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Lead Agency Dispute: Beekman Fire District v. Town of Beekman 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 the Beekman Fire District to construct a new fire training facility (Fire Training Facility or Project) on a 29.25 acre parcel of land owned by the Fire District. The project site is located on Greenhaven Road in the Town of Beekman, Dutchess County.

DISPUTING AGENCIES: the Beekman Fire District (Fire District) and the Town of Beekman Planning Board (the 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]). This designation of the Fire District to serve as lead agency is based on my finding that the Fire District has broader jurisdiction than the Planning Board to investigate the environmental impacts of the Project.

Action And Site:

The Project consists of construction of a new 2,750 +/- square foot training and storage building, a 2,500 +/- square foot burn building, concrete training pad and additional site improvements (on-site water well and sewage disposal, parking, access, grading, landscaping and stormwater management). The Fire Training Facility will be served by a new access road from Greenhaven Road (County Route 8). The total area of site disturbance is approximately 12.1 acres.

Regulatory Setting

The Fire District and the Planning Board have authority to make one or more discretionary decisions concerning the Project:

The Fire District is the project sponsor. The Planning Board, on the other hand, states that the Fire Training Facility is subject to its site plan review and special use permit jurisdiction. The Planning Board also identified various other local laws, administered by the Planning Board that the Fire District must comply with including the Town's Aquifer Overlay District, floodplain regulations (a small area of the project's proposed clearing and installation of wells would occur within the 100-year floodplain boundary) and stormwater pollution prevention regulations. Although other potentially involved agencies were identified by the parties, the Fire District and Planning Board are the only agencies involved in this dispute.

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

Potential impacts include both construction-related ones from noise, dust, and stormwater runoff. Operational impacts include noise and traffic. The environmental assessment form for the project indicates the presence of wetlands or waterbodies regulated by a federal, state or local agency on or adjacent to the site and the possible presence of threatened or endangered species. The impacts are, therefore, primarily of local significance with the caveat that potential impacts to regulated wetlands or waterbodies and threatened and endangered species can be of regional significance. Nonetheless, the Fire District and the Planning Board are both local agencies. The fact that some impacts may be of regional significance does not weigh in favor of either party. Thus, the first criterion favors neither party.

Second Criterion

The second criterion 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 investigate impacts and then to add, modify or even eliminate project elements based on its investigation. As project sponsor, the Fire District has the full range of authority and greatest ability to modify plans to avoid or reduce impacts of the proposed action. While the Planning Board also has substantial governmental authority to investigate impacts under its site plan review and special use permit authorities its authority is less direct and therefore comparatively not as great as that of the project sponsor.1 Here, my analysis of the second criterion is in keeping with my recent determination in Tallman Fire District v. Village of Airmont Planning Board, dated September 13, 2016.2

Third Criterion

The third criterion does not provide a clear distinction between the parties. The Planning Board states that it is experienced in reviewing the types of impacts that would be associated with the Fire Training Facility. The Fire District, on the other hand, states that it has access to architects, engineers and other kinds of specialists able to examine the impact of the Project. While it is true that planning boards are typically more experienced than Fire Districts in applying SEQR, the third criterion does not clearly favor either agency here. The Fire District could obtain a similar level of expertise from consulting engineers and planners in preparing the environmental assessment, and the types of impacts present are basic to almost all construction projects.

Finding

I conclude that the Beekman Fire District should be designated as lead agency for the SEQR review of the Fire Training Facility based on the second criterion. My determination is in keeping with the statutory direction under ECL §8-0111.6 that "[w]hen an action is to be carried out or approved by two or more agencies, the determination of whether the action may have a significant effect on the environment shall be made by the lead agency having principal responsibility for carrying out or approving such action..." Here, the Beekman Fire District has principal responsibility for carrying out the action.

In designating the Fire District as lead agency for the SEQR review of this Project, this decision in no way limits the jurisdiction or responsibility of any other involved and interested agencies. The Fire District must still apply for and obtain all necessary lawfully required approvals and permits from other agencies. I encourage the Fire District to seek and use the expertise of the Planning Board, whether or not the Fire District has governmental immunity, as well as that of other involved and interested agencies in evaluating potential impacts and developing viable alternatives to mitigate or avoid any identified significant adverse impacts.

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1 The Fire District asserts that it is immune from zoning under the doctrine of governmental immunity (see Monroe County Airport Authority v. City of Rochester, 72 NY2d 338 [1988]). As the Fire District concedes, I am not empowered to rule on that assertion. Rather, in past lead agency decisions where one party has asserted governmental immunity, the Commissioner decided the lead agency 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. I will continue to do so here.

2 The Department publishes Commissioner lead agency determinations on its website at the following address: http://www.dec.ny.gov/permits/6186.html.

Dated: June 27, 2017
/s/ Basil Seggos, Commissioner
Albany, New York

Distribution of copies:
Disputing Agencies/Applicant
Bradley M. Pinsky, Esq., Beekman Fire District
Sean Johnston, Chairman, Town of Beekman Planning Board

Potential Interested Agencies/Parties:
Dutchess County Department of Health
Dutchess County Department of Public Works

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

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