Lead Agency Dispute: Town of Southampton Planning Board and the Zoning Board of Appeals of the Town of Southampton
New York State Department of Environmental Conservation Commissioner's Determination of Lead Agency under Article 8 of the Environmental Conservation Law
PROJECT: Leland Lane, LLC Convenience Store, Town of Southampton, Suffolk County
DISPUTING AGENCIES: Town of Southampton Planning Board and the Zoning Board of Appeals of the Town of Southampton
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 for a designation of lead agency concerns the proposed location of a convenience store in the Town of Southampton, Suffolk County. The disputing agencies are the Town of Southampton Planning Board (Planning Board) and the Zoning Board of Appeals of the Town of Southampton (ZBA). This designation of the ZBA to serve as lead agency is based on my finding that the ZBA has broader jurisdiction over the convenience store project than does the Planning Board.
Action and Site
Specifically, the action is a proposal by Leland Lane, LLC (Leland Lane) to establish a 7-Eleven convenience store in a 3,714 square foot (sq. ft.) portion of an existing 15,000 sq. ft. commercial building at 850 C.R. 39. The parcel is located within a Highway Business (HB) zoning district, on a lot already improved with a 15,000 sq. ft. commercial building and associated parking for 105 cars, plus ten land-banked (grass) parking spaces.
The project would involve the conversion of 3,714 sq. ft. of space already approved for retail use to neighborhood convenience store use, including interior renovations to the structure to accommodate the use. The proposal also includes the addition of 15 parking spaces for the convenience store that could alternatively be reallocated from existing parking spaces located in the shopping center.
Based on letters received from the Planning Board dated May 11, 2010 and August 13, 2010, and letters from the ZBA dated May 21, 2010 and August 10, 2010, the ZBA and the Planning Board assert jurisdiction over the proposed action as follows:
- The ZBA must decide on an appeal for a use variance to allow a prohibited retail convenience store use in the Highway Business Zoning District at this location;1 and
- the Planning Board must consider an application for site plan approval for the change of use from retail store to convenience store pursuant to the Town of Southampton Code §§330-182 through 330-184.1.
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 ZBA and Planning Board 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, however, the applicant's representatives, O'Shea, Marcincuk & Bruyn, LLP, provided comments on the dispute.
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):
- 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.
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 asks whether the potential impacts from the proposed action are of local, regional or statewide significance. Operation of the 7-Eleven, an in-fill project, will potentially involve an increase in traffic, as demonstrated by the requirement for additional parking. Construction activities typically result in noise, dust and traffic-related impacts of a local nature, and should be minor in this case as construction was described as primarily interior renovations. Any socioeconomic impacts that might arise as a result of a use change at this location are also local.
The lead agency criteria (6 NYCRR 617.6[b][v]) provide that when impacts are primarily local in significance, all other considerations being equal, the local involved agency should be the lead agency. Since the impacts from the proposed 7-Eleven convenience store are predominantly local, and both disputing parties are local, this criterion favors neither the Planning Board nor the ZBA.
B. Second Criterion
The second criterion asks which agency has the broadest governmental powers for investigation of the impacts of the proposed action.
As mentioned above, the ZBA must decide an appeal for a use variance. Under Town Law section 267(1)(a), a use variance is defined as an "... authorization by the zoning board of appeals for the use of land in a manner which is not allowed by the dimensional or physical requirements of the applicable zoning regulations." In granting the appeal for a use variance, the ZBA must find that the applicant has met the statutory test for unnecessary hardship as set out in Town Law §267-b. In proving unnecessary hardship, the applicants must show, among other things, that the requested use variance, if granted, will not alter the essential character of the neighborhood. The statute also provides that the ZBA, in granting use variances, shall preserve and protect the character of the neighborhood and the health, safety and welfare of the community. The ZBA's jurisdiction is therefore substantial, as it determines whether the proposed use of the property will even be allowed.
As for the Planning Board's site plan review powers, pursuant to Town Law §274-a, site plan review is the power to review the arrangement, layout and design of a proposed use on a single parcel of land. Under the Town of Southampton Code, this review would include, among other considerations, parking and interior circulation, landscaping and screening, natural features, and compatibility with existing development and the Town's Master Plan. While the Planning Board's site plan review authority is also substantial, as a practical matter, it might not even be called upon, should the ZBA deny the variance.
Based upon a careful consideration of all the facts presented, I find that the ZBA has a greater breath of authority than the Planning Board, due to its appellate power to determine whether Leland Lane is entitled to a variance from the uses that are allowable in the HB district. Under the statutory test for use variances, the ZBA must review the compatibility of the proposed 7-Eleven convenience store, which would include land use and environmental factors, in addition to considering hardship. The greater breadth of authority inherent in the use variance review makes the ZBA better suited to serve in the role of lead agency for the review of this project.
C. Third Criterion
The third criterion asks which agency possesses the greatest capability for providing the most thorough environmental assessment of the proposed action. I acknowledge the Planning Board's arguments regarding its greater experience with applying SEQR to land use projects, its claim of relatively greater thoroughness of its reviews, and its lead agency clearinghouse role under Town of Southampton Code §157-6(c). However, I find that, as a practical matter, the Planning Board and the ZBA have equal capacity to conduct a review of this particular type of project, using either the same in-house staff or by contracting for additional professional assistance.
Therefore, I find that this criterion favors neither the ZBA nor the Planning Board to serve as the lead agency for the review of the convenience store project.
I find that the ZBA should serve as lead agency for the environmental review of the proposed 7-Eleven convenience store project because the ZBA has the broader governmental powers to investigate the impacts of the project. This designation in no way changes or diminishes the responsibility or authority of other involved agencies with jurisdiction over the project, nor does it hamper the participation of interested agencies.
While designating the ZBA as lead agency, I must remind it to remain aware of any potential impacts that have been identified during this lead agency dispute, or which may be identified during the course of the environmental review. In making its determination of significance under SEQR, I enjoin the ZBA to solicit the advice of the Planning Board. Continued consultation between the ZBA and the Planning Board will enable the ZBA to better identify the full range of potential impacts of the project and, if necessary, explore alternatives and mitigation to avoid or minimize those impacts.
1On June 23, 2010, DEC staff remanded the original request for a lead agency designation to the Town of Southampton ZBA for a decision as to whether the application would require a use variance. In the original submission of the dispute to me, the ZBA's jurisdiction over the 7-Eleven convenience store was unsettled. On August 10, 2010, the Chairman of the Town of Southampton ZBA notified DEC staff that on August 5, 2010 the ZBA had affirmed the Town of Southampton Building Inspector's interpretation that the proposed 7-Eleven convenience store is not a permitted use and would therefore require a use variance.
Alexander B. Grannis, Commissioner
Dated: October 18, 2010
Albany, New York
Distribution of Copies:
Town of Southampton Planning Board, Attn: Dennis Finnerty, Chairman
Zoning Board of Appeals of the Town of Southampton, Attn: Herbert Phillips, Chairman
Wayne D. Bruyn, Esq., O'Shea, Marcincuk and Bruyn, LLP, Attorney for Leland Lane LLC
Suffolk County Dept. of Public Works, Planning and Permits Division
Suffolk County Dept. of Health Services, Office of Waste Water
New York State Department of Environmental Conservation
Lawrence H. Weintraub, Esq., Assistant Counsel, Office of General Counsel, Central Office
Robert Ewing, Division of Environmental Permits, Central Office