Lead Agency Dispute: Division of Substance Abuse Services v. Town of Rhinebeck
New York State Department of Environmental Conservation
Commissioner's Determination of Lead Agency
under Article 8 of the
Environmental Conservation Law
PROJECT: Four-Hundred Bed Residential Drug-Free Substance Abuse Treatment Center by Daytop Village, Incorporated, in Town of Rhinebeck
In order to comply with the legislative mandate of Article 8 of the Environmental Conservation Law (ECL) that the State Environmental Quality Review (SEQR) process be initiated as early as possible in governmental decision making, I am designating the New York State Division of Substance Abuse Services (DSAS) as lead agency for review under SEQR of the subject project. This designation is made pursuant to Article 8 and, in particular, the criteria provided for in 6NYCRR Part 617, the statewide regulations governing SEQR. My decision is based on the fact that the DSAS has the most appropriate jurisdiction and powers to investigate potential impacts, and because the potential impacts are not so primarily of local significance to require designation of a local lead agency. My rationale for these conclusions, as well as for the reconsideration of this matter for designation prior to the final resolution of a court appeal related to one of the potential involved agencies, is elaborated below.
In a letter dated May 17, 1988, I was asked by Richard 1. Cantor, Esq., representing the project applicant, Daytop Village, Inc., to resolve a lead agency dispute which appeared to exist between DSAS and the Town of Rhinebeck Planning Board ("Town") over the conduct of the environmental review required under SEQR. The applicant proposes the establishment of a 400-bed, residential drug-free, substance abuse treatment center at two separate but associated existing sites in the Town of Rhinebeck, Dutchess County, formerly used to house about 250 mentally disabled and disturbed adolescents and appropriate faculty members.
A legal challenge was lodged by the Town regarding the validity of the Town Planning Board's underlying jurisdiction to become directly involved in the decision making on the proposed project. On May 22, 1988, Jerome Jensen of my staff wrote to Mr. Cantor declining to consider the matter until the court reached its determination since, if the court found that the Town had no jurisdiction, there would be no lead agency dispute requiring resolution.
In a decision filed and entered with the Dutchess County clerk on June 2, 1988, Judge James D. Benson ruled that the state regulatory procedures in connection with the DSAS license pre-empt local powers, that the special permit legislation of the Town is beyond any statutory authorization, and that the 1975 Zoning Ordinance is invalid and not in effect. The decision is currently on appeal by the Town.
On October 4, 1988, I received a letter from John Cavallero, Supervisor of Licensing Services for DSAS, requesting that I reopen consideration of this lead agency dispute in order that, if possible, review procedures under SEQR could be initiated prior to the court resolution of the Rhinebeck appeal.
It is appropriate for me to issue a decision at this time, considering the court decision nullifying the Town's jurisdictions for the project and in furthering the interest of expediting the SEQR review. The State Legislature has specified at Section 8-0107 of ECL Article 8 that agencies shall carry out terms of the article "...with minimum procedural and administrative delay...and shall expedite all proceedings hereunder in the interests of prompt review." Delay caused by the appeal from the lower court determinations on the underlying jurisdiction of the Town is inconsistent with that legislative mandate and may have an unnecessary negative effect on this project for which a public need exists.
In considering which would be the most appropriate lead agency, the three criteria specified in 617.6(e)(5) should be applied. The first criterion is whether the anticipated impacts are primarily of local, regional or statewide significance. The Town has noted that "...issues of appropriate density of land use, impacts on community services, impact of alternate care facilities generally upon the Town, traffic, waste disposal and impact upon cultural and historical resources have all been identified, at this time, as the primary potential impacts of the Proposal..." and contends that these are primarily of a local impact.
The DSAS argues that the impacts of this project are related to the conservation of "human resources" supported by the documented public need statewide, for an additional 3,000 residential drug treatment beds and that DSAS has taken an interregional approach to meet this need. This facility is part of the plan to meet that need.
