Lawsuit: Developers sue Oriskany planning board

Page 1



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.




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