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MICHAEL A.
MORIELLO Attorney at Law
111 Green Street
Kingston, New York 12402
SHOTT ROCK, INC. CROSS-PETITION RESPONSE TO PETITION AND APPEAL BEFORE
THE TOWN OF SAUGERTIES ZONING BOARD OF APPEALS
OWNER: Lands of Gilbert Shott Situate at S/B/L # 17.002-3-37, Town of
Saugerties CROSS- Shott Rock, Inc. for Special Use Permit and Site Plan
Approval by the Town of
PETITIONER/ Saugerties Planning Board as part of a coordinated SEQRA review
of a Mined
APPLICANT: Land Reclamation Project before the New York State Department
of Environmental Conservation (NYSDEC) as Lead Agency. PETITIONER: Patrick
Fitzsimmons The following Response is submitted on behalf of Shott Rock,
Inc. (hereinafter, the Cross-Petitioner or Applicant ) in opposition to
the purported July 16, 2001 Appeal of Patrick Fitzsimmons (hereinafter,
the Petitioner ) challenging the Town of Saugerties Building Inspectors/Code
Enforcement Officers (hereinafter Building Inspector or Code Enforcement
Officer ) July 2, 2001 Decision that the Applicants Application for Site
Plan Approval was complete for consideration by the Town of Saugerties
Planning Board (hereinafter the Planning Board ).
I. PROCEDURE: This Cross-Petition is made pursuant
to Sections 267 and 267-a through c of the New York State Town Law, as
well as Sections 7.1. 7.2, 7.3, 7.4 and 7.5 of the Town of Saugerties
Zoning Law, (hereinafter the Zoning Law ) together with all applicable
provisions of SEQRA at 6 NYCRR Part 617 et seq. II.
BRIEF HISTORY: The Applicant has made a June 7, 2001
Application to the NYSDEC for the following project reviews and associated
approvals upon the subject premises which is a pre-existing mine and which
Special Use Permit and Site Plan review is permitted in the R-2 Residential
Zoning District (Section 4.1 of the Town of Saugerties Zoning Law). The
following documentation comprises the information provided to the NYSDEC,
the Building Inspector and the Planning Board.
A) Mined Land Reclamation Permit Application
B) State Pollutant Discharge Elimination System
(SPDES) Permit Application
C) Air Permit Application
D) SEQRA Application
E) Site Plan/Special Use Permit Applicatio Addendum
In conjunction therewith, the Town of Saugerties Planning
Board has been classified as an Involved Agency under SEQRA (6 NYCRR Part
617.6(b) (2) (i)) with responsibility for consideration of the accompanying
Applications for Special Use Permit and Site Plan Approvals pursuant to
Sections 8.2 and 8.3 of the Town of Saugerties Zoning Law. (The foregoing
documentation is incorporated herein by reference as if more fully set
forth in its entirety)
In consideration of the foregoing and the detailed
submittals concerning the same, the NYSDEC circulated a June 2001 Notice
of Intent to serve as Lead Agency for the proposed project to the Town
of Saugerties Planning Board. Upon review of the Application and on June
2, 2001, the Town of Saugerties Building Inspector certified the plans
and rendered a Determination that the Application was complete for submittal
to the Town of Saugerties Planning Board for consideration pursuant to
Section 8.3.3(D) of the Town of Saugerties Zoning Law. (A copy of said
Determination is annexed hereto and made a part hereof as Exhibit A) On
July 3, 2001, the Planning Board met at a duly constituted meeting and
in consideration of the Application determined that they had no objection
to the NYSDEC assuming Lead Agency Status under SEQRA for the project.
(See the July 3, 2001 and July 17, 2001 Planning Board Records which are
incorporated by reference herein as if fully set forth in their entirety.)
On July 16, 2001 the Petitioner reputedly submitted
a generalized Petition/Appeal challenging the Building Inspectors completeness
Determination based upon the Applicants purported failure to meet in person
with the Planning Board prior to submission of the Application (Zoning
Law Section 8.3.3).
