Cranberry Hills Subdivision 1990-2002'JAN-25-2008 FRI 12:24 PM VERGIL S,STENGERROBERTS FAX NO, 8452982842 P. 01/10
GERALD A, VERGILIS*
KENNETH M. STENGER
ALBERT P. ROBERTS
THOMAS R. DAVIS
LOUIS J. VIGLOTTI
JOAN P. GARRETT**
KEVIN '1`. MC8.MOTT
ANGEL L FALCON
ANTHONY M, DEFAZIO***
JAMES P HORAN***
PAUL, J, HAGGERTY
0 ADMITTED TO PRACTICE
INNY & FLA_
** ADMITTED TO PRACTICE
IN NY & CONN.
*** ADMTTTED TO PRACTICE
IN NY & NJ
VERGILIS, STENG
ATTORNEYS
WAPPINGER'
FAX
Sender's &nth
Via Facsimile, E-mail & First Class Mail
Keane & Beane, P.C.
445 Hamilton Avenue
White Plains, New York 10601
Attention: Richard L. Q2.Rookke, Esq.
RE: Cranberry Hills, LLC v. Town of
Article 78 proceeding
Supreme Court, Westchester Coun
VSRD File No. 24059.0002
Dear :-eqkttRifke4,—
This letter will want] that I
service of the above referenced Article 78
Board of the Town of Wappinger in his o
James Horan of my office, the return da
B. Adler, J.S.C. on February 13, 2008 in
the Defendants shall waive the defense o
The parties have agreed that the T
so that they are received in your office o
reply papers upon the Town so that they
The return date of the special proceedii
understanding the rules of the Environm
unless directed by the Court.
Pursuant to CPLR 7804(e), the T
record of the proceedings under consider
record in this application, 1 suggest that t
the record for the matter, Le. plats and pia
review. I would think that the Court wo
record rather than a truckload of irrelevant
O:\Wppiner\Litistion\Crmberry Hills,L 12008- -24 Let
ROBERTS & DAVIS, LLP
COUNSEI,ORS AT LAW
6 ROUTE 9
LLS, NEW yoRK 12590
298-2000
5) 298-2842
ddrns: jhOroiLgYSTp.COM
January 24, 2008
ndex No. 306/2008
OF COUNSEL:
KAREN MacNlS1-1
LEGAL ASS IS'I'ANTS:
AMY E. DECARLO
MARIA L. JONES
CLOSING COORDINATOR:
SUSAN E. CAFFINI2,
POIJGHKEEPSIE OFFICE
276 MAIN IvLALL
POUGHKEEPSIE, NY 12601
(845)452-1046
N EW BURGH OFFICE
299 N. PLANK ROAD,, SUITE I 06
NEWBURGH, NY 12550
(845) 567-3783
authorized, effective January 14, 2008, to accept
ceeding on behalf of the Chairman of the Planning
al capacity. As per conversations with both me and
the Article 78 proceeding scheduled before Lester
Environmental Claims Part shall be adjourned and
k of personal service upon all Defendants.
shall serve its answering papers upon the Plaintiff
r before February 22, 2008. Plaintiff shall serve its
eceived in OUT office on or before March 10, 2008.
hall be adjourned until March 11, 2008. It is our
I Claims Part provide that there is no oral argument
1 is obligated to file "a certified transcript of the
n" with its answer, In view of the enormity of the
arties should stipulate which documents constitute
ters, etc., that would be necessary for the Court' s
appreciate a digest of the important parts of the
terial.
O'Rourke rf.; AdjournmonclOC
'3Af-25-2008 FRI 12:25 PM VERG I1. I S, STENGER, ROBERTS
Vergilis, Stenger Roberts & Davis, LLP
Letter to Richard L. O'Rourke
Attached please find a copy of the
above: If you have any questions please c
VERGILIS, STENGER, ROBERTS & D
ALBERT P. ROBERTS
APR/so
.Encl.
cc: Town Board File
Cranberry
ter to the
act me or J
IS, LLP
FAX NO. 8452982842 P. 02/10
January 24, 2008
Hills, LLC v. Town of Wappinger
•1
urrwhich conveys the details noted
es Horan.