A review of the application submitted to DSAS by Daytop Village Inc. also identified potential impacts associate with the improvement of the sewage treatment system at one of the two locations at which the residential drug treatment center would be operated. It should be noted that the proposed 400-bed capacity is an increase of 100 to 150 more residents than there were students and faculty residing at the former Rhinebeck Country School at the two sites. Daytop Village is temporarily licensed by DSAS to operate at a 232-person level at the two combined sites.
This project involves an increased use of an existing facility including limited expansion of certain existing structures. It would likely have some on-site and local impacts, but those impacts are marginal changes from the type and degree of impacts already experienced as result of the existing facility. The impacts appear to be largely confined directly to the project site itself; in addition, the solid waste, water and sewer related impacts are not within the jurisdiction of the Town to resolve.
I conclude that local impacts cited by the Town are not so primarily significant to require designation of a local lead agency pursuant to the Part 617 criteria..The second criterion for consideration in resolving a lead agency dispute is which agency has the broadest powers for investigation of potential impacts. The primary environmental concerns of this proposed action relate to the generation of wastes and water and sewer issues, the control of which fall under county and state jurisdiction; e.g., the county solid waste management authority, county health department and the New York State Department of Environmental Conservation (DEC). DSAS, in reviewing and approving the application for Daytop Village operation at these two sites, must consider the ability of the facilities to meet all environmental regulations. In addition, DSAS has the authority to require an applicant to modify its proposal to make necessary physical plant changes or to withdraw its application if adverse impacts cannot be adequately mitigated.
If the Planning Board ultimately has a Special Use Permit and Site Plan Review, it would also have authority to address site and related construction details of the proposed action, except as noted above. However, it would not have the principal responsibility for decision making related to the facility.
The third criterion in resolving a lead agency dispute is which agency has the greatest capability to provide a thorough environmental assessment of the proposed action. Since both the Rhinebeck Town Planning Board and DSAS either have professional staff or have the ability to hire consultants and call upon other agencies to provide them with any necessary technical analyses of potential impacts, the review capabilities of both agencies must be considered equal.
I therefore conclude, based on all the facts presented, that the New York State Division of Substance Abuse Services best serves the role of lead agency for conduct of review under SEQR for the proposed establishment of a 400-bed, residential drug-free, substance abuse treatment center in the Town of Rhinebeck, Dutchess County, because the DSAS has the most appropriate jurisdiction and powers to investigate potential impacts, and because the potential impacts are not so primarily of local significance to require designation of a local lead agency.
In undertaking this environmental review, DSAS has an obligation to address all substantive and relevant environmental issues raised by the Town of Rhinebeck, whether or not it has been determined that the Town has approval jurisdiction regarding this proposed action. I would encourage the Planning Board or other units of the Rhinebeck Town government to make DSAS fully aware of their specific environmental concerns and to participate fully in the SEQR process.
This decision does not in any manner limit or minimize the responsibility of all other involved agencies to review this entire proposed action and to assist the DSAS staff in completion of the environmental review process.
Thomas C. Jorling Commissioner
Dated: Nov. 30, 1988
Albany, New York
Distribution of Copies:
- J. Cavallero (DSAS)
S. Mazzerella (Rhinebeck Town Planning Board)
J. Mort (Rhinebeck ZBA)
Msgr. Wm. O'Brien (Daytop Village, Inc.)
Y. Hijazi (Daytop Village, Inc.)
R. I. Cantor, Esq.
P. Gitlen, Esq. (W.O.& H.)
S. Rosenshein, Esq. (W.O.& H.)
G. Stafford (DOS-Coastal Mgt.)
B. Fullum (OPRHP)
D. O'Connor (Dutchess Co. Health Dept.)
Director, Dutchess Co. Planning Dept.)
Rudikoff & Rohde, Inc.
New York State Department of Environmental Conservation:
- T. Jorling
M. Gerstman (Legal Affairs)
G. Bowers (Legal Affairs)
J. Jensen/F. Howell (DRA)
P. Keller (Reg. 3)
R. Manna (Reg. 3)
A. Ciesluk (Reg. 3)