SUPREME COURT OF THE STATE OF NEW YORK ORANGE COUNTY NINTH JUDICIAL DISTRICT ENVIRONMENTAL CLAIMS PART In the Matter of PRESERVE HUDSON VALLEY, JOHN ALLEGRO, EMILY CONVERS, and LOUIS M. CERQUA, Petitioners/Plaintifis, v. AFFIRMATION OF TOWN BOARD OF THE TOWN OF MONROE, TOWN OF — LAWRENCE H. MONROE SUPERVISOR HARLEY DOLES, VILLAGE WEINTRAUB BOARD OF THE VILLAGE OF KIRYAS JOEL, ACTING COMMISSIONER MARC GERSTMAN as Successor to JOSEPH MARTENS of the NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION, —_ Hon. Francesca E. Connolly NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL _ Index No. 8118/2015 CONSERVATION, EMANUEL LEONOROVITZ, BASYA RJINo. SABOY, MENDE FREUER, ELLA BREUER, CONG BETH ARYEH, ESTHER STESSEL, 257 MOUNTAINVIEW TRUST/ERWIN LANDAU, DAVID GOLDBERGER, 483 105 CORP., 481 COUN. CORP., PORT ORANGE HOLDINGS, ISIDOR LANDAU, PROVIDER-HAMASPIC OC, JOEL, BRACH, HENRY WEINSTOCK, BETH FREUND, JOSEPH STRULOVITCH 1, LLC, LILLIAN STRULOVITCH, PINCUS J, STRULOVITCH, HERBST FAMILY HOLDINGS LLC, HASHGUCHA PRUTIUS LLC, BE & YO REALTY, INC., BENNY WERCBERGER, RACHEL WERCBERGER, ISRAEL. WEBER, SIGMOND BRACH, FOREST EDGE CEVELOPMENT, LLC, BRUCHA PROPERTIES LTD., FOREST ROAD, NAFTALI AUSCH, KENT NEIGHBORHOOD, LLC, RAFOEL A. KRAUSZ, ELYAHU POLATESECK, ROSA POLATSECK, MOISHE OPPENHEIM, WOLF WERCBERGER, ZALMEN STERN, RIVKA OPPENHEIM, LIPA OPPENHEIM, YEHUDA BERGER, SEVEN SPRINGS CORP., MENDEL OPPENHEIM, RAIZEL EVA FREUND, ISAAC GLANZER, JUDY GLANZER, MOSES GOLDBERGER, SIMON GELB, SAMUEL KAHAN, 7 SPRINGS VILLAS LLC, CHAIM LANDAU, JOSEF FRIEDMAN, FRIDA FREIDMAN, SILAH ROSENBERG FAM, LLC, DEBORAH ROSENBERG, ABRAHAM ROSENBERG, ISAAC ROSENBERG, FOREST ROAD CAPITAL, LLC,COMMANDEER REALTY ASSOC. INC., ATKINS BROS INC., DER BLATT, INC., BAIS YISSROEL CONG, BERSH STERN, ALEX NEUSTADT, CHAIM FRIEDMAN, GOLDY FRIEDMAN, SEVEN SPRINGS RLTY INC., SARA GELB, ERNO, BODEK, RACHEL BODEK, ARTHUR MEISELS, AM SEVEN SPRINGS LLC, JACOBS HICKORY LLC, 282 MOUNTAINVIEW CRIVE, LLC, JOEL REISMAN, PAULA RESIMAN, VISTA PEARL LLC, KNOITZ ESTATES, JACOB WIEDER, CHAYA WEIDER, MARSHA WAGSCHAL, CONG LANZUT OF 0 C, ELIAZER GLANZER, ESTHER GLANZER, 72 SEVEN SPRINGS RD LLC, 131 ACRES RD LLC, BAKERTOWN ESTATES LLC, 12 BAKERTOWN HOLDING, HARRY ARNSTEIN, ESTHER ARNSTEIN, SHRAGA. GREEBAUM, RELY GREEBAUM, JACOB SCHWARTZ, RENEE SCHWARTZ, YEHOSUA WEINER, DEVORAH WEINER, ALFRED WEINGARTEN, SOLOMON, ELLENBOGEN, HANA PERLSTEIN, SIMON KATZ, RAIZY ELLENBOGEN, BUILDING 54 LLC, MORDECHAI GOLDBERGER, MOUNTAINVIEW NY ESTATES, INC., ISRAEL WEZBERGER, YITTELE WERZBERGER, JOSSI LEIG WERZBERGER, NDS PROPERTY MANAGEMENT INC., BENJAMIN GREEN, CHAYA GREEN, CHAIM PARNES, MIRIAN PARNES, TOBIAS SCHREIBER, FEIGE SCHREIBER, MARTIN TERKELTAUB, ZIGMUND KLEIN, ORANGE NY HOMES, INC. VINTAGE APARTMENTS LLC, UPSCALE 4 HOMES CORP., JOSEPH STRULOVITCH 1, LLC, AES 11-07 TRUST, BAKERSTOWN REALTY EQUITIES, and JACOB BANDUA TRUST, Respondents/Defendants. Lawrence H. Weintraub, an attorney duly admitted to practice law in the State of New York, affirms the following under penalty of perjury: 1. Taman Assistant Counsel in the Office of General Counsel of the New York State Department of Environmental Conservation (DEC, or the Department). I have held this, position since September 2007. Among my responsibilities, I serve as the DEC program attorney with respect to the administration of the State Environmental Quality Review Act 2(SEQRA),! which is codified in Environmental Conservation Law (E.C.L.) Article 8. Article 8 of the E.CLL. is implemented by Part 617 of Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York (6 N.Y.C.R.R. Part 617). As part of my SEQRA- related duties, I am responsible for the preparation and legal review of recommended determinations on lead agency disputes to the Commissioner of Environmental Conservation, including the lead agency determination that the subject of the above-captioned proceeding. 2. I make this affirmation on the basis on personal knowledge and a review of documents of the lead agency dispute that is the subject of the above captioned proceeding. 3. This affirmati made in support of the DEC’s opposition to that proceeding, Background on SEORA and Lead Agency Dispute Determinations 4, Under SEQRA, a state or local agency that is funding, approving or directly undertaking an “action” (as defined in 6 N.Y.C.R.R. § 617.2[b]) must first determine whether the action may include the potential for at least one significant adverse environmental impact. See E.CLL. § 8-0109(4); 6 N.Y.CRR. § 617.7. In carrying out this obligation, the agency must identify relevant areas of environmental concern, take a “hard look” at them, and make a reasoned elaboration of the basis of its determination. 