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Town of Rye v. Town/Village of Harrison

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

PROJECT:

  • Rye Town North
    Blind Brook Campus Office
    Citicorp Conference Center and Office
    Royal Executive Park

1. Pursuant to the provisions of Article 8 of the ECL, subdivision 6 of Section 8-0111:

  • "When 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 and such agency shall prepare, or cause to be prepared by contract or otherwise, the environmental impact statement for the action if such a statement is required by this article. In the event that there is a question as to which is the lead agency, any agency may submit the question to the Commissioner and the Commissioner shall designate the lead agency, giving due consideration to the capacity of such agency to fulfill adequately the requirements of this article."

and pursuant to the provisions of 6NYCRR 617, subdivision (e)(I) of section 617.6.

"Actions for which lead agency cannot be designated by agreements.

  • (1) If within the 30-day period allotted for designation of lead agency the involved agencies are unable to agree upon which agency shall be the lead agency, any involved agency or the applicant may write to the Commissioner requesting that a lead agency be designated. Simultaneously, copies of the request shall be mailed to all involved agencies and the applicant."

2. In a letter dated May 22, 1980 and a mail gram dated May 23, 1980, the Town/Village of Harrison requested that the Commissioner designate a lead agency for the subject projects. The request is primarily based on the following stated objection:

  • ''Harrison disputes and objects to the Rye Town designation as lead agency. First, Harrison was never notified by mail of the lead agency determination and was never mailed an EAF. It is Harrison's position that failure to notify Harrison constitutes a violation of 6NYCRR Part 617.6 in that the entire procedure is illegal and invalid. Harrison's position stems from its position as an involved agency. Involved agency status emanates from, among other things, the necessity for Harrison to approve a northern access route through Harrison for the traffic attendant to the Rye Town project."

The lead agency notices are referenced in as follows:

"Rye Town, upon information and belief, sent out lead agency determinations and EAF's as follows:

  • Blind Brook Campus Office, Feb. 22, 1980
    Generic EAF, Mar. 5, 1980
    Citicorp Conference Center & Office, Mar. 12, 1980
    Royal Executive Park, Mar. 12, 1980"

The Town/Village of Harrison also cites regional significance of the subject actions as further justification for objecting to the Town of Rye as lead agency.

3. On June 13, 1980, the Department received correspondence with attachments from the Town of Rye. The letter responds to the Town/Village of Harrison letter of May 22, 1980 described in item 2 of this determination. The attachments to the letter consist of the following:

1) Lead agency notices re:

  • a) Citibank Conference Center and Office Development (dated Feb. 11, 1980)
  • b) Rye Town North Generic Environmental Impact Statement (dated Jan. 28, 1980)
  • c) Blind Brook Office Building (dated Jan. 24, 1980)

2) A list of names and addresses entitled "List to Which Positive Declaration Sent" re: Royal Executive Park.

The above attachments were supplemented by a copy of the lead agency notice re: Largo - London & Leeds Office Development [Royal- Executive Park] (dated Feb. 11, 1980) sent to the Department by letter of transmittal dated June11, 1980.

4. The lead agency determination notice dates, based on either the Town/Village of Harrison or the Town of Rye versions reported, would indicate that the normal period for designation of lead agency [as per 6 NYCRR 617.6(e)(1)], has passed. In addition, lead agency responses from the Region 3 office of the Department are dated Feb. 18,1980, with the exception of the Rye North generic response dated Feb. 26, 1980. A lead agency was established among the several involved agencies and an environmental impact state- ment process has been followed. Within the 30-day period allotted for designation of lead agency, there was no disagreement among the involved agencies. The involved agencies copied in the Town of Rye's lead agency notices include:

  • Rye Town Planning Board
    Rye Town Engineer
    Westchester County Health Department
    Westchester County Department of Public Works
    Westchester County Department of Environmental Facilities
    Westchester County Soil and Water Conservation Board
    Westchester County Planning
    New York State Department of Transportation
    New York State Department of Environmental Conservation

5. The stated objection from the Town/Village of Harrison (see item 2 of this determination) is based primarily on the claim that Harrison was not properly considered as an involved agency. The concern does not arise from a disagreement within the allotted 30 day period. The Department has no special enforcement authority under the provisions of Article 8 of the ECL or 6NYCRR617. Therefore, I hereby determine that the Department has no jurisdiction regarding this request. This determination process also notes that the previously referenced Attachment C (P- 5) indicates the following:

  • ....."the Rye Town Board has agreed to cooperate fully with the Town/Village of Harrison. Specifically, the Rye Town Board has passed a resolution in which it has bound itself to discuss matters fully with the Town/Village of Harrison and to furnish written notice to Harrison twenty (20) days before issuance of the final environmental impact statement to ensure that adequate opportunity is given for comment and input by Harrison.

In conclusion, the Town of Rye reaffirms its commitment to comply with the letter and spirit of the Environmental Law and to cooperate with all interested parties to ensure that these projects will proceed with due regard for the appropriate concerns of the Town of Harrison."

/s/
Robert F. Flacke Commissioner
Dated: July 17, 1980
Albany, New York

Distribution of Copies:

  • J. Passidomo - Harrison Town Supervisor
    A. Pirro - Harrison Town Attorney
    A. Posilippo - Rye Town Supervisor
    M. Berner - Rye Town Attorney
    M. Corwin, Chairman - Rye Town Planning Board
    F. Fidelibus - Rye Town Engineer
    C. Weber, Commissioner - Westchester County Health Department
    F. Bohlander, Commissioner - Westchester County Dept. of Public Works
    J. Cropper - Westchester County Soil & Water Conservation Board
    P. Eshweiler, Commissioner - Westchester County Planning
    A. Bloom - New York State Department of Transportation

New York State Department of Environmental Conservation:

  • G. Danskin - Region 3 Office
    R. Persico - Central Office
    P. Lanahan - Central Office
    L. Concra - Central Office
    J. Jensen - Central Office
    D. Ruzow - Central Office

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