III. POINT 1: The Town of Saugerties Zoning Board of
Appeals (hereinafter the Zoning Board of AppealsÓ) s without Jurisdiction
to Consider the Petitioners Appeal:
a) It is submitted that the Petitioner possesses
no standing to commence this Petition/Appeal as he has not demonstrated
the potential for special damages nor that he is a record owner of affected
property situate in close enough proximity to the subject premises. Therefore,
the Petitioner is not aggrieved by the Pre-Submission Determination of
the Building Inspector or the ultimate Decision of the Zoning Board of
Appeals. (Town Law Section 267-a (4), Piela v. Van Voris, 229 AD 2d 94
[3rd Dept., 1997}, Gaylord Disposal Service, Inc. v. Zoning Board of Appeals
of the Town of Kinderhook, 175 AD 2d 543 (3rd DepÕt., 1991)].
b) It is further submitted that in light of the
Petition/Appeal improper commencement, the controlling sixty (60) day
time period within which to take an Appeal of the June 2, 2001 Building
Inspector Decision has now expired. [New York State Town Law Section 267-a(5)(b),
Rebhan v. Zoning Board of Appeals of the Town of Milan, 103 Ad 2d 728
(3rd Dept., 1990)].
The Zoning Board of Appeals is without jurisdiction
to preserve the validity of the purported Appeal as its jurisdiction is
appellate in this instance. Brenner v. Sniado, 156 AD 2d 559 (1989),
Balsam v. Jagger, 231 NYS 2d 450 (1962). Furthermore,
a Petitioner can invoke the jurisdiction of the Zoning Board of Appeals
only by submitting the kind of relief which is desired and clearly stating
the decision, determination, act or failure to act by the Building Inspector.
In this instance the same has not been done. Carlington Corp. v. Siegel,
61 AD 2d 813 (1978). Nor has the Zoning Board of Appeals relief been requested
by someone who is legally aggrieved and has made the request while showing
that they possess standing to challenge the issuance of the Building Inspectors
Determination. Emmi v. Zoning Board of Appeals of the Town of Salina,
63 NY 2d 853 (1984).
Based upon the foregoing, the Cross-Petitioner
hereby requests that the Petition/Appeal be dismissed in its entirety.
IV. POINT 2: With respect to the merits of the
Petition/Appeal, the Cross-Petitioner submits that SEQUR Lead Agency status
is a wholly separate determination from the completeness of the Site Plan
Application as determined by the Building Inspector and the time to challenge
the NYSDEC Lead Agency status has expired.
SEQRA requires that the establishment of Lead
Agency be made, Òas early as possible in an agencyÕs formulation
of an action it proposed to undertake.. [6 NYCRR Part 617.6(a)] The Applicant
submitted a detailed May 25, 2001 Application to the NYSDEC and the NYSDEC
commenced coordinated review of the same in June 2001. The NYSDEC forwarded
SEQRA Lead Agency Notice which was considered by the Planning Board at
its July 3, 2001 meeting and to which the Planning Board declined to express
its desire to be Lead Agency. The Planning Boards position was again clearly
set forth at the July 17, 2001 Planning Board meeting.
Your Cross-Petitioner submits that under law,
only the Applicant or an Involved Agency [Planning Board] may challenge
the NYSDEC establishment of Lead Agency and the time for doing so expired
thirty (30) days from the NYSDEC receipt of a completed EAF Part 1; To
Wit; July 9, 2001. [6 NYCR Part 617.6(b)(3)(i) and the June 7, 2001 cover
correspondence upon submittal by the Applicant to the NYSDEC, copies of
which are annexed hereto and made a part hereof collectively as Exhibit
B.]
Moreover, in order to successfully reconsider
the NYSDEC Lead Agency status, the Applicant or Planning Board must comport
with detailed SEQRA requirements within the thirty (30) day limitation
period [6 NYCRR Part 617.6(b)(5)]. [A copy of said statutory authority
is annexed hereto and made a part hereof as Exhibit C.]
Notwithstanding the Petitioners efforts to improperly
end run the SEQRA statute and its clear limitations periods, it is further
submitted that the Planning Board possesses only circumscribed jurisdiction
over the mining project environmental impacts and said jurisdiction is
expressly limited to the criteria set forth in the Environmental Conservation
Law of New York State and in the Special Use Permit and Site Plan procedures
in the Town of Saugerties Zoning Law [6 NYCRR Part 420 et seq. and relevant
provisions of the Zoning Law].
Furthermore, the NYSDEC possesses the expertise
to undertake the environmental assessment of the Application and the Planning
Board reiterated this fact repeatedly at the June 17, 2001 Planning Board
meeting. Accordingly, a cursory review of lead agency determination litigation
toward controlling potential environmental impacts of project. In re Wright
Sand and Gravel Mine, Town of Claverack, DEC CommÕr Determination
(Sept. 14, 1994), In re Proposed 23 Acre Sand and Gravel Mine in the Town
of Kinderhook, DEC Commr Determination (June 30, 1993).
