board. Though it is not competing for the role of lead agency, the Department of Environmental Conservation (DEC) has jurisdiction over state regulated freshwater wetlands and wetland adjacent area that may be impacted by the haul road project. Finally, DOT has jurisdiction for approval of NYS Routes 9 and 9G intersection improvements but does not seek to be lead agency.

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 types of potential impacts to the City and the Town that can be expected to occur from the construction of the haul road include the normal collection of construction related impacts such as stormwater runoff, traffic, dust and noise. Additional potential impacts include effects on State regulated freshwater wetlands and adjacent areas, archeological or historic (cultural) resources, and plants and animals. Post-construction impacts from the change in traffic patterns would occur as a result of routing truck traffic off of City Streets.

The City Planning Board argues that the City would be more affected by a change in traffic patterns. The City also argues that the anticipated change in traffic patterns would have a potentially negative impact on its waterfront and at the Basilica - which the City indicates is an important venue for arts, entertainment and weddings. However, the existing truck route is also close to the Basilica and the City is not specific about how changes associated with the haul road project would impact its waterfront differently since the Project Sponsor's trucks already use the waterfront to barge its materials.

Of the two local agencies competing for lead agency, the Town would bear most of the construction activity impacts. The majority of the haul road and thus most of the construction activity is within Town territory. It appears that the only difference in post-construction activity is the re-routing of quarry related truck traffic away from City streets. Thus, the first criterion favors the Town Planning Board, as most of the impacts would occur within its territory.

Second Criterion

Both planning boards have generally equivalent site plan review authority. The City Planning Board indicates that there is some question as to whether the proposed haul road is in conflict with the City's zoning. However, the City Planning Board does not offer any specific information on this issue for guiding consideration of the City Planning Board's potential jurisdiction.

While the jurisdiction of both the disputing agencies is limited to their municipal boundaries, the vast majority of the project site and components are located within the Town. As such, the site plan review provides the Town authority to impose substantive changes or conditions on the majority of the project components to avoid or minimize the impacts that are identified during the environmental review. Therefore, I find that the jurisdiction of the Town Planning Board provides broader authority to investigate the impacts from the proposed haul road based on the relative length of the haul road in the two jurisdictions. The second criterion therefore favors the Town Planning Board.

Third Criterion

In considering the third criterion, both disputing agencies appear to have the capacity to conduct an adequate and comprehensive environmental review of the project either on their own or with the assistance of contracted assistance. Since a designation of lead agency can be made without relying on this third criterion, I need not address the third criterion further.

Finding

I conclude that the Town Planning Board should be lead agency for the review of the haul road project.

In designating the Town Planning Board to serve as lead agency for the haul road project, this decision in no way limits the jurisdiction or responsibilities of the other involved and interested agencies - particularly the City Planning Board, and I encourage the Town Planning Board to seek and use the expertise of the City Planning Board as well as the DEC and the DOT in evaluating potential impacts, if any, and developing viable alternatives to mitigate or avoid any identified significant adverse impacts.

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1 Town Law § 274-a and General City Law §27-a define a "site plan" as a sketch or drawing prepared to specifications and containing the elements as are required by a town's zoning law, showing the "arrangement, layout and design of the proposed use of a single parcel of land as shown on said plan."

Dated: October 31, 2016
/s/ Basil Seggos, Commissioner
Albany, New York

Distribution of Copies

Disputing Agencies/Applicant
Edward Stiffler, Chairman, Town of Greenport Planning Board
Virginia Benedict, Esq., Town of Greenport Attorney
Thomas DePietro, Chairman, City of Hudson Planning Board
Mitchell Khosrova, City of Hudson Attorney

Potential Interested Agencies/Parties
Trish Gabriel, NYS DEC Region 4
Joseph Visconti, NYSDOT, Res. 8-1 Columbia County
Kenneth Flood, Commissioner, Columbia County Planning & Economic Development
J. R. Heffner, V.P., A. Colarusso & Son, Inc.

New York State Department of Environmental Conservation
Lawrence H. Weintraub, Office of General Counsel, Central Office (e-copy)

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