Town of Tonawanda, NY
Erie County
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Table of Contents
Table of Contents
[HISTORY: Adopted by the Town Board of the Town of Tonawanda 8-14-1989 by L.L. No. 3-1989. Amendments noted where applicable.]
GENERAL REFERENCES
Zoning — See Ch. 215.

§ 76-1 Purpose.

This chapter is adopted pursuant to Article 8 of the Environmental Conservation Law of New York State in order to establish a procedure incorporating the consideration of environmental factors into town planning, review and decision-making processes. This chapter shall be applicable in the area of the Town of Tonawanda, exclusive of the Village of Kenmore.

§ 76-2 Definitions.

Unless the context shall otherwise require, the terms, phrases and words and their derivatives used in this chapter shall have the same meaning as those defined in § 8-0105 of the Environmental Conservation Law of the State of New York and Part 617 of Title 6 of the New York Code of Rules and Regulations (NYCRR). In addition, the following term shall have the meaning indicated:
TOWN
Any board, commission, district, council or other agency, department or unit of government of the Town of Tonawanda, New York.

§ 76-3 Applicability.

No decision to carry out, fund or approve an action other than an action listed in § 617.13 of Title 6 of NYCRR as a Type II action or an action classified as excluded or exempt shall be made by the town or any applicant, nor shall any action other than a Type II, excluded or exempt action be carried out, funded or approved by the town or any applicant prior to compliance with all requirements of this chapter and Part 617 of Title 6 of NYCRR; provided, however, that nothing herein shall be construed as prohibiting contemporaneous environmental, engineering, economic feasibility or other studies and preliminary planning and budgetary processes necessary to the formulation of a proposal for action which do not commit the town to approve, commence or engage in such action or approval of any part of an application which relates only to technical specifications and requirements, provided that no such partial approval shall entitle or permit the applicant to commence the action until all requirements of this chapter and Part 617 of Title 6 of NYCRR have been fulfilled.

§ 76-4 Classification of actions.

Those actions likely to have a significant effect on the environment are listed as Type I actions in § 617.12 of Title 6 of NYCRR. Those actions not likely to have a significant effect on the environment are listed as Type II actions in § 617.13 of Title 6 of NYCRR. Excluded actions are defined in § 617.2(p) of Title 6 of NYCRR and exempt actions are defined in § 617.2(q) of Title 6 of NYCRR. To determine whether a proposed Type I or unlisted action may have a significant effect on the environment, the impacts which may be reasonably expected to result from the proposed action must be compared against the criteria enumerated in § 617.11(a) of Title 6 of NYCRR.

§ 76-5 Environmental Quality Review Committee.

A. 
The Town Board of the Town of Tonawanda hereby creates a Committee which shall be known as the Town of Tonawanda Environmental Quality Review Committee, hereinafter the Review Committee.
B. 
The Committee shall consist of five members who shall be appointed by and serve at the pleasure of the Town Board. Persons residing within the Town of Tonawanda who are interested in the improvement and preservation of environmental quality shall be eligible for appointment as members of the Committee. Vacancies on the Committee shall be filled in the same manner as the original appointment, except that a vacancy occurring other than by the expiration of a term of office shall be filled only for the remainder of the unexpired term.
C. 
The first three members appointed shall hold office for terms of three years and the second two members for terms of five years; and the successors of all five initial appointees shall be appointed for full terms of five years.
D. 
The Town Board shall designate a member of the Committee to act as Chairperson thereof. At the first meeting of the Committee, its members shall elect from among themselves a Recording Secretary. The Committee shall adopt rules and procedures for its meetings. A meeting may be called by the chair or by any three members of the Committee. A quorum shall consist of three members. No action shall be taken by this Committee without the consent and agreement of at least three members.
E. 
The function of the Review Committee shall be to assist the lead agency in the administration of this chapter and to assure compliance in the town with Article 8 of the Environmental Conservation Law and Part 617 of Title 6 of NYCRR. It shall have such powers and duties as expressly provided for in this chapter.
F. 
The members of the Committee shall receive no compensation for their services as members thereof but may be reimbursed for reasonable and necessary expenses, subject to the approval of the Town Board, incurred in the performance of their duties within the appropriations made available therefor.

