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Village of Manlius Board of Trustees v. Town of Manlius Town Board

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

Project: Application by the Village of Manlius to construct a new fire station within the Town of Manlius, County of Onondaga

Disputing Agencies: Village of Manlius Board of Trustees v. Town of Manlius Town Board

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], with implementing regulations at 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 review is for the proposed new Manlius Fire Station, to be located in the Town of Manlius, Onondaga County. The disputing agencies are the Village of Manlius Board of Trustees (Village) and the Town of Manlius Town Board (Town). This designation of the Village to serve as lead agency is based on my finding that the Village has the broadest governmental powers to investigate the impacts of the proposed action by virtue of its control over all aspects of design, construction, and operation of the proposed fire station.

Action and Site

The project is a proposal by the Village to construct a new fire station that is approximately 20,000 square feet in area, with parking and related site improvements. The station will be constructed in the Town of Manlius on a 4.1 acre parcel of land to be acquired and owned by the Village. The Manlius Fire Department presently operates out of two fire stations, both of which are expected to be removed from service once a new station is built. The Manlius Fire Department currently provides Fire and Emergency Medical Services to the Village of Manlius, the Town of Manlius and the Town of Pompey. It is presumed that the new station will continue to serve as a consolidated fire station; serving both Towns and the Village.

Regulatory Setting

Based on information provided to this office, the following agencies were identified as having one or more discretionary decisions that could affect one or more components of the proposed action:

  • The Village is the project sponsor. As such, it is responsible for the design of the project, funding, oversight of construction activities, and operation of the new fire station.
  • The Town has asserted land use jurisdiction under its zoning law. The proposed site is in an area classified in the Town of Manlius Zoning Law as the "RM" District, whose purpose, according to the Town, is to "retain the existing residential character of established neighborhoods while permitting unobtrusive uses of a commercial, non-retail nature which are to be regulated in such a manner as to maintain and preserve the residential character of adjacent areas as well as to provide a transition between residential and non-residential areas" (Town of Manlius Zoning Law §155-20A). The only uses permitted as of right in the RM District are: (a) those permitted in a Residential-1 ("R-1") zoning district, and (b) certain low intensity small-scale business, office, and professional use (which would be subject to site plan or accessory use approval).
  • The Village will need to obtain coverage under the SPDES (State Pollutant Discharge Elimination System) storm water construction general permit or apply for an individual storm water construction permit.
  • A highway work permit (curb cut) is needed from the NYS Department of Transportation.

The Village and Town are the only agencies involved in this lead agency dispute. By letter dated June 25, 2014, the Village coordinated with potentially involved agencies and advised them that the Village intended to act in the role of lead agency for the SEQR review. The Town objected by letter dated July 24, 2014. On August 8, 2014, the Village initiated the current petition for the Commissioner to resolve this lead agency dispute. No responses to the Village's initial coordination letter from any other agencies were included in any filings, nor have any other agencies commented on this dispute.

Discussion

In resolving a lead agency dispute, under 6 NYCRR §617.6 (b) (5) (v), I am guided by the three criteria listed in order of importance as follows:

  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 to investigate the impacts of the proposed action; and
  3. which agency has the greatest capability to provide 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 anticipated impacts of the action are primarily statewide, regional, or local.

The proposed project is located within the Town boundaries, approximately one mile from the Village's boundary line. The fire station is proposed to serve both the Town and Village residents and businesses. The Town has identified potential impacts on traffic and community character. Traffic patterns may be effected at the location of the proposed new station on Route 92 due to all response vehicles coming and going from this location rather than the previous two locations. Traffic patterns around and near the two existing stations, which will eventually be taken out of service, should also change when these stations are taken out of use, but it is premature to evaluate these changes in detail. At the new site, construction will disturb approximately 3.0 acres of land. Infrastructure needs (sewer and water) will be provided by existing county services.

Based on the foregoing, the impacts of the proposed fire station are predominantly local. Since both the Town and Village are local entities, this criterion does not allow me to select one agency over the other and I must rely on the other criteria to designate a lead agency.

