Town of Grand Island v. DEC
Lead Agency Dispute
New York State Department of Environmental Conservation
Commissioner's Determination of Lead Agency
under Article 8 of the
Environmental Conservation Law
PROJECT: River Oaks Planned Unit Development- Including River Oaks Lake Expansion, River Oaks Landings No.1 Development and River Oaks Landings Marina, Town of Grand Island, Erie County
This decision to designate the Planning Board of the Town of Grand Island, Erie County, as lead agency for the conduct of the environmental review under the State Environmental Quality Review (SEQR) process required for this proposed action is made pursuant to 6 NYCRR Part 617. My decision is based on my finding that the impacts of this project are likely to be primarily local rather than regional or statewide in nature, that the Planning Board of the Town of Grand Island is more likely to have a greater degree of jurisdiction over the development as a whole, and that the Town is already acting as lead agency for a portion of the action.
This lead agency dispute between the Town of Grand Island and Region 9 of the New York State Department of Environmental Conservation (DEC) arose in connection with proposed mining activities within and adjacent to a planned unit development (PUD) at East River Road and Whitehaven Road in the Town of Grand Island. The original PUD of approximately 1,200 acres was conceptually approved by the Town in 1970. The plan called for the construction of a golf course, hotel, marina, theme park, multi-family housing and some single-family housing. To date, only the hotel, golf course and some attached single-family units have been completed. The overall parcel has been split into separate ownerships, and development activities are being considered for most of these land holdings.
First, SEQR properly applies to the pending actions notwithstanding the prior PUD approval. In the case of Rye Town/King Civic Association v. Town of Rye, App. Div. 442 NYS 2d 67 (2nd Dept., 1981), the court recognized that because of the non-final nature of the approval given when a PUD is established, SEQR must apply to subsequent agency decisions for proposed actions within a PUD. In the River Oaks PUD, the Town of Grand Island has appropriately continued to apply SEQR to its decisions.
The projects now under consideration by the Town, as discussed below, are associated in time and geographic scope and are related to the overall development proposals. They should all be considered as part of one action. These activities in the PUD, coupled with those in adjacent areas, warrant an evaluation of potential short-term, long-term and cumulative environmental impacts upon the entire area, including the potential for induced growth. Save the Pine Bush v. City of Albany, 68 N.Y. 2d 611 (1987). It would be contrary to the "whole action" review concept set forth in 617.3(d) to examine the closely related development activities at River Oaks in segments, notwithstanding the fact that several separate decisions will be required to complete the project. This approach to environmental review has been endorsed in Onondaga Landfill Systems, Inc. v. Flacke, 81 A.D. 2d 1022 (4th Dept., 1981), which involved mining and residential development.
During the summer of 1985, Baeder Naruda Interests, Inc. requested the Town Board of the Town of Grand Island to consider a plan for rezoning 488 acres of a site within the PUD. The Town Board determined that there would be no significant environmental impact from the proposed change but required the applicant to provide to the Town the necessary SEQR documentation for an environmental review of each subsequent phase of the project which would be submitted for Town Planning Board approval.
On February 10, 1988, the Town bf Grand Island, as lead agency, issued a positive declaration of intent to prepare a draft environmental impact statement (EIS) for a 304-slip inland basin type marina, proposed by James Chase, which is also part of the PUD.
In a letter of February 11, 1988, Stephen J. Doleski, Regional Permit Administrator for DEC Region 9, Buffalo, requested that I formally designate a lead agency for another element of this overall development, the proposed excavation by the Saraben Corporation of approximately 530,000 cubic yards of clay from 51.5 acres by deepening two 18.6 and 5.6-acre lakes previously developed as part of the golf course. Approximately 10.4 acres of a wetland (TW-10) regulated by DEC is included in the area proposed for excavation. The site will be reclaimed so that portions of the lakes will border land available for future residential development. DEC mined land reclamation and wetland regulations (Article 23, Title 27 and Article 24 of the Environmental Conservation Law) will apply to the clay mining operations proposed by the Saraben Corporation. Town jurisdictions include subdivision and possible zoning approvals for future development.
Opportunity has been provided to the Town of Grand Island and to DEC Region 9, along with other potential involved agencies, to present their arguments on the designation of lead agency for review of this proposed action. My decision is based on the responses of the Town and Region 9. No other potential involved agencies have responded, but comments have been received from representatives of the Saraben Corporation regarding the clay mining aspects of this overall action.
