Public Input with a Positive or Negative Declaration in SEQR

In this image taken from the SEQR Cookbook, the top line “POSITIVE DECLARATION” illustrates robust public input for a pos dec determination in SEQR with many steps and opportunities. The bottom line “NEGATIVE DECLARATION” illustrates a neg dec determination where the review process concludes and there is no further opportunity for the public to participate as it relates to environmental impacts.

By Rebecca Martin

A recent Kingston Times article reported a claim by a member of the Kingstonian development team: “Dennis Larios is a civil engineer with long experience in Kingston. He’s currently working with JM Development Group on the Kingstonian project. Earlier this month, in a Facebook post, Larios suggested that his clients would likely walk away from the project if the planning board issues a “positive declaration of environmental significance.”

A day later, the Daily Freeman reported that a second member of the Kingstonian development team suggested that a determination of significance (and likely a negative declaration) would not be made for a very long time, as they had not yet provided the lead agency with all of the necessary information.

Attorney Michael Moriello said in a statement, “It is beyond presumptuous for these opponents to attempt to subvert the State Environmental Quality Review Act (SEQRA) review process by insisting upon a positive declaration of environmental significance before any potentially large impacts have had an opportunity to be identified and mitigated….Because we intend to follow all environmental review requirements and as we have not yet provided all of the necessary information and studies, we do not anticipate a determination of significance under SEQRA for (a) fairly lengthy period of time….we are confident that we will ultimately obtain a negative declaration of environmental significance so that the vast majority of city residents, visitors and business owners will ultimately benefit from the environmental review and the Kingstonian’s attendant economic, cultural and employment benefits.”

When SEQR begins, a series of specific actions are to take place starting with a 30-day window for the involved agencies to approve or deny the request for lead agency.  An involved agency may also “state their interests and concerns regarding selection of lead agency and potential impacts of the overall action” (SEQR handbook, page 66, item #5).  That’s exactly what the Historic Landmarks Preservation Commission has done as a responsible involved agency along with three interested State agencies which submitted comments to the Kingston Planning Board within the 30-day window for lead agency selection or the 20-day window for determination of significance which I describe next.

On the heels of the 30-day window for lead agency selection, for any Type 1 Action (which the Kingstonian Project is), there is a 20-day window for lead agency to make a positive (pos) or negative (neg) declaration (dec).

Members of the applicant’s team state that they “… do not anticipate a determination of significance under SEQRA for (a) fairly lengthy period of time.”
This suggests that their application may have been filed prematurely.

Why is the SEQR process being handled in the way that it is?

According to the SEQR Cookbook, “The lead agency has 20 calendar days to make its determination of significance. If the lead agency finds that it does not have sufficient information to make this determination, it may request that the applicant provide it. The lead agency must make its determination within 20 days of receipt of all the information it reasonably needs. In determining significance, the lead agency must consider: the whole action and the criteria [see 617.7(c)]; the EAF and any other information provided by the applicant; involved agency input, where applicable; and public input, if any.

Is the applicant interpreting the part of SEQR regulations that reads, “…if the lead agency finds that it does not have sufficient information to make this determination, it may request that the applicant provide it,”  to mean to work directly with the lead agency (Kingston Planning Board) to provide studies that they request for however long is necessary in order to achieve a neg dec in SEQR? 

The inevitable result of this approach the applicant and lead agency could be taking in trying to avoid a pos dec will be to cut the public and involved agencies out of the process.  Given that fact alone, the approach should be avoided.

Is there public input following a neg dec determination in SEQR? *

To cut to the chase, the answer is no, at least not as it relates to environmental impacts.

Kingston Mayor Steve Noble and members of the project’s development team have been recorded in recent weeks stating that the Kingstonian Project is anticipated to be a neg dec in SEQR. In other words, they are confident that there will not be a single potential significant environmental impact. If the project is a neg dec, the opportunity for an inclusive and comprehensive public process as it relates to environmental impacts is over and the project advances to routine permitting decisions. Public funds, which cannot be released until a neg dec is issued, are now available for use.  

Additionally, the Kingstonian Project as a Type 1 Action requires a coordinated review process. “A coordinated review is the process by which all involved agencies cooperate in one integrated environmental review. Coordinated review has two major elements: establishing a lead agency and making a determination of significance and in scoping an environmental impact statement.” (Ten agencies have been identified as “involved” in this review, including the Historic Landmarks Preservation Commission and Kingston Common Council).

If a neg dec determination is made by the lead agency, then the discretionary reviews of the involved agencies will be bound by this decision. The law stipulates that following a coordinated review, a lead agency’s determination of significance is a binding one; no other involved agency may require an EAF or an EIS for an environmental impact as defined by SEQR.

This is significant, particularly when the timeline for input from the involved agencies is not clear. Right now, involved agencies of the Kingstonian Project have only until the public comment period closes (it was opened on April 10 and oddly, a deadline has not yet been set) to weigh in on the potential significant environmental impacts while the Planning Board as lead agency prepares to make its determination of significance (with a pos or neg dec).

Is there public input following a pos dec determination in SEQR?

Yes, a pos dec determination will allow for an inclusive and comprehensive public review process.

Currently, a record has been established with comments on potential significant environmental impacts, particularly those that pertain to historic preservation and community character. Only one potential significant environmental impact needs to be identified to trigger a pos dec.

In the event of a pos dec, the applicant would be required to create a draft environmental impact statement (draft EIS). Public scoping is automatic. It is an inclusive process to identify issues that should be studied in the EIS, including potential significant adverse environmental impacts of a proposed project and alternatives that could avoid or minimize these impacts. “As a result, the draft EIS is concise, accurate and focused on the significant issues…The draft EIS is a primary source of environmental information related to a proposed action (the Kingstonian Project.) The EIS also serves as a means for public review and comment on the potential impacts of the action. After a draft EIS is submitted by the sponsor, the lead agency must determine if it is complete and adequate for public review. Once the draft EIS is deemed complete, a minimum of 30 days is required for public review and comment. A final EIS should be prepared within 45 days of any hearings or 60 days after filing the draft EIS. The final EIS must include: the draft EIS and any revisions/supplements; a summary of substantive comments received; and the lead agency’s responses to the comments. Draft and Final EIS’s must be published on a publicly available website.”

We hope that many of you will come to our public educational forum on May 21st from 5:30pm – 7:30pm where we will present “SEQR: 101” to explore and to learn all about the SEQR process and answer questions.  Jennifer O’Donnell, a City of Kingston resident, urban planner and local government specialist at the Department of State will be our guest panelist. The event will be held at the Kingston Public Library, is free and will be filmed by The Kingston News for those who can’t make it.  Brought to you KingstonCitizen.org and co-sponsored by the Kingston Tenants Union. 

 

(*) An amendment to the post was made on 4/26

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