§ 76-6 Initial review of actions.

A. 
As early as possible in the town's formulation of an action it proposes to undertake or as soon as the town receives an application for funding or approving an action, the following shall occur. The town shall:
(1) 
Using the criteria set forth in Part 617 of Title 6 of NYCRR determine whether the proposed action is subject to Article 8 of the Environmental Conservation Law, Part 617 of Title 6 of NYCRR and this chapter. If the proposed action is exempt, excluded or a Type II action, the town shall have no further responsibilities under Article 8, Part 617 of NYCRR or this chapter.
(2) 
Determine whether the proposed action involves a federal agency, in which case the provisions of § 617.16 of Title 6 of NYCRR shall apply.
(3) 
Determine whether the proposed action may involve one or more other agencies.
(4) 
Make a preliminary classification of an action as Type I or unlisted, using the information available and comparing it with the criteria set forth in § 617.12 of Title 6 of NYCRR.
B. 
For actions determined to be Type I, a full environmental assessment form in the form as provided in Part 16 of Title 6 of NYCRR (EAF) must be used to determine the environmental significance of such actions that are funded, approved or directly undertaken by the town, unless a draft environmental impact statement (EIS) has been prepared on the action.
C. 
For unlisted actions, the short EAF may be used to determine the environmental significance of such actions that are funded, approved or directly undertaken by the town. However, a full EAF may be used for unlisted actions if the short EAF would not provide the lead agency or the Review Committee with sufficient information on which to base its determination of environmental significance. The Review Committee or the lead agency may require additional information necessary to determine environmental significance.
D. 
For all proposed actions, the minimum amount of information required to be furnished is the name of the applicant, the location of the real property affected, if any, a description of the nature of the proposed action and the effect it may have on the environment. In addition, applicants may be requested to include a detailed statement of the reason why, in their view, a proposed action may or will not have a significant effect on the environment. The information provided shall be in the form prescribed by the Review Committee and/or the lead agency and be in compliance with Part 617 of Title 6 of NYCRR. Drawings, sketches, maps and other relevant explanatory material may be required by the Review Committee or the lead agency.
E. 
Applications to the Planning Board and Zoning Board of Appeals involving the granting of individual setback and lot line variances or minor modifications and construction or placement of accessory or appurtenant structures or improvements not changing land use or density need not be accompanied by an EAF.

§ 76-7 Administrative review.

A. 
In the event that a determination is made by the town that the proposed action is not an exempt, excluded or Type II action, all EAFs, information and statements shall be submitted to the Review Committee. The Review Committee shall notify the applicant in writing if it determines that the EAF, information or statement is incomplete or not otherwise in conformance with the requirements of this chapter and Part 617 of Title 6 of NYCRR. In the event of such determination, the application and the form, information or statement shall not be further processed until all deficiencies have been corrected. Following receipt of a form or statement determined to be complete and in conformance with this chapter and Part 617 of Title 6 of NYCRR, the Review Committee shall process the application and, where appropriate, file and publish required notices on behalf of the lead agency. The Review Committee shall review the form, information or statement and prepare a recommendation for the lead agency stating whether the proposed action may or will not have a significant effect on the environment. The Review Committee shall be responsible for scoping and may hold informal meetings with the applicant and may meet with and consult any other person or agency for the purpose of aiding it in making a recommendation.
B. 
Except as to determinations required to be made by the lead agency, this chapter and Part 617 of Title 6 of NYCRR shall be administered by the Review Committee.

§ 76-8 Designation of lead agency.

The lead agency shall be determined and designated by mutual agreement of all involved agencies within 30 calendar days of the EAF being mailed, as provided by § 617.6 of Title 6 of NYCRR. If no other agencies are involved, the Town Board of the Town of Tonawanda shall be the lead agency. In all cases, the lead agency shall be the agency, board or body having final authority to approve or undertake the action. The Town Board of the Town of Tonawanda shall be the lead agency for all actions where the anticipated impacts are primarily of local significance; where it has the governmental power most suitable for investigating those impacts or where it has the greatest capability for providing thorough environmental assessment of the action.

§ 76-9 Lead agency establishment and determination of significance.

