Concord Assoc., L. P. v Town of Thompson

[*1] Concord Assoc., L. P. v Town of Thompson 2013 NY Slip Op 51620(U) Decided on October 2, 2013 Supreme Court, Sullivan County Schick, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on October 2, 2013
Supreme Court, Sullivan County

Concord Associates, L. P., Petitioner, For a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules of the State of New York,

against

Town of Thompson, TOWN BOARD OF THE TOWN OF THOMPSON, PLANNING BOARD OF THE TOWN OF THOMPSON, and EPT CONCORD, II, LLC, Respondents, - and - MONTICELLO RACEWAY MANAGEMENT, INC. Intervenor-Respondent.



1226-2013



DelBello Donnellan Weingarten

Attorneys for the Petitioner

Wise & Wiederkehr, LLP

One North Lexington Avenue

White Plains, NY 10601

By: Michael Schwarz, Esq.

Michael Mednick, Esq.

Attorney for Town of Thompson

18 Prince Street

Monticello, NY 12701

By: Michael Mednick, Esq.

Paula Kay, Esq.Attorney for the Town of Thompson Planning Board

Town of Thompson

4052 Route 42

`Monticello, NY 12701

Zarin & Steinmetz

Attorneys for EPT Concord II, LP

81 Main Street, Suite 415

White Plains, NY 10601

By: Michael D. Zarin, Esq.

Steven Vegliante, Esq.

Co-counsel for EPT Concord, LP

531 Marsh Road

PO Box 632

Glen Wild, NY 12738

By: Steven Vegliante, Esq.

Keane & Beane, PC

Attorneys for Monticello Raceway Management

445 Hamilton Avenue

White Plains, NY 10601

By: Joel H. Sachs, Esq.

Gilberti Stinziano Heintz & Smith, PC

Co-counsel for Monticello Raceway Management

885 Third Avenue, Suite 2730

New York, NY 10022

By: Thomas J. Kelly, Esq.

Stephan G. Schick, J.

This matter comes on by Petitioner, Concord Associates L.P. (CALP) requesting judicial review, pursuant to CPLR 7803(3), of the decisions made by the Town of Thompson, the Town of Thompson Town Board and the Town of Thompson Planning Board (together, the Town) under Environmental Conservation Law Article 8, the State Environmental Quality Review Act (SEQRA), granting Respondent, EPT Concord II (EPT), approval to proceed with [*2]the phased development of an approximately 1500 acre Planned Recreational Development (PRD), located next to CALP's 140 acre PRD property, in the Town of Thompson (Thompson) on the property generally known as the Concord Hotel site. The Town, Petitioner and Respondents all seek the development of this property to accommodate hoped for casino gambling, a (relocated) horse racing track, a golf course, year-round hotel, convention center and condominium development together with many supporting and ancillary activities. Petitioner's allegations are two-fold.

First, CALP alleges that EPT's proposals for the Concord Hotel site "necessarily constituted an amendment" to a previously approved CALP Comprehensive Development Plan (CDP) for a Planned Recreational Development (PRD) on the same property without CALP participation or approval as required by the municipality's own zoning code. CALP argues that by considering EPT's proposals without CALP's participation the Town violated its own law, abused its discretion and acted in an inherently "arbitrary and capricious" manner. Therefore, Petitioner argues, the Town's decisions to proceed with and eventually approve EPT's proposals must be vacated by this Court.Second, CALP requests judicial annulment of the Town's SEQRA approvals on the grounds that the record shows a failure to consider important environmental issues and/or that approvals are not based upon substantial evidence' in the record and/or that the Town failed to take "the requisite hard look" at the process and the approvals are, therefore, "arbitrary and capricious" in violation of CPLR 7803(3).

Monticello Raceway Management, Inc. (MRMI) requested and received Intervenor/Respondent status, without objection, on the ground that its, existing, Monticello Raceway will be relocated to the Concord Hotel site as part of the proposed PRD.

Background

The 1700 acre site of the former Concord Hotel was owned by CALP from about 2000 to 2010 when the property was transferred to EPT Concord by "deed in lieu of foreclosure" (Town Board Doc.5, Exhibit "A"). During that time CALP proposed a Planned Resort Development (PRD) Comprehensive Development Plan (CDP) to the Town, including a "master association" plan with itself as the "master" (See, Petition, Exhibit A, Comprehensive Development Plan, dated April 22, 2008). CALP successfully undertook a rigorous SEQRA review process and, subsequently, the Town revised its zoning code, §250-27.2 (Planned Resort Development), by Local Law No. 6-2006, added November 21, 2006, to accommodate CALP's PRD CDP and Master Association. [*3]

The stated intent of the above 2006 zoning amendment was to facilitate the transformation of the Concord Hotel site into a "major employment center and source of attraction to the Town and region" by redeveloping the site, in compliance with environmental requirements, as a "destination resort....through comprehensive planning and maximum flexibility of design," to establish a "planned resort development" (PRD) which facilitates the "[o]rderly development of complementary commercial, residential and entertainment uses and the creation of a more desirable community environment than would be possible through strict application of the zoning regulations found elsewhere in....this chapter." Inreviewing the many letters to the Town contained in the Certified Record, this Court understands that the business and community leaders of Sullivan County and the surrounding area are highly supportive of the Town's efforts to take advantage of the possibility of commercial casino gambling to re-invent' itself after many years of post-Catskill Resort decline.

