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2006-03-08 (Queensbury ZBA Meeting 3/8/06) QUEENSBURY ZONING BOARD OF APPEALS WORKSHOP MEETING MARCH 8, 2006 INDEX DISCUSSION SEQRA Info. by Mark Schachner 1. THESE ARE NOT OFFICIALLY ADOPTED MINUTES AND ARE SUBJECT TO BOARD AND STAFF REVISIONS. REVISIONS WILL APPEAR ON THE FOLLOWING MONTHS MINUTES (IF ANY) AND WILL STATE SUCH APPROVAL OF SAID MINUTES. 0 (Queensbury ZBA Meeting 3/8/06) QUEENSBURY ZONING BOARD OF APPEALS WORKSHOP MEETING MARCH 8, 2006 7:00 P.M. MEMBERS PRESENT CHARLES ABBATE, CHAIRMAN JAMES UNDERWOOD, SECRETARY ALLAN BRYANT CHARLES MC NULTY JOYCE HUNT RICHARD GARRAND, ALTERNATE MEMBERS ABSENT ROY URRICO LEWIS STONE LEO RIGBY TOWN COUNSEL-MILLER, MANNIX, SCHACHNER, & HAFNER-MARK SCHACHNER SENIOR PLANNER-STUART BAKER STENOGRAPHER-SUE HEMINGWAY MR. ABBATE-We have with us this evening Mr. Mark Schachner, who is not only an attorney, but based upon what I could determine, is one of the foremost experts in the area of SEQRA in the entire State of New York. So I am absolutely delighted that Mr. Schachner is here this evening to help us out on the subject of SEQRA, and he has set up a format, and there will be opportunities to ask questions. Mark, it’s all yours. MR. SCHACHNER-Okay. I’m doing four SEQRA workshops in seven working days, by pure coincidence. MR. ABBATE-They just fell in place is what you’re saying. MR. SCHACHNER-Correct. MR. ABBATE-So you’re saying this is a good call for us, then. MR. SCHACHNER-Yes. It’s fine. I can do it in my sleep. One of them is I teach a class at Skidmore College and we happen to have studied the New York State Environmental Quality Review Act a week ago, and next week on Wednesday I’m doing a workshop for a bunch of lawyers through the New York State Bar Association, actually through the Adirondack Women’s Bar Association. There’ll be a group of lawyers that I’ll be giving a SEQRA workshop presentation to, and then next Friday I’m doing the same thing for lawyers that are attending an Historic Preservation conference in Saratoga Springs. So it’s just coincidence that they all fall in together. So a whole lot of what I’m going to talk about is intentionally, and I think by your wishes as well as mine, generic across the board SEQRA workshop, you know, basic 101, SEQRA workshop stuff and then more advanced stuff as well. I did modify my outline just a little bit to tailor it to you all being ZBA members and the part that’s tailored to you all as ZBA members is the part that you’re not going to like to hear, but I’m not here to tell you what you want to hear. I’m here to tell you what the law is, and just to real quickly go through my outline, as it says on the front page, I’m going to talk a little bit about what SEQRA is. I’m going to talk more than a little bit, the bulk of what I talk about is going to be how does it work. I’m going to talk a little bit about public participation in SEQRA review, and then the part that will be, my prediction, what I’ll label as the part that will likely be wildly unpopular with this group will be the part about how Zoning Board’s of Appeals roles in SEQRA review are typically fairly limited. That doesn’t mean they have to be limited, and I’m not sitting here telling you that they should be limited. I’m just telling you that under New York State law they often are limited. We’re a pretty 1 (Queensbury ZBA Meeting 3/8/06) close knit group, and we all kind of know each other. Unless you feel otherwise, it would be my suggestion that if somebody has a specific question during the course of my remarks, it’s perfectly fine to jump in an interrupt. MR. ABBATE-Let’s follow your format. MR. SCHACHNER-And if we get bogged down, I mean, we can always pick it up, but if you have a question about something that I’m talking about at that time, my view would be jump in with it. So I put on the front page of my outline a couple of dozen important SEQRA terms that I pretty much guarantee we will talk about each and every one of those in that top box, some important SEQRA terms. I think we’ll hit every one of those during the course of my remarks. We will hit some but not all of the ones in the bottom, unless you ask questions about the ones on the bottom, but that’s a much shorter list of some SEQRA terms that are often misunderstood in the course of my doing this for more than 20 years, and for the most part I don’t care at all if you follow along with the outline, but for the most part my remarks will sort of follow along with the outline. SEQRA is an acronym. Environmental Law Land Use and Planning are full of acronyms. SEQRA is an acronym for State Environmental Quality Review Act, and it’s a law that was passed by the New York State legislature in 1976. It was modeled after a federal law that was passed by United States Congress in 1969, called the National Environmental Policy Act, or NEPA. Painting with a broad brush, and that’s what my what is SEQRA part of my outline is going to do is paint with a broad brush. SEQRA is what I call an environmental disclosure and review statute, and what I mean by that is, SEQRA, the New York State Environmental Quality Review Act in no instance, under no circumstance, ever forces a specific decision, yes or no, nor does it ever impose a specific objective requirement on any applicant, on any application, or on any Board or agency. It’s a non objective, non specific environmental disclosure and review statute. There are people who think that SEQRA, by law, forces an approval of something or a denial of something, and that is not the case. There is no place in the New York State Quality Review Act where it says you must meet the following criteria in order to achieve approval, and then list objective criteria. There is something that I’ll talk about toward the end of my remarks that leads you in an approval direction or a denial direction, and SEQRA is a tool to help you in one of those directions, typically not in both of those directions, for the same application, I mean, but it’s basically a review and disclosure tool to help you make whatever decision you’re trying to make anyway. In your case, your decisions would typically be either an Area Variance of certain types, or a Use Variance, and again, SEQRA will never say deny the Use Variance, approve the Use Variance, deny the Area Variance or approve the Area Variance, but it will help focus you in a disclosure and review manner. It will be a tool to help you reach that decision. Many lawyer types often characterize SEQRA as a quote unquote procedural law as opposed to a substantive law, for exactly the reasons I just said, because it sets up a process, a process that’s pretty specific in terms of the process. In other words, there’s a lot of steps that have to be taken and T’s that have to be crossed and I’s that have to be dotted, but it’s not substantive in the sense of it doesn’t say a project which emits more than X number of pounds of lead per hour must be denied. It doesn’t say a project which causes the creation or the need for 1234 parking spaces must be denied, nor does it say a project which calls for only 100 parking spaces must be approved. It’s a tool that help you make decisions that may involve issues like what I just talked about, but those criteria are not in the New York State Environmental Quality Review Act in any circumstance. There is a substantive mandate of SEQRA, but it’s what I call a touchy feely feel good mandate. The substantive mandate of SEQRA is that agencies, and you are an agency, as a Zoning Board of Appeals, and if someone tells you you’re not an agency, they’re wrong, but agencies anywhere in the State, at any level, State agency, County agency, local agency, assuming they’re making some sort of discretionary approval decision, are supposed to take into account whatever the potential environmental impacts of that decision are, and before SEQRA, arguably, that wasn’t the law, not arguably, that wasn’t the law. Arguably, people also didn’t do it. You could do it before SEQRA was imposed by law, but since 1976, you’re required to take environmental impacts, or potential environmental impacts into account when you make a decision, and the you is any State agency, any local agency, which here in Queensbury is Planning Board, ZBA, Town Board, occasionally Town Board acting as Board of Health, and some other creatures like that. State agencies, New York State Department of Environmental Conservation, New York State Department of Health, New York State Department of Transportation and right on down the line, New York State Department of Education, etc., etc. The really, the most important aspect of SEQRA in the big picture, in my opinion, is an aspect that neither you nor most other local boards deal with very frequently at all, but that is for big projects that have significant environmental impacts, SEQRA is the source of the requirement to prepare an Environmental Impact 2 (Queensbury ZBA Meeting 3/8/06) Statement. On a statistical basis, literally less than one percent of applications in the State of New York end up requiring an Environmental Impact Statement, but the meat and the heart of SEQRA law is that less than one percent, those really, heavy duty major projects that have potentially significant