B. Second Criterion

The second criterion addresses which agency has the broadest governmental powers to investigate the impacts of the proposed action.

The Village, as the project sponsor, has a full range of authority to conduct the environmental review and investigate impacts. As a result, the Village also has the greatest ability to change, add, and even delete project elements to avoid or reduce such impacts through its control of location, design, and finance.

If the Town does have zoning jurisdiction and the fire station is not a permitted use, then the construction of the fire house may require a zoning change (which is a legislative act) or a use variance.1

Nonetheless, as the sponsoring agency, the Village is in the best position not merely to identify but also to ensure implementation of any measures necessary to avoid or minimize potential impacts from the construction of the proposed fire station as they may be revealed during the environmental review. The Village has direct authority over site selection, construction, and administration of the proposed facility.

Accordingly, consideration of the second criterion leads me to conclude that the Village has the broadest authority to investigate impacts and implement the environmental review of this project.

C. Third Criterion

The third criterion examines which agency has the greatest capability for providing the most thorough environmental assessment. The Town claims that it possesses greater expertise to carry out the environmental assessment because of the planning and zoning work it has done with respect to the NYS Route 92 corridor. However, the proposed location is close to the Village's territorial limits and both the Town and the Village have staff, or the capability of engaging consultants to assist their staff, to manage the environmental review process. The construction of the new fire station does not present issues that the Village or the Town are uniquely qualified to investigate. Given that both agencies possess or could obtain capacity to administer the SEQR review of this project, this third criterion does not provide any additional basis for my decision.

Finding

Given the relatively broad authority of the Village to investigate impacts and to avoid or mitigate them through its siting, design, and operational decisions, I conclude that the Village of Manlius Board of Trustees should be lead agency for the SEQR review of the proposed new Manlius fire station.

The decision that the Village shall serve as lead agency for the SEQR review of this project in no way limits the responsibilities of other involved agencies, including the Town of Manlius Town Board. The Village must still seek and obtain all necessary approvals and permits from other agencies or authorities with jurisdiction over any aspect of the proposed project.

The Village has conducted a fairly extensive station siting study in preparation for this project, and some SEQR related issues may have already been examined during the siting process. Nonetheless, the Village has the responsibility under SEQR to identify and assess potential environmental impacts of the proposed fire station, including but not limited to potential impacts that have been identified at length by the Town in its correspondence.

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1 The Village asserts that the Town does not have land use authority over the project based on governmental immunity from zoning. By way of explanation, in Nanuet Fire Engine Co. No. 1 v. Amster, 177 Misc.2d 296 (Sup. Ct. Rockland Co. 1998), the Court determined that the construction of a firehouse was not automatically immune from a town's zoning regulations based on prior New York case law that held that certain governmental entities have absolute immunity from zoning regulations. Rather, the Court held, pursuant to the Court of Appeals decision in Matter of County of Monroe (72 N.Y.2d 338[1988]), that the town was required to make an individual determination whether zoning regulations should apply based on an analysis that balance the public interest in applying land use regulations to a governmental project with other considerations. The Village has, according to the papers submitted with this dispute, adopted a resolution applying the balancing test and finding in favor of municipal sovereign immunity from zoning. I have no authority to consider the lawfulness of the Village's resolution. Thus, I accept the Town's and the Village's jurisdictional assertions for purposes of resolving this dispute.

Dated: 10/14/14

/S/ Joseph Martens, Commissioner
Albany, New York

Distribution of Copies:

Disputing Agencies/Applicant
Paul Whorral, Mayor, Village of Manlius
Edmond J. Theobald, Supervisor, Town of Manlius
Matthew T. Kerwin, Hiscock & Barclay, Counsel to Village of Manlius Board of Trustees
Steven J. Primo, Harris Beach PLLC, Counsel to Town of Manlius Town Board

Involved Agencies
David Bimber, Regional Permit Administrator, New York State Department of Environmental Conservation, Region 7
New York State Department of Transportation, Region 3

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

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