6 N.Y.C.R.R. § 617.7(b). If the agency finds that the action will not result in any significant adverse impacts to the environment, it issue a “negative declaration” to that effect. See 6 N.Y.C.R.R. §§ 617.2(y), 617.7(a) (2). If the agency finds that the action may result in at least one significant adverse environmental impact, it must issue a “positive declaration” and prepare or require the preparation of an environmental impact statement (EIS) before the action is funded, approved, or undertaken. See E.C.L. § 8- " The official abbreviation of the State Environmental Quality Review Act is “SEQR”; however, “SEQRA” has become the common abbreviation for the law.0109(2); 6 N.Y.C.R.R. §§ 617.2(ac), 617.7(a) (1), 617.9. In an EIS, the agency must assemble the relevant facts upon which its decision is to be made, analyze the anticipated significant adverse impacts, and evaluate all reasonable alternatives. See E.C.L. § 8-0109(2); 6N.Y.C.R.R. § 617.9(b) (5). The agency must then decide upon the alternative to undertake that, consistent with economic, social, and other essential considerations, avoids or minimizes the identified environmental impacts to the maximum extent practicable. See E.C.L. § 8-0109(8); 6 NY.CRR. § 617.110), 5. There is often more than one state or local “involved agency” involved in the funding, approval or undertaking of a particular action, An “involved agency” is “an agency that has jurisdiction by law to fund, approve or directly undertake an action.” 6N.Y.CRR. § 617.2). A governmental body is an “involved agency” if it “will ultimately make a discretionary decision to fund, approve or undertake an action, ... notwithstanding that it has not received an application for funding or approval at the time the SEQR[A] process is commenced, ‘The lead agency is also an ‘involved ageney.’” Id. Where this is the case, each involved agency is independently responsible to ensure that its own decisions are consistent with the requirements of SEQRA. See 6N-Y.C.RR. § 617.216). 6. If more than one agency is involved in decisions related to an overall action and coordinated review is called for, only the agency that takes the lead role in conducting such review (the lead agency) makes the determination of significance and oversees the development and review of any required impact statement. See 6 N.Y.CRR. §§ 617.2(u); 617.6(b); 617.7(@); 617.9(a) (1). Article 8 of the Environmental Conservation Law and the SEQRA regulations define the “lead agency” as the “involved agency principally responsible for undertaking, funding or approving an action, and therefore responsible for determining whether anenvironmental impact statement is required in connection with the action, and for the preparation, and filing of the statement if one is required.” E.C.L. § 8-0111(6); 6 N.Y.C.R.R. § 617.2(u). 7. The purpose of having a lead agency is to coordinate the SEQRA process so that ‘when an action is to be carried out, funded or approved by two or more governmental bodies a single integrated environmental review is conducted. The lead agency is responsible for making key SEQRA determinations during the review process, including whether to require the preparation of an EIS for the action. See DEC, SEQR Handbook, p. 60 (PDF version), hitp://www_dee.ny.gov/permits/6188.htm! (last visited on January 7, 2016). 8. The designation of a lead agency is only an initial step in the SEQRA process, which culminates in either a negative declaration or a final environmental impact statement and SEQR findings. See 6 N.Y.CRR. § 617.6. 9. If the involved agencies cannot agree as to which of them should serve as the lead agency, any of the involved agencies or the applicant can ask the DEC Commissioner to resolve the spute by designating the lead agency. See E.C.L. § 8-0111(6), as implemented by 6 NYCRR. §617.6(0)(5)(). 10, In resolving lead agency disputes, the Commissioner will first confirm the jurisdiction of the involved agencies and then apply the three criteria specified in section 617.6(5)(v). The criteria, set out in their order of importance, are as follows: a, 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); b. 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. 511, The eriteria set forth in 6 N.Y.CR.R. § 617.6(b)(5)(v) are the sole statutory or regulatory criteria to which the Commissioner may look when making his or her lead agency decision. 