The 2006 zoning regulations included language mandating a "minimum site area of 1200 contiguous acres in common ownership at the time of the original application for approval of a PRD CDP, which must include at least one eighteen-hole regulation golf course...." [250-27.2 (B) (3) (a)]. Further, pursuant to §250-27.2 (C) (1) (f), the CDP may only be amended by the Master Association of the PRD" or, pursuant to §250-27.2 (C) (2) (a), jointly by the Master Association and the entity owning a portion of the PRD for which site approval is sought. The alleged purpose of the "master association" language was to insulate the Town from "the inevitable conflicts" which would arise between future parcel owners as phased development unfolded so as to assure a trajectory toward prosperity.

In 2010, after receiving SEQRA approval for its PRD CDP, CALP and/or its subsidiary transferred approximately 1500 or so acres by deed in lieu of foreclosure to EPT, CALP's' former associate (Town Board Record, Document #5, Exhibit "A")[FN1]. The transfer was the result of negotiations between the two entities and left CALP with approximately 140 acres. Thereafter, CALP did not further develop its 140 acre site and, after several years of the 1500 acre property laying dormant, EPT approached the Town with a proposal to develop the site and the [*4]Town decided to move forward with EPT.

In 2013, together with approving EPT's SEQRA process, the Town amended, by Local Law No.1, §250-27.2 B(7) of the zoning code to accommodate "one or more approved PRD comprehensive development plan(s), and amended §250-27.2C(2)(a) of the zoning code to provide that "[a]n application for site development plan approval shall be made by the Master Association of the respective duly adopted PRD Comprehensive Development Plan," thus providing that there shall be a "Master Association" for each PRD property (Town Board, Doc.139).[FN2]

The CPLR 7803(3) Review Process

Hybrid matter

Petitioner puts forth two issues framed as CPLR 7803(3) actions. That is, petitioner asks the Court to assess whether the Town's decision to entertain EPT's development proposals was in violation of the "master association" language of the zoning ordinance and that the Town's approval of EPT's development plans was made without the Town taking the "requisite hard look" at EPT's SEQRA process.

CPLR Article 78 actions are a species of special proceeding (CPLR 7804) whose scope is limited by statute (CPLR 7801) and whose raison d'etre is the expeditious resolution of a contested decision made by a "body or officer," (CPLR 7802(a), 7806) based upon the existing administrative record, supplied by respondent with his answer [CPLR 7804( c )]. This Court understands the "master" issue to be akin to a plenary matter, i.e. the rendering of a declarative judgment. It is clear that it is not improper to join an Article 78 proceeding with an other action, such as declaratory judgment, to resolve an entire dispute where there are common facts and issues but different procedures for their resolution [Price v New York City Board of Education, 16 Misc 3d 837 (Sup.Ct., NY Cty. 2007); citing to Tommy and Tina, Inc. v Dept. Of Consumer Affairs, 117 Misc 2d 415 (Sup.Ct. NY Cty 1983), aff'd, 95 AD2d 724 (1st Dept 1983)], so as to conserve judicial resources. Respondent has not interposed any objection to this "hybrid" matter and neither party requested that there be discovery beyond that provided by [*5]Respondent Town in its certified record. There is no challenge to Petitioner's standing to bring this action either under Article 78 or SEQRA.[FN3] Respondents deny all substantive allegations and request this Court permit the Town's "discretionary" decisions to stand.

Article 78 and SEQRA

A determination challenged by an Article 78 action may be confirmed, modified, or annulled; the Court may also "direct or prohibit specified action by the respondent." (CPLR 7806). The standard of review in the CPLR 7803(3) action is whether the Town's decision was "made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion....." "Arbitrary action is without sound basis in reason and is generally taken without regard to the facts...[The question] is whether the determination has a rational basis." Matter of Ward v. City of Long Beach, 20 NY3d 1042 (2013); Matter of Pell v. Bd. of Ed of Union Free School District No. 1 of Towns of Scaresdale & Mamaroneck, Westchester County, 34 NY2d 222 (1974]. "Capricious" action in a legal sense is established when an administrative agency on identical facts decides differently"[Matter of Lefrak Forest Hills Corp v. Galvin, 40 AD2d 211 (2d Dept 1972) aff'd, 32 NY2d 796 (1973)], or when those similarly situated receive different treatment [Frank Lomangino & Sons, Inc. V. City of New York, 980 F. Supp. 676 (EDNY 1997)]. While the agency does not have the obligation of articulating all of its reasons for its decision, the absence of rational basis to distinguish one decision of the agency from the other gives rise to suspicions of capricious behavior [Wnek Vending & Amusement Co v. City of Buffalo, 107 Misc 2d 353 (SC Erie Cty, 1980)].

