2.
The
Oriskany
Commons
Action
has
been
undertaken
in
accordance with the guidelines established by the New York State Department of State (NYSDOS) and the New York State Department of Environmental Conservation (NYSDEC) in support of a Brownfield Opportunity Area designation (“BOA”) for the Oriskany Commons Action. 3.
The
adoption Impact
and
Oriskany
Commons
implementation
Statement
(“FGEIS”),
of
Action a
involves
Final
prepared
Generic
in
the
intended
Environmental
accordance
with
the
guidelines established by the State of New York. The purpose of the Oriskany Commons Action will be to reclaim and repurpose the blighted
former
Waterbury
Mill
property
and
surrounding
properties on former industrial brownfields. 4.
In New York State, whenever a project is proposed where
there has been a Positive Statement of Environmental Impact under NYCRR 6.17(ad) as was declared in the Oriskany Commons Action, the project within the study area identified in the Oriskany Commons Action (“Study Area”), must abide by and be evaluated against the findings and recommendations under NYCRR 6.17(ad). In other words, any project in the Study Area must await the final action by the Lead Agency in the Oriskany Commons Action, unless the Lead Agency makes a determination that a proposed project can proceed on a determination that a proposed project will be bound by the FEIS with specific findings by the Lead Agency Planning
Board why such early authorization to proceed before the issuance of the FGEIS is not segmentation, thus enabling a project to proceed prior to the issuance of the FGEIS. 5.
The blighted and crumbling Waterbury Mill has collapsed
buildings
that
addressed
for
the
Oriskany
safety.
Village
Petitioner
Board
desires
to
has
requested
demolish
be
certain
buildings (“Demolition Plan”) in advance of completion of the SEQRA process but that requires permission by the Lead Agency Planning Board. 6.
The Lead Agency Planning Board has refused to review
the Demolition Plan. PARTIES 7.
Petitioner is a corporation that is incorporated in New
York and has its principal place of business in Oriskany, New York. Petitioner was set up for the sole purpose of reclaiming and
re-purposing
the
former
Waterbury
Mill
property.
The
Petitioner, as project sponsor under NYCRR 617.2(ae), initiated the environmental review process of the abandoned Waterbury Mill property in the Oriskany Commons Action. 8.
Respondent,
Oriskany
Planning
Board,
is
a
duly
empowered Board for the Village of Oriskany located in Oneida County, New York. The Respondent is the Lead Agency under the State Environmental Quality Review Act (“SEQRA”) process.
JURISDICTION AND VENUE 9.
This Court has jurisdiction pursuant to CPLR 506(b) and
7804(b). 10.
Venue in the County of Oneida is proper pursuant to
CPLR 506(b), as all of the material events which form the basis for this Petition involve actions by Respondents or certain of them pertaining to matters which have already transpired or are yet intended to take place in the County of Oneida. 11.
This proceeding is commenced under Article 78 of the
CPLR against Respondents. EVENTS IN SUPPORT OF THIS ARTICLE 78 ACTION On January 9, 2017 Petitioner corresponded with George
12.
Heitzman
of
Conservation
the
New
about
a
York BOA
State
Department
pre-application
of and
Environmental Mr.
Heitzman
suggested a meeting with members of the Board of Trustees for the Village of Oriska and Respondent and the State Office Building in Utica, New York. 13.
On January 18, 2017 it was resolved by the Village of
Oriskany Board of Trustees and the Village of Oriskany Planning Board, at a joint meeting of both boards, that the Planning Board of
the
Village
of
Oriskany
was
designated
Lead
Agency,
and
resolved that the Lead Agency issue a Notice of Determination of Significant Brownfield
Positive Area
Declaration,
Program,
pursuant
for to
preparation Article
8
of
the
of
the
Environmental
Conservation
Law,
SEQRA.
(Exhibit
A
attached
hereto). 14.
On January 23, 2017 Mr. Heitzman acknowledged receipt
of a pre-application worksheet for a BOA designation. 15.
As a result of Exhibit A, the Planning Board as Lead
Agency commenced conducting an environmental impact study for a study
area
designated
by
Exhibit
B
and
C
attached
hereto
(“Study Area”) commonly located, based on NYS Route 69 being East/West, bounded East and North by the Village of Oriskany boundary, West by Green Street, South by Oriskany Creek Dam. 16. Planning
The Oriskany Village Board of Trustees and the Oriskany Board
prepared
a
joint
resolution
designating
the
Oriskany Planning Board the SEQRA Lead Agency for the adoption and implementation of the Oriskany Commons Action, and set forth the
Lead
Agency’s
intent
to
conduct
a
Coordinated
Review
by
requesting the consent from other potentially Involved Agencies to
the
Planning
Board
serving
as
SEQRA
Lead
Agency.
