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Lead Agency Dispute: NY Division of Lottery v. City of Saratoga Springs Planning Board

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

PROJECT: Proposed Saratoga Raceway Expansion at Saratoga Gaming and Raceway, City of Saratoga Springs, Saratoga County

DISPUTING AGENCIES: New York State Division of Lottery and the City of Saratoga Springs Planning Board

This decision to designate the New York State Division of Lottery as lead agency for the conduct of the environmental review under the State Environmental Quality Review (SEQR) process is made pursuant to Article 8 of the Environmental Conservation Law (ECL) and 6 NYCRR Part 617.

The subject of this dispute is the proposed facility expansion at the Saratoga Gaming and Raceway in the City of Saratoga Springs of approximately 41,000 square feet in order to accommodate 400 new video lottery terminals (VLTs), a 300 seat buffet restaurant area and a two story night club. In addition, an approximate 3,500 square foot addition is also proposed to the administration portion of the building to provide new office space. The present facility was opened in January 2004 as the Saratoga Equine Sports Center with 1,324 VLTs. The facility name has since been changed to the Saratoga Gaming and Raceway. All work will occur on the existing 161-acre site of the raceway.

The role of lead agency may be assumed only by an involved agency with authority to make discretionary decisions on one or more components of the overall plan. In this proceeding, the Division of Lottery, through the grant of authority from the New York State Legislature (NY Tax Law § 1617-a), has the jurisdiction to approve the construction and operation of video lottery gaming. The City of Saratoga Springs Planning Board has argued that any expansion of offices and restaurants over 1200 square feet is subject to site plan review by the City Planning Board pursuant to applicable provisions of the City of Saratoga Springs Zoning Ordinance. Therefore, for the sole purpose of resolving this lead agency dispute pursuant to the criteria in 6 NYCRR Part 617.6(b)(5), I accept the position of the Saratoga Springs Planning Board in regard to its jurisdiction. In addition, the New York State Racing and Wagering Board has a discretionary approval through its authority to issue Racing Licenses.

All three agencies, by virtue of their respective jurisdictions, are considered potentially involved agencies under SEQR. The Division of Lottery and the City of Saratoga Springs Planning Board have both expressed a desire to act as lead agency for the environmental review of this proposal.

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). The three criteria 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 is whether the potential impacts from the proposed action are of local, regional or statewide significance. In this case, there is no real disagreement between the disputing agencies, as both agencies recognize that almost all potential impacts are primarily of local significance. The site is located entirely within the boundaries of the City of Saratoga Springs and it is clear that the impacts associated with the expansion of the Saratoga Gaming and Raceway, including the installation and operation of the VLTs, will be experienced primarily within the City limits. These potential impacts include, but are not limited to, possible aesthetic impacts to a contiguous historic district; construction over a primary, principal or sole source aquifer; conversion of existing open space to built property; parking; increased traffic; and infrastructure and service demands within the City of Saratoga Springs. Traffic impacts could potentially extend outside of the City of Saratoga Springs. In sum, the potential environmental impacts from the construction and operation of an expanded Saratoga Gaming and Raceway would be local in nature, primarily affecting the City of Saratoga Springs. Ordinarily, the regulations lead me to designate a local agency as lead where the impacts from a proposed action are primarily local and the disputing agencies have relatively equal jurisdiction and capabilities for providing a thorough environmental assessment. However, as discussed below, the breadth of jurisdiction reveals a considerable disparity between the involved agencies. Therefore, I conclude that the fact that impacts are primarily of local significance should not serve as the sole basis for this decision.

The second criterion is the breadth of jurisdiction. The Legislature has granted the Division of Lottery authority to review and approve the construction and operation of VLTs and this grant of authority, as found in New York State Tax Law, covers both the specific construction of video gaming and a broad range of issues that might typically be addressed through a site plan review process. The Division of Lottery must approve the layout and construction of the physical facilities, parking, installation of the VLTs and certify that the facility will meet all state and local fire and safety codes. In addition, the Division of Lottery can incorporate site plan review factors into its review and it has clear authority to consider the proposed project in its entirety and to require and implement changes in all aspects of the action if needed to minimize or mitigate significant adverse environmental impacts. As the agency primarily responsible for approving construction, the Division of Lottery will have the authority to impose substantive conditions on the size and location of structures to avoid or minimize impacts revealed during the course of the environmental review.