Judicial review of the municipality's discretionary decisions involves considering the stated goals and procedures of SEQRA (ECL 8-0101 to 8-0117), together with the requirements of Article 78 and the municipality's determination of what is in the best interest of its constituents together with the relationship between the municipality's decisions and evidence in the record. Deference must be paid to those discretionary decisions which are rational and based upon [*6]"substantial evidence in the record" [Halperin v. City of New Rochelle, 24 AD3d 768 (2d Dept 2005); Androme Leather Corp v City of Gloversville, 1 AD3d 654 (3d Dept 2003); Pecoraro v. Bd. of Appeals of Town of Hempstead, 2 NY3d 608 (2004)].[FN4] The reasonableness of the agency's determination is to be judged solely on the grounds stated by the agency at the time of its determination. [Environmental Law and Regulation in New York, 2nd. Edition, West Publishing Co., 2009; See too, Scherbyn v. Wayne-Finger Lakes Board of Co-op Educational Services, 77 NY2d 753 (1991)]. Judicial review, however, is not "a mere rubber stamp" of the agency's decision (see, Matter of Wal-Mart Stores v. Planning Board of Town of No. Elba, 238 AD2d 93 (3d Dept 1998); Avy et.al v Town of Amenia, NY, 4 Misc 3d 1020(A), 2004 WL 1949174 (NY Sup) (2004)]. A court must review the administrative record searching for objective factual support for the Board's determination [Matter of Halperin v City of New Rochelle, 24 AD3d 768 (2d Dept 2005)]. Not every conceivable environmental impact need be addressed by the agency [Jackson v. New York State Urban Development Corp., 67 NY2d 400 (1986)], but the agency's decision must appear to be "rational and not arbitrary and capricious." (Halperin, supra at 105, citing Sasso v Osgood, 86 NY2d 374 (1995)]. Where the record contains empirical data and the decision was based upon "substantial evidence in the record," not upon "mere speculation and conjecture" and the Court is satisfied that the agency has identified the relevant areas of concern, "took a hard look" and made a reasoned elaboration' of the basis for its determination, the Court will not substitute its judgment for that of the agency [Ifrah v Utschig, 98 NY2d 304 (2002); Matter of Riverkeeper, Inc. V. Planning Bd. Of Town of Southeast,9 NY3d 2192007; Prand Corp. v Town Board of East Hampton, (78 AD3d 1057 (2d Dept 2010)]. Judicial review is also governed by the "rule of reason" [Save the Pine Bush 13 NY3d 297 (2009)] and reasonable doubts must be resolved in the agency's favor [Town of Henrietta v. Dept of Environmental conservation of State of NY, 76 AD2d 215 (4th Dept 1980)]and Courts do not substitute their judgement for the "commonsense judgments" of the agency in all but the most egregious circumstances [Retail Property Trust v Board of Zoning Appeals of Town of Hempstead, 98 NY2d 190 [*7](2002); Chemical Specialties Manufacturers Ass'n v. Jorling, 85 NY2d 382 (1995); Wilkinson v. Planning Board of Town of Thompson, 255 AD2d 738 (3d Dept 1998)].

The SEQRA process was instituted in 1975 to assure that "discretionary governmental" decisions on proposed development activities consider "social, economic and environmental factors" [ECL 8-0103(7)] at "the earliest possible time." [6NYCRR 617.1(c)] to minimize adverse environmental impacts. The environment' as construed by SEQRA takes into account not only matters of natural resources, such as air and water, and the impact of human activity on the environment, such as traffic and sewage/waste (ECL 15-0101 to 15-2913), but also the "overall economic and social well being" of the people. By "promoting patterns of development...which minimize adverse impacts on the environment" without risk to health and safety [and] other undesirable or unintended consequences" [ECL 1-0101(1), (2b) (2c)] SEQRA seeks to encourage "productive and enjoyable harmony between man and his environment" [ECL 8-0101(1a)]. Thus, environmental review under SEQRA "is a balancing act between environmental concerns and socio-economic goals" [Spitzer v Farrell, 100 NY2d 186 (2003)]. An elaborate statutory and regulatory scheme (6 NYCRR Part 617) has been fashioned requiring comprehensive environmental impact statements (EIS) when any action "may" have a significant impact on the environment; the governmental agencies having decision making power must make "explicit findings" that "to the maximum extent practicable" adverse impacts presented in the EIS will be avoided or minimized. [ECL 8-0109(8)].

The SEQRA process commences with a petition for agency approval of a project which "may" have environmental impact. [6NYCRR 617.6(a)(1)]. If the agency concludes that "Type I" environmental impacts "may" reasonably be expected, and "at least one potentially significant environmental impact exists which cannot be eliminated" [6 NYCRR 617.2(h); 617.7(d)], an EIS process commences. This involves the completion of a full Environmental Action Form (EAF) [6NYCRR 617.6(a)(2)], establishment of a "lead agency" to direct a SEQRA compliant process [6NYCRR 617.7(a)(1)], a public "scoping" document, a preliminary, or draft, EIS (DEIS), public hearings and the publication of a final EIS (FEIS). Upon acceptance of the FEIS, there follows public notice, a ten-day "cooling off period" and then the agency is "free to take action" on the request, subject to a timely Article78 challenge. [Environmental Law and Regulation in New York, 2nd. Edition, West Publishing Co., 2009, pp 379-388].

Where a proposed project is developed in phases, SEQRA requires the lead [*8]agency to evaluate the project as a whole through the device of a Generic Environmental Impact Statement (GEIS)[FN5] so as to avoid breaking large, insurmountable, environmental problems into small, avoidable, problems whose overall impact invariably and unacceptably degrades the environment [6NYCRR 617.3(g)(1); Schultz v. Jorling, 164 AD2d 252 (3d Dept 1990)]. Exceptions exist in limited circumstances and only when the lead agency explains why "segmented review" is both warranted and "no less protective of the environment." [6NYCRR 617(g)(1); Concerned Citizens for the Environment v. Zagata, 243 AD2d 20 (3d Dept 1998); Rogers v. City of North Tonawanda, 60 AD3d 1379 (4th Dept 2009)].