The
Resolution also stated that the Planning Board issue a Positive Declaration
and
initiate
public
scoping
by
holding
a
Public
Scoping Meeting. 17.
The
Oriskany
Planning
Board
completed
a
Full
Environmental Assessment Form Part 1 (EAF-Part 1)(Exhibit
D)
which formally commenced the SEQRA process. In accordance with the provisions of SEQRA, the Planning Board issued a Lead Agency
designation
letter
resolution
indicated
to
potentially
that
the
involved
Planning
agencies.
Board
had
The
made
a
determination that the Proposed Action was a Type 1 Action and proposed conduct
the a
Planning
Coordinated
Board
to
Review
serve
among
as
the
the
Lead
Agency
potentially
to
Involved
Agencies. 18.
An Environmental Assessment Form, Part 2 (EAF-Part 2)
(Exhibit
E),
identifying
potential
impacts
as
well
as
their
potential magnitude and significance was considered. 19.
On January 18, 2018 the Planning Board Lead Agency
determined
that
the
Oriskany
Commons
Action
may
generate
significant adverse environmental impacts and as a result, a full environmental
impact
statement
(“EIS”)
was
required
to
be
prepared. 20.
On January 18, 2017, the Lead Agency adopted the Draft
Scoping Document that had been presented as a draft for comment at the Public Hearing. Public comments on this draft scoping document were received at the public scoping session. 21.
On January 26, 2017 the Planning Board Lead Agency
issued a POSITIVE DECLARATION Notice of Intent to Prepare a Draft Generic EIS Determination of Significance (“DGEIS”)pursuant to Part 617 of the implementing regulations pertaining to Article 8 (State Environmental Quality Review Act) of the Environmental Conservation Law and notified involved and interested agencies of
a Public Scoping Session for February 28, 2017 attached hereto as Exhibit F. 22.
The notification advised that, based upon review of the
EAF Part 2, the Oriskany Commons Action has the potential to result in one or more significant adverse impacts as identified in the Positive Declaration, that a Public Scoping Meeting was scheduled for February 28, 2017, and that the Oriskany Planning Board
intended
to
serve
as
the
Lead
Agency
to
conduct
a
coordinated review among the potential involved and interested agencies. 23.
Potentially
involved
agencies
notified
of
the
SEQRA
Action to adopt the Oriskany Commons Action, were: a. Village Board of Village of Oriskany, b. Town Board for the Town of Whitestown, c. Village Board of Village of Oriskany, d. Oneida County Planning Department e. New York State Department of Transportation New York State Department of State, and New York State Department of Environmental Conservation. 24. may
Potential future involved agencies were identified that
have
permit
approval
and/or
funding
role
regarding
implementation of the Oriskany Commons Action which were notified included: a.
Oneida County Department of Public Works
b.
Oneida County Industrial Development Agency
c.
Oneida/Herkimer County Transportations Council
d.
Village Board for the Village of Oriskany Street, PO Box 904, Oriskany, New York 13424
e.
Town Board for the Town of Whitestown 8539 Clark Mills Road, Whitesboro, New York 13492
f.
Oneida County (Department of) Planning (John R. Kent, Jr., Commissioner), 321 Main Street Utica, New York 13501
g.
(Central New York) Regional Transportation Authority
708
Utica
200 Cortland Avenue PO Box 820, Syracuse, New York 132050820 h.
New York State Department of Environmental Conservation, Utica office, 207 Genesee Street Utica, New York 13501
i.
New York State Department of Transportation, Utica office. Utica State Office Building 207 Genesee Street Utica, New York 13501
j.
New York State Department of State, Albany. One Commerce Plaza, 99 Washington Avenue Albany, New York 12231
25.
A copy of the notice was also sent to:
k.
NYS Department of Environmental Conservation
l.
NYS Department of State
m. Chief Executive Officer (Mayor) n.
Any person requesting a copy
o.
All involved agencies
p.
Environmental Notice Bulletin (ENB)
q.
Interested Parties
26.
A legal notice was published in the Rome Daily Sentinel
on February 1, 2017 (Exhibit G) advising the public that the Lead Agency was conducting a public scoping session at 6PM on February 28, 2017 at the Village Hall, stating that the purpose of
the
meeting
opportunity
to
was
to
comment
allow on
the
all
members
scope
of
of
the
the
public
Oriskany
an
Commons
Action, that the action upon which notice was given involves the
intended
adoption
and
implementation
of
the
Oriskany
Commons
Action prepared in accordance with the guidelines established by SEQRA. The notice went on to advise that the Oriskany Commons Action
will
address
vacant
and
underutilized
brownfields,
to
reclaim and repurpose the blighted former Waterbury Mill property and surrounding properties. 27.
