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Lead Agency Dispute: Orange County Legislature v. Town of Blooming Grove 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 Orange County to construct a parking lot along the Heritage Trail within the Town of Blooming Grove.

DISPUTING AGENCIES: the Orange County Legislature (the County or County Legislature) and the Town of Blooming Grove Planning Board (the Planning Board).

I have been asked to designate a lead agency to conduct an environmental review of the Heritage Trail Parking Lot Project (the project or parking lot) 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 County to serve as lead agency is based on my finding that the County has broader governmental powers for investigation of the environmental impacts of the project than the Planning Board and greater capability than the Planning Board for providing the most thorough environmental assessment of the proposed action.

Action And Site

The County proposes to construct a new 16 space parking lot that would serve the Heritage Trail, which is a rail-to-trail or greenway for pedestrian and bike use that Orange County is constructing in segments (with federal and state transportation grants and in cooperation with Orange Pathways, Inc., as well as several municipalities) from the City Middletown to the Village of Harriman. The parking lot would create a physical disturbance of one half acre of land, and is situated on a 59.6 acre parcel of land owned by the County within the Town of Blooming Grove.

Regulatory Setting

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

The County is the project sponsor and has control over funding, design, and construction of the parking lot, which is just one appurtenance along the Heritage Trail that spans several municipalities. The Planning Board has site plan review authority. Site plan review authority enables municipalities to regulate the layout and design of development when it occurs on a single parcel of land. See Town Law § 274-a (McKinney 2013).The Planning Board lists various other approvals and variances that are required from other Town of Blooming Grove town boards. However, those other jurisdictions do not belong to the Planning Board. 1

The Region 3 office of the Department of Environmental Conservation identified its possible jurisdiction under ECL Article 11, Title 5 for take of threatened and endangered species. No other agencies have been identified as involved agencies with regard to the project.

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 impacts are primarily of local significance, and include, as a practical matter, adverse impacts from construction such as potential stormwater runoff, traffic, dust and noise. The Planning Board also identified tree cutting as an impact, which in this case I find to be another local impact. Generally, I consider Impacts to threatened and endangered species as impacts of regional significance.

Here, the Planning Board is a local agency and the County is arguably a local agency. Although the Town is more directly impacted by construction activity, the land on which construction would occur is owned by the County.

I have difficulty making a meaningful distinction between the two agencies in terms of how the construction related impacts may affect them. Even if I were to find that the first criterion favors the Planning Board, all other considerations are not equal.

Second Criterion

The second criterion favors the County. The County has the broadest governmental powers for investigation of impacts. The County, as project sponsor, designer and construction overseer, possesses a substantial ability to investigate impacts and then to add, modify or even eliminate project elements based on its investigation. As project sponsor, the County 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 powers, its authority is less direct and therefore comparatively not as great as that of the County. Finally, the County has responsibility for the entire length of the Heritage Trail, which spans several municipalities, and the parking lot is only an appurtenance to that trail.

Third Criterion

Although both the County and the Planning Board are capable of implementing SEQR and possess experience in doing so, I find that the third criterion favors the County. The Planning Board points out that it has to review and render SEQR determinations in most of the matters that come before it and can engage consultants and engineering firms to assist it where needed. The County has its own professional planning staff within the Orange County Planning Department and has been engaged in the design and construction of the entire span of the Heritage Trail. These facts favor the designation of the County as lead agency.

Finding

I conclude that the County should serve as lead agency for the construction of the Heritage Trail parking lot based on the second and third criteria as set out above. 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 County has principal responsibility for carrying out the action.

My decision to designate the County as lead agency in no way limits the jurisdiction or responsibilities of the other involved and interested agencies. The County must still apply for and obtain all necessary lawfully required approvals and permits from other agencies. I encourage the County to seek and use the expertise of the Planning Board (whether or not it is determined that the County has governmental immunity from the Town of Blooming Grove's land use authority) 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 County 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]). I am, however, 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 dispute 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.

Dated: July 19, 2017
/s/ Basil Seggos, Commissioner
Albany, New York

Distribution of Copies:

Disputing Agencies/Applicant
Robert A. Fromaget, Supervisor, Town of Blooming Grove
L. Stephen Brescia, Chairman, Orange County Legislature
Alyse Terhune, Esq., Feerick Lynch MacCartney & Nugent, Esqs. (e-copy)
Antoinette Reed, Legislative Counsel, Orange County Legislature (e-copy)
Langdon Chapman, Orange County Attorney (e-copy)

Involved/Interested Agencies:

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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