This process implicitly accepts that applicants for governmental approval seek to maximize their opportunities for economic benefit while proposing minimally compliant environmental plans. The municipality has the obligation to the State and its constituents, through its designated lead agency, to oversee the process and review the evidence presented to assure adherence to SEQRA. Just as the governmental agency has the responsibility to assure the developer conducts a proper review and develops a proper plan, so too may interested parties with "standing" intervene to assure themselves that the government agency acts in accordance with "both the letter and the spirit of SEQRA" [Schenectady Chemicals, Inc. V. Flacke, 83 AD2d 460 (3d Dept 1981)] for the benefit of the community. This "land use review process" has been described as "emblematic of the complex intersection of public policy, science, public relations and politics.[FN6]

The Complaint, Part I:

Whether CALP is the Master of EPT's Fate? [*9]

Petitioner does not claim the Town's 2013 amended zoning regulation is unconstitutional [see, Board of Education v Gootnick, 49NY2d 683 (1980], nor does Petitioner deny the Town has the ability to change its own zoning laws. The allegation here is that by merely entertaining EPT's applications, much less granting them SEQRA approvals, the Town violates the terms of the "master developer" language in the prevailing (2006) zoning law which, according to CALP, will lead to two approved PRDs, CALP's and EPT's, covering the same piece of land (See Verified Petition, Ex. A, Comprehensive Development Plan by Concord Assoc. LLP; § 250-27.2 of the zoning ordinance).[FN7] This, allegedly, places the Town in a position where it has to negotiate between competing developers which the Town, admittedly, sought to avoid by introducing the "master" language in the first place.[FN8] Additionally, since the language of the 2006 zoning laws anticipated subsidiary owners of parcels (with no apparent size limitation) and provided for another developer to proceed as long as the "master" was involved, CALP's allegation is the Town would be in compliance with local law and SEQRA if CALP were cooperating in the venture, but without the participation of CALP, the same process was a violation of the zoning law and SEQRA.

Strict compliance with SEQRA's procedural requirements is mandated [Matter of King v Saratoga County Board of Supervisors, 89 NY2d 341 (1996)] and an amendment of local law "constitutes an action" within the meaning of SEQRA [ECL 8-0105(4); 6 NYCRR 617.2(b)], if it is shown that the change in law "may affect the environment" [see, State of NY v Town of Horicon, 46 AD3d 1287 (2007)]. "Because the operative word triggering the requirement of an environmental impact statement (EIS) is may,' there is a relatively low threshold for the preparation of an EIS" [Matter of Prand Corp. v Town Board of East Hampton, 78 AD3d 1057 (2d Dept 2010)] to assess the potential impact of a zoning law change upon the environment. [*10]

Respondent argues that, after due consideration, it determined that changing the language of the zoning ordinance referring to the "master" did not implicate any environmental concerns and SEQRA, therefore, is not invoked (Town Board Record Document # 110). Further, the Town argues, it is in the sole judgment of the Town to make that decision and the decision may not be judicially abrogated unless it was "arbitrary and capricious" [Matter of MLB, LLC v Schmidt, 50 AD3d 1433 (3d Dept 2008)]. Respondent also argues that, in any case, EPT was compelled by the Town to undertake an extensive SEQRA review process, arguably equal to (and even making use of some of) CALP's SEQRA review product and received its own approval. Additionally, the Town argues that Petitioner refuses to acknowledge that it lost title to approximately 1500 of the 1700 acres involved to EPT; that CALP's PRD had not been acted upon and, now, could not be achieved by CALP; that EPT was the successor in interest to CALP's 1500 or so acres and, under the prevailing zoning code had the right to proffer its own PRD CDP.

As the Town notes, even if the original PRD agreement improbably contemplated a former owner controlling the fate of property it divested, there is a provision in the PRD granted to CALP by the Town in 2006 which provides that the "Master Association" is the entity which "owns, maintains and repairs all commonly owned open spaces" (Petition, ¶20, Ex A. A at II-17), which CALP could not do after it lost the property to EPT. There is also language in the PRD noting that CALP "or its successors in interest" may be the "master developer" under conditions which approximate the current situation (Petition, Ex. A, ¶19, p.II-16-17). Additionally, it is argued, the Town moved forward with EPT, not in opposition to the language of the zoning code, but to fulfill the objectives of the code as set forth in the code's statement of purpose (Town Board Doc. 31). Inter alia, EPT points to correspondence from Petitioner's principal indicating that he would not cooperate with respondents (Town Board Doc.31, Ex. A, ), rendering CALP's protestations of no cooperation on the part of EPT unconvincing.

"Generally, zoning determinations enjoy a strong presumption of validity and will only be overcome by showing, beyond a reasonable doubt (emphasis added), that the determination was arbitrary and unreasonable or otherwise unlawful" [In the Matter of Rotterdam Ventures Inc. v Town Board of the Town of Rotterdam, 90 AD3d 1360, 1362 (3d Dept 2011)]; Asian Ams. For Equality v [*11]Koch, 72 NY2d 121 (1988)].[FN9]Additionally, arguendo, even if the "master" language did "affect" the environment, its impact was necessarily assessed as part of EPT's, subsequent, extensive SEQRA review.

After evaluating the evidence in the substantial record, the Town made a reasonable determination, in the exercise of its discretion, that amending the zoning code language regarding the role of a "master" did not implicate SEQRA, did not violate the law, did not deprive CALP of any right it may have had and was in the best interest of the Town (Town Board Doc. 110).

Here, after a thorough review of the record and the arguments and evidence put forth by the litigants, it is this Court's understanding that changes to the language of the role and/or identity of the "master," as complained of by Petitioner, do not implicate the "environment" as understood by the Environmental Conservation Law and/or the applicable regulations [6NYCRR 617.2(l)] and therefore it was Petitioner's burden to establish that the Town's revisions to its own zoning ordinance was "irrational" and/or "arbitrary and capricious" beyond a reasonable doubt. Petitioner presents no evidence to sustain its burden on this issue. This Court finds that petitioner proffers no cognizable legal theory under which CALP may retain control over the fate of a property it does not own. CALP puts forth no reasonable argument explaining how its status as recipient of a PRD may be transformed into a property right over a parcel it deeded to another with no reservation of rights. In sum, CALP puts forth no reason for this Court to disturb the Town's rational decision to entertain EPT's proposals [Matter of MLB, LLC v Schmidt, 50 AD3d 1433 (3d Dept 2008)].

