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Lead Agency Dispute: City of Plattsburgh City Council v. the Town of Plattsburgh Town Council

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

PROJECT: A proposal by the City of Plattsburgh ("City") to annex territory situated within the Town of Plattsburgh ("Town").

DISPUTING AGENCIES: The City of Plattsburgh City Council ("City Council") v. the Town of Plattsburgh Town Council ("Town Council")

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]) of the City's proposed annexation of approximately 224 acres of land within the territorial limits of the Town (the Annexation"). The designation of the City Council as lead agency for this review is based on my findings that the potential impacts from the annexation and any future development of the territory will have a greater effect on the City than the Town, and the City Council has the broadest authority for investigation of potential impacts of the proposed annexation. In addition, the City would possess the broadest authority to implement any findings resulting from the environmental review of the proposed annexation.

ACTION AND SITE

The City has proposed to annex a +/- 224-acre parcel of land (the "Property") it owns within the Town. The Property consisted of various lots until the City had them merged into a single parcel in late 2018. The former individual lots included a 43.9-acre parcel deeded to the City in 2011 by Clinton County, a 133.2-acre parcel (site of the former Norco mine) the City purchased in 2001 and a 42.2-acre parcel purchased by the City in July 2018 where it intends to relocate its Municipal Lighting Department's ("MLD") administrative offices and storage yard. The Property is partially contiguous with the City's territorial boundary.

The Property contains a non-operational compost facility (waste sludge treatment facility) that the City began operating in 1982. Though the compost facility has not operated for many years, the City has maintained several Department of Environmental Conservation (DEC) approvals required for its operation. Additionally, the City uses a portion of the property for its Department of Public Works (DPW) storage area (salt, sand, road repair materials, equipment and vehicles). The City has a registration with DEC for a land clearing debris disposal facility site on the Property. The other improvements to the Property are an access road and underground utilities. The Property is currently serviced by the Town's sewer and water utilities. The City has indicated that, if annexed, the Property would be served by the City's MLD and the City's fire department and emergency services.

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 the overall action. The determination of public interest that a municipality must make prior to granting or denying an annexation petition, pursuant to General Municipal Law (GML) § 711, is a discretionary approval subject to SEQR. City Council of City of Watervliet v. Town Bd. of Town of Colonie, 3 N.Y.3d 508 (2004). Here, both the City Council and the Town Council must make the determination of public interest required by GML § 711 (N.Y. Const. Art. IX, § 1[d]) and are therefore involved agencies under SEQR. In contrast to the decision-making factors in GML § 711, the motivation of the agencies involved in the annexation and the merits of their arguments regarding whether annexation would serve the public interest are not criteria of the lead agency decision.

My decision must be based on the three criteria listed in order of importance in 6 NYCRR subparagraph 617.6 (e) (5) (v). These are: (1) whether the anticipated impacts are primarily of local, regional or statewide significance; (2) which agency has the broadest powers for investigation of potential impacts; and (3) which agency has the greatest ability to provide a thorough environmental assessment of the proposed action.

DISCUSSION

Typically, an annexation involves a change in land use or a desire for public services that may be more readily available from one municipality than another and involve a change of use or development. Here, the City asserts that it expects to continue the existing uses of the property. The parties disagree on the issue of future planned development actions that should be included in this review as the "whole" action.

As mentioned above, the City has plans to relocate their MLD administrative offices and storage yard to the property and, prior to the annexation proposal, applied to the Town for approvals to do so. The Town considered the City's application incomplete, for what it determined to be a potential segmentation of actions subject to SEQR. According to the information provided by the Town Council, the basis for segmentation includes statements made by the Mayor to the effect that the additional land (the property) could attract industrial development.1

In response to the Town Council, the City Council states that while there is optimism about potential future development opportunities on the property, there is no proposal for an "industrial park", nor is the City negotiating or in receipt of any private development agreements for the site.

In resolving a lead agency dispute, under 6 NYCRR subparagraph 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 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.