12, Since the late 1970s, DEC commissioners have collectively decided approximately 156 disputes, which, upon information and belief, is a small fraction of the coordinated SEQRA actions that have occurred since that time. DEC publishes the Commissioner's lead agency decisions on its website at butp://www.dee.ny.gov/permits/6186,htm! (last visited on January 7, 2016). Procedural History of the Kiryas Joe! Lead Agency Dispute 13, In December 2013, the Town Board of the Town of Monroe (Town Board) received a landowner-initiated petition to annex approximately 510 acres of land (comprised of 177 tax parcels) to the Village of Kiryas Joel from lands within the territorial limits of the Town of Monroe. In or about that time, the Board of Trustees of the Village of Kiryas Joel (Village Board) provided the Town Board with a notice of its intent to serve as lead agency for the anticipated SEQRA review of the annexation petition 14, The SEQRA regulations at 6 N.Y.C.R.R. § 617.4(b)(4) classify an annexation of 100 or more acres of land as a Type I action, See also Matter of City Council of the City of Watervliet v. Town Board of the Town of Colonie, 3 N.Y.34 508, 513 (2004). Type | actions require coordinated review and the lead agency must make its determination of significance using the Full Environmental Assessment Form as opposed to the Short Environmental Assessment Form. See 6 N.Y.C.R.R. §§ 617.6(a)(2), (b) 617.20, Appendix A.15, On January 27, 2014, the Town Board passed a resolution calling for the Town Board to serve as “joint lead agency” with the Village Board, The Commissioner received a copy of the resolution by letter dated February 6, 2014 from the Town's counsel. 16, By letter dated January 29, 2014 (and as supplemented by an additional letter dated February 3, 2014), the Monroe-Woodbury Central School District, through its counsel, wrote to the Commissioner, requesting that it be designated as lead agency for the annexation. 17. By letter dated February 7, 2014, the Village Board, through its special counsel, wrote to the Commissioner requesting designation of the Village Board as lead agency for the annexation, 18. Also, by letter dated February 7, 2014, the petitioning landowners, through their counsel, wrote to the Commissioner asking that the Village Board be designated as lead agency. 19. By letter dated February 14, 2014, the Town Board, through its special counsel asked the Commissioner to designate the Town Board as lead agency for the annexation. 20. The Village Board’s special counsel replied to the Town Board’s special counsel by letter dated February 19, 2014 (which was supplemented by another letter dated March 4, 2014). The Village Board’s special counsel also responded to correspondence to the Commissioner from various elected representatives in opposition to allowing the Village Board to assume the role of lead agency (eters from the Orange County Executive dated February 19, 2014, State Senator William Larkin, dated February 19, 2014, the Village of Monroe, dated February 19, 2014, the Village of Harriman, dated February 28, 2014 and Orange County Legislator Jeffrey D. Berkman, dated February 28, 2014).21, By letter dated February 20, 2014, the Village of Woodbury requested that the Commissioner designate the Village Board as “co-lead agency” with the school district and the Town of Monroe. 22, By letter dated March 12, 2014, DEC dismissed the school district's request to serve as lead agency. As discussed in the Department's dismissal letter, the school district cannot qualify as a lead agency since it is not an involved agency in the annexation. DEC determined that, among the various municipal entities seeking to be designated as lead agency, only the Village Board and the Town Board qualified as “involved agencies”. 23. On March 13, 2014, DEC wrote to the Supervisor of the Town of Monroe and the Mayor of the Village of Kiryas Joel requesting additional information to enable the Commissioner to make a determination on the lead agency dispute. Both the Town Board and the Village Board, through their special counsels, responded to the Department's additional information request by separate letters both dated March 27, 2014 24, During the months of January through April 2014, the Department received and reviewed over 100 public comments regarding the lead agency dispute from nearby and neighboring muni alities, legislators, and citizens. Notably, as the Commissioner pointed out in the regulatory setting portion of his determination, many of the correspondences dealt with the possible motivations of the Village, which as the Commissioner noted in one past lead agency determination — cited in the Kiryas Joel determination — is a consideration outside the regulatory criteria for determining lead agency. 25. DEC received some comments calling upon it to assume the role of lead agency. However, DEC had no jurisdiction to exercise in the proposed annexation and therefore would not qualify to assume the role of lead agency.26. Upon exhaustive review of the foregoing information and the lead agency designation criteria set out in 6 N.Y.C.RR § 617.6(a)(5)(W), on January 20, 2015, the Commissioner issued his determination, which designated the Board of Trustees of the Village of Kiryas Joel as lead agency. 