The notice for the public scoping meeting that was
distributed
to
involved
agencies
was
also
published
in
the
Environmental Notice Bulletin. The notice was issued pursuant to Part 617 of the implementing regulations pertaining to Article 8 (State Environmental Quality Review Act) of the Environmental Conservation Law. 28.
The
draft
Scoping
Document,
the
Notice
of
Public
Scoping Meeting scheduling the meeting for February 28, 2017, the Positive Declaration designating the Oriskany Commons Action as a Type 1 Action, and Lead Agency designation letter by the Oriskany Planning Board, were sent on January 26, 2017 to to the New York State Department of Environmental Conservation, Utica office, 207 Genesee Street Utica, New York 13501. 29.
The Lead Agency initiated the process to define the
scope to be considered by preparing the draft Scoping Document (Exhibit H) for distribution to involved and interested agencies under SEQRA, and to members of the public for review and comment.
30. the
A copy of the Draft Scoping Document was included with
notice.
The
Lead
Agency
invited
Scoping Document for the DGEIS.
comments
on
the
Draft
A public scoping meeting was
scheduled for February 28, 2017 when public input would be heard, and written comments from the public would be accepted until March 30, 2017. 31.
The public scoping meeting was held on February 28,
2017 at 7:30 p.m. on February 28, 2017 in Oriskany Village Hall. The purpose of the scoping portion of the meeting was to allow all members of the public an opportunity to comment on the scope of the DGEIS with written comments to be received from the public until March 30, 2017. 32.
At the public meeting held on February 28, 2017 all
present were notified that the draft Scoping Document presented to
those
in
attendance
at
the
public
hearing
was
available
through the offices of the Village. SEQRA ACTION 33.
The
Oriskany
Commons
Action
involves
the
intended
adoption and implementation of the SEQRA Oriskany Commons FGEIS, to
be
prepared
in
accordance
with
the
SEQRA
guidelines
established by the State of New York. 34. result
in
Oriskany
It is anticipated that the Oriskany Commons Action will future to
redevelopment
reclaim
the
of
abandoned
center
of
Waterbury
the Mill
Village to
be
of re-
purposed, and to foster new commercial, residential, recreational and mixed-use opportunities. The former Waterbury Mill is ground zero for the Oriskany Commons Action. 35.
Thresholds and standards for redevelopment are expected
to be established to help ensure that private development and State
or
municipal
decisions
proceed
in
accordance
with
the
Oriskany Commons Action. The Oriskany Commons Action will examine areas that have an impact. Such areas include but are not limited to: Brownfield issues and contamination Existing land use, ownership patterns and zoning Parks and open space Infrastructure and utilities pose challenges and require updating) Transportation systems/traffic Utilities and infrastructure. 36.
Following
public
review
and
coordination
with
other
Involved Agencies, the Planning Board prepared and adopted a Final Scoping Document on which the DGEIS will be based. 37. proposed
Adverse
environmental
Oriskany
Commons
Action
impacts
with
mandated
the
regard
to
issuance
the of
a
Positive Declaration pursuant to SEQRA, and preparation of a Full Environmental Impact Statement pursuant to ECL § 8-0109, and the rules and regulations promulgated thereunder. 38.
The
Planning
Board
determined
that
a
Generic
EIS
(“GEIS”) rather than a project-specific EIS was particularly well suited
for
the
Project
because
the
Oriskany
Commons
Action
represents
a
number
of
separate
actions
within
the
Oriskany
Commons study area, which if considered singly, may have minor impacts,
but
when
considered
together
may
have
significant
impacts and is an entire program or plan having wide application that may have new or significant changes to affecting the range of future policies, projects and changes to land use, zoning or development plans. 39.
The
GEIS
as
a
broader,
more
general
version
of
a
conventional EIS, will assess the environmental impacts of an entire program or plan. The GEIS findings will set forth specific conditions
for
any
subsequent
review
and
SEQRA
compliance
including thresholds and criteria triggering Supplemental EIS to reflect specific significant impacts not adequately addressed or analyzed in the GEIS. Preparation of a GEIS will provide the opportunity for Oriskany Commons Action refinement, and agency and public involvement through the long- term implementation of the Oriskany Commons Action. The GEIS provides long-term coverage for phasing of future implementation of the Oriskany Commons Action. 40. State
The Planning Board of the Village of Oriskany, New York
Department
of
Transportation
and
the
New
York
State
Department of Environmental Control have approval authority over the Oriskany Commons Action. The New York State Department of Environmental Control has review and approval jurisdiction of any
proposed environmental investigations, remediation action work plans, and future land uses on remediated sites. 41.
