Lead Agency Dispute: City Of Geneva Planning Board V. City Of Geneva Zoning Board Of Appeals
New York State Department of Environmental Conservation Commissioner's Determination of Lead Agency Under Article 8 of the Environmental Conservation Law
Project: Trinity Episcopal Church Project, City of Geneva, Ontario County
Disputing Agencies: City of Geneva Planning Board ("Planning Board") and the City of Geneva Zoning Board of Appeals ("ZBA")
I have been asked to designate a lead agency to conduct an environmental review of the Trinity Episcopal Church Project ("Church Project") 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]). This designation of the ZBA to serve as lead agency is based on my finding that the ZBA has broader jurisdiction over the Church Project than does the Planning Board.
ACTION AND SITE
The Church Project is a proposal by McGroarty Investments LLC and Trinity Episcopal Church for the redevelopment of the Trinity Episcopal Church property, at 520 South Main Street in the City of Geneva. The Church Project entails the conversion of the rectory building and two of the church halls into hotel, restaurant and event spaces. In addition, exterior work includes landscaping, installation of access drives, and parking improvements. Under the proposal, the church sanctuary will continue to be used as a place of worship and event space. The Church Project is located within a Multiple Residential Historic (MR-HD) zoning district, which, generally, allows for detached one-family dwellings, two-family dwellings, and multifamily dwellings as permitted uses, but does not allow restaurants or motels.
REGULATORY SETTING
The role of lead agency may only be assumed by an involved agency with authority to make discretionary decisions on one or more components of an overall action. From information submitted, both the ZBA and Planning Board appear to satisfy the criteria to be considered involved agencies, both have stated their interest in serving as lead agency, and both have authority to make one or more discretionary decisions concerning the Church Project:
- The ZBA states that it must decide on an application for a use variance to allow a mixed commercial and residential use development in the MR-HD zoning district; and
- The Planning Board states that the Church Project is subject to its site plan review that includes review by its Architectural Review Committee.
DISCUSSION
In resolving a lead agency dispute, under 6 NYCRR § 617.6 (b) (5) (v), I am guided by three criteria listed in order of importance as follows:
- 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 the foregoing criteria to the facts of each individual case.
FIRST CRITERION
When impacts are primarily local in significance, all other considerations being equal, the local involved agency should be the lead agency. Based on Department review of the Environmental Assessment Form and supporting documents, potential environmental impacts from the Church Project include noise, visual, traffic, historic preservation and community character and are limited to the general vicinity of the project. Since these potential impacts are predominantly local, and both disputing parties are local agencies with similar geographic jurisdiction, this criterion favors neither the Planning Board nor the ZBA.
SECOND CRITERION
As mentioned above, the ZBA must decide an application for a use variance. Under General City Law § 81-b (1) (a), a use variance is defined as an "... authorization by the zoning board of appeals for the use of land for a purpose which is otherwise not allowed or is prohibited by 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 General City Law § 81-b (3) (b) (i) - (iv). 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 district or neighborhood. The statute also provides that the ZBA, in granting use variances, shall grant the minimum variance necessary to address the hardship, and at the same time 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 be allowed.
The Planning Board has site plan review authority over the Church Project pursuant to General City Law § 27-a and City of Geneva Code §§ 350-44 and 350-45. The Planning Board's site plan review authority includes review of the arrangement, layout and design of a proposed use on a single parcel of land. Under the City of Geneva Code, this review would include, among other considerations, the existing and proposed parking layout, topography/grading, stormwater drainage facilities, landscaping and fences, lighting structures, sign locations, telephones, electric utility poles, dumpsters, waste compactors, and other outdoor mechanical equipment. The Planning Board also serves as the City of Geneva's Architectural Review Committee which is charged with ensuring, among other things, that Church Project would not be detrimental to the character of the neighborhood, would not prevent the most appropriate development and utilization of the site or adjacent lands, and would not adversely affect the functioning, economic stability, prosperity, health, safety or general welfare of the entire community. The scope of this review includes exterior elements such as exposed mechanical equipment or other utilities, exterior lighting, signs, refuse and waste removal areas, service yards, storage yards and exterior work areas. The Planning Board's site plan and architectural review authority is also substantial.
The ZBA has a greater breadth of authority than the Planning Board due to its power to answer the fundamental zoning questions as they pertain to the proposed use. Under the statutory test for use variances, the ZBA must review the compatibility of the proposed use with adjacent uses and neighborhood character, which would include land use and environmental factors, in addition to considering unnecessary hardship. Moreover, the Planning Board's approval may not be needed should the ZBA deny the appeal for a use variance. The greater breadth of authority inherent in the use variance review places the ZBA in a better position than the Planning Board to serve in the role of lead agency for the review of the Church Project.
THIRD CRITERION
Both the ZBA and Planning Board have in-house staff or the capability to engage consultants to assist their staff to manage the environmental review process. The third criterion therefore favors neither the ZBA nor the Planning Board. While I acknowledge the Planning Board's experience with the SEQR process and its role as a SEQR "clearinghouse" for the City of Geneva, these factors do not sufficiently distinguish the Planning Board from the ZBA for purposes of deciding the third criterion.
FINDING
After considering the relevant criteria under 6 NYCRR § 617.6 (b) (5) (v), I find that the ZBA should be designated as lead agency for the SEQR review of the proposed Church Project because the ZBA has broader governmental powers to investigate the impacts of the project. This designation does not change or diminish the responsibilities or authority of the Planning Board or other involved agencies with jurisdiction over the project.
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 encourage the ZBA to solicit the advice of the Planning Board and other involved agencies, such as the City of Geneva Historic Districts and Structures Commission. I remind other involved agencies of their ongoing responsibility under 6 NYCRR § 617.3 (e) to provide the lead agency with any information that may assist the lead agency in completing the SEQR process. 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.
Dated: March 19, 2018
/s/ Basil Seggos, Commissioner
Albany, New York
Distribution of Copies
Disputing Agencies / Applicant (First Class Mail and e-Copy)
M. O'Malley, Geneva Planning Board
L. Mauro Esq, Harter, Seacrest & Emery LLP
W. Marsh Esq, Hancock Estabrook, LLC.
J. Commesso, Geneva ZBA
M. Romanowski, Esq, Hopkins,Sorgi & Romanowski PLLC
New York State Department of Environmental Conservation, 625 Broadway, Albany
Scott Sheeley, Regional Permit Administrator, Region 8 (e-copy)
Lawrence H. Weintraub, Office of General Council, Central Office (e-copy)
Thomas J. King, Office of General Counsel, Central Office (e-copy)