Parenthetically, CALP has no control over EPT's development proposal except insofar as it is a neighbor which might be adversely impacted by EPT's development. In that regard CALP has standing to challenge the Town's SEQRA decisions via an Article 78 action, as it is doing. Indeed, it appears to be critical to petitioner's second argument (that it is a neighbor adversely affected by the EPT development) that it not be considered the "master" of the EPT development for if it were it would arguably relinquish standing to contest it.

The Complaint, Part II:

Was SEQRA Complied With?

[*12]

Whether SEQRA requires strict procedural

and strict substantive compliance

Petitioner argues that SEQRA requires both strict procedural and strict substantive compliance (Memorandum of Law, pg. 9).Respondent argues that strict procedural compliance is necessary [ See, King v Saratoga Co. Bd. Of Supervisors, 89 NY2d (1996)] and that strict compliance with procedure achieves SEQRA's goals [Respondent's Answer, pg.31-32]. Respondent further argues that Petitioner does not, because it can not, question whether Respondent strictly complied with SEQRA's procedure (Respondent's Answer, pg. 32).

This Court agrees that "literal compliance with the letter and spirit of SEQRA is required"[Schenectady Chemicals, Inc. v Flack, 83 AD2d 460 (3d Dept 1981); Stony Brook Village v Reilly, 299 AD2d 481(2d Dept 2002)]; See, Matter of King v. Saratoga County Bd. Of Supervisors, 89 NY2d 341 (1996)]. That includes strict compliance with SEQRA's procedural requirements [State of New York v. Town of Horicon, 46 AD3d 1287 (3d Dept 2007); Matter of King v. Saratoga County Bd. Of Supervisors, 89 NY2d 341 (1996)].

On each contested issue both CALP and EPT submitted conflicting expert advice to the Town and the Town had to make a decision based upon the evidence before it. Where expert testimony conflicts and differing analyses are presented under SEQRA, the agency has the discretion to make a choice [Eadie v. Town Bd. Of North Greenbush, 7 NY3d 306 (2006); Brooklyn Bridge Park Legal Defense Fund Inc. v NYS UDC, 50 AD3d 1029 (2d Dept 2008); Village of Chestnut Ridge v. Town of Ramapo, 99 AD3d 918 (2d Dept 2012)] and as long as the decision is rationally and reasonably related to evidence in the record, courts will not disturb the decision.

Given the interplay between "green" and socio-economic factors, many of which are are aspirational, a "wrong" decision is not necessarily actionable, but one which is made without following procedures is subject to reversal. Here, all litigants are predicting a prosperous future, but no party can accurately assess the fortune which may arrive.[FN10] Petitioner, before losing 1500 acres, also believed they and the Town would enjoy economic prosperity if/when their plans were realized. Future environmental impacts are, however, capable of analysis. Thus in balancing "good environmental stewardship" with the "economic prosperity of the [*13]community," the Town must take a "hard look" at the former, but—like others—only speculate about the latter. This Court, therefore, makes no judgment as to whether respondents plan is good or bad for the Town, only whether it is lawful.

CALP's SEQRA complaints, EPT's responses,

and the Town's decisions.

CALP alleges the Town failed to take the requisite hard look' (Petition, ¶¶ 1, 59) at all relevant areas of environmental concern; that the Town Board, as lead agency, under SEQRA, failed to consider "potentially significant environmental impacts" (Petition, ¶ 70) and the Town Planning Board "merely ratified and incorporated" the Town Board's finding statement" without taking a hard look' at the record. Petitioner concludes the Town's actions were irrational, arbitrary, capricious, in violation of SEQRA and not based upon substantial evidence in the record and, therefore, should be annulled by this Court (Petition ¶ 71).[FN11]

Sequence of events

The events leading to Town approval of EPT's proposal are laid out in the January 15, 2013, Resolution of the Town Board adopting the SEQRA findings statement (Town Board Doc. 135), together with the Town Planning Board's April 10, 2013, resolution in regard to Phase 1 of the EPT proposal (Planning Board Doc.75) and the Certified Transcripts of the Town Board and Planning Board Records.

EPT submitted its proposal for a PRD, with amendments to the zoning law, during February, 2012 (Town Board Doc. 5). During March, 2012, the Town Board determined that the proposal raised sufficiently significant environmental issues to declare it a Type 1 action under SEQRA, requiring a Lead Agency to oversee the approval process (Town Board Doc.s 11,12). During April, 2012, the [*14]Town Board, as lead agency, determined that the proposal "may have a significant adverse environmental impact and adopted a positive declaration requiring the preparation of a Draft Generic Environmental Impact Statement (DGEIS)"(Town Board Doc 27). On April 17, 2012, The Town Board accepted and adopted a Final DGEIS and Phase 1 DEIS Scoping Outline" and directed EPT to prepare a revised FGEIS and Phase 1 DEIS "consistent with the accepted final scoping document" (Town Board Doc.30). During June, 2012, the Town Board "accepted an amended petition to amend the zoning code" and accepted EPT's CDP and referred both to the Planning Board (Town Board Doc.38). The Town Board referred EPT's proposals to "its consultants and other advisory technical staff" for review "for completeness with respect to the items set forth in the scoping document" (Town Board Doc.s 41-48). The proposal was also referred to the County Planning Department and to the Town Planning Board (Town Board Doc.39). During July, 2012, the Town Board "determined that the DGEIS and DEIS were complete and adequate with respect to scope and content" and submitted it for public comment (Town Board Doc.s 51-55). During November,2012, the Town Board accepted a "second amended petition to amend the zoning code" and referred that to the Planning Board and County Planning Department (Town Board Doc.s 91,93,94,96).

