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Lead Agency Dispute: Niagara Town v. Niagara Falls Council v. Niagara Falls Planning

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 the 53 acre former LaSalle Senior High School Property by the Town of Niagara from the City of Niagara Falls, Niagara County and development of the Military Road Retail Complex

DISPUTING AGENCIES: Town of Niagara Town Board, City of Niagara Falls City Council and the City of Niagara Falls Planning Board

This decision to designate the City of Niagara Falls Planning Board 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. This decision is based primarily on my finding that the Planning Board has broader authority under its site plan and subdivision review processes to assess the anticipated environmental impacts from the proposed annexation and the subsequent development of the Military Road Retail Complex.

The subject of this dispute is the proposed annexation of the 53 acre former LaSalle Senior High School property into the Town of Niagara. The property proposed for annexation is currently located in the City of Niagara Falls and is the subject of a development proposed by the Randall Benderson 1993-1 Trust. This development known as the "Military Road Retail Complex" will involve the construction of a Wal-Mart Supercenter, a Sam's Club and other associated retail development.

The role of lead agency may be assumed only by an involved agency. In this proceeding, it is clear that the City of Niagara Falls Planning Board through its site plan and subdivision approvals qualifies as an involved agency. It can be reasonably argued that the Town of Niagara through its role in the annexation proceeding and the potential for the Town to assert local land use control should the property be annexed to the Town of Niagara provides a basis for a jurisdictional role in this action. Therefore, I find the Town of Niagara should also be treated as an involved agency for the purposes of resolving this dispute on its merits.

The determination of public interest which must be made by the Town of Niagara and the City of Niagara Falls under the General Municipal Law (GML), prior to granting or denying an annexation petition, is a discretionary approval to which SEQR must be applied. Typically, an annexation involves a change in land use or a desire for public services which may be more readily available from one municipality than another. In this case, the parcel subject to annexation is the proposed site of a large retail development currently under review by the City of Niagara Falls Planning Board. In contrast to the decision-making process found in the GML regarding annexation and Appellate Court review, the motivation of the agencies involved in the annexation and the merits of their argument regarding the serving of the public interest are not a part of this decision.

On November 18, 2002, the Town of Niagara sent a letter to the City of Niagara Falls, the Region 9 office of the Department of Environmental Conservation and the City of Niagara Falls School District notifying the parties that it was in receipt of a petition for annexation of the subject parcel, that it had classified the action as an Unlisted Action and that the Town of Niagara Town Board would serve as "Lead Agent under SEQR" for the project. On December 12, 2002, the City of Niagara Falls Department of Community Development responded to the Town's letter stating that the City considers the proposed annexation a part of Benderson Development Corporation's proposal, that the City of Niagara Falls objects to the Town of Niagara acting as lead agency for the annexation and that the City of Niagara Falls would seek to act as lead agency for the annexation in conjunction with the proposed retail plaza development. On December 30, 2002 the Town of Niagara petitioned me to designate the Town of Niagara as lead agency for the review of the proposed project.

In resolving a lead agency dispute, I am guided by the three criteria listed in order of importance in paragraph 6 NYCRR Part 617.6(b)(5)(v). These 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 regarding whether the potential impacts from the proposed annexation and subsequent development of the Military Road Retail Complex are local, regional or statewide favors neither the Town of Niagara nor the City of Niagara Falls. The site is located at the boundary of the two municipalities. The retail development will result in the generation of traffic, significant quantities of storm water runoff from the structures and parking areas and the need for water and sewer service. However, both involved agencies are local and both will be almost equally impacted by the proposed development. Thus, potential impacts from the annexation and development would be local in nature and would equally affect both the Town of Niagara and the City of Niagara Falls.

The second criterion is the breadth of jurisdiction. Both the Town and the City have the authority to approve or to deny the annexation petition. However, in addition to considering the annexation, the City of Niagara Falls through its Planning Board has before it a proposal for the development of the site under both its subdivision and site plan review authority. The associated environmental review will have to consider not only the construction of the facilities but also impacts that will result from the operation of the retail center. Under its site plan approval process the City of Niagara Falls Planning Board will also 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. In contrast, the Town of Niagara's jurisdiction at the present time is limited to the consideration of the impacts from the pending annexation and its ability to substantively condition its approval to mitigate identified impact is similarly constrained. Should the Town of Niagara be successful in its petition to annex this property it would have similar local land use powers but at this time it lacks the kind of broad authority that is held by the City of Niagara Falls Planning Board. Therefore, it is reasonable to conclude that the City of Niagara Falls Planning Board's breadth of jurisdiction is presently greater than that of the Town of Niagara.

The third criterion relates to the capacity of an agency to provide for a thorough environmental assessment. Given that the second criteria has indicated a clear preference for the City of Niagara Falls Planning Board consideration of the third criterion is not critical. 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.

I conclude, based on the facts presented, that the City of Niagara Falls Planning Board should be lead agency for the conduct of the environmental review for the proposed annexation and the subsequent development of the Military Road Retail Complex due to the broad scope of authority afforded to the City of Niagara Falls Planning Board under its site plan and subdivision approval processes and the Town of Niagara's present lack of land use jurisdiction.

This decision does not in any way limit the jurisdiction of any of the involved agencies or minimize their responsibilities under the provisions of GML regarding the annexation. I urge the Town of Niagara to actively participate in the environmental review of the proposed Military Road Retail Complex so that the record developed by the City of Niagara Falls Planning Board adequately addresses the expected impacts from this proposed development. Should the Appellate Court approve the annexation petition by the Town of Niagara, the provisions of 6 NYCRR 617.6(b)(6) would guide the re-establishment of lead agency should that prove necessary.

/s/
Erin M. Crotty, Commissioner
Dated: 3/12/03
Albany, New York

Distribution of Copies

Disputing Agencies/Applicant

  • S. Richards, Supervisor, Town of Niagara
  • H. Albond, Manager, Town of Niagara
  • R. Merino, Esq., Attorney, Town of Niagara
  • I. Elia, Mayor, City of Niagara Falls
  • T. DeSantis, Department of Community Development, City of Niagara Falls
  • T. O'Donnell, Corporation Counsel, City of Niagara Falls
  • D. Baldauf, Randall Benderson 1993 - 1 Trust
  • T. Bakner, Esq., Whiteman, Osterman & Hanna, Attorney for Benderson

New York State Department of Environmental Conservation

  • D. Sheehan, Executive Deputy Commissioner
  • J. Ferreira, Esq., General Counsel
  • G. Mikol, Region Director
  • S. Doleski, Regional Supervisor, Division of Environmental Permits
  • M. Naughton, Esq., Division of Legal Affairs
  • J. Nasca, Division of Environmental Permits

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