27. The Commissioner’s decision to designate the Village Board as lead agency was based on the second criteria as discussed on pages 4-6 of the decision. He found that the first and third criteria did not favor either disputant for the role of lead agency. 28. To summarize the salient part of the decision, while both entities possessed equal authority to approve or disapprove the annexation, the Villag additionally a provider of water and waste water services both within its existing territory and already had agreements in place to provide water service to two developments within the proposed annexation. This fact gave the Village broader governmental powers for investigation of the impacts of the proposed action. ‘The Commissioner followed an earlier decision in another lead agency dispute to consider a municipality's powers to provide water and sewer services in evaluating the second criteria in annexation decisions, See Commissioner's lead agency decision in Matter of Town Board of the Town of North Greenbush v, Common Council of the City of Rensselaer, September 25, 2008, http:/Avww.dec.ny.gov/permits/51260.htm! (last visited on January 7, 2016). See generally, DEC, SEQR Handbook, pp. 71-72 (PDF version), http://www.dee.ny.gov/permits/6188.htm! (ast visited on January 7, 2016). 29. Importantly, while the lead agency makes the key decisions in the SEQR process, it is not the only player in that process. Even after the selection of lead agency, involved and interested agencies still play an important role in the process since the lead agency is responsible for compiling the environmental record for all involved agencies and all involved agencies mustmake findings after the final environmental impact statement is completed. Accordingly, the Commissioner's determination concluded with a direction to the Village to consider substantive comments raised in the lead agency dispute process and reminder the Village of its commitment to conduct an enhanced and transparent review process. Pawrence H. Weintraub Dated: January 11, 2016 Albany, NYEXHIBIT 1Town Board of the Town of North Greenbush, Rensselaer County, New York vs Commo... Page | of 4 NEWYORK | Department of Sromunry | Environmental Conservation Town Board of the Town of North Greenbush, Rensselaer County, New York vs. Common Council of the City of Rensselaer, Rensselaer County, New York . New York State Department of Environmental Conservation Commissioner's Determination of Lead Agency under Article 8 of the Environmental Conservation Law PROJECT: Proposed annexation of territory from the Town of North Greenbush, Rensselaer County, to City of Rensselaer, Rensselaer County DISPUTING AGENCIES: Town Board of the Town of North Greenbush, Rensselaer County, New York vs. Common Council of the City of Rensselaer, Rensselaer County, New York: Ihave been asked to designate a lead agency to conduct the environmental review of the proposed annexation of properties (the “territory") from the Town of North Greenbush, Rensselaer County, to the City of Rensselaer, Rensselaer County, under the New York State Environmental Quality Review Act (SEQR) [Article 8 of the New York State (NYS) Environmental Conservation Law (ECL); regulations at 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 City of Rensselaer (City) as lead agency for that review is based on my finding that the City is the most appropriate lead agency given that the City, as a property ‘owner within the territory proposed for annexation, is directly impacted by land uses on and regulation administration of the properties and further, if the annexation proceeds, would possess broader authority to implement any findings resulting from the environmental review of the proposed annexation. ACTION AND SITE ‘The action involves a petition by John J. Dunn Sr., Susan M. Kelly, and the City to annex territory from the Town of North Greenbush (North Greenbush) into the City of Rensselaer, within Rensselaer County. The 43 +/- acre territory proposed for annexation includes property owned by members of the Dunn family which are zoned for industrial use and which have, since about 1860, been the site of @ mining operation. Also within the 43 +/- acre territory is a 7.77 acre parcel owned by the City which contains a City water storage facility. Three of four sides of the territory adjoin the City, including the ‘new City elementary and high school campus on property located generally to the north of the territory proposed for annexation; a second parcel generally to the south which is also owned by the Dunn family, formerly located within the Town of East Greenbush and previously annexed to the City; and an area generally to the east which is zoned for land conservation and upon which the City would like to develop passive recreational facilities, ‘The petition for annexation was compelled by an order of the Supreme Court, Rensselaer County, dated September 17, 1991. That order resulted from an Article 78 proceeding initiated by members of http://www_dee.ny.gov/permits/51260.htm!