On January 2, 2013, the Town Board decided that the "FGEIS and FEIS were complete" and submitted them for another period of public comment (Town Board Doc 115). In its January 15, 2013, resolution adopting EPT's plan, the Town Board stated it had taken into account the comments of its professional staff and its consultants and the public, including CALP, regarding "potentially significant adverse environmental impacts" and it "evaluated all reasonable alternatives" and determined that the requirements of SEQRA and NYCRR Title 6 (Part 617) have been met (Town Board Doc.s 135-139). The Town also adopted a "Findings Statement" [6NYCRR 617.11(d)] which, according to the Town, "minimizes or avoids adverse environmental effects to the maximum extent practicable...." through mitigation as appropriate (Town Board Record140) and it filed the document with the New York State Department of State (Town Board Doc.141).

During February, 2013, EPT sought the approval of the Planning Board, as an "involved agency," for Phase 1 of its PRD CDP [FN12] (Planning Board Doc. 48). [*15]The Planning Board took comments from various Town consultants and its engineer from February through early April, 2013 (Planning Board Doc.s 49, 52, 58, 62, 63, 66,-72), and states it reviewed the prior activities of the lead agency and all comments on the proposal before making its decision. On April 10, 2013, the Planning Board resolved that "there were no new significant potential adverse environmental impacts or changes in circumstances related to the Project or Phase 1 of the Project that would require ..... supplementary environmental review" and approved the proposal. (Planning Board Doc.s 73-78).

Petitioner acknowledges that the Town went through an appropriate evaluation process, but argues it was mere window dressing. This Court, while showing deference to the decisions of the Town, has an obligation to review the record to satisfy itself that the Town's decisions were rationally and reasonably related to the evidence in the record [Matter of Steenrod v City of Oneonta, 69 AD3d 1030 (3d Dept 2010); Matter of Kinderhook Dev. LLC v City of Gloversville Planning Board, 88 AD3d 1207 (3d Dept 2011)].

Alleged procedural shortcomings:

Was the process a sham?

Despite conceding Respondent complied with the SEQRA process, Petitioner argues there were significant procedural shortcomings. Specifically, that the Town scheduled a meeting to consider EPT's FGEIS/FEIS with less than ten days notice, as required, and that this was "patently unreasonable" (Town Board Doc. 104) and "inadequate for the Board to take a hard look" at all relevant areas of environmental concern and/or require appropriate mitigation as required by SEQRA (Petition, ¶ 71). It is accurate that the Town accepted EPT's proposals on December 10, 2012, and scheduled a hearing for December 18, 2012, but, consideration of the FEIS was delayed to early January, 2013, accommodating CALP's complaint and allowing EPT time to revise its proposal to take into account critical comments from the Town's experts and consultants (Town Board Doc.s 104-111, 112). EPT's revised FGEIS/FEIS (Town Board Doc.113) were accepted by the Town Board on January 2, 2013(Town Board Doc. 115). Final Town Board adoption of the SEQRA Findings Statement, together with adoption of the amended PRD law and the new CDP took place on January 15, 2013 (Town Board Doc.s 135-140). [*16]

Respondent argues that the review process was thorough; that during the year long process the Town Board, as lead agency, reviewed the EAF; determinated that an EIS was required; issued a positive declaration; constantly shared information with the Planning Board as an involved agency; provided information to the County Planning Board and outside agencies, such as New York State Department of Transportation; conducted several public hearings; that Town and CALP consultants had access to plans and recommendations throughout the process; that changes were requested by the Town which caused EPT to modify its proposals; and that CALP's comments on the revised proposal were considered (Town Board Record 132).

Given the extensive process and the number of amendments made, in comparison to the amount of the proposal not changed, it is not possible to categorically state the December to January period was inadequate. This period, critical as it was, can not be viewed in a vacuum, separate from all which preceded it. Throughout, all interested parties had knowledge of the complex issues contained in the documents, made cogent comments on the proposals which were then modified, more than once, to take those comments into account, before the resolution was passed.

Was the Planning Board merely a rubber stamp'?

Additionally, CALP challenges the April 10, 2013, Town Planning Board's hasty, "rubber stamp," adoption of the Town Board's SEQRA determination "ratifying the findings statement issued by the board for the [EPT] project" (Planning Board Doc.s 73-78). As reviewed above, the Planning Board was an involved agency throughout the process and had considerable knowledge of the proposals before they had to vote upon them. There is no comment from any member of the Planning Board that they had insufficient time or information to made a reasoned decision. All told, this Court finds that the Town strictly complied with the appropriate statutory and regulatory procedures in reaching its decisions.

Alleged failure to address important

issues in the scoping document:

The scoping document identifies potentially significant adverse impacts which the developer must account for in the subsequent plans and reports (i.e. in the DGEIS and FGEIS and the DEIS and FEIS), including determining what impacts are not significant and need not be part of the consideration [6NYCRR 617.8(a)]. [*17]

A draft scoping document was issued on March 30, 2012, and a final scoping outline was adopted by the Town Board on April 17, 2012 (Town Board Doc.s 3, 12). CALP challenges the Town's April 10, 2013, approvals of EPT's applications on grounds that important areas of environmental concern identified in the "scoping" document were not addressed or were inadequately addressed (Town Board Doc. 26). The "Scoping Outline," dated April 17, 2012, identifies seventeen (17) distinct environmental categories requiring attention and approval [FN13] and ancillary chapters dealing with project description, alternatives, mitigation, "unavoidable adverse impacts," and impacts on use and conservation of energy (Planning Board Record Doc. 12; Town Board Doc. 26, Appendix A).