environmental impacts and a ton of SEQRA regulation law and cases are about the whole Environmental Impact Statement preparation process. Now I know for sure that at least the majority of you know what I’m talking about when I talk about an Environmental Impact Statement. Some of you have been on this Board and in Town government long enough to have seen some of the Environmental Impact Statements that the Town of Queensbury has required of, for example, The Great Escape, for example, The Aviation Mall, and there was a third one that we did not too long ago, although I can’t remember what project comes to mind, but it doesn’t matter. So for anybody who doesn’t know, an Environmental Impact Statement, that’s a SEQRA term of art, as are many of the things I’m spouting out here, but it’s basically a document that as the name would indicate studies the environmental impacts of a particular project, and it does so in kind of a foramalistic way, there’s a lot of requirements for how one prepares an Environmental Impact Statement, and what has to go into an Environmental Impact Statement, and I’m going to kind of gloss over that, because I don’t think that’s the heart of what you all are likely to be interested in and likely to end up being involved in, but I will discuss some of it, and you can certainly ask me any questions you want about the Environmental Impact Statement process. When an Environmental Impact Statement is prepared, which again is seldom, but hopefully whenever it should be, when an Environmental Impact Statement is prepared, SEQRA law says that the decision making agencies are supposed to weigh or balance the environmental impacts that are identified in the Environmental Impact Statement against whatever the benefits of the project are, environmental benefits, social benefits, economic benefits or what have you, but only when there’s an Environmental Impact Statement prepared does the law talk about balancing environmental impacts with other non-environmental things like socio-economic benefits, and that’s a very commonly misunderstood thing. Only when the Environmental Impact Statement requirement is fulfilled, only when a project is significant enough environmentally to call for the preparation of an Environmental Impact Statement does the law say then you also factor in the socio or social or economic or what have you benefits to a project. When that happens, by which I mean, when an Environmental Impact Statement is prepared, the SEQRA law talks about that balancing and says even, and this is a commonly misunderstood thing, a project can be approved with some pretty nasty environmental impacts that have been identified in an Environmental Impact Statement, but only if the agency or agencies making the decisions feel that whatever the benefits of the project are outweigh the potential environmental impacts that have been identified. So a common misconception among people is they think if a project required an Environmental Impact Statement because of its really bad, nasty, environmental impacts, that means that the project can’t be approved. That’s not true. It may not be approve, but it’s not the case that it can’t be approved, and even if, at the end of the Environmental Impact Statement process, even if a bunch of environmental impacts have been identified that can’t be mitigated, or that can’t be fully mitigated, or that can’t even be mitigated as much as you want, that doesn’t necessarily mean that the project must be denied. It may mean that, but you are allowed to, and in fact you’re obligated to weigh those environmental impacts against whatever the benefits of the project are. So that’s why I call it a pretty subjective exercise, as opposed to objective. It doesn’t say, here are the objective criteria numerical speaking, and if you trip these thresholds, you can’t approve it. It doesn’t say that. It’s a balancing or a weighing. Actually something that you all are very familiar with, because for example when you deal with Area Variances you know that you’re balancing or weighing the benefit to the applicant versus the detriment to the community. You’re actually more familiar with the balancing, weighing process than most Boards are. Now I’m going to talk about the nuts and bolts of how it works, and this is where people get bogged down, and this is where people get confused, and quite honestly there are some confusing aspects to the nuts and bolts of how it works, and it’s hard not to get bogged down, and it’s hard not to get confused. From the standpoint of applicants in particular, applicants feel that the SEQRA process gets them in the proverbial ping pong ball situation where they’re batted from one Board to another and back and they’re not moving along through an application process, to some extent, that’s true, and to some extent it’s unavoidable in New York State. There are ways to minimize or streamline the process that minimize or avoid the ping pong ball batting back and forth type thing. They’re generally ways that are optional but not mandatory. I can talk about those a little later if you want, but to some extent the process is a process that requires certain steps, and, you know, the applicant that comes in on night number one and says, here I am with my wonderful project and, yes, it requires a whole bunch of different agency decisions, and, yes, when we look a the Environmental Assessment Form, a lot of boxes are being triggered yes, maybe potential impact. That’s an applicant 3 (Queensbury ZBA Meeting 3/8/06) that, whether they like it or not, probably shouldn’t be approved on night number one because there are some steps that have to be taken, and by the way, those are not just SEQRA steps. Those are also your steps, you know, public hearing steps, referral to other agencies, and what have you. The nuts and bolts of how it work starts with the initial, what’s called classification of the action, and I think you all have heard these terms, but the SEQRA regulations, and by the way, the bible of SEQRA law, the bible of SEQRA law is the SEQRA regulations. These are regulations that were promulgated and adopted by the New York State Department of Environmental Conservation, but they’re applicable throughout the State to all agencies. You may sometimes hear them called Part 617. That’s just the numerical reference to where they are. Our Staff, and by the way, our Staff here in Queensbury is very SEQRA knowledgeable and very SEQRA capable, more so than, and this is no joke, more so than in the other 11 municipalities that I work for. The Staff certainly has the SEQRA regulations. Some of you may or may not have them. They’re not the most user friendly things in my opinion. You’re certainly welcome to them. I think you’ll find them pretty complicated, if you have them and if you try to work through them. The best resource, in my opinion, to help translate the SEQRA regulations is a document called the SEQRA handbook, and I want to make sure and distinguish between something called the SEQRA handbook and another publication you may have either seen or heard of called the SEQRA cookbook. I’m not a big fan of the SEQRA cookbook. The SEQRA cookbook cuts a lot of corners. It’s pretty old, somewhat outdated, and there are some things in it that are arguably not as technically correct they should be. The SEQRA handbook is a more detailed document, but it’s in a very user friendly format. It’s in a question and answer format, and it’s also about to be revised and republished. It’s not brand new either. It’s probably a good ten years old itself now. The SEQRA regulations were last revised in 1996. So it’s the 10 year anniversary of the SEQRA revisions, and the SEQRA handbook is, they say, about to come out. I don’t know how about. When DEC says something’s about to happen, that generally doesn’t mean tomorrow, but for what it’s worth, the cookbook’s shorter, but the handbook’s better. The handbook is question and answer format and much more understandable, but anyway, the bible is the SEQRA regulations. The SEQRA regulations classify any action, and action means whatever is the proposal, okay, in one of three categories. The names of the categories are Type I actions, Type II actions, and the not very creative title of Unlisted Actions. Unlisted Actions means neither Type I or Type II. Type I actions, and there’s a list of them in the SEQRA regulations, and Staff’s very familiar with them, and when you see your agendas, your agendas say on it SEQR classification or SEQR Status, I forget the word, and then it says in it, Type I, Type II, or Unlisted. What that means is that Type I actions are actions that, under the SEQRA regulations, are more likely, more likely, not definite, but more likely to have significant environmental impacts than the other actions, the Unlisted and Type II actions. MR. ABBATE-May I ask a question on that? When we receive our agenda, you’re absolutely correct, Staff does give the classification. It seems to me I read somewhere along the line, do we have a responsibility to, do I have a responsibility to raise to the Town Board members whether we agree with that SEQRA standing that was designated by Staff? MR. SCHACHNER-Not only don’t you have that responsibility, but arguably, there shouldn’t