%showprintstyles 1/772016‘Town Board of the Town of North Greenbush, Rensselaer County, New York vs, Commo... Page 2 of 4 the Dunn family to challenge the application of a City vehicle weight limitation ordinance to truck traffic running to and from petitioners' mining operation, which, although located within the confines of the ‘Town of North Greenbush, is accessible only by City streets or roads. Relevant to this decision is the fact that the Court ordered the petitioners (owners of the Dunn property) to make best efforts to annex their property to the City, and ordered the City to join in and support the annexation proceeding. 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 plan. The determination of public interest pursuant to General Municipal Law (GML), which must be made by a municipality prior to granting or denying an annexation petition, is @ discretionary approval involving the weighing and balancing of social, economic and environmental factors. Further, much like local zoning decisions, annexations may have implications for changes in land uses or service demands. Accordingly, SEQR applies to these determinatioris.1 In contrast to the decision-making process found in the GML regarding annexation and possible Appellate Court review, however, the motivation of the agencies involved in the annexation and the merits of their argument regarding the serving of the public interest, are not relevant to this decision. In the current dispute, the Town of North Greenbush and the City both seek designation as lead agency for the environmental review of the proposed annexation. Should the annexation proceed, the City would become solely responsible for all of the following within the annexed territory: + Maintenance of Partition Street Extension, which is the emergency access route to the City’s ‘new public elementary and high school campus; + Continued maintenance of the City's roads leading to Partition Street Extension and the remainder of the territory, which currently serve as the only access to the territory; and + Continued service by the city's water, sewer, and refuse systems, DISCUSSION In resolving a lead agency dispute, | am guided by the three criteria listed in order of NYCRR Part 617.6(b)(5)(v): ‘+ whether the anticipated impacts of the action being considered are primarily of statewide, regional, or local significance (ie., 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. portance in 6 A. 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 proposal would likely cause impacts of only local significance, though the parties differ in attributing significance to those various impacts. North Greenbush identifies impacts on existing patterns of population, existing ‘community and neighborhood character, and human health. The City, in tum, asserts impacts on its land conservation area described above; on emergency access to the City's public school campus; and on noise, air, traffic, drainage, and stormwater management related to operation of the Dunn mine, http://www.dee.ny.gov/permits/51260.htm!?showprintstyles 172016‘Town Board of the Town of North Greenbush, Rensselaer County, New York vs. Commo... Page 3 of 4 particularly as that may affect the City's water supply facility. Thus, while both agencies identify impacts of concem in their roles as land use regulatory bodies, the City is also a landowner which would be directly impacted by land use decisions affecting the territory proposed for annexation. Accordingly, this criterion favors designation of the City as lead agency. B. Second Criterion ‘The second criterion is breadth of authority. Both North Greenbush and the City have the authority to approve or to deny the annexation petition. However, in addition to having authority to act on the annexation petition, the City is also the owner of a parcel of land within the territory. Notably, this parcel of land houses a critical component of the City's water infrastructure, which, according to the City, includes the it's reservoir. The City points out that whether the annexation succeeds or fails, it will continue to have a significant property interest within the territory. The City also provides sewer and ‘water service to the territory. Thus, aside from a potential territorial interest it might acquire as a result of annexation, the City would be strongly affected by any development within the territory, and would necessarily be the agency principally responsible for carrying out any actions necessary for management of water supply or infrastructure. Based on all the foregoing, then, the City is clearly favored as having the broadest authority to implement