FIRST CRITERION

The first criterion asks whether potential impacts from the proposed action are primarily of statewide, regional, or local significance. Both disputing agencies acknowledge that the annexation proposal would likely cause impacts of only local significance only, and the direct impacts of the annexation are fiscal rather than environmental ones (e.g., loss of tax revenue to the Town and a gain in revenue [from reduced tax liability] to the City). Both the Town Council and the City Council are local agencies. A loss of tax revenue, if the annexation were to occur, would be outside the scope of an environmental assessment to determine the environmental significance of an action under SEQR, unless those tax base losses can be directly related to losses of the Town's services or other changes to the Town's functions and character. Young v. Pirro, 170 A.D.2d 1033 (4th Dept. 1991). Even if the Town Council's predicted tax base losses were related to environmental impacts, the question relevant to this discussion remains whether such impacts are local or regional.

While the disputing agencies acknowledge that the proposal would likely cause impacts of only local significance, they differ in attributing significance to those various impacts. The Town identifies off-site impacts on traffic and utilities that would be disproportionally borne by the Town. In support, the Town references reports and studies identifying constraints with water and wastewater capacity and infrastructure serving the area, including backflows and surcharging of wastewater within the Town (surface discharge and backflow into structures) because of deficiencies downstream within the City portion of the interconnected wastewater system/infrastructure during wet weather. The Town claims that additional discharge of wastewater into the sewer system from development of the Property would exacerbate these issues, thereby impacting the Town.

Additionally, the Town contends that any additional traffic from development of the Property would affect the Town to a greater degree than the City because access to the Property is off the Town-owned section of Rugar street, which, according to the Town, experiences delays along the nearby Rugar/Ampersand intersection.

The Town concludes that while both involved agencies are local agencies, and potential impacts are primarily local, it would be more impacted by the annexation and any future development of the Property to a greater degree than the City.

The City asserts that the potential sewer impacts identified by the Town are likely attributable to deficiencies in the Town's infrastructure. Further, the City has indicated that while the site is currently served by Town water and sewer, the City has the capacity and ability to extend the City's sewer and water to serve the Property. The City notes that the portion of Rugar Street it owns is approximately 500 feet from the Property and therefore, any use of the Town's portion of Rugar Street is minimal.

The Town cites DEC Commissioner's lead agency determination in City of Plattsburgh v. Town of Plattsburgh (decided January 15, 1992) as favoring designation of the Town as lead agency. While that case also concerned a proposed annexation between the same disputing parties as now, and where the Commissioner designated the City Council as lead agency over the Town, the Town asserts that many significant changes have occurred since then that now favor the Town as lead agency.

The Town points out that it has participated in extensive comprehensive planning initiatives, land use plans, economic plans and traffic studies to understand existing conditions and to plan for future growth. The areas including and immediately adjacent to the Property are subject to these plans. The Town concludes that unlike the 1992 decision, the Town can now provide plans and studies to demonstrate the proposed annexation by the City would conflict with the Town's long-term use objectives, and the Town would be impacted by further development more than the City.

The City, in contrast, asserts its plan is to continue the existing uses of the site (including the proposed MLD relocation) but it does not presently have plans for industrial use development. In the 1992 decision, one factor favoring the City as lead agency was that the City was also a provider of water and sewer utilities. While in this case these utilities are currently served by the Town, the City has indicated it has enough capacity and ability to extend its water and sewer to serve the Property. Further, in the 1992 decision, given the physical separation of that parcel from other lands in the Town by Interstate 87, it was apparent that industrial use of that site would impact the surrounding land in the City to a much greater degree than the Town. Here, the Town is connected to the Property along the Rugar Street road frontage to the north. The Town finds similarity between the 1992 decision and this dispute, in that the "impacts will not be borne equally." However, unlike the 1992 determination, because Town lands are not physically separated from the Property and the Town is a provider of utilities, the Town asserts that impacts from industrialization of the Property would be greater on the Town.

The City notes however, as was the case in the 1992 decision, the Town is again cut-off from the subject parcel by natural and manmade barriers including Interstate 87 and the Saranac River.2 The City indicates impacts on Town-owned utilities are not a relevant impact because the City can readily connect to its own water and sewer.