be, there’s generally not gray area there. I mean, if you feel it’s, and we’re all human. I mean, Staff may make a mistake now and then. In fact, you know, we have, I can tell you we have. I remember a couple of agendas where we had it wrongly classified. You can certainly ask Staff if you feel there’s a mistake, but unlike a lot of other SEQRA principles where there is a lot of gray area and room for disagreement, the initial classification is pretty much cut and dry, because that is subject to objective criteria. We all make mistakes. I mean, if we miss something, yes, by all means bring it to their attention, and if there’s a mistake, it should be properly classified, but unlike the ultimate decision making guidelines that I was talking about earlier, which are very soft and fuzzy, the classification stuff, Type I, Type II, or Unlisted, is very objective. There are lists in the SEQRA regulations with specific, objective, numerical thresholds. If it’s more than this number of parking spaces, it falls into that classification, and if it’s more than this number of square feet, it falls into that classification, etc. So those should be accurate, I guess is what I’m saying. If they’re not, let’s get them accurate. MR. ABBATE-Okay. Thank you. MR. MC NULTY-The root of that question, before you go on, at least I was the one that brought it up to Chuck Abbate. Maybe somebody else did, but at the Saratoga Planning Conference last January, Betty Ann Hughes made the point. 4 (Queensbury ZBA Meeting 3/8/06) MR. SCHACHNER-Excuse me. Not to interrupt you, last January two months ago or a year and two months ago? MR. MC NULTY-Two months ago. MR. SCHACHNER-Okay. MR. MC NULTY-She made the point that the responsibility to make the determination of what class something was in belonged to a Board, not to Staff, and that was where that came from. If that is true, should we at least endorse the Staff’s? MR. SCHACHNER-You can do that, but Betty Ann Hughes, who’s a lovely woman and very knowledgeable, is not an attorney, and Dan Russo is on that panel. I was supposed to be on that panel, and ended up having a conflict, I don’t agree, but it’s perfectly fine if you want to endorse it, except my only hesitation would be it’s more work for you and. MR. MC NULTY-And if you don’t feel it’s necessary, why complicate things. MR. SCHACHNER-No. MR. ABBATE-There’s no obligation for me to address the issue? MR. SCHACHNER-Absolutely not. MR. ABBATE-Fine. That answers my question. Thank you. Thank you, Chuck. MR. SCHACHNER-I’d just as soon you not bother. You’ve got plenty of work to do. Let’s not add to it, but if you see a mistake in it, by all means, bring that up and let’s get it accurate. MR. ABBATE-Of course. MR. SCHACHNER-So, all right. I’ve described what Type I actions are. Type II actions are actions that have been deemed, by law, to be not significantly affecting of the environment, okay. So Type II actions, and there’s a list, an objective list, and if an action is on the Type II list, it’s already been presumed, irrebuttably, by the way, presumed by law, that it will not have a significant impact on the environment, and if an action is on the Type II list, there is no SEQRA review undertaken. None. For better or for worse, whether you like this or don’t, a whole lot of the business that comes before a Zoning Board of Appeals is on the Type II list, and that’s why, when we get to the end of my remarks, I’m going to be describing why, typically, ZBA’s are not as involved in SEQRA review as many other agencies. The reason is because a lot of stuff that’s on your plate is by law, again, for better or for worse, whether we agree or disagree, and some of it, by the way, I disagree with, but by law, it’s Type II, which means it’s presumed by law not to have a significant impact on the environment. Even if we feel otherwise, we can’t overrule the law, and there’s no SEQRA review, and a whole lot of stuff that comes before a ZBA is Type II, but statistically speaking throughout the State, for all decisions, the biggest category is the category in the middle, the very creatively called Unlisted actions. They’re neither Type I, the ones that are so major, that they’re more likely to have significant environmental impacts than not, nor are they the Type II ones, the ones that have been pre-determined not to have significant environmental impacts. It’s the whole bunch in between, and statistically speaking, not at ZBA’s necessarily, but across the Board, the vast majority of actions in the State fall into that middle category, which is Unlisted. Now, why is it important to figure out which category we’re in? Because that initial classification, Column One, Column Two, Column Three, Type I, Type II, Unlisted, determines which process we’re going to go through, okay, for SEQRA review, and the processes are very, very different, depending upon which class you fall into. From easiest to hardest, or from simplest to most complex, I just tipped my hand and said, if it’s a Type II action, end of story, and by the way, the last page on your outline I hope is a flow chart. Is the last page on your outline a flow chart, I hope? MR. ABBATE-Yes, Mark. MR. SCHACHNER-If that looks like a complicated flow chart, I’ll plead guilty. I’m the author of the flow chart, but I will tell you that if you look in every State publication, or any 5 (Queensbury ZBA Meeting 3/8/06) publication that I’m aware of in the State of New York trying to put down a SEQRA flow chart, the one that a colleague and I did is by far the simplest one of all. The other ones go, there are multiple page ones. There are ones that I am not able to understand, and I’ve bee doing this and lecturing about this for 20 years. I figured if I can’t understand it, it’s not very user friendly. This one is okay. I think it’s the best we can do. So you’ll see, if you look at that flow chart, in the second column it says application is classified under SEQRA as, and there are your three choices, and as you can see, if it’s one of the bottom two choices, Unlisted or Type I action, that leads on to potentially a whole lot of other boxes, but look what happens if it’s a Type II action, follow the arrow to the right, no SEQRA review required. End of story. We can all go home, on the SEQRA review, not on your variance review, but on the SEQRA review. The next level would be the Unlisted action, and you all would see a bunch of these, typically, probably more than Type I actions would be my guess. Unlisted actions, you, as a Zoning Board of Appeals, have the authority and possibly the obligation to conduct SEQRA review. Why do I say possibly the obligation? Because if there are other agencies that also have to approve the Unlisted action, you are allowed, but not obligated, to do something called coordinated review, and I’m going to talk about it in one or two minutes, what that means, but you don’t have to do that. You can, if it’s an Unlisted action, you can, as the Zoning Board of Appeals, conduct the SEQRA review and reach the determination that’s required, and what do I mean by the determination that’s required? How does one conduct SEQRA review? One reviews the Environmental Assessment Form, the EAF. The applicant fills out Part I of the EAF, and don’t be mislead by this. It’s your responsibility, if you’re conducting SEQRA review, to fill out Part II of the EAF, that’s the question and answer part, will the Action have an impact on this, this, this, this or that. You will sometimes get application materials where the applicant has very kindly, and I put the word kindly in quotation marks, filled, out Part II for you, okay. That’s not illegal, but it’s very important you understand that that’s just the applicant trying to convince you, here are the answers you should be providing to the questions in Part II, in the applicant’s mind. By the way, other’s can submit suggested Part II answers, but it’s vital that you recognize that when you get an EAF, if Part II’s already filled out, you can’t just take that as the gospel. You’re responsible for answering the questions in Part II of the EAF. MR. ABBATE-I think you probably answered my question. So then it would be proper for the Chairman to turn to the Secretary and the Secretary read and then we respond to each of the? MR. SCHACHNER-Yes, very much so. It doesn’t matter if it’s the Secretary. It doesn’t matter who it is. MR. ABBATE-Right. MR. SCHACHNER-Very much so, and that’s something that many Boards don’t do, and you should do. If you’re doing SEQRA review, some Boards just adopt, just say, well, I don’t see any impacts here, but they don’t go through the questions. If you’re challenged, if that’s what you do, and you’re challenged, then, of course, that’s where I get involved, and that’s making my job a whole lot harder, and I’m not sure I can successfully defend you if you haven’t gone through the questions and asked the questions, and by the way, we deal with these litigation issues all the time, and we have, I’m proud of our track record. I’m proud of your track record. We basically don’t ever lose SEQRA challenge cases because you and the other agencies do a good job of T crossing and I dotting, but that’s a good example and that’s a good question. Don’t just jump to the conclusion, go