[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.
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.
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:
Any board, commission, district, council or other agency, department
or unit of government of the Town of Tonawanda, New York.
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.
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.
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.
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.
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.
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.
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.
(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:
(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.
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.
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.
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.
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.
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.
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.
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.