the environmental review of the annexation. C. Third Criterion The third criterion relates to the capacity of an agency to provide for a thorough environmental assessment. Both parties to this dispute possess the necessary staff or the ability to obtain the assistance of consultants fo undertake an adequate environmental review for the proposed action. ‘Therefore, there is no real distinction between the disputing agencies as to the third criterion. Further, | need not rely on the third criterion to reach my decision, since consideration of the first two criteria strongly favor designation of the City as lead agency. FINDING ‘After considering the relevant criteria under 6 NYCRR Part 617.6(b)(6)(v), | conclude that the City must be designated to serve as lead agency for the environmental review of the proposed annexation. Because the City is the actual owner of a parcel within the territory proposed for annexation, it would be directly impacted by the outcome of the annexation proceeding. Further, under the Second criterion, the City not only has jurisdiction to approve or deny the annexation petition, but itis also the agency with the greatest breadth of authority over the territory, including control of access roads as well as provision of municipal services. Thus, the City would be best able to implement any findings resulting from the environmental review of the proposed annexation, This decision does not in any way change or diminish the jurisdiction of the involved agencies. Impacts identified by the Town of North Greenbush, along with any other involved agencies, must be considered during the environmental review of this project. The record developed during that review must support the decisions of each agency. Accordingly, | encourage the Town of North Greenbush, as well as any other involved agencies, to actively participate in all phases of the environmental review of this proposal. In particular, | encourage the involved agencies to identify the information needs and impact evaluations necessary to support their decisions. | further encourage the City to openly facilitate that participation. Dated: 9/25/08 Isl http://www.dec.ny.gov/permits/51260.html?showprintstyles 1/7/2016‘Town Board of the Town of North Greenbush, Rensselaer County, New York vs. Commo... Page 4 of 4 Alexander B. Grannis, Commissioner Albany, New York Distribution of Copies Agencies/Applicant Town Board of the Town of North Greenbush Attn: Mark Evers, Supervisor AND Kemi L: Yamashita, Esq. City of Rensselaer Attn: Hon. Daniel J. Dwyer, Mayor AND John J. Hicks, Esq. AND Paul J. Goldman, Esq. AND Lisa M. Penpraze, Esq. Region 4, NYS Department of Environmental Conservation Attn: William Clarke, Regional Permit Administrator John J. Dunn, Sr. Michael Dunn Susan M. Kelly Fred Kirwin, Esq. New York State Department of Environmental Conservation, Albany William G. Little, Esq., Office of General Counsel Lawrence H. Weintraub, Esq., Office of General Counsel Betty Ann Hughes, Division of Environmental Permits http://www dee.ny.gov/permits/51260.html?showprintstyles 1/7/2016EXHIBIT 2Lead Agency Dispute: Town of Queensbury v. City of Glens Falls - NYS Dept. of Enviro... Page 1 of 3 NEWYORK | Department of Serotuwry | Environmental Conservation Lead Agency Dispute: Town of Queensbury v. City of Glens Falls New York State Department of Environmental Conservation Commissioner's Determination of Lead Agency under Article 8 of the Environmental Conservation Law PROJECT: Annexation of 90.4 acres known as Cole's Woods from the Town of Queensbury to the City of Glens Falls DISPUTING AGENCIES: *+ Town of Queensbury Town Board City of Glens Falls Common Council This decision to designate the City of Glens Falls as the lead agency for environmental review under the State Environmental Quality Review (SER) process is made pursuant to Article 8 of the Environmental Conservation Law and its implementing regulations at 6 NYCRR Part 617. The subject of this dispute is the proposed annexation of 90.4 acres of land into the City of Glens Falls. The property proposed for annexation is primarily owned by the City of Glens Falls. Additional minor ‘owners are the Niagara Mohawk Power Corporation and the Town of Queensbury. The proposed site is currently zoned Parkiand Recreation (PR) by the Town of Queensbury and density is currently limited to one principal structure for every forty-two acres. The City of Glens Falls has indicated that, if annexed, they would enact a zoning classification to limit density to one principal structure for every forty-five acres and that the site would continue to be used for recreational use and public water system management ‘The determination of public interest which must be made by the Town and the City under the General Municipal Law (GML), prior to granting or denying