through the questions. Somebody should read the questions, you know, Staff, Secretary, a Board member, whomever, go through the questions one by one and answer them. Some people don’t recognize that the answer doesn’t have to be unanimous on the Board. It’s like any other Board thing. If you don’t agree, if somebody says, yes, I think there are impacts, no, I don’t think there are impacts, you’ve got to go through the Board and figure out what the majority feels. Simple majority. So if it’s an Unlisted action, that’s one approach to an Unlisted action is you do the SEQRA review. I’ll get to the second approach in a minute as I talk about Type I actions. Type I actions kick in a whole different process, and you can see it on the flow chart. Type I actions require, not optional, require what is called in SEQRA law coordinated review. Coordinated review in English means that all the agencies that have some sort of discretionary approval authority over whatever it is that’s proposed, they’re called, quote unquote, involved agencies. Coordinated review means that there has to be agreement among the involved agencies as to which one agency will serve as what’s called the SEQRA Lead Agency, okay, and what that means, in English, is that one agency among the number of involved agencies, will be designated to conduct the SEQRA review, and that agency’s 6 (Queensbury ZBA Meeting 3/8/06) SEQRA review will be binding on all the other agencies. Now this is required, not optional, if it’s a, quote unquote, SEQRA Type I action. So if it’s a Type I action, it has to go through this process called coordinated review, where the involved agencies designate one from among them as the SEQRA Lead Agency. When we were talking about Unlisted actions, I said one approach to it would be you, as a ZBA, do your SEQRA review, but I said there was another approach. The other approach is, if, if there are other agencies that also have to pass on the project, meaning decide on the project, you can, but are not obligated, to go through this coordinated review process anyway. It’s mandatory if it’s a SEQRA Type I action. It’s merely optional if it’s an Unlisted action, and obviously you don’t hold all the cards to make that decision. You could want a coordinated review, but other agencies may say, too bad, we’re not doing it. We’re not playing your game, and they have the right to do that. You can’t force it upon them, but you can suggest it. Coordinated review, designation of Lead Agency, quite frankly, it’s like certain other things in life, the proverbial all volunteers, you know, whoever wants to volunteer take a step forward and everybody jumps back, and whoever’s left is the Lead Agency. It’s something that’s not often sought after at some levels. Remember that I said SEQRA applies to all agencies in the State, and on a large, complex project, the involved agencies are not going to only be at the local level. On a large, complex project, you could have New York State DEC, New York State Department of Health, New York State DOT, Queensbury Planning Board, Queensbury ZBA. No one else jumps to mind, but whomever, and you could have, and we’ve had some projects like that here in Queensbury where you have four or five, six involved agencies. If it’s a Type I action, there has to be agreement for who will serve as the SEQRA Lead Agency. The other very important thing is that you know that there are two types of EAF”s, do you guys know that? There’s a Short Form EAF, which is a very simple one side of one page, one side of the other page, Environmental Assessment Form, and there’s what’s called the Long Form EAF which is a much, much longer, 20 questions in Part II, six or so pages in Part I, a lot more detail, and the applicant is required, must, mandatory, obligation, to prepare the Long Form EAF for your review for a Type I, your review or whoever is the Lead Agency, for a Type I action. For an Unlisted action, the applicant has the right to submit a Short Form, although you don’t have to accept that. You can say, you know what, we want the Long Form because we think that we have concerns here, but for an Unlisted action, a Short Form can suffice, and for a Type I action, a Short Form cannot suffice, not allowed, must be the Long Form. MR. BRYANT-In a coordinated review situation, is it typical that, like for example in our case, that we would recommend that the Planning Board be the Lead Agency. What about a situation that for example might be under the influence of the Adirondack Park Agency or something? Is it typical to just stay within this local government, or can we recommend another agency like the Adirondack Park, if such a project exists? MR. SCHACHNER-Well, a couple of different questions in there. So a couple of different answers. First of all, sort of dealing with that in backwards order, most projects that are subject to Adirondack Park Agency jurisdiction are exempt from SEQRA review because the legislature believes, and by the way, I think this is true, that the Adirondack Park Agency exerts its own very rigorous environmental review over a project. So most projects subject to APA jurisdiction are exempt from SEQRA review, and you don’t have to worry about SEQRA review. Basically, to put it in a nutshell, you let the APA worry about the environmental issues, but the first part of your question I think was, to what extent is it appropriate or common, I can’t remember your exact words, but for example, a Zoning Board of Appeals to recommend that the Planning Board or some other entity be the Lead Agency, and the answer to that is, it’s perfectly appropriate. Statistically speaking, just on an empirical basis, that’s how most towns conduct SEQRA review, because Planning Boards generally are more involved in quote unquote environmental issues than ZBA’s are. ZBA’s more involved in your variance criteria, both your use variance criteria and your separate set of area variance criteria, and many things that come before ZBA’s are Type II actions, not subject to your SEQRA review. So as a practical matter, many, many towns in New York State basically say, take the position, and perfectly appropriately so, but not mandatory, appropriate but not mandatory, take the position that if there are projects that are subject to both our, meaning the ZBA’s review, and to Planning Board review as well, we’re going to do coordinated review, let the Planning Board be the Lead Agency, just because they do much more of it. They’re more in the business of doing SEQRA review. I don’t mean our Queensbury Planning Board. I’m speaking generically. Planning Boards are more in the business of conducting environmental review than ZBA’s are. More applications before Planning Board’s involve SEQRA review than applications in front of ZBA’s, and there are many, many fewer Type II decisions under SEQRA in front of Planning Board’s than ZBA’s. So it’s very appropriate, and that’s actually how most towns deal with SEQRA review for 7 (Queensbury ZBA Meeting 3/8/06) applications that are pending, you know, that have approval needs from both. I didn’t say this, and it may or may not be obvious, but if it’s an Unlisted action or a Type I action, if the applicant or the project doesn’t require approvals from anybody other than you, the ZBA, you’re the SEQRA Lead Agency, like it or not. Okay, and that happens. There aren’t too many of those, because I think the vast majority of actions that would be subject to SEQRA review before this Board would also likely be subject to either subdivision or site plan review by our Planning Board. So I think the vast majority of situations, you would not be the only involved agency, but there are some. There could be a Use Variance situation, for example, no Use Variances are Type II. So in other words, SEQRA review applies to any Use Variance situation, just about any Use Variance situation, not for a single family residence, but I can’t think of a situation where you’d need a Use Variance for a single family residence, but almost anything else. SEQRA does apply to Use Variance situations. I think that the vast majority of Use Variance applications before you would, if approved by the ZBA, require site plan review from the Planning Board, but not necessarily every single one. So if there were, using that as a hypothetical example, if there were a Use Variance application before you that did not require site plan review or subdivision review or any other review from the Planning Board or any other agency, then you’re it, like it or not, you’re doing the SEQRA review, and if it’s a Type I action, you need to require a Long Environmental Assessment Form, and if it’s an Unlisted action, you can utilize the Short Environmental Assessment Form, if you wish. The EAF review, I think, me personally, and I do this stuff, this is like bread and butter stuff for me, I think the EAF’s are not well written documents. I don’t know how you all feel. I don’t think that the Part II questions are particularly well written, and I think that the instructions for how to complete the EAF’s are particularly poorly written. If taken hyper literally, for example, the instructions to the EAF’s would indicate, or could indicate, that any time you identify anything that appears as any impact in any