JfiN25-2008 FRI 12:25 PM VERG I L IS, STENGER, ROBERTS FAX NO. 8452982842
GERALD A. VERGILIS''
KENNETHM. STENGI"a
I,LF3l�T�'r : ] 1CRT5
'LOCK J v Gtb'ITI:
‘1,w 13, q Rg rr"
KEVIN T. McDERMOTT
ANGEL I. FALOON
ANTHONY M. DEFAZIO•••
" ` J'AMES P IIQRAN«.• .
PAUL J. K GER1'Y
5 t
• ADMIrrEDTOPRACTICE
Al NY &FLA,
ADMITTED TO PRACTICE
IN NY&CONK,
•'• ADMrirEp TOO PRACTICE
INNYdiNJ
VERGILIS, STENGL
ATTORNEYS A
WAPPINGERS
i.�
FAX it
Sender's e-me
Clerk of the Environmental Claims Part
Richard J. Daronco Courthouse
111. Dr. Martin Luther King, Jr. Boulevard
White Plains, New York 10601
Re: Cranberry Hills, LL
Article 78 proeeedin
Supreme Court, Wei
Application for Adj t
VSRD File No. 2401
Dear Six or Madam:
I am the attorney for the Dcfcnda a
matter. I have spoken with Richard L. 0'
have consented to adjourn the return date Itl
Adler, J.S.C. in the Environmental Claims
.'such other time that the Court deems appn'
The parties have agreed that the T
so that they are received by Plaintiff s att
serve its reply papers upon the Town so tit
10, 2008. It is our understanding the rules
no oral argument unless directed by the Cc
I have been authorized by the T oN
Planning Board in his official capacity, ;.
parties that the Defendants shall waive the
Q:IW.ppingerlLitigatian\Cranberry 1-Ii11s,LLa 008-01-241-eli
ROBERTS & DAVIS, LLP
COUNSELORS AT LAW
ROUTE 9
'ALLS, NEW 1 ORK 12590
) 298-200(1
) 298-2 842
dress: jhont!k vsrp,com
January 24, 2008
Town of Wappinger, et al
ster County Index No. 306/2008
jnment on Consent
4}002
P. 03/10
OF COUNSEL:
KAREN MacN1SH
LEGAL ASS ISTANTS:
AMY E, DECARLO
MARIA L. JONES
CLOSING COORDINATOR:
SUSAN E. CAFFINE
POUGHKEEPSUF OFFICE"
276 MAIN MALL
POUGHKEEPSIE,NY 12601
(845) 452-1046
1' EWBURGH OFFICE
299 N. PLANK ROAD, SUITE 106
NEWBUKGH, NY 12550
(845) 567-3783
the Towle of Wappinger et al, in the above noted
rke, Esq., ,attorney for the Plaintiff, and both parties
e Article 78 proceeding scheduled before Lester B.
hit from February 13, 2008 to March 11, 2008, or at
ate.
shall serve its answering papers upon the Plaintiff
eys on or before February 22, 2008. Plaintiff shall
. they are received in our office on or before March
:.the Environmental Claims Part provide that there is
.! to accept iervice on behalf of the Chairman of the
iit is stipulated and agreed to by and between the
ifense of lack of proper service upon all Defendants.
>m Clerk of Env Parr re Adjoummcnt 4n Cunscnt.doc
,..JAR=25=2008 FRI 12:25 PM VERGILIS,STENGER ROBERTS
Vergilis, Stenger Roberts & Davis, LLP
Please contact the undersigned if th.. adjourned date is agreeable to the Court or if you
have any questions. Thank you for your coi
FAX NO. 8452982842 P. 04/10
ration and attention,
Very truly yours,
VERGILIS, STENGER, ROBERTS & DA S, LLP
ALBERT P. ROBERTS
APR/so
Encl.
Richard L, O'Rourke, Esq.
Town Board File
FAX NO. 8452982842
P. 05/10
25-2008 FRI 12:25 PM VERGILIS,STENGER,ROBERTS
• • I
ENYJRONM
Hon.
11 th Floor Chambe
Motion Cie
Room 808, T
ENVIRONMENTAL CL
Actions or proceedings rats
herein, shall be assigned in the firs
Claims Part (ECP) upon the filing
assignment to the ECP would be a
'natter, its index number and a stat
specific basis why the adjudicatio
served upon all parties.
