Lead Agency Dispute: Town Of Deerpark V. City Of Port Jervis

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

PROJECT: Annexation from Town of Deerpark, Orange County, to the City of Port Jervis and Development of 18 Acres of Land Owned by the Partnership of Segal, Segal, Vogel and Marcus

This decision to designate the Common Council of the City of Port Jervis as lead agency for the conduct of the environmental review under the State Environmental Quality Review (SEQR) process required for this proposed action is made pursuant to 6NYCRR Part 617. My decision is based on the fact that the City is the involved agency more likely to have a greater degree of jurisdiction over any subsequent development.

This lead agency dispute has arisen in connection with the proposed annexation of 18.4 acres of land from the Town to the City of Port Jervis. The annexation petitioners are the property owners, a partnership of Jack Segal, William Segal, Theodore Vogel and Stanley Marcus, and the parcel. within the Town is presently vacant and undeveloped. An additional 6.4 acres of the parcel lie within the City of Port Jervis.

On December 21, 1987, the Town Board of the Town of Deerpark declared their intent to assume lead agency role for the application of SEQR. The Common Council of the City of Port Jervis then objected to the assumption of the lead agency role by the Town. I have given the City Council and Town Board, along with other potential involved agencies, the opportunity to present their arguments on the designation of lead agency for review of this proposed action. My decision is based on the responses of the City and Town. No other potential involved agencies have commented.

The determination of public interest pursuant to General Municipal Law, which must be made by a municipality prior to granting or denying an annexation petition, is a discretionary approval involving the weighing and balancing of social, economic and environmental factors to which SEQR must be applied. Annexation does not occur in a vacuum. It is typically associated with potential changes in land use or need for public services which may be more readily available from one municipality than another. Municipal decisions on annexation are similar in their consequences to rezoning decisions; both decisions, at a minimum, change or retain existing land use patterns. Such decisions require agencies to take a hard look at the consequences of the whole action including primary, secondary, short and long-term impacts and cumulative effects. In the case of an annexation, only after examination of these SEQR concerns, among other factors, can the question of public interest be addressed.

In making my decisions resolving a dispute over lead agency, I must consider the criteria from 6NYCRR paragraph 617.6(e)(5). Both the City and Town have addressed these criteria in presenting their arguments for assumption of lead responsibility. These criteria, in order of importance, are: (1) whether the anticipated impacts are primarily of local, regional or statewide significance; (2) which agency has the broadest governmental powers for investigation into potential impacts; and (3) which agency has the greatest capability of providing the most thorough environmental assessment of the proposed action.

In this unique situation, my decision turns on the second criterion. In the instant case, there is evidence that both municipalities consider development to be likely. The City has been presented with a preliminary development proposal for the 6.4 acres within its boundaries, with some roads and parking planned for the Town portion of the parcel. Therefore, it is reasonable to consider the whole action to be the annexation and subsequent use of the whole parcel, including the 18.4 acres now in Deerpark as well as the 6.4 acres within the City.

If annexation transfers jurisdiction over the 18.4 acres to the City, then it is unlikely that the Town would have any further legal jurisdiction over subsequent development. However, it would have been involved in the action up to the point of making its determination of public interest regarding the annexation. Thereafter, it would only be an interested agency with no direct decision making authority. If the 18.4 acres remains in the Town of Deerpark and are developed, the City is likely to be called upon to provide water and possibly sewer services to the whole area. Under such circumstances, both the Town and the City would be involved agencies under SEQR. Since it is likely that the City will continue to exercise some jurisdiction regardless of whether or not the annexation is approved, my decision is to designate the City to take the lead role in conduct of this review under SEQR.

With respect to criterion #1, it is clear that the primary impacts due to the annexation and development of this area will be local, primarily affecting the site and adjoining areas in both the Town and the City. No regional or statewide concerns appear to be important, and no potentially involved agencies above local level have expressed a desire to undertake a SEQR lead role. Either the City or the Town, at local level, would be suited under this criterion to carry out the SEQR process.

From all evidence presented to me, it is clear that the development of the parcel in question poses the potential for environmental impacts upon both the City and Town and should be subject to thorough environmental review before such development is undertaken. In addition to the resolution of sewer and water issues related to the servicing of the entire parcel, development of the site should be considered in light of such other environmental issues as topography and drainage, access and traffic congestion, noise and air quality, all of which can have detrimental effects upon adjacent areas of the City and Town if not adequately mitigated. Many of these issues were raised at the December 21 public hearing.

The third criterion is which agency has the greatest capability for providing the most thorough environmental analysis of the proposed action. Although they both have limited staff expertise available to them for conduct of an environmental review under SEQR, both the City and Town have the means to hire appropriate consultants to assist with such review. Costs of preparation of EISs are generally borne by project sponsors and, under 6NYCRR Section 617.17, fees may be charged to cover costs of lead agency review of such EISs. Therefore, I find the City of Port Jervis has adequate capacity to provide for thorough environmental review.

Based on a careful consideration of all facts presented, I find that the most reasonable resolution of this lead agency dispute is to designate the Common Council of the City of Port Jervis as lead agency. This determination recognizes the uncertainties of a yet-to-be settled annexation request and will allow both municipalities to make use of information produced through the SEQR process to make determinations of public interest regarding the proposed annexation and any subsequent development thereon.

This decision does not in any manner limit or minimize the responsibility of all involved agencies to review the entire action and to assist the Port Jervis Common Council in completion of the environmental review process.

Dated: March 10, 1988
/s/
Thomas C. Jorling Commissioner
Albany, New York

Disputing Agencies:

• E.A. Gray, Mayor, City of Port Jervis
  J.F. Garvey, Supervisor, Town of Deerpark
  Chairman, Planning Board, City of Port Jervis
  Chairman, Planning Board, Town of Deerpark
  W.A. Glass, Corp. Counsel, City of Port Jervis
  H.J. Holley, Esq., Attorney, Town of Deerpark
  City Clerk, City of Port Jervis
  R. Manna, Regional Permit Administrator, DEC Region 3
  P. Garrison, Orange County Planning Department
  NYS DOT (Middletown)
  City of N.Y. Bureau of Water Supply
  Clark Place Realty
  M. Weinstein, Esq.
  

New York State Department of Environmental Conservation:

• L. Marsh
  J. Corr
  M. Gerstman
  G. Bowers
  L. Concra
  J. Jensen/F. Howell
  P. Keller