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Lead Agency Dispute: DEC v. Town of Ulster

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

PROJECT: Kingston Arms Condominiums, Town of Ulster

This decision upholds the designation of the Department of Environmental Conservation's Region 3 office (hereinafter referred to as "Region 3") as the lead agency for the above project. The principal issue for determination in the resolution of this dispute involves the force and effect of an agreement to confer lead agency status on one of the involved agencies.

The underlying project is the construction of the Kingston Arms Condominiums. The proposed site for this 144-unit development is the west shore of the Hudson River approximately one quarter mile north of the Kingston-Rhinecliff Bridge.

The relevant chronology of events is as follows: On June 8, 1981, Region 3 notified all involved agencies that an application for dredging and bulkhead work under Article 15, Environmental Conservation Law, had been submitted for development of the Kingston Arms Condominiums and transmitted a copy of the environmental assessment form and application to each agency (Attachment A). On July 23, 1981, the Town of Ulster, by the Honorable Charles G. Rider, Supervisor, deferred the role of lead agency to Region 3 (Attachment B). Region 3 confirmed that it would assume lead agency status and the attendant responsibilities under the State Environmental Quality Review Act, ECL Article 8, on October 1, 1981 (Attachment C). Mr. James Antonecchia, sponsor of the project, by his attorney Mr. Joshua Effron, withdrew the application on May 7, 1982 (Attachment D). An application for a dredging permit pertaining to this action was resubmitted to Region 3 on March 16, 1983. The application was deemed incomplete on March 30, 1983 in part due to the requirement that a draft environmental impact statement was not submitted (Attachment E).

SEQR requires that agencies initiate the environmental review process as soon as an application for funding or approval is received (6 NYCRR 617.51). If the overall project is classified as a Type I action, then the agency in receipt of the application must: (1) contact the other involved agencies, if any, notifying them of the project; (2) transmit copies of the Environmental Assessment Form and application; and (3) indicate that a lead agency needs to be determined. The involved agencies then have 30 days to agree on a lead agency. If the involved agencies are unable to agree on a lead agency within this 30-day period, the applicant or any of the involved agencies may request that the Commissioner of Environmental Conservation designate a lead agency [617.6(e)]. Thereafter, the determination of significance must take place within fifteen (15) days after designation of the lead agency. In this case, Region 3 was properly designated to serve as lead agency by agreement between Region 3 and the Town of Ulster. Nonetheless, the Town argues that withdrawal and resubmission of the application for approval triggers a renewed lead agency designation procedure.

There are no express provisions contained in 6 NYCRR 617 that authorize redesignation of a lead agency. The agency that has been designated as lead agency either by agreement of the involved agencies or by the Commissioner continues until the SEQR process is complete. Thus, absent submission of a dispute to the Commissioner within the 30-day period, the designation of lead agency is final .

This requirement is an important protection to project sponsors and the public alike. It compels agencies to resolve disputes in a timely manner and precludes delay during the initial environmental assessment and public participation phases of the process. It also provides assurances that environmental review will occur at the earliest significant stage in project development [Tri-County Taxpayers Association, Inc. v. Town Board of Queensbury, 55 N.Y. 2d 41 (1982)].

The lead agency, as manager of the SEQR process, must guarantee that the SEQR procedures are literally followed [Rye Town/Rye King Civic Association v. Town of Rye, 82 AD 2d 474 (2nd Dept., 1981)]. The Courts have reaffirmed this vital role served by the lead agency. Absent strict compliance with the lead agency designation procedures, a project sponsor might be tempted to shop for a lead agency more favorably inclined to issue a negative declaration of significance as opposed to requiring preparation of an environmental impact statement [Glen Head-Glenwood Landing Civic Council, Inc. v. Town of Oyster Bay, 88 AD 2d 484 (2nd Dept., 1982)]. On the other hand, according to 6 NYCRR 617.3(g), an agency that coordinates review and issues a negative declaration of significance may not later be usurped by an agency calling for preparation of an environmental impact statement. Finality in the lead agency designation process precludes a lessening of the significance of the lead agency's role and serves to protect the integrity of the administrative process.

The regulations, however, implicitly recognize that, in limited circumstances, redesignation of the lead agency role may be appropriate. If, upon resubmission of an application, the project has been modified such that the impacts of the action that serve as the basis for designation of lead agency, 6 NYCRR 617.6, have been altered, the lead agency may be redesignated. Indeed, agencies are not precluded from submitting disputes based on the above grounds to the Commissioner for resolution. This is based on the premise that an application for a materially altered project may be treated as a new application requiring submission of a new environmental assessment form. In addition, if a substantial period of time has lapsed between the original and resubmitted applications such that circumstances affecting the designation of lead agency have changed, redesignation of the lead agency may be appropriate.

In the matter before me, the Town urges that the project has been materially altered such that a redesignation of lead agency is required. After a careful review of the project comparisons submitted by the Town and Region 3 and the criteria for determining lead agency in 6 NYCRR 617.6, I conclude that the project is essentially the same as originally proposed (see Attachments F and G).

Accordingly, the designation of Region 3 as lead agency is affirmed.

This decision to uphold the designation of Region 3 as lead agency does not mean that the Town of Ulster, an involved agency under SEQR, will not or should not participate actively in the SEQR review process. The Department of Environmental Conservation is firmly committed to encouraging local agencies to actively participate in the SEQR process.

/s/
Henry G. Williams Commissioner
Dated: Jan. 13, 1984
Albany, New York

Distribution of Copies:

  • Paul Keller - Regional Director, Region 3
    Charles Rider - Supervisor, Town of Ulster
    James Antonecchia - Project Sponsor
    Joshua Effron - Attorney for Project Sponsor
    Dennis Doyle - Planning Department, County of Ulster
    Carol Sondheimer - Scenic Hudson
    Thomas Miner - The Catskill Center
    Michael Rosenthal - Heritage Task Force for The Hudson River Valley
    John Gillett - Ulster Landing Property Owners Association

New York State Department of Environmental Conservation:

  • L. Marsh
    N. Robinson
    T. Ulasewicz
    M. Gerstman
    L. Concra
    J. Jensen
    R. Manna
    L. Zeisel

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