Were economic concerns adequately addressed?

Specifically, CALP complains that Respondents failed to address "economic concerns" as required by Chapter 14 of the scoping document (Petition, Affidavit of K. McManus, P.E.) and alleges that EPT's consultant is wrong when saying economic concerns identified by Petitioner are beyond scope of SEQRA. Generally, a battle between experts is left to the sound discretion of the Town to resolve, but here the issue is whether EPT had an obligation to deal with a subject area in the DGEIS and DEIS, pursuant to 6NYCRR 617.9(a)(2), and failed to do so.

A review of Chapter 14 of the scoping document reveals that itis primarily concerned with evaluating existing conditions and "probable impacts" of a successful "planned recreational development" involving a casino and supporting activities, including the number of future employees and estimated tax revenues. Without challenging the importance of this part of the scoping document to SEQRA, this Court takes the position that all projections of success are, at best, wishful thinking and there is little which can be done to assure the Town that the estimates comport with reality. The remaining question is whether the DGEIS or FGEIS dealt with those issues. The record shows that in a letter dated July 15, 2012, (Doc 53) Respondent's consultant was unable to locate the required "economic" information (Town Board Doc. 53), but by July 23, 2012 (Town [*18]Board Doc.55) he had received submissions from EPT which led him to state that "with respect to the items raised in our review and memo, it is our opinion that the DGEIS/DEIS is "adequate with respect to its scope and content for the purpose of commencing public review." Additionally, it was this consultant's opinion that "projected economic benefits from the project would outweigh the cost to the County for providing additional services (Planning Board Doc. 47).

This Court therefore concludes that, at least with respect to the above matter, the Town had reasonable assurance that EPT's DGEIS/DEIS covered the required subject matter.

Were vehicle and pedestrian traffic

issues adequately addressed?

CALP complains EPT's traffic analysis is "fatally flawed" which, if true, could lead to additional work by EPT and a reconsideration by the Town. Chapter 11 of the scoping document addresses vehicular and pedestrian traffi" target="_blank">Eadie v. Town Bd. Of Greenbush (7 NY3d 306, 2006), with a GEIS phased planning is appropriate; Town Board Doc. 134). Further EPT represented to the Town that the most appropriate way to handle forthcoming matters was to "require site specific analysis for Phase I and a GEIS for later phases, consistent with further SEQRA review." In a December 17, 2012, letter to the Town, the Town's outside planning and development consultant, having reviewed the comments of the Town's other experts and consultants, gave the green light to the FGEIS/FEIS (Town Board Doc.107).

Under these circumstances, this Court can not state that the Town's approval of the FGEIS/FEIS was irrational, "arbitrary and capricious," or unsupported by evidence in the record.

Conclusion

It is axiomatic that qualified experts on any topic may differ in their conclusions and, in particular, may differ in the judgments employed during analysis of its review of the Applicant's FGEIS and FEIS. The end result of the Town's decisions is that Thompson now has two separate approved PRDs, one of approximately 140 acres, and the other of approximately 1500 acres, awaiting future development. The Town's decision to grant EPT approval to proceed reasonably reflects the evidence in the record and will not be disturbed by this Court.

All other arguments have been considered and found wanting.

Therefore, it is hereby

ORDERED that the petition is denied in its entirety.

This shall constitute the Decision and Order of the Court. The original Decision and Order and all papers are being forwarded to the Sullivan County Clerk's Office for filing. Counsel are not relieved from the provisions of CPLR 2220 regarding service with notice of entry.

SO ORDERED.

Dated: Monticello, NY

October 2, 2013

[*22]

E N T E R

_____________________________

HON. STEPHAN G. SCHICK, JSC



Papers Considered:

Verified Petition of Concord Associates, L/P., dated May 14, 2013, with Exhibits A through H;

Affirmation of Stephen M. Gross, dated May 14, 2013;

Affirmation of Bernard Adler, P.E., dated May 14, 2013;Affirmation of Kevin McManus, P.E., dated May 15, 2013

Affirmation of John Lynch, AICP, dated May 15, 2013;

Motion to Intervene by Monticello Raceway Management Inc., dated June 14, 2013;

Order permitting intervention by Monticello Raceway Management, Inc., dated June 18, 2013;

Certified Transcript of Town Board Record, dated June 21, 2013, with Exhibits 1 through 141;

Certified Transcript of Planning Board Record, dated June 21, 2013, with Exhibits 1 through 80.

Answer of Intervenor/Respondent, Monticello Raceway Management, dated July [*23]1, 2013;

Answer of Respondents, Town of Thompson, Town of Thompson Town Board, Town of Thompson Planning Board, dated July 23, 2013;

Affidavit in Opposition by Michael Mednick, Esq, dated July 23, 2013;

Memorandum of Law by Town in Opposition, dated July 23, 2013;

Answer of Respondent EPT Concord II, LLC, dated July 23, 2013;

Affirmation of Tom Lies in Opposition to Petition, dated July 22, 2013;

Affidavit of Nanette Bourne in Opposition to Petition, dated July 23, 2013;

Memorandum of Law by EPT II, LLC, in Opposition, dated July 23, 2013;

Reply Memorandum of Intervenor-Respondent Monticello Raceway Management Inc., with affirmation in Opposition, dated July 24, 2013;

Petitioner's Reply Memorandum, dated August 13, 2013, with Exhibits A through E;

Affidavit of Bernard Adler, P.E., dated August 9, 2013

Affidavit of Alfred E. Donnellan, dated August 13, 2013;

Affidavit of Stephen M. Gross, dated August 13, 2013;

Order, Concord Associates, L.P. et.al, v Entertainment Properties Trust, et.al, USDC, SDNY, 12 Civ.1667 (ER), September 18, 2013 Footnotes

Footnote 1: Petitioner alleged that CALP's rights were not transferred to EPT: that in

August, 2008, the property was transferred to a subsidiary, Concord Resorts LLC., but the "master's" rights were retained. It was Concord Resorts LLC which, in 2010, transferred title of the property to EPT. Respondents argue they took the property by "deed in lieu" with all rights, benefits and privileges and "no reservation of rights" (See, Letter from EPT to Town, February 6, 2012, Town Board Record Document # 3).

