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Lead Agency Dispute: Town of Montgomery Town Board and Town of Montgomery 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 Taylor Biomass Gasification-to-Energy project, Town of Montgomery, Orange County

DISPUTING AGENCIES: Town of Montgomery Town Board and Town of Montgomery Planning Board

I have been asked to designate a lead agency to conduct the environmental review of the proposed Taylor Biomass Gasification-to-Energy project, in the Town of Montgomery, Orange County, under the New York State Environmental Quality Review Act (SEQR) [Article 8 of the New York State (NYS) Environmental Conservation Law (ECL); see also, Part 617 of Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York (6 NYCRR Part 617)]. This designation of the Town Board of the Town of Montgomery (Town Board) as lead agency for that review is based on my finding that the greater breadth of governmental powers inherent in the Town's zoning process will enable a more thorough evaluation of the proposal.

ACTION AND SITE

Taylor Holdings Group (Taylor) currently operates a construction and demolition debris (C&D) processing facility in the Town of Montgomery, with a capacity of approximately 600 tons per day (tpd). Taylor proposes to expand its operating capacity to 950 tpd of mixed C&D plus municipal solid waste (MSW); construct and operate a gasifier to convert all combustible materials to gas; and construct and operate a 15 megawatt (MW) combined cycle electrical generation unit fueled by the biomass gas plus waste heat from the gasification process. In addition to construction of the gasifier and electric generating units, the overall expansion would require construction of a new, larger waste processing building as well as rerouting of the facility's internal traffic flows, including creation of separate truck and employee entrances plus a new emergency access.

The applicant describes the existing facility as having been in operation since the 1980's. Operations originally included composting as well as C&D sorting and disposal, but only C&D has been handled for the last several years. While the proposal specifies that all materials handling will be within structures, existing operations include some open-air processing as well as activities within buildings.

Taylor owns approximately 95 acres, acquired as 4 separate parcels but treated as a single holding for the purposes of the proposed expansion. The existing facility is located on one, 20 acre +/- parcel, with the remainder in undeveloped forest and shrubby fields. Structures related to the proposed development would occupy about a third of the 95 acre total, with parking lots and paved equipment storage areas likely to occupy a similar area. Undeveloped areas would be left natural or planted, to help buffer operations from roadways and neighboring properties. One property line is about 650 feet from the Village of Maybrook, which contains relatively dense residential and commercial development. Other commercial and industrial uses plus unimproved lands (including some abandoned agricultural lands) are located near the remainder of the Taylor property. The Taylor holding is less than one mile from Exit 5 of I-84.

REGULATORY SETTING

The disputing agencies are the Town Board and the Planning Board of the Town of Montgomery (Planning Board). The New York State Department of Environmental Conservation (DEC) will have to issue multiple permits, but does not seek lead agency status. No other involved agencies have responded to this announced dispute for lead agency.

About three-fourths of the Taylor parcel is currently included within an "Interchange Development" (ID) zoning district, but about 13 acres are zoned for residential/agricultural (RA) uses. Taylor has asked the Town Board to rezone the RA portion of the holding to the same ID-zoning classification as exists for the remainder of the property. The change, if adopted by the Town Board, would ostensibly allow for the industrial type use of the property as proposed-a substantial change in allowable uses from residential and agricultural uses. Further, Taylor has requested that the Town Board modify multiple portions of the existing zoning ordinance so that the proposed sizes and areal coverage of the various proposed structures would all fall within the bulk and dimensional specifications of that ordinance.

Taylor's current operation is covered by a "Special Exception Use" permit issued by the Planning Board. The Planning Board would need to issue a new or significantly-modified Special Exception Use permit as well as Site Plan review and approval to allow the proposed development to proceed. In addition, the Planning Board must issue an advisory opinion to the Town Board as to the proposed zoning amendments.

Taylor currently holds a DEC Solid Waste Management (SW) permit. The proposed operation would require DEC to issue a new or substantially modified SW permit as well as an air emissions permit, NYS Pollution Discharge Elimination System (SPDES) discharge and stormwater permits (construction as well as industrial operation); and, depending on design, a Water Quality Certification (WQC) under the federal Clean Water Act. In addition, the project may require a petroleum or chemical bulk storage registration.

DISCUSSION

In resolving a lead agency dispute, I am guided by the three criteria listed in order of importance in 6 NYCRR §617.6(b)(5)(v):
a) 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);
b) which agency has the broadest governmental powers for investigation of the impacts of the proposed action; and
c) which agency has the greatest capability for providing the most thorough environmental assessment of the proposed action.