In making my decisions resolving a dispute over lead agency, I must consider the criteria from 6 NYCRR paragraph 617.6(e)(5). These criteria, in order of importance, are: (1) whether the anticipated impacts are primarily of local, regional or statewide significance; (2) which agency has the broadest governmental powers for investigation into potential impacts; and (3) which agency has the greatest capability of providing the most through environmental assessment of the proposed action.
With respect to the first criterion, it is clear that the primary effects of the development of the River Oaks area will be local, mostly impacting the site and adjoining areas of the Town. Short- term impacts may include the noise, dust and air emissions during construction and a variety of temporary construction disturbances upon wetlands, streams and shorelines. Longer term impacts may include permanent localized alterations of natural habitats due to lake enlargements and marina installations, increased potential for development along the shores of the lake which are external to the PUD, and increased congestion after construction from new additional uses. In sum, such impacts are almost entirely local in nature.
An argument that there is a major regional interest for the special clay material proposed to be excavated has no merit. DEC Region 9 notes that there is no shortage of comparable material elsewhere in the Niagara Frontier area. Thus, the clay mining operation itself and its subsequent reclamation impacts are primarily of local interest.
Application of the second criteria also favors the Town. Virtually every development activity proposed in the River Oaks area will require some land use related decision by the Town of Grand Island. In contrast, DEC Region 9 authority is limited to the wetland and mining aspects of the overall action. The Town of Grand Island has more than sufficient power to examine the impacts of this overall project. As an involved agency, DEC Region 9 has an obligation to provide information and expertise during the conduct of the SEQR process with respect to its concerns for the mining operation, natural disturbances and any waste disposal or air or water quality matters. Also, the Town of Grand Island is already acting as lead agency in the environmental review of the marina; it is appropriate that the Town's powers of investigation encompass the review of the entire action so that marina is not segmented from the rest of the overall development.
In applying the third criterion, it is clear that the Town has the capability to address the localized land use issues which are most fundamental to this project. The environmental consequences of this overall development extend to areas of local concern beyond the resource management issues associated with mineral extraction and protection of wetlands and waters. The Town argues that it has very limited staff expertise available to it for conduct of an environmental review under SEQR. The Town may, however, assess the cost of conducting a SEQR review and retaining the necessary expertise.
Costs of preparation of EISs are generally borne by the project sponsors and, under 6 NYCRR Section 617.17, fees may be charged to cover the costs of lead agency review of such EISs. Alternatively, an EIS may be prepared by the lead agency and a fee apportioned to the various applicants. This may be particularly appropriate for this action involving a number of existing and prospective applicants. Because the overall action consists of a number of elements and phases, some of which are more detailed at this time than others, a Generic EIS might be appropriate for more conceptual aspects of the River Oaks development.
I note that earlier reviews of the Baeder-Naruda zoning plan and the James Chase marina application have been conducted through the Town SEQR Committee. If the Town Planning Board or any other agencies with discretionary decision-making authority have delegated their SEQR decisions to another body that has no authority to decide on an action, such delegation may violate individual agency responsibilities under SEQR. Glen Head, Glenwood Landing Civic Council, Inc. v. Town of Oyster Bay, 88 A.D. 2d 484 (2nd Dept., 1982).
Based on a careful consideration of all facts presented, I find that the most reasonable resolution of this lead agency dispute is to designate the Planning Board of the Town of Grand Island as lead agency. This determination recognizes that the Planning Board, through its site plan and subdivision review processes, is the Town agency likely to be involved in the greatest number of remaining decisions related to this overall site. My decision recognizes the need for a local agency to examine whether the wide range of activities proposed for this site may have significant environmental impacts. Such examinations require considerable local insight not likely to be available from agencies at higher levels of government.
This decision does not in any manner limit or minimize the responsibility of all involved agencies to review the entire action, to assist the Planning Board of the Town of Grand Island in completion of the environmental review process, and to make independent findings before undertaking any portion of the whole action.
Thomas C. Jorling Commissioner
Dated: April 14, 1988
Albany, New York
Distribution of Copies:
- M. T. Prast, Supervisor, Town of Grand Island
J. Trianda, Chairman, Town of Grand Island Planning Board
S. Doleski, Supervisor of Regulatory Affairs, DEC Region 9
K. Cross, Coastal Management, NYS Department of State
Erie County Health Department
NYSDOT, Region 5
Erie County Planning Department
R. L. Stone, Saperston & Day
New York State Department of Environmental Conservation:
- L. Marsh
J. Jensen/F. Howell