The City of Saratoga Springs Planning Board asserts that it has jurisdiction through site plan review. The City of Saratoga Springs Planning Board further asserts that the breadth of its authority under site plan "is at least as great as Lottery's and even greater." Site plan review is a broad and expansive tool. However, without getting into a specific examination of the City's authority one thing is clear. The City of Saratoga Springs Planning Board does not have any jurisdiction related to the construction and operation of video gaming in New York State. That authority rests solely with the Division of Lottery. This is the major distinction in jurisdiction between the two agencies seeking lead agency status.

The third criterion relates to the capacity of an agency to provide for a thorough environmental assessment. The City of Saratoga Springs Planning Board has demonstrated that it has ample staff and professional expertise to conduct this SEQR review. The Division of Lottery also indicated that it has successfully completed SEQR reviews for other video lottery gaming facilities, and it will be aided by the New York State Office of General Services (OGS) in its SEQR review. On this third criterion, neither agency has demonstrated a sufficiently superior capability to outweigh or offset the decision reached with respect to breadth of jurisdiction. Both agencies appear capable of conducting a thorough and comprehensive environmental review of the project as a whole.

Based on the Division of Lottery's expansive breadth of authority, I conclude that the Division of Lottery has the authority and capability to examine a broader range of issues than the City of Saratoga Planning Board. Since the Division of Lottery authority exceeds the site plan jurisdiction of the City of Saratoga Springs Planning Board, I further conclude that the Division of Lottery is the most appropriate lead agency for the proposed Saratoga Raceway Expansion Project.

This decision does not in any way limit the jurisdiction of any of the involved agencies to actively participate in the continued SEQR review of this proposed action. I encourage the City of Saratoga Springs Planning Board to not only participate, but to clearly articulate any concerns it may have to the Division of Lottery. In addition, the Division of Lottery should evaluate and correct any substantive deficiencies that were pointed out by the City of Saratoga Springs Planning Board in its May 4, 2006 correspondence (A. Durland to R. McLaughlin) in order for it to assume its role as lead agency with the most accurate information possible.

I have determined that the Division of Lottery acting as lead agency has the breadth and capability to fairly identify and resolve impacts and issues associated with this proposed project, even if necessary, through the preparation of an Environmental Impact Statement. Through cooperation and participation, I expect that the concerns of any involved agencies will be represented in the SEQR record developed by the Division of Lottery acting in its role of lead agency for the proposed construction and operation of this facility.

/s/
Denise M. Sheehan, Commissioner

Dated: June 14, 2006
Albany, New York

Distribution of Copies

Agencies/Applicant
Valerie Keehn, Mayor, City of Saratoga Springs
Michael Englert, Esq.,City Attorney, City of Saratoga Springs
Geoffrey Bornemann, City of Saratoga Springs Planner
Nancy A. Palumbo, Director, NYS Division of Lottery
Robert J. McLaughlin, Esq., Deputy Director and General Counsel, NYS Division of Lottery
Randall Lex, Director of Video Gaming Operations, NYS Division of Lottery
R. Feurestein, Esq., General Counsel, NYS Wagering & Racing Board
Noreen VanDoren, Esq., OGS Legal Services, NYS Office of General Services
David Wickerham, County Administrator, Saratoga County

New York State Department of Environmental Conservation
L. Stark, Executive Deputy Commissioner
J. Ferreira, Esq., General Counsel
S. Buchanan, Regional Director, Region 5 Office, Ray Brook
A. Crocker, Esq., Division of Legal Affairs
T. Hall, Regional Permit Administrator, Region 5 Office, Ray Brook


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