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Town Board of the Town of North Greenbush, Rensselaer County, New York vs. Common Council of the City of Rensselaer, Rensselaer County, New York

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

PROJECT: Proposed annexation of territory from the Town of North Greenbush, Rensselaer County, to City of Rensselaer, Rensselaer County

DISPUTING AGENCIES: Town Board of the Town of North Greenbush, Rensselaer County, New York vs. Common Council of the City of Rensselaer, Rensselaer County, New York

I have been asked to designate a lead agency to conduct the environmental review of the proposed annexation of properties (the "territory") from the Town of North Greenbush, Rensselaer County, to the City of Rensselaer, Rensselaer County, under the New York State Environmental Quality Review Act (SEQR) [Article 8 of the New York State (NYS) Environmental Conservation Law (ECL); regulations at 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 City of Rensselaer (City) as lead agency for that review is based on my finding that the City is the most appropriate lead agency given that the City, as a property owner within the territory proposed for annexation, is directly impacted by land uses on and regulation administration of the properties and further, if the annexation proceeds, would possess broader authority to implement any findings resulting from the environmental review of the proposed annexation.

ACTION AND SITE

The action involves a petition by John J. Dunn Sr., Susan M. Kelly, and the City to annex territory from the Town of North Greenbush (North Greenbush) into the City of Rensselaer, within Rensselaer County. The 43 +/- acre territory proposed for annexation includes property owned by members of the Dunn family which are zoned for industrial use and which have, since about 1860, been the site of a mining operation. Also within the 43 +/- acre territory is a 7.77 acre parcel owned by the City which contains a City water storage facility. Three of four sides of the territory adjoin the City, including the new City elementary and high school campus on property located generally to the north of the territory proposed for annexation; a second parcel generally to the south which is also owned by the Dunn family, formerly located within the Town of East Greenbush and previously annexed to the City; and an area generally to the east which is zoned for land conservation and upon which the City would like to develop passive recreational facilities.

The petition for annexation was compelled by an order of the Supreme Court, Rensselaer County, dated September 17, 1991. That order resulted from an Article 78 proceeding initiated by members of the Dunn family to challenge the application of a City vehicle weight limitation ordinance to truck traffic running to and from petitioners' mining operation, which, although located within the confines of the Town of North Greenbush, is accessible only by City streets or roads. Relevant to this decision is the fact that the Court ordered the petitioners (owners of the Dunn property) to make best efforts to annex their property to the City, and ordered the City to join in and support the annexation proceeding.

REGULATORY SETTING

The role of lead agency may only be assumed by an involved agency with authority to make discretionary decisions on one or more components of the overall plan. The determination of public interest pursuant to General Municipal Law (GML), which must be made by a municipality prior to granting or denying an annexation petition, is a discretionary approval involving the weighing and balancing of social, economic and environmental factors. Further, much like local zoning decisions, annexations may have implications for changes in land uses or service demands. Accordingly, SEQR applies to these determinations.1 In contrast to the decision-making process found in the GML regarding annexation and possible Appellate Court review, however, the motivation of the agencies involved in the annexation and the merits of their argument regarding the serving of the public interest are not relevant to this decision.

In the current dispute, the Town of North Greenbush and the City both seek designation as lead agency for the environmental review of the proposed annexation. Should the annexation proceed, the City would become solely responsible for all of the following within the annexed territory:

  • Maintenance of Partition Street Extension, which is the emergency access route to the City's new public elementary and high school campus;
  • Continued maintenance of the City's roads leading to Partition Street Extension and the remainder of the territory, which currently serve as the only access to the territory; and
  • Continued service by the city's water, sewer, and refuse systems.

DISCUSSION

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):

  • 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.

A. First Criterion

The first criterion asks whether potential impacts from the proposed action are primarily of statewide, regional, or local significance. Both disputing agencies acknowledge that the proposal would likely cause impacts of only local significance, though the parties differ in attributing significance to those various impacts. North Greenbush identifies impacts on existing patterns of population, existing community and neighborhood character, and human health. The City, in turn, asserts impacts on its land conservation area described above; on emergency access to the City's public school campus; and on noise, air, traffic, drainage, and stormwater management related to operation of the Dunn mine, particularly as that may affect the City's water supply facility. Thus, while both agencies identify impacts of concern in their roles as land use regulatory bodies, the City is also a landowner which would be directly impacted by land use decisions affecting the territory proposed for annexation. Accordingly, this criterion favors designation of the City as lead agency.

B. Second Criterion

The second criterion is breadth of authority. Both North Greenbush and the City have the authority to approve or to deny the annexation petition. However, in addition to having authority to act on the annexation petition, the City is also the owner of a parcel of land within the territory. Notably, this parcel of land houses a critical component of the City's water infrastructure, which, according to the City, includes the it's reservoir. The City points out that whether the annexation succeeds or fails, it will continue to have a significant property interest within the territory. The City also provides sewer and water service to the territory. Thus, aside from a potential territorial interest it might acquire as a result of annexation, the City would be strongly affected by any development within the territory, and would necessarily be the agency principally responsible for carrying out any actions necessary for management of water supply or infrastructure. Based on all the foregoing, then, the City is clearly favored as having the broadest authority to implement the environmental review of the annexation.

C. Third Criterion

The third criterion relates to the capacity of an agency to provide for a thorough environmental assessment. Both parties to this dispute possess the necessary staff or the ability to obtain the assistance of consultants to undertake an adequate environmental review for the proposed action. Therefore, there is no real distinction between the disputing agencies as to the third criterion. Further, I need not rely on the third criterion to reach my decision, since consideration of the first two criteria strongly favor designation of the City as lead agency.

FINDING

After considering the relevant criteria under 6 NYCRR Part 617.6(b)(5)(v), I conclude that the City must be designated to serve as lead agency for the environmental review of the proposed annexation. Because the City is the actual owner of a parcel within the territory proposed for annexation, it would be directly impacted by the outcome of the annexation proceeding. Further, under the second criterion, the City not only has jurisdiction to approve or deny the annexation petition, but it is also the agency with the greatest breadth of authority over the territory, including control of access roads as well as provision of municipal services. Thus, the City would be best able to implement any findings resulting from the environmental review of the proposed annexation.

This decision does not in any way change or diminish the jurisdiction of the involved agencies. Impacts identified by the Town of North Greenbush, along with any other involved agencies, must be considered during the environmental review of this project. The record developed during that review must support the decisions of each agency. Accordingly, I encourage the Town of North Greenbush, as well as any other involved agencies, to actively participate in all phases of the environmental review of this proposal. In particular, I encourage the involved agencies to identify the information needs and impact evaluations necessary to support their decisions. I further encourage the City to openly facilitate that participation.

Dated: 9/25/08

/s/

Alexander B. Grannis, Commissioner
Albany, New York

Distribution of Copies

Agencies/Applicant

Town Board of the Town of North Greenbush
Attn: Mark Evers, Supervisor AND
Kerri L. Yamashita, Esq.

City of Rensselaer
Attn: Hon. Daniel J. Dwyer, Mayor AND
John J. Hicks, Esq. AND
Paul J. Goldman, Esq. AND
Lisa M. Penpraze, Esq.

Region 4, NYS Department of Environmental Conservation
Attn: William Clarke, Regional Permit Administrator

John J. Dunn, Sr.

Michael Dunn

Susan M. Kelly

Fred Kirwin, Esq.

New York State Department of Environmental Conservation, Albany

William G. Little, Esq., Office of General Counsel

Lawrence H. Weintraub, Esq., Office of General Counsel

Betty Ann Hughes, Division of Environmental Permits


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