of the 20 questions on the Long EAF, under those bullet items on the Long EAF, I’m seeing nodding, so you know what I’m talking about on those forms, that you would have to check off potential large impact, as opposed to small to moderate. That’s clearly not the case, legally, but the instructions are very poorly written. They may be revising those in the near future, but I emphasize the word may. They’re not sold on revising them yet. This is where the SEQRA stuff gets pretty subjective, when you’re looking at those EAF questions and deciding does something, will something or will the project have a significant impact on traffic, okay, for example. There’s no definition in SEQRA law or anywhere else of what’s a significant impact on traffic. So Boards used to say, we don’t know. We’re not traffic engineers, we’re delegating that question to our traffic engineer. He’ll tell us, he or she will tell us, and we’ll answer what they say. Can’t do that. Despite the fact that there’s no requirement that you or me or anyone else be traffic engineers, stormwater engineers, air pollution engineers or anything else, rightly or wrongly, the law in the State of New York is very clear. You’re the decision makers, and you cannot delegate your SEQRA decision making responsibility to Staff, to consultants or to anyone else. You can seek advice. You can seek recommendations, but ultimately it’s your call, and for something as nebulous or fuzzy as, will the project have significant impact on traffic patterns, it’s hard to say sometimes, if you’ve got, you know, a traffic engineer that says this is going to reduce a Level of Service, and you all, I think most of you are familiar with what I call LOS’s or Levels of Service. If you’ve got a situation where an LOS is going to go from A to E, then I think you can probably be pretty safe saying, yes, this project is going to have a significant impact on traffic, but most of your projects aren’t that cut and dried. Most of your applications, it’s not that clear, and there’s an awful lot of fuzzy discretion in this. From my standpoint, as your Counsel, I will tell you that the standard of review for your SEQRA decision making, under law, is something called the hard look standard, as in-eloquent and as inarticulate and as simplistic as that sounds, what the New York courts have held is that, in order for a SEQRA decision to be upheld, the agency has to demonstrate that it took a hard look at potential environmental impacts. Now clearly that’s not saying which way you had to come out after you took the hard look. It’s just saying you have to have taken the hard look, and I’ll tell you that as long as you document thoroughly your consideration of the potential environmental impacts, if challenged, we’ll win. MR. ABBATE-And, Mark, agency refers to the Zoning Board of Appeals? MR. SCHACHNER-Well, actually it refers to whatever agency does the SEQRA review. The standards are identical. New York State DEC, New York State agency, Town of Queensbury Planning Board, Town of Queensbury ZBA, the standard of review, if challenged, for a SEQRA decision, is identical across the Board. It’s, did you take a hard look at potential environmental impacts, and that means, if you took a hard look at potential environmental impacts, and it’s thoroughly, thoroughly documented, in the EAF, in our meeting minutes, we’re lucky, in Queensbury, we have terrific meeting minutes. Some towns it’s very terse and 8 (Queensbury ZBA Meeting 3/8/06) there’s almost no reflection of the discussion that occurred. You guys, they do great minutes. The minutes show that the questions have been asked and answered, I’m sorry, the minutes also reflect what debate was held on the questions, so that, you make my job easy, piece of cake, I can say, judge, you know, the standard is did they take a hard look at potential environmental impacts. The flipside. Maybe the hard look thing is best described by looking at the flipside. The flipside is the proverbial rubber stamp, and this happens. I see this happen all the time at other towns that we don’t represent. Somebody will come in front of the Board. They either won’t do SEQRA review at all, and that still happens, which shocks the hell out of me, but it does happen, or, that’s very rare that they don’t do it at all, but what’s very common is they don’t do it in a T crossing, I dotting fashion. For example, they won’t go through the questions on the EAF. They’ll just say, does anybody see any environmental impacts here, no, move on. The other thing some will do is delegate to the Staff or to a consultant the decision making authority, and if they’re challenged, they lose, because it’s the Board’s decision, whichever Board is involved, not the consultant or the Staff. MR. BRYANT-When you mention the choice of using the Short Form with an Unlisted action, you said it a little bit, almost like you were implying that it was really our choice and maybe we should consider, in some cases, using the Long Form. MR. SCHACHNER-Your read on me is accurate. MR. BRYANT-Is it, as far as defending that kind of, what is the hesitation? MR. SCHACHNER-There’s no objective guideline, but if you get a substantial project, and I can’t tell you what’s substantial and what’s not. If you get a project that’s pretty minor, it can’t be a single family residence because that’s Type II, but let’s say it’s a business, okay, and let’s say it needs some kind of Area Variance, let’s say for height, that’s not a, the reason I’m picking height is because individual lot line setbacks and the like are Type II. So there is no SEQRA review. Let’s say it’s a height variance and it’s, you know, the requirement is 35 feet and it’s 37 feet. I’m making this up, obviously, and it’s a pretty small business, and you guys say, okay, the Short Form is fine, and we’ll go through it, we don’t see any significant environmental impacts, we don’t need a Long Form, we don’t need an Environmental Impact Statement. We issue what’s called a SEQRA Negative Declaration, which I’ll talk about in a moment, but I think you guys know what that is already, and we move on. Challenged, I’m fine with that. I’m great with that, okay, and I would not sit here and say, gee, you know, it would have been nice to have had a Long Environmental Assessment Form for that. Let’s say you get a very substantial project, you know, that still requires the height variance, but whatever the nature of the project is, it’s a much more substantial project, and you feel, you know, there’s a lot of issues here, we really need a Long Form. This is if you’re doing the SEQRA review, obviously. Remember that, on a lot of substantial projects, you may not be doing the SEQRA review, but let’s assume you are. You say, you know what, applicant, we want the Long Form here. If the applicant says, no, we refuse, this is an Unlisted action, we’re not giving you the Long Form, we’ll win that case, if that goes to court. We will win that case, because you have the discretionary authority, if you feel that a project has some magnitude to it, to say, we want the Long Form, we feel we want more information to conduct SEQRA review. There’s no bright line that I can tell you, above this threshold use the Long Form, below it use the Short Form, other than the Type I Unlisted classifications, but your read on me was right. I’m saying the vast majority of simple actions that are Unlisted actions, you want to use the Short Form, that’s fine. If you see an action that’s an Unlisted action, but nonetheless you think has some serious environmental issues, at least potentially, you want to require the Long Form, we’ll never lose if somebody challenges us on that basis. Chuck, did you have a question? MR. MC NULTY-No. MR. UNDERWOOD-I had one. In regards to Critical Environmental Areas, our review of those issues, you know, as it pertains to like say Waterfront Residential properties, in that instance there, there’s nothing at the State level or in SEQRA that addresses like Floor Area Ratio, but I would think that it’s within our purview to review, you know, if we’re granted the SEQRA status, if we’re going to do that in an Unlisted action, should be interpret that as very important, like if we’re looking at high density areas of Town, where the lots are miniscule and we’re looking at, you know, overbuilding, in the sense of, you know, in the grand scheme of things maybe not a single event, but if you segment, if you think of it in a segmented manner, you know, if we’re going to continue to have the same thing occurring, ad infinitum, like every house being replaced by a much bigger house, per se, or something like 9 (Queensbury ZBA Meeting 3/8/06) that, is that something that should be considered as triggering, you know, doubt in our minds that it’s going to be in the best interest of the environment? I mean, which is more important, the values that we attribute to properties, or their affects, ultimate effects on the environment in the long term? I mean, these are things that we have to think about in the future, maybe not in the sense of, you know, the individual project that we have under consideration, but is that something that we should roll into the mix? MR. SCHACHNER-That’s quite a question. Let’s start off, Jim, at the very