Village of Scarsdale v. City of White Plains
New York State Department of Environmental Conservation
Commissioner's Determination of Lead Agency
under Article 8 of the
Environmental Conservation Law
PROJECT: Application by Realm, LLC to construct an Assisted Living Residence in the Village of Scarsdale and the City of White Plains, Westchester County
DISPUTING AGENCIES: Village of Scarsdale Planning Board and the City of White Plains
This decision to designate the Village of Scarsdale as lead agency for the conduct of the environmental review under the State Environmental Quality Review Act (SEQRA) is made pursuant to Article 8 of the Environmental Conservation Law (ECL) and 6 NYCRR Part 617. This decision is based on my finding that the Village of Scarsdale Planning Board's jurisdiction under site plan review is broader than the jurisdiction of the City of White Plains.
The proposed project is the application by Realm, LLC to construct a 90-115 unit, Assisted Living Residence for the Elderly on a 6.97-acre site located in the Village of Scarsdale and the City of White Plains, Westchester County. The residence units will be constructed wholly within the 5.83-acre portion of the site that lies in the Village of Scarsdale. Access to the facility will be via a public street located in the City of White Plains.
The Village of Scarsdale Planning Board has to issue site plan approval, a special permit to allow a use which is permitted in the zoning district, and a wetlands permit in order for the project to be constructed as proposed. The City of White Plains also has to issue site plan approval for the construction that will occur within the portion of the site that lies in the City. In addition, the project may require a special use permit or zoning amendment if the proposed use is determined by the City of White Plains to be inconsistent with the present zoning of the site.
In resolving a lead agency dispute, I am guided by the three criteria listed in order of importance in paragraph 6 NYCRR Part 617.6(b)(5)(v). These are: (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..
The first criterion relates to whether the anticipated impacts are primarily of statewide, regional or local significance. The proposed project straddles the municipal boundary between the Village of Scarsdale and the City of White Plains with construction occurring in both municipalities. The structure containing the units will be located entirely within the Village of Scarsdale and it can be anticipated that a majority of the physical disturbance from construction will occur in the Village. However, the sole access road is located in the City of White Plains. All of the traffic impacts associated with construction and the subsequent operation of the facility will impact the City of White Plains. Since the impacts will be local in nature and both municipalities will experience impacts from the proposed development, I must proceed to the next criterion in order to resolve this dispute.
The next criterion addresses the breadth of jurisdiction. It is in the consideration of this criterion that I find a clear distinction. The Village of Scarsdale Planning Board must issue a site plan approval in order for the facility to be constructed. Since the structure containing the units and the majority of the site is located in the Village, this review will address most of the major concerns such as the number of units to be constructed, the footprint for the structure and the associated parking. In addition, the Village of Scarsdale Planning Board under site plan review will have the authority to impose substantive conditions on the size and location of structures to minimize or avoid the impacts that are identified during the environmental review. In contrast, the scope of the site plan review of the City of White Plains will be limited to the siting and construction of the access road and its connection to existing public streets in the City. The ability of the City of White Plains to impose substantive conditions and mitigation would be limited in the same fashion. Although both agency's basis of jurisdiction is similar, it is clear that the scope of the jurisdiction of the Village of Scarsdale Planning Board is much broader than the scope of the City of White Plains' jurisdiction.
The third criterion relates to the capacity of an agency to provide for a thorough environmental assessment. Given that the second criterion has indicated a clear preference for the Village of Scarsdale Planning Board, consideration of the third criterion in not required.
I conclude, based on the facts presented, that the Village of Scarsdale Planning Board should be lead agency for the conduct of the environmental review of the application by Realm, LLC to construct an assisted living residence due to the broad scope of its jurisdiction under site plan review.
This project, which extends beyond the political boundaries of either municipality, requires that both agencies work in close cooperation. I encourage the City of White Plains to actively participate in the environmental review so that the record developed by the Village of Scarsdale Planning Board will adequately satisfy their needs when the applicant seeks the necessary approval(s) from the City. In order for this to occur, the Village of Scarsdale Planning Board must consider the "whole action" when conducting an environmental review. Segmenting the environmental review is clearly contrary to the intent of SEQR. The Village of Scarsdale Planning Board as lead agency is responsible for seeing that the concerns of the City of White Plains are identified and evaluated within the environmental review process. The City of White Plains has noted that the full EAF submitted with the petition for resolution of the lead agency dispute only addressed that portion of the project that would occur in the Village of Scarsdale. A first step toward complying with this requirement should include a request from the Village of Scarsdale Planning Board that the applicant submit a revised Part I of the full EAF that adequately addresses the entire project.
This decision in no way limits the jurisdiction or responsibility of the City of White Plains. The applicant must apply for and obtain all required approvals from the City of White Plains prior to commencing the action.
John P. Cahill, Commissioner
Albany, New York
- Peter Van de Water, Planner, Village of Scarsdale
Edward Dunphy, Corporation Counsel, City of White Plains
Marc Moran, Regional Director, DEC Region 3
Margaret Duke, Regional Permit Administrator, DEC Region 3
New York State Department of Environmental Conservation:
- Victor Gallo