Chapter 32

CHAPTER 32

ENVIRONMENTAL QUALITY REVIEW

ARTICLE I

GENERAL PROVISIONS

§ 32.1 Title

This Chapter shall be known and may be cited as the "Village of Mineola Environmental Quality Review Law".

§ 32.2 Purpose

The purpose of this Chapter is to implement, for the Village of Mineola, the provisions of the State Environmental Quality Review Regulations, thereby incorporating environmental factors into existing planning and decision‑making processes.

§ 32.3 Authority

This Chapter is adopted under authority of the Municipal Home Rule Law, the State Environmental Quality Review Act, and the State Environmental Quality Review Regulations.

§ 32.4 Definitions

A. Generally.

The terms and words used in this Chapter shall have the same meaning as such terms and words are defined in Article 8 of the Environmental Conservation Law and Part 617, unless the context requires a different meaning.

B. Specific terms.

The following terms shall have the following meaning:

"Commissioner" means the Commissioner of the New York State Department of Environmental Conservation.

"State Environmental Quality Review Act (SEQR)" means Article 8 of the Environmental Conservation Law, which is Chapter 43‑b of the Consolidated Laws of the State of New York.

"State Environmental Quality Review Regulations (Part 617)" means

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means Part 617 of Title G of the Official Compilation of Codes, Rules, and Regulations of the State of New York hereinafter referred to as "Part 617".

"EAF" means Environmental Assessment Form.

"EIS" means Environmental Impact Statement.

§ 32.5 Applicability

All agencies, boards, departments, offices, other bodies, or officers of the Incorporated Village of Mineola must comply with SEQR, Part 617, and this Chapter, to the extent applicable, prior to carrying out, approving, or funding any action, other than an Exempt, or Type II action.

§ 32.6 Severability

The provisions of this Chapter are severable. If any part of provision of this Chapter is found invalid, such finding will apply only to the particular provision and circumstances in question. The remainder of this Chapter, and the application of the disputed provision to other circumstances, will remain valid.

ENVIRONMENTAL QUALITY REVIEW § 32.21

ARTICLE II

ENVIRONMENTAL REVIEW PROCEDURES

§ 32.21 Establishment of lead agency

A. Lead agency procedures when a single agency is involved:

1. An agency will be the lead agency when it proposes to undertake or receives an application for funding or approval of a Type I or Unlisted action that does not involve another agency.

a. If the agency is directly undertaking the action, it shall determine the significance of the action as early as possible in the design or formulation of the action.

b. If the agency has received an application for funding or approval of the action, it shall determine the significance of the action within 15 calendar days of its receipt of the application, an EAF, or any additional information reasonably necessary to make that determination.

B. Lead agency procedures when more than one agency is involved:

1. For all Type I actions and for coordinated review of Unlisted actions involving more than one agency, a lead agency must be established prior to a determination of significance. For Unlisted actions where there will be no coordinated review, the procedures in Section 617.6(d) of Part 617 must be followed.

2. When an agency has been established as the lead agency for an action involving an applicant and has determined that an EIS is required, it must, in accordance with Section 617.10(b) of Part 617, promptly notify the applicant and all other involved agencies, in writing, that it is the lead agency and that an EIS is required.

3. The lead agency shall continue in that role until either a negative declaration is filed, a findings statement is filed, or a lead agency is re‑established in accordance with Section 617.6(f) of Part 617.

C. Time periods for coordinated review:

1. When an agency proposes to directly undertake or receives an § 32.21 MUNICIPAL CODE

application for funding or approval for a Type I action or an Unlisted action undergoing coordinated review in which other agencies are involved, it shall, as soon as possible, mail the EAF, with Part I completed by the project sponsor, or a draft EIS and a copy of any application it has received to all involved agencies notifying them that a lead agency must be agreed upon within 30 calendar days of the date the EAF or draft EIS was mailed to them.

2. The lead agency shall determine the significance of the action within 15 calendar days of its establishment as lead agency, or within 15 calendar days of its receipt of all information it may reasonably need to make the determination of significance, whichever occurs later, and shall immediately file the determination in accordance with Section 617.10 of Part 617.

D. Uncoordinated review for Unlisted actions involving more than one agency:

1. As early as possible in the formulation of plans for an Unlisted action, and before any authorization is granted which commits an agency to a particular action, or within 15 calendar days of its receipt of an application and an EAF, and other reasonably necessary information, an agency shall make a determination of significance.

2. When an agency determines that an Unlisted action may have a significant effect on the environment, coordinated review and notification in accordance with Subdivisions B and C of this Section is required.