A. 
The lead agency procedures when a single agency is involved. The Town Board of the Town of Tonawanda 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.
(1) 
If the town 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.
(2) 
If the town has received an application for funding or approval of the action, it shall determine the significance of the action within 20 calendar days of its receipt of the application, 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, the lead agency must be established prior to a determination of significance. For unlisted actions where there will be no coordinated review, the procedures in § 617.6(d) of Title 6 of NYCRR must be followed.
(2) 
When the Town Board of the Town of Tonawanda 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 § 617.10(b) of Title 6 NYCRR, 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 reestablished in accordance with § 617.6(f) of Title 6 of the NYCRR.
C. 
Time period for coordinated review.
(1) 
When the Town Board of the Town of Tonawanda proposes to directly undertake or receives an 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 20 calendar days of its establishment as lead agency, or within 20 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 § 617.10 of Title 6 of NYCRR.
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 20 calendar days of its receipt of an application and an EAF and other reasonably necessary information, the Town Board of the Town of Tonawanda shall make a determination of significance.
(2) 
When the Town Board of the Town of Tonawanda determines that an unlisted action may have a significant effect on the environment, coordinated review and notification in accordance with Subsections B and C of this section are required.
(3) 
When the Town Board of the Town of Tonawanda determines that an unlisted action will not have a significant effect on the environment, the coordinated review and notification procedures set forth in Subsections B and C of this section are optional. For uncoordinated review of unlisted actions, each involved agency must make its own 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. 
In the event that the agencies involved cannot agree upon which agency shall be lead agency, the dispute shall be resolved in accord with the provisions of § 617.6 of Title 6 of NYCRR.
F. 
Reestablishment of lead agency status shall occur pursuant to the terms of § 617.6 of Title 6 of NYCRR.
G. 
Determining significance.
(1) 
The lead agency must determine the significance of any Type I or unlisted action in writing in accordance with this chapter and § 617.11 of Title 6 of NYCRR.
(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 effect 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 §§ 617.2(b) and 617.3(k) of Title 6 of NYCRR;
(b) 
Review the EAF, the criteria contained in § 617.11 of Title 6 of NYCRR 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.
H. 
Conditioned negative declarations.
(1) 
For unlisted actions involving an applicant, the lead agency has the option to issue a conditioned negative declaration of significance (CND) pursuant to § 617.6(h) of Title 6 of NYCRR, provided that:
(a) 
A full EAF has been prepared;
(b) 
A coordinated review has been completed in accordance with § 617.6(b) of Title 6 of NYCRR;
(c) 
The state environmental quality review conditions imposed pursuant to § 617.3(b) of Title 6 of NYCRR have eliminated or adequately mitigated all significant environmental effects and are supported by the full EAF and any other documentation;
(d) 
Notice of a CND has been published in the Environmental Notice Bulletin and a minimum thirty-day public comment period has been provided. The notice must state what conditions have been imposed. Any agency may also use its own public notice and review procedures, provided that the notice states that a CND has been issued, states that conditions have been imposed and allows for a minimum thirty-day public comment period; and
(e) 
The CND has been prepared and filed in accordance with §§ 617.6(g) and 617.10(a)(2) of Title 6 of NYCRR.
(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 effects; 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.
I. 
Rescission of negative declarations. At any time prior to its decision to undertake, fund or approve an action, the 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.

§ 76-10 Preparation of draft environmental impact statement.

Following the determination that a proposed action may have a significant effect on the environment, the Review Committee shall immediately notify the applicant or agency of the determination and shall direct the preparation of a draft environmental impact statement.
A. 
When an action subject to this chapter involves an applicant, the lead agency may charge a fee to the applicant in order to recover the actual costs of preparing or reviewing the EIS; provided, however, that an applicant may not be charged a separate fee for both the preparation and review of an EIS and, provided further, that any fee charged must reflect the actual costs to the lead agency for such preparation or review. Where an applicant does not choose to prepare the EIS, the lead agency shall provide the applicant, upon request, with an estimate of the costs for preparing such statement based on the total cost of the project for which funding or approval is sought.
B. 
In the case of an action involving the town, the Review Committee shall prepare or cause to be prepared a draft EIS.