beginning, jumping off point, Critical Environmental Areas. Make sure you understand that Critical Environmental Area is a term of law, a term of art. It doesn’t mean what the simple words sound like. Critical Environmental Area does not mean any area of the Town of Queensbury that we think is a very important area, and that’s why the question typically says, yes, the question in the EAF refers to a Critical Environmental Area, established pursuant to, and then it gives you the legal reference. A Critical Environmental Area, or CEA, is a formal designation that the legislative body, the Town Board, that’s the only Board that has the authority to establish a CEA, most towns don’t have any CEA’s. We have three or four, we have a bunch, we have several. We live on one of them, Glen Lake. Some of you live near Lake George, which is another one, and there’s Rush Pond. So there’s three right there, and I think there’s a fourth, but I’m not sure. The end to your question, Jim, quite honestly struck me as not really a legal issue question, more of a philosophical question. I can’t answer that, and it wouldn’t be appropriate for me to, and nobody should listen to me if I do, because I’m not a philosopher, but, interestingly enough, the SEQRA regulations, I’m sorry, the SEQRA regulation revisions that I refer to from 1996 actually de-emphasized, de-emphasized, which was surprising, the significance of a property being in a Critical Environmental Area. Before 1996, if a project, property was in a CEA, that automatically made the action a Type I action, and one of the, and the State felt, rightly or wrongly, that there were lots of activities that were happening in CEA’s that really didn’t warrant treatment as Type I action, it was better to leave them as Unlisted actions, so that actually, that’s one of the revisions in 1996 was that was deleted from the Type I list. So now you could have activities in a designated CEA that will not be treated as SEQRA Type I actions. They won’t be Type II actions, they won’t be exempt, but they’ll be Unlisted actions. I’ll take a stab at the middle part of your question. If you look at, for example, the Long EAF form, in reference to Critical Environmental Areas, the Short EAF form doesn’t say squat about Critical Environmental Areas, okay. That’s how much they’ve been de-emphasized. The Long Form does have a question, though, Question 14, which is called Impact on Critical Environmental Areas, and the question is, will the proposed action impact the exceptional or unique characteristics of a Critical Environmental Area, established pursuant to, and then it gives the legal reference, and if you look at the bullet items, there’s only four substantive bullet items. The first one is proposed, and I think some of them, three of them I think affect, addressed your concern. The first one is just proposed action, will it be located within the CEA. That’s a factual thing. It’s either in it or it’s not in it. That’s an objective thing because there’s a line, but the next three are the important ones that are somewhat subjective and I think address Jim’s question. Will the proposed action result in a reduction in the quantity of the resource? Meaning you can imagine some projects would physically back on the CEA and eliminate part of it, depending upon what your CEA is. Proposed action will result in a reduction in the quality of the resource, which might be something you’re thinking about. Proposed action will impact the use, function or enjoyment of the resource, okay, so that, let’s use our back yard, proverbially speaking, we don’t share the same back yard, I’m down a ways, but if somebody was proposing something that you, as a Board member, would argue impairs the use, function or enjoyment, so somebody’s proposing some giant fireworks munitions factory, for, do you live on Fitzgerald or Mannis, pick where you don’t live, which ever one you don’t live on, or my road, on Reardon Road, well, could that impact the use, function, or enjoyment of the resource of Glen Lake, if it’s a Critical Environmental Area? It might be able to. It might impair some of our abilities to paddle our kayaks and canoes quietly along, you know, Glen Lake type thing, so that might trigger a potentially large impact answer. As far as the futuristic aspect, I think you asked something about, do we just look at the current application or do we look at how it might play out if similar applications were in the future or something like that, those weren’t your exact words, but there are other questions in the EAF that talk about, for example, impact on growth and character of community or neighborhood, and there you do look, to some extent, you look to the extent to which this is a snowball rolling down a hill, gathering more snow as it rolls down the hill. You have to be kind of careful about that. You can’t overreact to that. There are cases where Board members, not necessarily ZBA members, but Board members have been deemed guilty of overreacting to that sort of concern and requiring some sort of Environmental Impact Statement, perhaps hastily. Let me say something that’s the most important thing I can say 10 (Queensbury ZBA Meeting 3/8/06) about the EAF process, the Environmental Assessment Form process. It is not an end unto itself, the EAF process. It is a means to an end, and this is very often a misunderstood concept. The EAF is, itself, a tool, okay, and it’s a tool toward the ultimate SEQRA decision. The ultimate SEQRA decision is very simple, I mean simple to say. It’s a hard decision to make. The ultimate SEQRA decision is, do we or do we not need to have an Environmental Impact Statement. That’s what this entire EAF exercise is about. It’s all about, do we or do we not need to have an Environmental Impact Statement, and you all, most of you for sure maybe all of you know, that the SEQRA terms at the end of the SEQRA process are either, I should say at the end of the EAF process, are either, we don’t need to have an Environmental Impact Statement, which is called a SEQRA Negative Declaration, and that, I think, is sort of a confusing name, because negative means bad, in some respects, and that’s not what it’s saying, SEQRA Negative Declaration, no, we don’t need to have an Environmental Impact Statement, or, SEQRA Positive Declaration, again, something of a misnomer in my view, Positive Declaration means there are potentially significant adverse environmental impacts, and we need to have an Environmental Impact Statement. That’s what the EAF process is all about. Looking at any part of the flow chart, once you get to a SEQRA Negative Declaration stage, the SEQRA game is over. However, if you don’t reach the SEQRA Negative Declaration stage, you’ll see in the third column from the right, if you are at a Negative Declaration stage, the arrow to the right says SEQRA review completed. If you’re in what’s called a conditioned Negative Declaration stage, you’re almost done, it says to the right, publication and notice, then SEQRA review completed. Those are very few and far between by the way, what’s called Conditioned Negative Declarations, and I’m not going to get bogged down in those, or if there’s a Positive Declaration which means that there does need to be an Environmental Impact Statement, then you’ll see the arrow goes to the Environmental Impact Statement, and that’s quite the process. You’ll see there are six steps in the Environmental Impact Statement process, and that’s why, quite honestly, applicants are so loathe to prepare Environmental Impact Statements. I, just so you know, as your principal Counsel, I have a big problem with applicants standing before you or the Planning Board or anybody else and acting so pained as so anguished at the notion of preparing an Environmental Impact Statement. Some of you may have heard or attended meetings where applicants in Queensbury have said, you can’t make us do an Environmental Impact Statement, it’s a $100,000 process, and it takes a year, I’ve heard, $200,000, two years. I’ve heard $100,000, I’ve heard year. Stuart, at least, is nodding. I don’t know if we’re thinking of the same pitch that was made or not, but I can tell you that I do this, obviously not just here in this building, but in a whole lot of other buildings, applicants, you’d think it was the end of the world as we know it, to consider requiring an Environmental Impact Statement, and I’m telling you that’s nonsense. If an Environmental Impact Statement is the appropriate avenue to pursue potential environmental impacts, you not only have the option, but you’re required to make an applicant do that. An Environmental Impact Statement process does not need to take a year, and it does not need to take hundreds of thousands of dollars. Some do, and there are two reasons for that. Sometimes the project warrants that level of attention, okay, if it’s a large enough project with significant enough environmental impacts, I’ve been involved in siting of hazardous waste management facilities, for example. Siting of a hazardous waste management facility probably shouldn’t happen in a week and a half, and it’s probably appropriate that is requires a substantial Environmental Impact Statement effort, but I’ve also been involved in projects that were