Town of Tuxedo 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: Designation of lead agency for the review of the proposed Sterling Forest Development in the Towns of Monroe, Tuxedo and Warwick in Orange County
This decision to designate the Region 3 office of the Department of Environmental Conservation as lead agency for the conduct of an environmental review under the State Environmental Quality Review (SEQR) process is made pursuant to Article 8 of the Environmental Conservation Law and 6 NYCRR 617. I find that the potential regional, statewide and interstate impacts from the proposed Sterling Forest development require that an agency with a statewide perspective and jurisdiction that extends beyond municipal boundaries act as lead agency for the preparation of a generic environmental impact statement.
The proposed Sterling Forest project involves the development of 4,187 acres of a 17,505-acre parcel in the Towns of Monroe, Tuxedo and Warwick in Orange County. Included in this development proposal is the construction of 14,200 units of residential housing in the Towns of Monroe, Tuxedo and Warwick and the construction of 2.28 million square feet of retail/office space and 4.3 million square feet of commercial/light industrial space in the Town of Tuxedo. Additional retail/commercial/light industrial development may occur in the Towns of Monroe and Warwick. Additional acreage is owned by the Sterling Forest Corporation in the Village of Sloatsburg, Rockland County (6 acres) and the State of New Jersey (approximately 2,000 acres). Construction will occur in three major phases with an anticipated buildout period of 30 years.
The first issue to address is the question of the timeliness of the dispute, particularly the Region 3 response to the Town of Tuxedo's request for lead agency coordination. On July 3, 1991, the Town of Tuxedo sent out a notice of intent to assume lead agency for the review of an application by the Sterling Forest Corporation for a Planned Integrated Development (PID) in the Town of Tuxedo. The project, as described in the notice, was limited solely to the construction occurring within the Town of Tuxedo. Region 3 responded on August 9, 1991 that it wished to assume lead agency for the entire Sterling Forest development but referenced, in its response, the R.H. Tuxedo Planned Integrated Development, a project for which the Town had sent a lead agency solicitation on July 10, 1991. This error was corrected in a letter to the Town of Tuxedo dated August 15, 1991. On August 20, 1991, the Town of Tuxedo issued a notice designating itself as lead agency for review of the Sterling Forest Corporation PID.
At a September 11, 1991 meeting regarding the Sterling Forest project, Region 3 was advised that an informal agreement existed between the Towns of Monroe, Tuxedo and Warwick to cooperate in the review of the project. On October 4, 1991, Region 3 raised this dispute. The agreement among the Towns was formalized in a resolution dated October 9, 1991 by the Town of Tuxedo and October 10, 1991 by the Town of Warwick. The resolutions stated that the Towns of Monroe, Tuxedo and Warwick would act jointly in reviewing the Sterling Forest Corporation project under SEQR. There is no record before me indicating that the Town of Monroe has agreed to this arrangement.
Given the initial erroneous description by the Town of Tuxedo regarding the scope of the project and the evolving and unsettled nature of the lead agency agreement among the Towns, I find that the August 9 response by Region 3 is not grounds for dismissal of this dispute and that a determination of lead agency under the powers granted me under paragraph 6 NYCRR 617.6(e)(5) is warranted. There was well-founded confusion on the part of Region 3 as to which project and lead agency solicitation it was responding to on August 9, 1991 and there was no real agreement among the Towns on lead agency until after this dispute was triggered. I would also note that the apparent intent of the Town of Tuxedo to review only those aspects of the action within its borders is contrary to the basic intent of SEQR to review the whole action.
In resolving a dispute about lead agency, I am guided by the three criteria listed in order of importance in paragraph 6 NYCRR 617.6(e)(5). These are: (1) whether the anticipated impacts are primarily of local, regional or statewide significance; (2) which agency has the broadest powers for investigation of potential impacts; and (3) which agency has the greatest ability to provide a thorough environmental assessment of the proposed action.
The first criterion involves determining the location of the impacts. Although the project as proposed will have substantial direct impacts on the Towns of Monroe, Tuxedo and Warwick, there are many potential impacts that are regional and statewide in nature and require a regional and statewide perspective in the environmental review. The holdings of the Sterling Forest Corporation encompass three towns in Orange County, a village in Rockland County and lands in the State of New Jersey. Issues that are regional or statewide in scope include: the development of one of the last large contiguous areas of open space in the region; the discharge of sanitary wastewater and non-point source runoff to streams that are tributaries to the Ramapo River which is the source for wellfields used by the Village of Suffern, and the Spring Valley Water Company which serves much of Rockland County and surface water users in New Jersey; the potential for impacts on watershed lands in New Jersey; potential traffic impacts on the regional road network; and impact to sensitive visual and aesthetic resources such as the Appalachian Trail. It is clear that an agency with regional and statewide jurisdiction must serve as the lead agency.
It is not necessary for me to proceed to the second and third criteria regarding the breadth of jurisdiction and the capability of performing a thorough environmental assessment. Each involved agency has the necessary jurisdiction and would be capable of performing the required analysis or obtaining the services of a consultant. What sets Region 3 apart is its broad mandate for environmental protection that even an inter-municipal agreement cannot match.
I conclude, based on the facts presented, that the Region 3 office of the Department of Environmental Conservation best serves the function of lead agency for the conduct of the environmental review for the Sterling Forest Corporation proposal due to its mandate to protect regional and statewide resources that may be affected if this project goes forward. I would also encourage Region 3 to contact their sister agency in New Jersey and invite their participation in the review.
This decision does not in any manner affect the local land use jurisdiction of the three towns. Each local agency retains its underlying land use jurisdiction. DEC will act as lead agency for the preparation of a generic EIS to assess the impacts from the overall Sterling Forest development. The project sponsor and the Towns of Monroe, Tuxedo and Warwick have acknowledged the need for a generic EIS to assess the potential regional and cumulative impacts. After completion of the generic EIS, it is anticipated that site-specific supplements with local lead agencies may be necessary to assess the impacts associated with specific components of the overall plan for the development of the Sterling Forest holdings. This approach will ensure that a comprehensive review is conducted on the overall Sterling Forest Development by an agency with a regional perspective and allow local municipal agencies to maintain their full local land use decision-making powers.
Thomas C. Jorling Commissioner
Dated: Nov. 18, 1991
Albany, New York
New York State Department of Environmental Conservation:
- Commissioner Jorling
Distribution of Copies:
- See attached