The Applicant has submitted a detailed and comprehensive
Application to both the NYSDEC and the Planning Board and has clearly
expressed a desire to comport with all applicable regulatory authority.
Accordingly, the Petitioner and the public will have amble opportunity
to lawfully review the Application pursuant to law. It is also respectfully
submitted that the Petitioner might consider acknowledging a bit more
confidence that the NYSDEC can provide a proper review of a project which
falls under one of the specific purposed for which the agency was created
[6 NYCRR Parts 420 thru 425].
The Cross-Petitioner also points out that the
Building Inspectors Completeness Determination as to the Site Plan Application
is a Type 2 ministerial act which confers no exercise of discretion upon
him for review under SEQRA [NYCRR Part 617.5©(19)]. Incorporated
Village of Atlantic Beach v. Gavalas, 81 NY 2d 322 (1993), Matter of Neville
v. Koch, 79 NY 2d 416 (1992). [A copy of said SEQRA Section is annexed
hereto and made a part hereof as Exhibit D.] Accordingly, NYSDEC drives
the SEQRA review and the applicable time limitations pertaining thereto
and the Petitioners Appeal is incapable of staying all SEQRA proceedings
in furtherance of the Appeal. Therefore, with regard to SEQRA Lead Agency
status there is no stay of SEQRA under Section 7.5.2 of the Town of Saugerties
Zoning Law or Section 274-a(6) of the Town Law of New York State as the
Petitioners SEQRA claims do not relate to the Action appealed from. People
v. Barris Shoe Company. 174 Misc 2d 529 (1997).
Based upon all of the foregoing, the Cross-Petitioner
submits that the SEQRA Lead Agency designation is beyond the jurisdiction
of the Zoning Board of Appeals and the Planning Board and is now outside
of the statute of limitations for consideration by both entities, as the
Petition is incapable of staying a lawful and otherwise time barred NYSDEC
Determination. POINT 3 The procedures utilized
for review of the Application by the Building Inspector and Planning Board
were lawful with respect to Pre-Submission Conferences under the Town
of Saugerties Zoning Law. With respect to the foregoing, the following
address is offered:
a) The Application for a Special Use Permit does
not require pre-submission [Zoning Law Section 8.2 annexed hereto and
made a part hereof as Exhibit E]
b) The procedures for Site Plan Pre-Submission
primarily exist to protect the Applicant from submitting a woefully inadequate
plan or information which is not germane to the project and zoning requirements.
It is disingenuous at best for the Petitioner to claim the Application
Òcontains a level of detail not usually seen by the Enforcement
Officer and simultaneously submit that the Applicants Application is incomplete
under Zoning Law Section 8.3.3. [See Zoning Law Section 8.3.3 annexed
hereto and made a part hereof as Exhibit F]
c) Addressing the Petitioners claim that, the
Applicant did not meet in person with the Planning Board prior to submission
of application, the Cross-Petitioner submits that:
(i) Pursuant to
Section 274-a(5) of the New York State Town Law governing Site Plan Review,
the Planning Board waived the necessity of the Applicant being present
for the July 3, 2001 Pre-Submission meeting and no objection to this action
was thereafter made by the Applicant who was not informed to be at the
meeting.
[See the June 25, 2001 correspondence by Michael A. Moriello, Esq. A copy
of which is annexed hereto and made a part hereof as Exhibit G]
(ii) The Planning Board stated of record at its July
17, 2001 meeting, [which the Applicant and representatives attended] that
said meeting was otherwise being considered the "Pre-Submission Meeting"
for site plan purposes. Accordingly, the Applicant was present for this
second Pre-Submission Meeting. Parenthetically, the Cross-Petitioner submits
that the Building Inspector and Mark Davin {NYSDEC] have met with the
Applicant at the site and both are extremely familiar with the proposed
project. Based upon the foregoing, the Applicants attendance at the July
3, 2001 Planning Board Meeting was not required and its effect upon the
Application, the Planning Boards consideration thereof and the publics
opportunity for extensive participation therein to date is deminimus [sic].