subject to Environmental Impact Statements, where the Environmental Impact Statement was prepared for $15, $20,000, sometimes less, and the entire process, start to finish, coast to coast, took less than six months. So don’t be bullied. I have a big problem with applicants that think that requiring an Environmental Impact Statement is grossly unfair, is ruining their lives, is killing the project, is the end of the world as we know it, and all the rest of that sort of stuff. When an Environmental Impact Statement is prepared, there’s quite an involved process, and again, you’re not going to see that too often. I’m going to streamline it kind of quickly so that we can get to any questions that you all may have. There’s what’s called a Scoping process that’s optional, not mandatory, that means people get together in a public forum and decide what will be discussed in the Environmental Impact Statement. There’s a Draft Environmental Impact Statement, which the Board has to accept as complete. That doesn’t mean you agree with everything in it, but you must accept it as complete eventually at some point. There is a, this is sort of interesting, to me at least. There’s a mandatory public comment period on an Environmental Impact Statement. Mandatory public comment period, but not a mandatory public hearing. Now, having said that, no agency in the State of New York would ever, in my opinion, with the sole exception of the New York State Department of Education, would ever go through an Environmental Impact Statement process and not have a public hearing accompany that, but it’s not required under law, which I think is very foolish. After the public comment period, there needs to be a Final 11 (Queensbury ZBA Meeting 3/8/06) Environmental Impact Statement, and then whatever agency is involved, or I shouldn’t use the word involved. Whatever agency is in charge of the Environmental Impact Statement, then ultimately has to make Findings approving or denying the Environmental Impact Statement as compared with, you know, weighing, what I told you earlier about weighing the benefits versus the detriments and all that. One thing about the SEQRA process that you all should know and should be aware of, is that it encourages public participation. Now, having said that, there’s no requirement that you accept public comment on the EAF review, when you go through the EAF stuff, and once in a while, I’ve seen applicants object to you allowing public comment on the EAF review. I think that’s a bunch of nonsense. If you want to accept public comment as you’re completing an EAF, you absolutely have the right to do that, not the obligation, but the right to do that, and most, I don’t know if I want to say most, but many, many Boards allow the public to participate by making comments during the completion of the EAF. Excuse me, if there is an Environmental Impact Statement, then there are a number of required public participation components to that, and the public is not shut out of that, at all, and I guess I’ll wrap up my remarks and then answer whatever questions anybody has, I’ll wrap up my remarks talking about the part that may not be so popular, or maybe it is, some ZBA’s have no problem with this, some don’t love it. For mostly reasons that I’ve already discussed, but I’ve detailed a little bit more on Page Five of your outline, as a practical matter, ZBA’s in the State of New York don’t typically get much involved in SEQRA review. You’re a more knowledgeable ZBA than most. You get more involved in environmental issues than most, you have more development pressure, quite honestly, than certainly the towns that we all travel in and live in in the Tri-County area if you will, but for the reasons I’ve identified, most ZBA’s don’t get much involved. A lot of stuff in front of you are Type II actions, the two most common types of Type II actions are listed in D-2 in your outline. The reason, see where it says under D-2, Number Twelve, granting of whatever, Number Thirteen, granting of whatever. That’s from the Type II list. There are like 20 something or maybe even 30 things on the Type II list, but those are the two that are most relevant to you. So I only put those in the outline, and then, you know, we’ve already talked about the situations where you would have the obligation to conduct SEQRA review, that’s if you were the only involved agency, then you have no choice, tag, you’re it, you have to do SEQRA review. We also talked about, because somebody asked an appropriate question, as a practical matter, I think it was Allan that asked the question, as a practical matter, most ZBA’s decide that when projects require SEQRA review, not just from the ZBA but from some other agency, especially if it’s the local Planning Board, sort of your sibling, if you will, most ZBA’s decide that they’d rather do a coordinated review, not have you do your SEQRA review, the Planning Board do its SEQRA review and other people do their SEQRA review, most ZBA’s decide they’d rather do coordinated review and let, typically the Planning Board but sometimes another agency, be the SEQRA Lead Agency. I want to emphasize you don’t have to do that, but that’s a practical approach, and there are ways you can actually minimize the ping pong feature of the applicant being batted back and forth, and that really summarizes, that doesn’t summarize, those are my remarks. I think you’ll find that we hit just about every term that’s listed on Page One, and we talked about including a bunch of the things in the misunderstood concepts. I will mention one on the misunderstood concepts, and, by the way, take this to heart not only for SEQRA review, but for your regular functions of variance review and appeal review as well, you know that you’re bound by certain timeframes, in your case almost all your decisions are bound by 62 days from the close of public hearing. SEQRA review sets up a whole other set of timeframes, not incompatible with the 62 day thing, but in addition to the 62 day thing. Don’t feel too much like people have guns to your heads on those timeframes. Because you always have the right to say to an applicant, applicant, we’d like you to consent to extension of whatever deadline is coming, and again, I make that comment not only in the context of SEQRA review, but in your variance review as well. Most applicants, if you say to an applicant, in good faith, and they don’t have some ill-will towards you, if you say to an applicant, we only have four members coming, or whatever the reason, we’re wrestling with this issue, we’re waiting for a report from the Planning Board, we’re waiting for something from somebody, you know, and yet it turns out that we’re nearing our 62 day deadline or one of your SEQRA deadlines, would you be willing to consent to extension of the deadline, any deadlines, and this is SEQRA law and Town law for your variance functions, can be extended by mutual consent of the Board and the applicant, and it’s unusual, not unheard of, but unusual for an applicant to refuse that consent. Why is it unusual? Because applicants are generally not idiots and fools. If you’re the Board they want some sort of approval from, generally speaking, you know, if it’s a reasonable request for extension, they’ll grant you that extension. MR. UNDERWOOD-Question on inter-municipal things. We’ve had a couple of things with the Town of Luzerne. We’ve had a couple with Lake George, where properties were split by 12 (Queensbury ZBA Meeting 3/8/06) County lines or town lines in situations like that. Is there any difference in SEQRA, or do they just, usually we’ve been give lead status by those communities to make the decisions in those regards, but I know one of them we got overturned by APA on in the past, as a result of that. Would those be as Unlisted actions most likely, those things, or because they’re crossing boundaries? MR. SCHACHNER-No correlation. The SEQRA regs don’t address it at all. So there are no correlations, so they’re no more likely to be Unlisted or Type I. What, APA overturned something, not on the basis of, I don’t think. MR. UNDERWOOD-It wasn’t one of those ones. It was one of the ones up on the mountain. It was in the APA. It was one up on, going over West Mountain. MR. SCHACHNER-Right, but I don’t think APA overturned anything you did because of the overlapping jurisdiction between the municipalities is what I’m saying. The cross municipal boundary projects, obviously create a little wrinkle. The reason, I’ll be very candid with you, and you probably know this, but if you don’t, I’m going to tell you, the reason that the Town of Queensbury has typically been the SEQRA Lead Agency for those projects has been because both of the neighboring communities that you’re referring to feel that the Town of Queensbury has full time paid, professional Planning Staff and has more experience, Planning Board and ZBA, to deal with environmental review issues, and by the way, I agree with that, and I represent one of those municipalities. So, when that happens, the SEQRA agency takes a look at the entire project, not just the part within our Town, and acts accordingly, and by the way, has done a pretty decent job, in my opinion. MR. BRYANT-That Section 617, is that available on line? MR. SCHACHNER-I’m