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Lead Agency Dispute: Division of Lottery v. City of Yonkers

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

PROJECT: Proposed Yonkers Raceway Redevelopment and Video Lottery Installation at Yonkers Raceway, City of Yonkers, Westchester County

DISPUTING AGENCIES: New York State Division of Lottery and the City of Yonkers Zoning Board of Appeals

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. This decision is based primarily on my finding that the New York State Legislature has given to the Division of Lottery broad jurisdiction over the construction and operation of video lottery gaming at Yonkers Raceway.

The subject of this dispute is the proposed installation of video lottery terminals (VLTs) at Yonkers Raceway in the City of Yonkers for video lottery gaming. The project consists of the phased installation of 7,500 VLTs at Yonkers Raceway in conjunction with the phased renovation of the existing clubhouse, construction of a pre-engineered building to house some of the VLTs and construction of associated on-site infrastructure improvements. All work will occur on the existing 98-acre site of the raceway.

The role of lead agency may be assumed only by an involved agency. In this proceeding, it is clear that the Division of Lottery through the broad 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 and therefore qualifies as an involved agency. The City of Yonkers Zoning Board of Appeals (ZBA) has argued that the need for an area variance to expand a non-conforming structure consistent with Chapter 43 of the City of Yonkers Code provides the ZBA with a basis for jurisdictional role in this action. Therefore, for the purposes of resolving this dispute on its merits, I accept the position of the ZBA in regard to its jurisdiction.

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 is whether the potential impacts from the proposed action are of local regional or statewide significance. The site is located entirely within the boundaries of the City of Yonkers and it is clear that the impacts associated with the redevelopment of the Yonkers Raceway including the installation and operation of the VLTs will be experienced primarily within the City of Yonkers. The only impact issue that could potentially extend outside of the City of Yonkers is traffic. However, even this impact would be primarily experienced by the citizens of Yonkers due to the location of the Yonkers Raceway within the City of Yonkers boundaries. Thus, the potential environmental impacts from the construction and operation of an expanded Yonkers Raceway including the installation and operation of the VLTs would be local in nature and would primarily affect the City of Yonkers.

The regulations list the criteria for determining lead agency in order of importance. In most lead agency disputes 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, in this case, the breadth of jurisdiction reveals considerable disparity between the involved agencies. Therefore, I conclude that the primarily local impacts from the proposed action should not serve as the sole basis of this decision.

The second criterion is the breadth of jurisdiction. For the purpose of resolving this lead agency dispute, I have determined that both the Division of the Lottery and the ZBA have jurisdiction over the proposed action. However, it is clear that the breadth of jurisdiction granted by the New York State Legislature to the Division of Lottery to review and approve the construction and operation of VLTs far exceeds the limited jurisdiction of the ZBA.

The grant of authority to the Division of Lottery found in New York State Tax Law covers a broad range of issues that are typically 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. 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.

In contrast, the ZBA's jurisdiction is limited to the review of an area variance due to the proposed expansion of a non-conforming structure. Although the ZBA must weigh the benefits to the sponsor against the health, safety and welfare of the community, its actual jurisdiction is limited to the area variance. Therefore, it is reasonable to conclude that the Division of Lottery's breadth of jurisdiction is far greater than that of the ZBA.

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 Division of Lottery, 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 Division of Lottery should be lead agency for the conduct of the environmental review for the proposed Yonkers Raceway Re-development due to the broad scope of authority afforded to the Division of Lottery by the New York State Legislature under its enabling legislation.

This decision does not in any way limit the jurisdiction of any of the involved agencies. I urge the City of Yonkers to actively participate in the environmental review of the proposed Yonkers Raceway project so that the record developed by the Division of Lottery adequately addresses the expected impacts from this proposed construction and operation of the facility. The Division of Lottery has indicated that an environmental impact statement will be required. This will afford all of the involved agencies and the public with the greatest opportunity to participate in the environmental review process. At the end of the SEQR process, each involved agency will then be required to make separate findings based on their jurisdiction.

/s/
Erin M. Crotty, Commissioner
Dated: 6/15/04
Albany, New York

Agencies/Applicants:

  • P. Amicone, Mayor, City of Yonkers
    J. Cianciulli, Chairman, City of Yonkers Zoning Board of Appeals
    J. Meyer, Commissioner, Dept. of Housing & Buildings, City of Yonkers
    F. Rubino, Esq., Corporation Counsel, City of Yonkers
    F. Martin, Esq., Counsel for Yonkers Racing Corporation
    N. Palumbo, Director, New York State Lottery
    R. Feurestein, Esq., General Counsel, NYS Wagering & Racing Board
    A. Shareef, NYS Department of Transportation
    J. Mulligan, Commissioner, Westchester County Dept. of Planning

New York State Department of Environmental Conservation:

  • D. Sheehan, Executive Deputy Commissioner
    J. Ferreira, Esq., General Counsel
    M. Moran, Regional Director, Region 3 Office, New Paltz
    S. Garlick, Esq., Division of Legal Affairs
    J. Nasca, Division of Environmental Permits
    P. Duke, Regional Permit Administrator, Region 3 Office, New Paltz

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