While there is no dispute that the predominant impacts would be primarily impacts from a loss of tax revenue to the Town and a gain in such revenue for the City there may be some environmental impacts. The City, as the landowner, has a larger stake in the annexation process and any future land use decisions affecting the territory proposed for annexation. As a result, I conclude, this criterion favors designation of the City as lead agency.

SECOND CRITERION

The second criterion favors the City. Both the Town and the City have the authority to approve or to deny the annexation. However, the City is also the owner of the Property and continues to use the Property for municipal operations. Whether the annexation succeeds or fails, the City will continue to own the Property within the Town and will remain responsible for carrying out any actions necessary for operation and maintenance of the Property and its associated facilities - giving it broader powers than the Town Council both with respect to investigation of impacts and overall custodianship of the property. This analysis is consistent with DEC Commissioner lead agency determinations City of Jamestown City Council v. the Town of Ellicott Town Council [decided August 24, 2017], Town of Granby v. City of Fulton [decided October 12, 2012] and North Greenbush Town Board vs. City of Rensselaer Common Council [decided September 15, 2008], published on the DEC's website at https://www.dec.ny.gov/permits/6534.html

The Town Council cites the DEC Commissioner's lead agency determination in Town of Mohawk Board v. Fulton County Board of Supervisors v. Montgomery County Legislature vs. City of Johnstown (decided May 6, 2016) as favoring designation of the Town as lead agency. While that case also concerned a proposed annexation in which I designated the Town Board as lead agency over the counties and the City of Johnstown, the determining facts of that decision remain very different. In that case, neither of the other agency contestants owned the property that was the subject of the annexation petition. The Town's jurisdiction and connection to the property was far greater than the counties in that case.

In the case at hand, I find that the second criterion favors the City Council because of its interest in the parcel it proposes to annex. Accordingly, this criterion favors designation of the City as lead agency.

THIRD CRITERION

The Town Council stated that it has extensive experience conducting SEQR analysis for a broad spectrum of projects and greater access to and familiarity with the existing studies, land use plans and environmental analysis, as well as intimate knowledge of the infrastructure, neighborhood concerns and compounding factors that would be associated with the proposed annexation. The City Council has indicated it has professional staff to conduct the review and retained a consulting firm to aid its efforts, and as the landowner has better ability to access, study, monitor and control the property during the environmental assessment. I conclude both parties to this dispute have the capacity to undertake an adequate environmental review for the proposed action. Therefore, there is no real distinction between the disputing agencies as to the third criterion.

FINDING

After considering the relevant criteria under 6 NYCRR subparagraph 6l7.6 (b) (5) (v), I conclude that the City Council should be designated as the lead agency for the environmental review of the proposed annexation based on the first and second criteria discussed above.

My decision does not change or diminish the jurisdiction of the involved agencies. The City Council must consider any significant environmental impacts identified by the Town Council during the review of this action including those related to existing plans for future development of the Property, if any. I encourage the Town Council to actively participate in the City Council's environmental review of the annexation proposal. I further encourage the City Council to openly facilitate that participation by the Town Council and other involved agencies.

__________

1 The Town Council's concerns about segmentation are valid. I am unable to determine whether the City has future development plans for the property. If they do, then those plans including the relocation of the MLD should be part of the annexation analysis. If not, they would be subject to SEQR when they materialize.

2 While the Town is largely cut-off from the Property along the westerly boundary by I-87, and the southern boundary by the Saranac River, the Town boundary is contiguous with the Property along Rugar Street to the north and via a single parcel within the Town territorial limits along a large portion of the eastern boundary with the City.


Dated: May 15, 2019
/s/ Basil Seggos, Commissioner
Albany, New York

Distribution of Copies:

Disputing Agencies/Applicant
Colin L. Read, Mayor, City of Plattsburgh
Michael S. Cashman, Supervisor, Town of Plattsburgh
James J. Coffey, Esq., Attorney for the Town of Plattsburgh Town Board (e-copy)
Dean C. Schneller, Esq., Corporation Counsel, City of Plattsburgh (e-copy)

New York State Department of Environmental Conservation
Marc Migliore, Regional Permit Administrator, DEC Region 5 (e-copy)
Lawrence H. Weintraub, Office of General Counsel, Central Office (e-copy)


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