sure that it is. I’m not a real computer savvy guy, but it has to be, because it’s part of the New York Code of Rules and Regulations, and the entire New York Code of Rules and Regulations is available on line. So it has to be. MR. BAKER-It is on line. It’s available through the New York State DEC website, and I can actually send that URL out to the entire Board. MR. BRYANT-That would be good, and the other thing is, so we don’t have to, although I think I have it, the handbook URL would be good, too. MR. BAKER-We’ll do. MR. BRYANT-Thank you. MR. SCHACHNER-Yes. The handbook is, I think, particularly user friendly. MR. ABBATE-Okay. Fantastic. Well, thank you so very much, Mark. MR. BRYANT-I’m not finished. You had mentioned early on about, you know, approval of the Board, and you were looking for just the standard majority. MR. SCHACHNER-I said that in the context of EAF review. MR. BRYANT-Right. Exactly, that’s what I’m talking about. Supposing there’s a particular question that’s been responded to that a particular Board member doesn’t agree with, I mean, do we allow a discussion of that? Do we allow, in other words, just because a Board member doesn’t, for example, if everybody said that there was no environmental impact on such and such a thing, parking or whatever. MR. SCHACHNER-Right. MR. BRYANT-And a particular Board member agrees with the Negative Declaration, but doesn’t agree with the principle in that particular question. MR. SCHACHNER-Well, how do you know the Board member agrees with the Negative Declaration? I mean, in theory, you shouldn’t know that yet, because the disagreement on the specific sub issue will happen before you reach your punch line, in theory. If the ship has sailed, if the Board member agrees with the Negative Declaration and only now, afterwards, 13 (Queensbury ZBA Meeting 3/8/06) says, you know, I agree with the Negative Declaration, but I don’t agree with the way we answer Question 11, the ship has sailed, and it’s irrelevant. MR. BRYANT-Well, actually, knowing this Chairman and how things run, he would probably say, so noted, and Mr. Secretary you’ll make a note on the form. MR. SCHACHNER-Well, I was going to make a comment about the Chairman, perhaps less polite than yours, but I was going to say, in my experience with this Board, and this particular Chairman, if a member disagrees as you’re going through the questions, he’s pretty well known for saying, why do you feel that way, you know, let’s discuss that. He’s actually very good about opening that up to Board discussion, but what I got confused was when you said if the Board member disagrees with the answer to one of the questions, but agrees with the Negative Declaration. That means you’ve already gone through the entire exercise. You’ve agreed on the Negative Declaration, and what I’m saying is, if you agree with the Negative Declaration, it’s quite irrelevant, you know, I wouldn’t put it in reverse and go back to Question Number 11. MR. BRYANT-Yes, but it still could happen. MR. ABBATE-It’s a moot point, though. MR. SCHACHNER-Exactly. MR. ABBATE-Do you agree with me? MR. SCHACHNER-Yes, precisely. What you’re going to do is when you’re discussing Question 11, you know, someone will read out loud, will the project have a potential impact on whatever, traffic, let’s pick that, and a bunch of people are going to say no, and one person or two are going to say, whoa, wait a minute, I think it does. I think it’s perfectly appropriate, and I’m guessing your Chairman would as well, to say, okay, we don’t have unanimity on that. Why do those of you who feel it will have an impact say, feel that way, and he’ll give you an opportunity to explain it, and you know what, you may convince the others of, yes, it will have an impact, and then there’ll be a majority voting differently than the initial voice vote was, and that’s very appropriate, so that there’s at least a majority feeling, whichever way they feel, in an informed manner on an informed basis, but I agree with Chuck. If you’ve gone through the entire process, and you’ve issued your Negative Declaration, and you, as a Board member are sitting there thinking, you know, I don’t agree with how we answered, or at least how the majority answered Question Number 11, but I agree with the Negative Declaration, it’s moot, why bother backing up to Question Number 11. That’s my view. MR. ABBATE-Well, that position was well worth you coming tonight. Thank you. MR. UNDERWOOD-If we get into an Article 78, in any situation like that, and say the Board, you know, very often we’ll get into split votes where it ends up four to three or something like that. In an Article 78 situation, if Board members made their decision and didn’t, like say some Board members are very strongly feeling like the environmental conditions are not being balanced by what’s being proposed in the project, the other ones may, for whatever reason, deem that that’s not a problem or they may note them, but they still put monetary concerns over that, which is going to have more bearing when it goes to a court situation? Does the SEQRA thing become more important at that point? MR. SCHACHNER-No. What’s going to have more bearing is how the majority voted and what the basis for the majority vote was. Okay, and I guess for what it’s worth, I’ll throw in that from our perspective, and again remember that we not only have represented you all for a long time, but we represent a whole bunch of other similarly situated folks, from our perspective, you guys are doing a good job. MR. ABBATE-Thank you, Mark, appreciate that, and thank you again, we appreciate it. MR. SCHACHNER-My pleasure. MR. ABBATE-Thanks, guys. Unless anybody has anything else they want to, any issues they want to raise. 14 (Queensbury ZBA Meeting 3/8/06) MR. BRYANT-Do you have anything to add about it, because you’re somewhat of an expert? MR. BAKER-I don’t have anything to add on SEQRA, but I did want to bring up, Mr. Chairman, you had asked me to attend this evening because some Board members had questions about what my responsibilities were in the Department. MR. ABBATE-Yes, I did, as a matter of fact, Stuart, thanks for reminding me. MR. BAKER-And you asked me to just discuss that point. So I’ll cover that very briefly. MR. ABBATE-Please. MR. BAKER-Primarily a position of the Senior Planner is to work on longer range projects. Currently my responsibilities include coordinating and Staffing the work of the Planning Ordinance Review Committee, which as you know, is working on updating the Comprehensive Land Use Plan, the Zoning Regulations and the Subdivision Regulations. I also am responsible for administering three different housing rehabilitation grants for two target areas in Town. Those target areas are West Glens Falls and South Queensbury. All three programs assist owner occupied, single family homes, low and moderate income families, and we’ll assist with grants of up to $20,000 and an additional $5,000 loan, if necessary, to bring those houses up to the standards of the U.S. Department of Housing and Urban Development. Between the three grants, we have over $900,000 of Federal funds that we’re administering. Those are all passed through New York State. I’m also responsible, as you know, am working with the Boards and with the Staff and when I say Boards, I mean Zoning Board, Planning Board, and Town Board, on continuing education opportunities, both training programs that are Department will offer and spreading the word on other programs and workshops that are available in the area. We do budget in our Department to send Board members to many, many workshops through the year, and as we hear of them, it’s my responsibility to get the word out, and make those opportunities available to you. That, I guess, is sort of the broad brush of my responsibilities. I do work closely with the other Staff members, get involved in various levels of different project reviews as needed, and of course there’s the ubiquitous other duties as assigned. MR. ABBATE-Did you mention the fact you also have the responsibility as a Fair Housing Officer? MR. BAKER-I did not mention that, but that’s indeed true. MR. ABBATE-Explain it to the Board, what it means. MR. BAKER-Essentially that responsibility means I’m the point person for the municipality, for the Town government, to collect and address and at times re-direct questions and inquiries about fair housing practices in Town. In the past, there have been a number of issues that have come to light. I’ve addressed I think two in my current tenure with the Town, but it is indeed my responsibility, and that’s actually one of the requirements of administering these Federal funds. The Town must have a Fair Housing Officer to address those concerns as they come up. MR. ABBATE-See, I do listen to what you say. Anybody have any questions for Stu? Do you folks have any questions you want to raise? Okay. Nobody has any questions. MR. BAKER-If you do have any questions, you know, certainly give me a call or drop me an e-mail, I’d be happy to answer them. MR. ABBATE-Okay. Thank you very much for everybody’s attendance. I appreciate it. Sue, this hearing is closed. Thank you much. On motion meeting was adjourned. RESPECTFULLY SUBMITTED, Charles Abbate, Chairman 15