3. When an agency determines that an Unlisted action will not have a significant effect on the environment, the coordinated review and notification procedures set forth in Subdivisions B and C of this Section are optional. For uncoordinated review of Unlisted actions, each involved agency must make its own determination of significance. Each involved agency is considered a lead agency when making its determination. At any time prior to an agency's final decision, that agency's negative declaration may be superseded by a positive declaration issued by any other involved agency.

E. Actions for which lead agency cannot be agreed upon:

1. If, within the 30 calendar days allotted for establishment of lead agency, the involved agencies are unable to agree upon which

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agency shall be the lead agency, any involved agency or the applicant may request, by certified mail or other form of receipted delivery to the Commissioner, that a lead agency be designated. Simultaneously, copies of the request must be sent by certified mail or other form of receipted delivery to all involved agencies and the applicant. Any agency raising a dispute must be ready to assume the lead agency functions if such agency is designated by the Commissioner.

2. The request must identify each involved agency's jurisdiction over the action, and all relevant information necessary for the Commissioner to apply the criteria in Paragraph 5 of this Subdivision, and must state that all comments must be submitted to the Commissioner within 10 calendar days after receipt of the request.

3. Within 10 calendar days of the date a copy of the request is received by them, involved agencies and the applicant may submit to the Commissioner any comments they may have on the issue. Such comments must contain the information indicated in Paragraph 2 of this Subdivision.

4. The Commissioner shall designate a lead agency within 20 calendar days on the date the request is received, or within 20 calendar days of the receipt of any supplemental information the Commissioner has required, based on a review of the facts, the criteria below, and any comments received.

5. The following criteria, in order of importance, shall be used by the Commissioner to designate lead agency:

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 shall be lead agency);

b. which agency has the broadest governmental powers for investigation of the impact of the proposed action; and the most thorough environmental assessment of the proposed action.

6. Notification of the Commissioner's designation of lead agency shall be mailed to all involved agencies and the applicant.

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F. Re‑establishment of lead agency:

1. Re‑establishment of lead agency may occur by agreement of all involved agencies in the following circumstances:

a. for a supplement to a final EIS or generic EIS;

b. upon failure of the lead agency's basis or jurisdiction;

c. upon agreement of the applicant, prior to the acceptance of a draft EIS.

2. Disputes concerning re‑establishment of lead agency for a supplement to a final EIS or generic EIS are subject to the designation procedures contained in Section 617.6(e) of Part 617.

3. Notice of re‑establishment of lead agency must be given by the new lead agency to the applicant within 10 days of its establishment.

G. Environmental review of actions involving a federal agency will be processed in accordance with Section 617.16 of Part 617.

§ 32.22 Environmental Assessment and Determination of Significance

A. When any agency, department, body, board, or officer of the Village of Mineola contemplates directly carrying out, funding, or approving any Type I action, a Full Environmental Assessment Form (EAF) must be prepared by it or on its behalf. When an unlisted action is contemplated, either a full or short‑form EAF, as appropriate, must be prepared. The EAF forms given in Appendices A and B of Part 617 will be used as models, but may be modified to meet the needs of particular cases. However, the final scope of such a modified EAF must be at least as comprehensive as the scope of the model forms.

B. When any person submits an application for funding or a permit or other approval of a Type I or Unlisted action to any agency, department, body, board, or officer of the Village of Mineola, an EAF must accompany the application. For Type I actions a Full EAF must be prepared: for Unlisted actions either a Full EAF or the short‑form may be used as appropriate. An applicant may choose to prepare a Draft EIS in place of an EAF.

C. Determining significance:

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1. The lead agency must determine the significance of any Type I or Unlisted action in writing in accordance with Section 617.6 and Section 617.11 of Part 617. The determination must be made within 15 days of its designation as lead agency, or within 15 days of its receipt of all information it requires, whichever is later.

a. To require an EIS for a proposed action, the lead agency must determine that the action may include the potential for at least one significant environmental effect.

b. To determine that an EIS will not be required for an action, the lead agency must determine either that there will be no environmental effect or that the identified environmental effects will not be significant.

2. For all Type I and Unlisted actions the lead agency making a determination of significance must:

a. consider the action as defined in Sections 617.2(b) and 617.3(k) of Part 617;

b. review the EAF, the criteria contained in Section 617.11 of Part 617 and any other supporting information to identify the relevant areas of environmental concern;

c. thoroughly analyze the identified relevant areas of environmental concern to determine if the action may have a significant effect on the environment; and

d. set forth its determination of significance in a written form containing a reasoned elaboration and providing reference to any supporting documentation.

