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Lead Agency Dispute: Village of Great Neck Board of Appeals v. Village of Great Neck Estates Board of Trustees

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

PROJECT: Old Mill II LLC, Village of Great Neck and Village of Great Neck Estates, Nassau County

DISPUTING AGENCIES: Board of Appeals of the Village of Great Neck and the Board of Trustees of the Village of Great Neck Estates

I have been asked to designate a lead agency to conduct an environmental review under the New York State Environmental Quality Review Act (SEQR; Article 8 of the New York State 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]). The request has been made for the proposed subdivision of a 3.104 acre parcel of land, which is partially located in the Village of Great Neck and partially located in the Village of Great Neck Estates, Nassau County. The disputing agencies are the Board of Appeals of the Village of Great Neck (Great Neck BOA) and the Board of Trustees of the Village of Great Neck Estates (Great Neck Estates BOT). This designation of the Great Neck BOA to serve as lead agency is based on my finding that the Great Neck BOA has broader jurisdiction over the proposed project than does the Great Neck Estates BOT.

Action and Site

The proposed action involves an application by Old Mill II LLC to subdivide a 3.104 acre parcel of land into twelve building lots (known as Great Neck Court Subdivision) with access to Clover Drive, located 150 feet south of Mill Road and 235 feet west of Middle Neck Road, in the Villages of Great Neck and Great Neck Estates, Nassau County.

The project would involve subdivision of the 3.104 acre parcel into twelve single building lots, with eleven (representing 85% of the total project area) located within the municipal boundaries of the Village of Great Neck. The remaining lot (Tax Lot 115) is located within the territorial boundaries of the Village of Great Neck Estates. A new home will be constructed on each lot. On the Great Neck Estates lot, an existing residence will be demolished and replaced by a newly-constructed residence on a different portion of the lot. Traffic to and from the proposed subdivision will be directed to existing roadways and streets through a central subdivision road exiting to Clover Drive in the Village of Great Neck Estates; there is no access proposed from the subdivision directly to streets in the Village of Great Neck. Grading plus construction of a central road, supporting appurtenances and site preparation will all be required to prepare the proposed subdivision and to develop the individual sites. The current project proposal was developed as an alternative to an earlier proposal for a 120-unit multifamily "workforce housing" complex, which would be developed on only the Village of Great Neck
portion of the property. This prior proposal was adjourned without date but has not been withdrawn.

Regulatory Setting

Based on letters received from the Great Neck BOA dated July 8, 2010 and July 22, 2010, and the Board of Trustees of the Great Neck Estates BOT dated July 21, 2010, to enable the subdivision project to proceed as proposed, the Great Neck BOA would need to do the following:

  • approve variances to create eleven building lots (Parcels 2 - 12) which will not have street frontage on a public street;
  • authorize one building lot (Parcel 2) with only approximately 90 feet of lot depth, instead of the minimum required depth of 100 feet; and
  • authorize one building lot (Parcel 12) to have an irregular shape not otherwise permitted in the Village.

The Great Neck BOA would have site plan review powers over the original workforce housing proposal, pursuant to Village of Great Neck Code §575-225, assuming that the development would require some other permit, approval or variance from the Great Neck BOA. Because that initial proposal did not include any development of the Great Neck Estates parcel (existing Tax Lot 115) and would not require subdivision of the Great Neck portion of the property, neither the Great Neck Estates BOT nor the Great Neck Planning Board would have jurisdiction over the original proposal.

In contrast, the Great Neck Estates BOT, functioning as the Planning Board of Great Neck Estates, must take the following actions for the project to proceed as proposed:

  • approve subdivision of the property to create the single building lot in Great Neck Estates plus the access road right-of-way;
  • approve sole access to all twelve lots through land in the Village of Great Neck Estates;
  • and permit property use in a residential zoning district in the Village of Great Neck Estates for access to residential structures located outside the Village.

In addition to the above described jurisdictions, the Village of Great Neck Planning Board, which is not part of the lead agency dispute, has jurisdiction pursuant to Village of Great Neck Code §575-202 to review the subdivision of the property within the Village of Great Neck. Lead agency for a SEQR review may be assumed only by an involved agency with authority to make discretionary decisions on one or more components of the overall plan. Both the Great Neck BOA and Great Neck Estates BOT appear to satisfy the criteria to be considered involved agencies, and both have stated their interest in serving as lead agency. No other involved agencies have sought lead agency status or commented on the request for lead agency designation.

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):

  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.

My designation of a lead agency must be based strictly on applying these criteria to the facts of each individual case.

A. First Criterion

The first criterion relates to whether the anticipated impacts are primarily of statewide, regional or local significance. Construction of the subdivision will potentially involve approximately three acres of land disturbance, including grading, stormwater management, central road construction, infrastructure construction, and operational activities that will very likely result in noise, dust, and traffic-related impacts of a local nature. Other identified impacts include traffic (density, safety and pattern), parking, and
demands for community services (e.g., water, sanitary waste management, plowing, school buses, and garbage collection).