an annexation petition, is a discretionary approval to Which SEQR must be applied. Typically, an annexation involves a change in land use or a desire for public services which may be more readily available from one municipality than another. inthis case, the City, which is the owner of the major portion of the parcel subject to annexation, has no plans to further develop it, and, therefore, no land use change is proposed. In contrast to the decision-making process found in the GML regarding annexation and possible Appellate Court review, the motivation of the agencies involved in the annexation and the merits of their argument regarding the serving of the public interest are not a part of this decision. The three criteria | must use to resolve this dispute, listed in 6 NYCRR 617.6(b)(5)(v) in order of, importance, are: (1) whether the anticipated impacts are primarily of statewide, regional or local significance; (2) which agency has the broadest governmental powers for investigating potential impacts; and (3) which agency has the greatest ability to provide a thorough environmental assessment of the proposed action hupy/www dec. ny.gov/perinitw6606.htmI2showprintstyles 18/201¢Lead Auency Dispute: Town of Queensbury v. City of Glens Falls - NYS Dept. of Enviro... Page 2 of 3 ‘The first criterion regarding whether the potential impacts from the proposed annexation are local, regional or statewide favors neither the Town nor the City. The predominantly City-owned property known as Cole's Woods contains recreational trails and water towers maintained by the City. Although ‘almost completely surrounded by the Town, the site adjoins Crandall Park, which is also owned by and located in the City. There is a state-designated freshwater wetland (GF-25) located along a portion of Halfway Brook which flows through the site, The state-designated wetland and associated brook create ‘a regional interest in the parcel since any impacts to these resources would potentially impact both municipalities. However, both involved agencies are local and both are equally responsible for protecting the wetland and brook. These resources would not be affected by the proposed annexation. Portions of the property are currently subject to deed restrictions on development. The remainder of the property is currently protected from development under the Town of Queensbury land use controls, The City does not plan to develop the parcel. Further, if the annexation petition is successful, the City would enact a zoning classification to restrict uses of the land to forest management, recreation, ‘education and maintenance of the infrastructure of the public water supply. Thus, potential impacts {rom the annexation, if any, would be local in nature and would equally affect both the Town and the City. So, neither agency is favored under this criterion. ‘The second criterion is the breadth of jurisdiction. Both the Town and the City have the authority to approve or to deny the annexation petition and to investigate any impacts from the proposed action. However, in addition to approving the annexation, the City, as the predominant owner of the parcel, is the agency principally responsible for carrying out any actions affecting the site and for maintaining that portion of its water supply infrastructure that is located on the property (ECL Section 8- 0111(6) and 6 NYCRR 617.2(u)]. Under this criterion the City is favored. ‘The third and last criterion is which agency has the greatest ability to provide the most thorough environmental assessment of the action. The Town maintains a staff that could carry out the requisite environmental review. The City has the ability to retain environmental consultants who could perform the review. Both agencies have the abilty to conduct an environmental assessment pursuant to SEQR Neither agency is favored under this criterion. After considering the relevant criteria under 6 NYCRR 617.6(b)(5)(v), conclude that the City must be designated lead agency. Under the second criterion, the City not only has jurisdiction to approve or deny the annexation petition but also is the agency with primary responsibilty for carrying oul actions affecting the site, including maintenance ofits municipal water system infrastructure ish Dated: 4/14/97 John P Cahill Commissioner Albany. New York Distribution of Copies: + Town of Queensbury City of Glens Falls Disputing Agencies: + Town of Queensbury Town Board City of Glens Falls Common Council New York State Department of Environmental Conservation: bupz/iv 9 lee.ny.gov/permits/6606.htm show pristyles 1182016Lead Agency Dispute: Town of Queensbury v. City of Glens Falls - NYS Dept. of Enviro... Page 3 of 3 + John P. Cahill Kathleen Martens ‘Sandra Garlick Lenore Kuwik hupy/\wuw dee ny.gow/permin646,html?showprintstyles 1182016