Rockland County v. Town of Clarkstown (Capasso Subdivision)
Lead Agency Dispute
PROJECT: Proposed Capasso Subdivision, Town of Clarkstown, Rockland County
DISPUTING AGENCIES:Rockland County Drainage Agency and Town of Clarkstown Planning Board
This decision to designate the Rockland County Drainage Agency (RCDA) 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 Part 617 of Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York (NYCRR). This decision is based on my finding that potential impacts from the proposed Capasso Subdivision may reach beyond the local area and that those impacts require that an agency with a comparably broader authority lead the environmental review. This decision does not limit the responsibilities of the Town of Clarkstown Planning Board (Planning Board) or the several other involved agencies in the exercise of their own separate jurisdictions. Specifically, subdivision review and related land use decisions will remain under the purview of entities of the Town of Clarkstown.
The proposed project is the application by Anthony Capasso to subdivide approximately 5.77 acres of land into 11 lots for the construction of single-family residences. Pascack Brook, a New York State (NYS) protected stream, runs through the parcel. Pascack Brook is a tributary to United Water System reservoirs serving Bergen County, New Jersey. Seven (7) of the proposed lots would contain stream bed and banks of Pascack Brook, although the precise extent of total area within the 100-year flood plain and subject to an RCDA drainage easement along the stream is a factual dispute between the two agencies. There is a substantial and somewhat complex underlying record regarding prior activities on the property, which can be generally summarized by noting that since approximately 1998, retaining walls were constructed on both sides of the stream as it crosses the property and sections of the property were filled, all under several related permits (supported by negative declarations) from the RCDA, Planning Board and others. Further, it now appears that the total volume of fill placed on the property apparently exceeded that which was authorized.
In order for the project to be constructed as proposed, several state and local agencies have authority to issue discretionary approvals:
- the Planning Board must issue subdivision approvals;
- the Town of Clarkstown is an "MS4" community under the federal Clean Water Act (CWA) and must therefore ensure that any development complies with CWA "Phase 2" stormwater controls;
- the RCDA must issue county-regulated stream and wetlands approvals;
- the Rockland County Department of Health must approve water supply and sanitary waste systems; and
- the NYS Department of Environmental Conservation (DEC) must issue ECL Article 15 permits for all necessary stream crossings by the road as well as utilities, for any lot grading which would intrude into the stream corridor, and possibly for stormwater outfalls; DEC may also need to issue a Clean Water Act Section 401 Water Quality Certification (WQC) if the subdivision development will require alterations of federally-protected wetlands; and DEC is generally responsible for oversight of all CWA Phase 2 stormwater programs.
The RCDA and the Planning Board are the only agencies disputing for lead agency. The materials submitted do not include any responses from any other agencies to the Planning Board's initial coordination letter. Further, while the other involved agencies received copies of the initial lead agency coordination from the Planning Board, of the lead agency dispute filing from the RCDA, and of DEC's acknowledgement of the dispute, none of them provided any comments on the dispute.
In resolving a lead agency dispute, I am guided by the three criteria listed in order of importance in 6 NYCRR Part 617.6(b)(5)(v). These are:
- 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);
- which agency has the broadest governmental powers for investigation of the impacts of the proposed action; and
- which agency has the greatest capability for providing the most thorough environmental assessment of the proposed action.
In considering the first criterion, I must look at the range of anticipated impacts and determine whether they are primarily of statewide, regional or local significance. The RCDA identified potentially significant impacts of increased flooding and decreased water quality due to this proposed residential development; RCDA considers these impacts of regional significance because Pascack Brook is a tributary within the Hackensack River Basin, and supplies reservoirs which serve Bergen County, New Jersey. The Planning Board identified similar potential impacts, but characterized those potential impacts as primarily local.
I find that the project has the potential for both locally and regionally significant impacts, however, the potential regional impacts of this project are compelling. An interstate water supply is clearly more than a local resource, and the potential for impacts on that water supply is of regional significance. Similarly, a development involving potential floodplain alteration in an already flood prone area, with the potential to aggravate offsite flooding, also goes beyond simple local interest. Given this potential for impacts to resources of regional concern, I find that an agency with regional jurisdiction would be the appropriate lead agency for this project.
While I do not need to consider the second criterion, breadth of authority, to reach my decision, I note that the RCDA has explicit authority under the Rockland County Stream Control Act (Chapter 846 of the NYS Laws of 1975) and the Rockland County Freshwater Wetlands Act (Chapter 270 of the laws of Rockland County) to address both the substance and the geographic breadth of the potential off- as well as on-site impacts of the proposed development, including an explicit mandate to review and approve subdivision plats. The Planning Board, on the other hand, holds broad land use authority but is limited in jurisdiction to its own township.
The third criterion relates to the capacity of an agency to provide for a thorough environmental assessment. Both disputing agencies possess both the expertise and experience to undertake an adequate environmental review of the proposed action.
For the foregoing reasons and based on the facts presented, I conclude that the Rockland County Drainage Agency should be lead agency for the conduct of the environmental review for the proposed Capasso subdivision due to the regional nature of the potential significant impacts and the RCDA's broad governmental powers to investigate and address those impacts.
I stress again that this decision in no way limits the jurisdiction or responsibilities of the Planning Board or the other involved and interested agencies. The Planning Board will still be required to consider and approve the plans for the proposed subdivision, including all necessary access and infrastructure. The Planning Board has documented that it has a mechanism to solicit the specific expertise of the other town and local agencies when evaluating those plans. The RCDA, as the lead agency, will need to ensure that it develops an environmental review record sufficient to satisfy the needs of all the agencies which must make subsequent approvals. I encourage the RCDA to make that underlying environmental review a cooperative effort involving all of the agencies with jurisdictions and resource concerns.
Dated: March 8, 2005
Albany, New York
Denise M. Sheehan, Acting Commissioner
Distribution of Copies
- Richard J. Paris, Chair, Town of Clarkstown Planning Board
Edward F. DeVine, Executive Director, Rockland County Drainage Agency
Donald S. Tracy, Esq, for Anthony Capasso
New York State Department of Environmental Conservation
- Marc Moran, Regional Director, DEC Region 3
Margaret Duke, Regional Permit Administrator, DEC Region 3 Office
Michael Naughton, Counsel, Division of Legal Affairs
Betty Ann Hughes, Division of Environmental Permits
Town of Clarkstown:
Department of Environmental Control, attn: Dennis Letson
- Department of Health, attn: Patrick Brady, P.E., Public Health Engineer
Rockland County Department of Planning, attn: Dr. James Yarmus, Commissioner