The lead agency criteria (6 NYCRR 617.6[b][5][v]) provide that when impacts are primarily local in significance, all other considerations being equal, the local agency involved will be lead agency. I conclude that the impacts from the proposed subdivision are predominantly local. As both disputing agencies are local, the first criterion provides no basis for designating the lead agency.

B. Second Criterion

The second criterion is that of breadth of authority. The Great Neck BOA is primarily charged with considering appeals for variances from the Village of Great Neck Code. Under Village of Great Neck Code §575-225, the Great Neck BOA also assumes authority for conducting site plan review of projects that require one or more variances. The majority of the project site work will occur within the Village of Great Neck, and requires that the Great Neck BOA grant several variances for the subdivision. The Great Neck BOA would have variance authority as well as site plan authority over the initial, multifamily housing proposal to which the current proposal is an alternative.

The Great Neck Estates BOT, functioning as the Planning Board, has authority over subdivision approval within its boundaries. Pursuant to Section 1610(b)(1) of the Nassau County Charter, Great Neck BOT's authority appears to extend to a distance of 300 feet beyond its municipal boundary. The extra-territorial effect of Section 1610(b)(1) is, however, unclear. Great Neck BOT also has authority to grant permission to use property in the Village of Great Neck Estates for the purpose of providing access to residential property located outside of Great Neck Estates.

I conclude that the Great Neck BOA possesses broader authority over the current proposal, based on its variance review authority over the majority of the project site, and its apparent sole authority to issue variances and site plan review approval over the initial, multifamily development proposal. Great Neck Estates BOT would have no authority over the initial multifamily housing proposal, because that project does not involve the portion of the property within Great Neck Estates. Great Neck BOA's authority is sufficient to require any site or plan modifications, to either proposal, that might be necessary to avoid or mitigate any environmental impacts which might be identified during the environmental review of the initial or the alternative proposal.

C. Third Criterion

The third criterion examines which agency has the greatest capability for providing the most thorough environmental assessment. Both Great Neck BOA and Great Neck Estates BOT have described in-house staff capabilities and the ability to retain contracted consultant assistance, to conduct a review for a project of this type and to evaluate the possible impacts (such as aesthetics, erosion and sediment control, stormwater management and traffic). Because both agencies possess highly qualified board
members and have in-house staff or could arrange for consultant services to assist in conducting an environmental review of this proposed development, I find that both agencies possess, or could obtain, the expertise to conduct a thorough environmental review. This being the case, I need not rely on the third criterion to reach my decision.

Finding

Based on its substantially broader authority over the proposed subdivision, I find that the Great Neck BOA should serve as lead agency for the environmental review of the proposed Old Mill II LLC twelve lot subdivision of 3.104 acres, as well as over the initial, multifamily housing proposal. This decision in no way limits the jurisdiction or responsibility of the Village of Great Neck Estates BOT, including the necessity for it to approve the proposed sole access road for the subdivision. The applicant must still
apply for and obtain all necessary approvals in both the Villages of Great Neck and Great Neck Estates, prior to commencing the action.

While designating the Great Neck BOA as lead agency, I must remind it to remain aware of all of the potential impacts that have been identified by either party to this lead agency dispute, or which may be further identified during the course of the environmental review. In developing the record through the SEQR process, I am directing Great Neck BOA to ensure that Great Neck Estates BOT's concerns as well as the concerns of all other involved agencies are factored into the environmental review process.
Continued consultation with the Village of Great Neck Estates and all other involved agencies will enable Great Neck BOA to better identify the full range of potential impacts of the project and, if necessary, explore further alternatives and mitigation to avoid or minimize those impacts. Such consultation will also enable other agencies to identify SEQR and other related analyses which may be warranted.

/s/
Alexander B. Grannis, Commissioner
Dated: September 27, 2010
Albany, New York

Distribution of Copies:

Disputing Parties
Village of Great Neck Estates, Attn: A. Thomas Levin, General Counsel, Board of Trustees
Village of Great Neck, Attn: Dennis Grossman, Chair of the Board of Appeals
Village of Great Neck, Attn: Stephen G. Limmer, Esq., Attorney for the Board of Appeals

Applicant
Paul Bloom, Esq., Attorney for Old Mill II LLC

Involved or Interested Parties
Planning Board of the Village of Great Neck
Nassau County Planning Commission

New York State Department of Environmental Conservation, 625 Broadway, Albany
Lawrence H. Weintraub, Esq., Assistant Counsel, Office of General Counsel, Central Office
Robert L. Ewing, Division of Environmental Permits, Central Office

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