Footnote 2: During this period CALP and its sister organizations (Concord Resort, LLC and Concord Kiamesha, LLC) filed suit against EPT and its sister organization (EPT Concord, LLC) in Supreme Court (Westchester and Sullivan Counties) and Federal Court. On September 18, 2013, the Federal and State matters were dismissed [Order, USDC, SDNY, 12 Civ. 1667 (ER), dated September 18, 2013].

Footnote 3: "The general rule in SEQRA litigation is that a plaintiff, to gain standing, must allege an environmental injury different from that suffered by the public at large. Environmental Law and Regulation in New York, 2nd. Edition, West Publishing Co., 2009, pp 379-388, citing to, Society of the Plastics Industry, Inc. 77 NY2d 777.

Footnote 4: This Court understands the term "substantial evidence in the record" to mean that the record contains "substantial evidence," an "ample amount" of which supports the Town's decisions [Matter of Wal-Mart v Planning Board of N. Elba, 238 AD2d 93 (3d Dept. 1998)]. "Rationality, not quantum of evidence, is the appropriate standard of review" [Matter of Halperin v City of New Rochelle, 24AD3d 768, 772 (2d Dept 2005); Matter of MLB, LLC v Schmidt, 50 AD3d 1433 (3d Dept 2008)].

Footnote 5: The regulation requires that the totality of the project must be considered

[§ 617(a)(1)] in a multi-phase development so that the overall impact of a project may be assessed. The GEIS must set forth how/when future development will take place and include requirements for subsequent SEQRA compliance [§ 617 ( c )]; if future development takes place as outlined in the final GEIS no further SEQRA compliance is required. § 617(e) restates that in a phased development specific impacts and general "conceptual" impacts must be addressed which "may bear on the conditions of an agency decision on the immediate project."

Footnote 6: "Clarifying the standard of judicial review in land use matters: Has the Second Department pushed the pendulum back to the middle?" by David S. Steinmetz, Esq. And David J. Cooper, Esq., New York Zoning Law and Practice, Vol.12, No.4 (Jan/Feb, 2012).

Footnote 7: Elsewhere CALP admits the Town has discretion to entertain EPT's proposal. Petition, ¶ 40. "However, should the town decide to go forward", CALP asks the Town to consider certain limitations. See too, Petition, Exhibit D, CALP letter of April 3, 2012 (Town Board Doc. 23) wherein CALP states the "Town has the legal discretion not to entertain the petition."

Footnote 8: Affidavit in Opposition by Michael Mednick, Esq., as Town Attorney. ¶6, Town did not contemplate "a duality of ownership in the property contained within this district."¶ 11, "When most of the property was deeded to EPT, Town had a serious dilemma not having contemplated two owners for the original PRD acreage."

Footnote 9: "Article 78 actions are generally unavailable to challenge validity of a zoning ordinance; permissible to challenge procedures following its enactment, rather than the substance of the legislation" [Save the Pine Bush, Inc. v City of Albany, 70 NY2d 193 (1987)].

Footnote 10: See, EPT's Memorandum of Law, "Statement of Facts," subdivision entitled "The EPT Concord Project Would Immensely Benefit Sullivan County."

Footnote 11: CALP also complains that the Town's determinations should be vacated because they were not referred to the County Planning Department as required by NY General Municipal Law §239(m). Respondent notes that Petitioner did not address this issue in his responsive papers and, in effect, abandoned that argument, but that the record nevertheless shows the Town did comply with the submission requirement. A review of the record indicates correspondence from the Town to the Sullivan County Planning Department on several occasions together with responses from the County culminating in the County recommending "approval" of the plan (Town Board Doc.s 39, 50, 84, 93, 94 and 96. Planning Board Doc.s 57, 70).

Footnote 12: Phase 1 includes the "casino, hotel, harness horse racetrack, grandstand/showroom, simulcast facility, banquet event center, restaurants, parking facilities, related facilities, and other mitigation and related actions."

Footnote 13: Land use, community services, geology, natural resources, surface water and wetlands, storm-water management, water supply, sanitary sewer service, energy and telecommunications, traffic and transportation, air quality, noise, economic conditions, cultural resources, visual resources, hazardous materials, construction.

Footnote 14: The chapter identifies sixteen (16) intersections which must be evaluated for the GEIS and specifies the methodology for analyzing "usage and capacity" at each. For Phase I, the mandate is significantly less.

Footnote 15: EPT's traffic consultant noted that "we are having ongoing talks with NYSDOT and they are interested in accommodating pedestrians and are providing guidance "on design elements and analysis methods for testing roundabout scenarios" (Planning Board Doc. 86).

Footnote 16: "While we do not agree that the best methodology was used to make an evaluation of the safety issues, the method does clearly identify that there are" intersections of interest and "the Phase 1 project is not estimated to contribute significant volume to these intersections." S/he also recommended that EPT should consider continuing certain analyses and: make fair-share contribution' to Thompson for improvements on non-PRD roads which may experience increased traffic; study other ramp junctions " (Town Board Doc. 105).