A.

The Planning Board Coordinated its Review with the Town of Lyme

First, Petitioner lacks standing to assert a claim that certain agencies were not properly

included in the SEQRA review. Any such claim belongs solely to those agencies. Matter of

King v County of Monroe, 255 AD2d 1003, 1004 (4th Dept 1998) (rejecting failure to conduct

coordinated review claim, which was based on failure to identify the Town of Brighton as an

involved agency, because "Whe Town has not contested the designation of the County as lead

agency, the County's issuance of a negative declaration or the proposed project"), lv denied 93

NY2d 801 (1999); Matter of Congdon v Washington County, 130 AD2d 27, 31 (3d Dept 1987)

(rejecting the petitioners' claim that the respondents failed to conduct a coordinated review

because Town of Moreau and the APA were not notified of lead agency designation;

"[s]ignificantly, neither the Town of Moreau nor APA contested the lead agency request or

raised this alleged defect"), lv denied 70 NY2d 610 (1987).

Nevertheless, the record clearly reveals that the Cape Vincent Planning Board properly

coordinated its review with the Town of Lyme. The DEIS acknowledged the Town of Lyme's

potential jurisdiction over approval of a portion of the transmission line for the Project. (See R.

at 111-112). Moreover, the record discloses that the Town of Lyme was provided copies of all

materials, including the DEIS, SDEIS, and FEIS, and notices of acceptance of those documents

by the Planning Board as was required for any SEQRA involved agency. (See R. at 1297-1301,

3603-3616, 5914-5918). The materials and notices were also all published on-line and in the

Town of Lyme's and Town of Cape Vincent's official newspapers. Thus, the Planning Board

properly carried out its lead agency duties for a coordinated review with the Town of Lyme.

Finally, Petitioner's allegation that the Planning Board failed to properly coordinate

specifically with the Lyme Planning Board is misplaced and inconsequential. First, the Cape

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Vincent Planning Board was advised by a single Lyme Planning Board member in August 2010

that the Planning Board might have jurisdiction over the Project. The Lyme Planning Board

member's statement, however, does not appear to have been authorized by the Planning Board or

any other entity of the Town. Second, a lead agency is required to use reasonable diligence in

identifying other involved agencies. 6 NYCRR 617.6(b)(3)(iii). Here, the Town of Lyme was

identified and has been effectively coordinated with. The Town of Lyme — including its

Planning Board — has not raised an objection nor claimed it was uniformed about the SEQRA

review for the Project. In fact, the very same Lyme Planning Board member whose letter

Petitioner relies on here actually participated and submitted comments during the SEQRA

review. Therefore, even a claim of technical failure to send separate materials to the Lyme

Planning Board (assuming the Planning Board actually has jurisdiction over the Project) is

inconsequential and does not warrant overturning the Cape Vincent Planning Board's statement

of findings. See e.g. Matter of King, 255 AD2d at 1004 ("the failure to designate the Town as

an involved agency was inconsequential and does not require annulment of the negative

declaration or subsequent action taken by the County with respect to the project").

B. The Planning Board Adequately Considered Public Comments

Petitioner has invented a procedural requirement not contemplated by SEQRA —

acceptance of public comment on an FEIS. As set forth at 6 NYCRR § 617.11(a), "[p]rior to the

lead agency's decision on an action that has been the subject of a final EIS, it shall afford

agencies and the public a reasonable time period (not less than 10 calendar days) in which to

consider the final EIS before issuing its written findings statement." This does not mean, as

Petitioner contends, that public comments are invited on an FEIS, nor if they are received, that a

SEQRA lead agency must consider any such comments in rendering its statement of findings.

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