§ 76-11 Notice of completion of draft environmental impact statement.

Upon completion of the draft EIS, the Review Committee shall file a notice of completion containing the information specified in § 617.10 of Title 6 of NYCRR. The notice of completion shall be prepared, filed and circulated by the Review Committee as provided in § 671.10(a)(2) and § 617.10(d) of Title 6 of the NYCRR.

§ 76-12 Public hearing.

The Review Committee shall provide a recommendation to the lead agency regarding the holding of a public hearing.
A. 
If the lead agency determines that a public hearing on a draft EIS should be held, notice thereof shall be filed, circulated and set by the Review Committee in the same manner as for a notice of completion. The notice shall be published in a newspaper regularly published and having general circulation in the Town of Tonawanda at least 14 calendar days prior to the hearing. The notice shall also state the place where substantive written comments on the draft EIS may be sent and the date before which comments should be received.
B. 
The hearing shall be held by the lead agency no less than 15 nor more than 60 calendar days after completion or submission of the draft EIS, unless it determines that additional time is necessary for public or other agency review of the draft EIS or a different hearing date is required by other applicable law or regulation.

§ 76-13 Determination of significance.

Upon completion of the draft EIS and close of the hearing, if one was held, the Review Committee shall forward its written findings and recommendations to the lead agency who, after proper deliberation, shall, by way of the Review Committee, notify the applicant whether the action will have a significant effect on the environment.
A. 
If the lead agency determines that the action will have no significant effect on the environment, a negative declaration shall be filed pursuant to § 617.10 of Title 6 of NYCRR and the proposed application may be processed without further regard to this chapter or Part 617 of Title 6 of NYCRR.
B. 
If the lead agency determines that the action will have significant effect on the environment, the lead agency shall prepare or cause to be prepared a final EIS pursuant to § 617.14 of Title 6 of NYCRR within 45 calendar days after the close of any hearing or 60 calendar days after the filing of the draft EIS, whichever occurs later. The lead agency may extend this as necessary to complete the statement or where problems identified with the proposed action require material reconsideration or modification.

§ 76-14 Notice of completion of final environmental impact statement.

Notice of completion of the final environmental impact statement shall be prepared, filed and circulated by the Review Committee on behalf of the lead agency as provided in Part 617 of Title 6 of NYCRR. A copy shall be sent to each person to whom the notice of completion of the draft EIS was sent. Copies of the final EIS shall be filed and made available for review in the same manner as the draft EIS.

§ 76-15 Final determination.

A. 
No decision to carry out, fund or approve an action which has been the subject of a final EIS shall be made until after the filing and consideration of the final EIS. The lead agency shall make a decision whether or not to carry out, fund or approve the action not less than 10 nor more than 30 calendar days from the filing of the final EIS. It shall decide whether or not to carry out, fund or approve the action based on the criteria set forth in § 617.11 of Title 6 of NYCRR. A written determination and findings statement shall be filed by the Review Committee on behalf of the lead agency in accordance with § 617.10 of Title 6 of NYCRR.
B. 
Except as provided in Part 617 of Title 6 of NYCRR, environmental assessment forms or statements, notices of completion, draft and final environmental impact statements, hearing records and written determinations in connection therewith are public records.

§ 76-16 Findings of lead agency.

The lead agency shall make no final determination to commence, carry out, fund or approve an action which may have a significant environmental effect until it has made a written finding that:
A. 
The agency has given due consideration to the final EIS;
B. 
The requirements of this chapter and Part 617 of Title 6 of NYCRR have been met;
C. 
Consistent with social, economic and other essential considerations from among the reasonable alternatives thereto, the action to be carried out, funded or approved is one which minimizes or avoids adverse environmental effects to the maximum extent practicable; including the effects disclosed in the relevant EIS;
D. 
Consistent with social, economic and other essential considerations, to the maximum extent practicable, adverse environmental effects revealed in the EIS process will be minimized or avoided by incorporating as conditions to the decision those mitigative measures which were identified as practicable; and
E. 
Contains the facts and conclusions in the EIS relied upon to support its decision and indicates the social, economic and other factors and standards which formed the basis of its decision.