The Planning Board’s published intention is to fully
incorporate
the
SEQRA
Action
into
the
body
of
the
Oriskany
Commons Action. 42. content
The of
Scoping
the
Document
Oriskany
described
Commons
Action
the and
SEQRA the
related
anticipated
methodology and resources for the environmental analysis. 43.
In a related lawsuit, Petitioner has been involved in
litigation
for
non-compliance
with
SEQRA
by
the
Village
of
Oriskany, in a civil proceeding before this Court, Waterbury Square, Inc. v. GPD GROUP, et al, Index #: EFCA2018-000846. 44. reported
A History of the Study Area revels that a spill was to
the
New
York
State
Department
of
Environmental
Conservation on October 11, 2001 and again on July 22, 2013, assigned
Spill
Numbers
0107188
and
1304380,
respectively,
on
property where the recently constructed Dollar General store has been build and the abandoned Waterbury Mill is located.
Previous
Phase I and II Environmental Assessments were performed in the Oriskany Commons Study Area which identified potential presence of contaminants as the first step in the process of environmental due diligence. Because the site was considered contaminated, a Phase II Environmental Site assessment was conducted to provide a
more
detailed
investigation
involving
chemical
analysis
for
hazardous substances, such as a spill. SPECIFIC FIREHOUSE PROJECT FACTS 45.
A specific project is being sponsored by Petitioner in
the Oriskany Commons Study Area for a new Oriskany Firehouse, capable of housing all the equipment necessary to protect the Village of Oriskany and the surrounding area including the Oneida County Business Park and NYS Homeland Security Training Center. This
Firehouse
project
will
require
demolition
of
certain
structures in advance of completion of the SEQRA process not only to address hazards but to allow for expedited cleanup. 46.
While the Firehouse project will benefit the region,
construction must account for all environmental considerations being studied under the GEIS. 47.
A survey was performed at the request of the Oriskany
Fire Department in preparation for possible demolition of the factory
buildings
located
at
105
River
Street.
The
survey
identified asbestos-containing material, and other environmental hazards so that the appropriate considerations and accommodations could
be
made
prior
to
demotion
and
reconstruction,
and
to
identify the extent of potential health risks associated with the presence of contaminating and hazardous materials. 48.
Petitioner
sought
review
by
the
Planning
Board
by
letter of January 14, 2019, attached as Exhibit I to be allowed
to begin mitigation of any hazardous waste and then demolish the buildings as set forth in the Demolition Plan. This is to ensure immediate public safety. 49.
Petitioner has filed an application with the Village of
Oriskany for a permit to demolish the portion of the Waterbury Square
Building
located
on
River
Street
in
the
Village
of
Oriskany as an unsafe structure FIRST CAUSE OF ACTION 50.
Petitioner repeats and realleges paragraphs 1 through
47 hereof, as if fully set forth herein. 51. Impact
SEQRA
requires
Statement
approved
for
“action”
environment.
any
that
One
the
preparation
of
an
government-sponsored
may
criterion
have
a
for
or
significant the
Environmental government-
effect
“significant
on
the
effect”
determination is the existence of “two or more related actions none
of
which
cumulatively
has
would
a
significant
meet
one
or
effect
more
of
but the
when
considered
other
regulatory
significant effect criteria” (6 NYCRR 617.11 [a][11]). 52. authority
Under SEQRA, the individual agency having the primary to
approve
or
disapprove
a
particular
project
application is responsible for making the environmental impact assessment (ECL 8–0105[7]; 8–0109, 8–0111).
53. or
The Lead Agency has arbitrarily and capriciously failed
refused
to
review
the
Fire
Department
application
in
its
administration of the Oriskany Commons Action. SECOND CAUSE OF ACTION 54.
Petitioner repeats and realleges paragraphs 1 through
51 hereof, as if fully set forth herein. 55.
Provided that the Lead Agency sufficiently considers
the environmental concerns addressed by particular permits, the Lead Agency need not await another agency's permitting decision before exercising its independent judgment on that issue. 56.
The
Lead
responsibilities
Agency
to
any
under
other
SEQRA
agency.
may
not
Thus,
delegate by
neglect
its to
consider the Demolition Plan under the Oriskany Commons SEQRA action, the Planning Board as Lead Agency has failed to take the requisite hard look at an area of environmental concern. 57. deferring
The
Planning
resolution
of
Board, the
as
Lead
hazardous
Agency, waste
is
improperly
remediation
and
demolition issue under its SEQRA jurisdiction as Lead Agency. 58.
The Lead Agency’s deferral of its duties to another
agency insulation itself from environmental decision-making when it abdicates its SEQRA responsibilities, is arbitrary, capricious and contrary to law.