(iii) The Petitioners Appeal is frivolous and
is merely a pretext for subverting the lawful planning and environmental
review of this project in order to delay and exact tremendous expenditures
on behalf of the Applicant. With specific regard to the Petitioners speculative
and conclusory claims concerning the Applicants right-of-way, consideration
of same is not the function of the Pre-Submission Conference or, ultimately,
site plan review. The case law is clear that it is incumbent upon any
challenger to an interest in the Applicants rights to real property to
prove that the Applicant does not have a right-of-way. This challenge
can only be made at the proper time and in the proper forum, not before
the Planning Board upon site plan review. Georgakopoulos v. Town Board
of The Town of Ulster, et al. Index No. 00-1182 Sup. Ct., Ulster County,
Kavanagh, J. (2000). The mechanism for protecting the site plan review
process and the rights of potentially affected property owners in a right-of-way
dispute is for the Planning Board to reserve the ability to have the site
plan be deemed nullified in the event that the Applicant does not possess
the requisite right-of-way. This is customarily accomplished by the imposition
of a condition subsequent to the site plan approval, if granted. In this
manner the potential for endless speculation during the site plan review
process is obviated and the Planning Board is not placed in a position
to attempt to determine the legality of real property issues under New
York State Real Property Law. It is the Applicants position that it possess
the lawful right to utilize the existing right-of-way and related roadway
network to access the premises for the intended mining use under the Application.
The Petitioner may rest assured that his issue has been thoroughly researched
by your writer and all of the Applicants rights will be vigorously defended
during the site plan and special use permit review of this Application.
(iv) In order to further address Petitioners claim of a stay of site plan
and special use permit proceedings in furtherance of the July 16, 2001
Appeal, your Cross-Petitioner offers that, without prejudice and without
acknowledgement that any stay is actually in effect, the Applicant has
no objection to attending another meeting with the Planning Board, the
Building Inspector and members of the public to discuss the site plan
and special use permit issues, together with discussion and submittal
of additional information which is properly placed before the Planning
Board in consideration of the Application. [i.e. Relevant Deed restrictions
and covenants; See Zoning Law Section 8.2.1.2(a)(2)] As a practical matter,
whether a stay is in effect or not in effect, as to Site Plan and Special
Use Permit review, will have no legal consequence upon the ongoing SEQRA
review being conducted by the NYSDEC as Lead Agency under SEQRA [See Point
2 herein]. (v) As to the July 17, 2001 Memorandum of George Redder, Esq.,
the Applicant concurs that the Appeal is not meritorious. [A copy of said
Memorandum is annexed hereto and made a part hereof as Exhibit "H"]
WHEREFORE, the Applicant requests that the Town of Saugerties Zoning Board
of Appeals rule as follows:
A) That Petitioner lacks standing to bring this Appeal before the Zoning
Board of Appeals; and,
B) That the Appeal is time barred by the sixty (60) day statute of limitations
set forth in Section 267-a(5)(b) of the New York State Town Law; and,
C) That the Zoning Board of Appeals lacks appellate jurisdiction to determine
this Appeal; and,
D) That SEQRA Lead Agency status has been lawfully determined by the NYSDEC
and the Planning Board has agreed to have the NYSDEC serve in such capacity;
and, E) That the Cross-Petitioner/Applicant [Shott Rock, Inc.] may proceed
before the Town of Saugerties Planning Board upon the Site Plan and Special
Use Permit Application.
Dated: August 6, 2001 Michael A Moriello, Esq.
Attorney for Shott Rock, Inc.
111 Green Street Post Office Box 4465
Kingston, New York 12402
(845) 336-6603
TIME LIMIT ON VALIDITY OF APPROVAL Approval of a site plan by the Planning
Board shall be valid for a period of one year from the date thereof for
the purpose of obtaining a building permit. Failure to secure a building
permit during this permit shall cause the site plan to become null and
void. Upon application, the Planning Board may extend the time limit on
the validity of the approval to not more than two years from the date
of original approval.
REQUIRED SUBMISSION The data set forth in Section 8.2.1, Special Permits,
shall be submitted in support of a request for site plan approval in accord
with the provisions therein.
ADVISORY OPINIONS The Planning Board shall review all applications for
variances submitted to the Board of Appeals and all proposed amendments
to the text or map of this Zoning Law being considered by the Town Board
referred to it in accord with the provisions of this Law. The Board shall
have 30 days prior to the public hearing in which to prepare ad submit
its advisory opinion. Failure to submit an opinion within 30 days shall
not prevent determination and action on the proposed variance or amendment
by the appropriate Board.
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