D. Conditioned negative declarations:

1. For Unlisted actions involving an applicant, a lead agency has the option to issue a conditioned negative declaration of significance (CND) provided that:

a. a full EAF has been prepared;

b. a coordinated review has been completed in accordance with Section 617.6(b) of Part 617;

c. the SEQR conditions imposed pursuant to Section 617.3(b)

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of Part 617 have eliminated or adequately mitigated all significant environmental impacts and are supported by the full EAF and any other documentation;

d. Notice of a CND has been published in the "ENB" and a minimum 30‑day public comment period has been provided. The notice must state what conditions have been imposed; and

e. the CND has been prepared and filed in accordance with Sections 617.6(g) and 617.10(a)(2) of Part 617.

2. A draft EIS must be prepared if comments are received regarding the proposed CND which would support a positive declaration concerning:

a. the previously identified or newly raised significant environmental impacts; or

b. the need for the examination of the adequacy of the proposed mitigation measures.

3. The lead agency must require an EIS if requested by the applicant.

E. Rescission of Negative Declarations:

At any time prior to its decision to undertake, fund or approve an action, a lead agency must rescind a negative declaration if it determines that a significant environmental effect may result from a project modification or that there exists a change of circumstances which was not previously addressed. Prior to any rescission, the lead agency must inform other involved agencies and the applicant and must provide a reasonable opportunity for the applicant to respond.

§ 32.23 Scoping

Scoping may be initiated by the lead agency or at the request of the applicant in accordance with Section 617.7 of Part 617.

§ 32.24 EIS Preparation

A. If, based on review of the EAF and other information, the lead agency determines that the proposed action may be

ENVIRONMENTAL QUALITY REVIEW § 32.25

environmentally significant, then an EIS must be prepared.

B. If an EIS is required, the lead agency must proceed as provided in Sections 617.8, 617.9, and 617.10 of Part 617. The Draft EIS will normally be prepared by the applicant. If the applicant fails to prepare a Draft EIS, or prepares a Draft EIS which is unacceptable to the lead agency, the lead agency may either prepare a Draft EIS itself, discontinue further processing until the applicant can provide an acceptable Draft EIS, or deem the application abandoned and discontinue review.

C. If a public hearing is held on the Draft EIS, it must, whenever possible, be concurrent with any other hearing on the application.

§ 32.25 Fees for Review and Preparation of EIS's

The fees for review or preparation of an EIS involving approval or funding of an action are established as follows:

A. Upon the initial submission of filing an application to the lead agency, the applicant shall submit a fee in the sum of Seventy‑five Dollars ($75.00).

B. If the lead agency determines that a draft environmental impact statement is necessary, the applicant, at the time of submission of the draft environmental impact statement shall also submit an additional fee in the sum of Two Hundred Fifty Dollars ($250.00).

C. If the lead agency requires a final environmental impact statement, the applicant, at the time of filing the final environmental impact statement, shall also submit a fee, in addition to the other fees, in the sum of Seventy‑five Dollars ($75.00).

D. In addition to the fees set forth above, the applicant shall pay to the lead agency a fee permitting such body to recover the actual costs of preparing or reviewing a draft environmental impact statement pursuant to the provisions of Part 617 of Title 6 of the New York Codes, Rules and Regulations. In no event shall the costs exceed the limits set forth in Section 617.17 of Part 617.

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ARTICLE III

MISCELLANEOUS PROVISIONS

§ 32.31 Critical environmental areas

Critical environmental areas will be designated from time to time by resolution of the Board of Trustees in accordance with provisions of Section 617.4(h) of Part 617.

§ 32.32 Type I actions

For purposes of this Chapter, Type I actions include all those given in Section 617.12 of Part 617.

§ 32.33 Type II actions

A. For purposes of this Chapter, Type II actions include all those listed in Section 617.13 of Part 617.

B. In addition, the following are deemed Type II actions:

1. Construction or alteration of a single or two family residence and accessory appurtenant uses or structures not in conjunction with the construction or alteration of two (2) or more such residences and not in one of the critical areas described in this Section for Type I actions.

2. The extension of utility facilities to serve new or altered single or two family residential structures or to render a service in approved subdivisions.

3. Construction or alteration of a store, office or restaurant designed for an occupant load of twenty (20) persons or less, if not in conjunction with the construction or alteration of two (2) or more stores, offices or restaurants and if not in one of the critical areas described for Type I actions, and the construction of utility facilities to serve such establishments.

4. Actions involving individual setback and lot line variances and the like.

5. Agricultural farm management practices, including construction, maintenance and repair of farm buildings and structures and land use changes consistent with generally accepted

ENVIRONMENTAL QUALITY REVIEW § 32.33

6. Operation, repair, maintenance or minor alteration of existing structures, land uses and equipment.

7. Restoration or reconstruction of a structure in whole or in part being increased or expanded by less than fifty percent (50%) of its existing size, square footage or usage.

8. Repaving of existing highways not involving the addition of new travel lanes.

9. Street openings for the purpose of repair or maintenance of existing utility facilities.

10. Installation of traffic control devices on existing streets, roads and highways other than multiple fixtures on long stretches.