A. First Criterion

The Town Board and the Planning Board as well as DEC identified a range of potential impacts and issues of concern, including traffic, noise, odors, visibility of some or all proposed new structures, air emissions, and the experimental or developmental nature of the proposed gasification process and facility. Most of these articulated impacts are primarily local to regional, but in any case do not provide the basis for any distinction between two local boards. Accordingly, I move to consider the second criterion.

B. Second Criterion

There is a fundamental difference in the powers of the two agencies, which clearly relates to the nature and breadth of the inquiries and decision-making that each can undertake. The Town Board is being asked to change the allowable uses of one parcel of land, and to alter key quantitative criteria governing size and placement of structures and facilities that can be placed on the property as a whole. The Town Board will have the final say over a request for a substantial change in use classification which, if granted, could be expected to set the stage for a range of potential impacts different in kind and degree from the impacts that may be expected if the property were to remain in the RA-2 classification. In this case, rezoning may be a more important decision from the standpoint of SEQR than the individual permitting of projects since a zoning change triggers a change in the allowable use of land. The importance of the zoning decision, particularly the requested change in use classification from RA-2 to ID and the potential for such legislative action to modify or affect subsequent decision making at the property, points to the Town Board as the most appropriate involved agency to serve as lead agency. See, for example, Lead Agency Dispute: Queensbury Town Board v. Planning Board v. DEC v. DOH, Commissioner's Decision, August 30, 1991. Further, the Town Board, as lead agency, would also be empowered to consider the impacts of the project driving the zoning decision as well as the more generic issues associated with a zoning change.

In contrast, the Planning Board's authority to approve or disapprove special exception use permits and site plans is circumscribed by NYS Town Law enabling acts, Town Law §§274-a and 274-b, and the Town of Montgomery implementing local laws or ordinances. Under Town Law §274-b (Special use permits), specification of a use as a special use or special exception use constitutes a legislative finding that a use is in harmony with the community's general zoning plan and will not adversely affect the neighborhood unless the Planning Board finds that the use is undesirable at the particular location pursuant to applicable criteria. See Retail Property Trust v. Zoning Board of Appeals of the Town of North Hempstead, 98 N.Y.2d 190 (2002). Under Town Law §274-a (site plan review), the Planning Board's focus is on the layout, arrangement and design of development on an individual parcel of property, and the Planning Board's scope of authority is limited to elements such as parking, means of access, screening, signs, landscaping, architectural features, location and dimensions of buildings, adjacent land uses, physical features meant to protect adjacent land uses, and any other elements specified in the local law or ordinance by which the Town Board has delegated site plan review authority to the Planning Board. Thus, under these authorities, the Planning Board is required to consider impacts on adjoining and nearby properties or residents, but is otherwise more limited in examining a proposed use or project than is the Town Board when making a determination to rezone a parcel of land. Thus, in this instance, I find that the Town Board possesses the greater breadth of governmental powers through the authority inherent in the zoning process, and that it has the capacity to conduct a more thorough evaluation of the proposed Taylor project.

C. Third Criterion

The Planning Board has demonstrated that it has great experience in managing SEQR processes on complex projects, and that its individual members have a great depth of professional knowledge that could be called upon in conducting the SEQR review. On the other hand, the Town Board has demonstrated that it has access to and the ability to work with technical consultants to assist them in conducting the necessary environmental review of the proposed Taylor project. The Town Board can also avail itself of the Planning Board's expertise through close coordination and consultation with that board in the decision-making process. Accordingly, this criterion provides no further distinction between the two boards.

FINDING

Based on the greater breadth of governmental powers provided through the authority inherent in the particular rezoning, I find that the Town of Montgomery Town Board should serve as the lead agency for the environmental review of the proposed Taylor Biomass Gasification-to-Energy project. This designation in no way changes or diminishes the responsibilities or authority of the other involved agencies. I therefore charge the Town Board with incorporating the concerns and issues identified by the Planning Board, DEC R.3, and all other involved agencies as it conducts that environmental review, and with utilizing their respective expertise at all decisional points in the project review.


Dated: 1/20/2009

/s/
Alexander B. Grannis, Commissioner
Albany, New York

Distribution:

Hon. Michael Hayes, Supervisor, Town of Montgomery, for the Town Board
Michael Murphy, Esq., for the Montgomery Town Board
Jeffrey D. Crist, Chairman, Montgomery Planning Board
Kevin Young, Esq., for Taylor Holdings Group

cc:

Charles T. Bazdylo, Esq., for the Montgomery Town Board
William Janeway, Regional Director, NYS DEC R.3, New Paltz
Margaret Duke, Regional Permit Administrator, NYS DEC R.3, New Paltz
Lawrence H. Weintraub, Esq., NYS DEC Counsel's Office, Albany
Betty Ann Hughes, SEQR & Training, NYS DEC Environmental Permits, Albany


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