11. Mapping of existing roads, streets, highways, uses, ownership patterns and the like.

12. Regulatory activities not involving construction or changed land use relating to one (1) individual business, institution or facility, such as inspections, testing, operating certification or licensing and the like.

13. Sales of surplus government property other than land, radioactive material, pesticides, herbicides or other hazardous materials.

14. Collective‑bargaining activities.

15. Operating expense or executive budget planning, preparation and adoption not involving new programs or major reordering of priorities.

16. Investments by or on behalf of agencies or pension or retirement systems.

17. Actions which are immediately necessary for the protection or preservation of life, health, property or natural resources.

18. Routine administration and management of agency functions, not including new programs or major reordering of priorities.

19. Routine license and permit renewals where there is no significant change in preexisting conditions.

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20. Routine activities or educational institutions which do not include capital construction.

21. Planning Board zoning change recommendations not involving a Type I action.

§ 32.34 Effective date

This Chapter takes effect immediately upon filing in the office of the Secretary of State in accordance with Section 27 of the Municipal Home Rule Law. A copy of this Chapter must be filed with the Commissioner of the Department of Environmental Conservation.

Cross-references:

Uniform Code Enforcement. Chapter 26.

Zoning. Chapter 30.

References:

Authority to enact. ECL §§ 8-0113(3); 8-0117.

Building permit. Approval of building permit exempt under ECL 8-0105 (subd 5, par [ii]). Hinsdale Central School v Agway, 73 AD2d 1043(14).

Environmental Quality Review. ECL §§ 8-0101 - 8-0117.

Environmental review of governmental actions should occur at the earliest possible time. Mtr of Kravetz v Plenge, 102 Misc2d 622.

Implementation. To implement the State Environmental Quality Review Act, it is necessary to have available Part 617 of 6 NYCRR. Please note that Part 617 was revised Mar 6, 1987, eff. June 1, 1987. New sections, titles and numbers have been used. Handbook for Local Government relating to the Act prepared by NYS DEC may be obtained from the SEQR Coordinator at the NYS DEC, 50 Wolf Road, Albany, NY 12233. Tel. No. (518) 457-6557.

Legislative acts subject to SEQRA. Niagara Recycling v Tn Bd of Niagara, 56 NY2d 859, 83 AD2d 335; rvsg 109 Misc2d 277.

Presumption is that acts were done regularly, legally and reasonably, with honesty and good conscience and in absence of strong proof to the contrary, their conclusion that proposed action will not have a significant effect will stand. Mtr of Rickett v Hackbarth, 98 Misc2d 790, mod. 69 AD2d 222; Ecology Action v Van Cort, 99 Misc2d 664.

Purpose. The purpose of SEQRA is to assure the preparation and availability of an environmental impact statement at the time any significant authorization is granted for a specific proposal. Where a town had not prepared and filed an environmental impact statement prior to adopting resolutions authorized establishment of sewer district and submission to the voters, the procedures were held null and void. Taxpayers Assn v Queensbury, 55 NY2d 41; 447 NYS2d 699; 432 NE2d 592; mod. 79 AD2d 337.

SEQRA's "purpose was . . . to intelligently assess and weight environmental factors along with social, economic and other relevant considerations in determining whether or not a project or activity should be approved or undertaken. . . [I]t should afford agencies and the public a reasonable period of time in which to consider the final EIS". Tuxedo Taxpayers v Tn Bd, 96 Misc2d 1; 408 NYS2d 668; aff'd 69 AD2d 320; 418 NYS2d 638.

SEQRA "requires an EIS for any action which may have a significant effect on the environment". Appalachian Club v Flacke, 109 Misc2d 514, 525; 440 NYS2d 430. See also Devitt v Heimbach, 109 Misc2d 463; 440 NYS2d 465.

State Environmental Quality Review Regulations promulgated by Commissioner of Environmental Conservation; scope of authority. Part 617 of 6 NYCRR. Onondaga Landfill v Flacke, 81 AD2d 1022(9), reversing 106 Misc2d 207.

Statewide concern; Atty Gen may enforce SEQRA. Abrams v Love Canal Area Revitalization Agency, 134 AD2d 885.

Statute of limitations.

Four months applicable to Art. 78 proceedings generally governs. Save the Pine Bush, Inc v Plng Bd, 83 AD2d 698; Save the Pine Bush, Inc. v City of Albany, 70 NY2d 193.

30 day S/L is applicable to attack on subdivision approval pursuant to Town Law § 282; Mtr of Parker v Tn of Gardiner Plng Bd, 184 AD2d 937; Lebow v Vil Lansing Plng Bd, 151 AD2d 865, 542 NYS2d 840.