The determination of whet
Justice is an administrative matter.
unrepresented party may seek to r
Administrative Judge a one page 1
all adverse counsel and unrepresei
Judge or his designee with respect
or appeal. Nothing, however, shal
from later transferring an appropri
Assignment to the ECP sh
' proceed on an expedited track.
CRITERIA FOR SELEC
The ECP may hear and det
predominant claims involve the ad
including but not limited to, poten
transportation, minerals, natural re
patterns_of population concentrate
neighborhood character and huma
A) Actions or Proceedings in
ma be Retained in the E
(i) determinations ma
Environmental Qu
Law, Urban Renew
TAL CLAIMS PART
cis A. Nicolai
Telephone: (914) 995-4100
Marion Madaffari,
ephone (914) 995-3818
S PART ASSIGNMENT PROCEDURES
substantial environmental issues, as set forth
stance by the Chief Clerk to the Environmental
an RJI together with a one page letter stating why
opria.tc. The letter shall set forth the name of the
ent indicating the nature of the action and the
the ECP would be appropriate. The letter must be
a matter is to be assigned to the ECP or to an IAS
ithin 10 days of service of the RJI, counsel or any
ew this determination by submitting to the
r, including the criteria set forth above, on notice to
parties. The determination of the Administrative
this review is final and subject to no further review
revent the Administrative Judge or his designee
case from the ECP to an IAS part.
by-pass the DCM Preliminary Conference Part and
ON TO ENVIRONMENTAL CLAIMS PART
ine disputes and controversies where the
ication of potential impacts to the environment,
l impacts to the land, air, water, traffic and
urces, forest management, flora, fauna, noise,
, distribution or growth, existing community
ealth.
hick the principal claims involve the following
ironrnental Claims Part:
nder, among other environmental laws, the State
Review Act, State Environmental Conservation
Law, Eminent Domain and Procedure Law, New
;TAN=252008 FRI 12:25 PM VERGILIS,STENGER,ROBERTS
York State Historic
relevant governing i
environmental criteri
(ii) determinations made
Wetland Board or Cc
zoning, subdivision,
interpretations, and
based on environmen
(iii) determinations of to
(iv) regulatory taking an
other enviromnentall
determinations;
(v) determinations made
Regulations, the Ne
York State Departm
of the water supply;
(vi) actions involving the
or recovery relating t
those elements, wast
regulated as hazards
to, without limitatior
Navigation Law, Ind
Hazardous Waste Di
Act, Comprehensive
Act, Clean Water Ac
National Emission Si
Labor Industrial Cod
Act, and all other la
may be amended or
hazardous and toxic
The following Actions and
Environmental Claims Pa
(i) challenges to the gra
single-family, two-f
(ii) challenges involving
family or three famil
(iii) any of the aforement
controversies by or a
FAX NO, 8452982842 P. 06/10_
eservation Act, Costal Erosion Law, and the
implementing rules and licenses based on
y a local Legislative body, Planning Board, and
ission, including, the approval or denial of
etland, site plan and excavation permits, regulatory
er land disturbance and other permits and licenses
al criteria;
Zoning Boards of Appeals;
other constitutional claims challenging land use and
related laws, regulations, ordinances and
nder the New York City Watershed Rules and
York City Water Supply and Sources, and the New
t of Health Regulations pertaining to the protection
emediation, civil enforcement and/or cost allocation
the discharge, threatened discharge or regulation of
materials, substances or compounds identifed or
or toxic under local, state or federal law, pursuant
New York State common law, the New York State
strial Hazardous Waste Management Act, Inactive
osal Sites, Resource Conservation and Recovery
nvironmental Response Compensation and Liability
Lead Based Paint Hazardous Reduction Act,
dard or Asbestos, New York State 'Department of
Rule 56, Insecticide, Fungicide and Rodenticide
regulations, legal requirements, and statutes, as
acted from time to time, relating to the regulation of
bstances and the protection of the environment;
roeeedings may be Excluded from the
ting or denial of area variances involving
'ly or three family residences;
asernent disputes by or among single-family, two
residences;
ned core environmental cases involving disputes or
ong single-family, two-family or three family
f725=2008 FRI 12:25 PM VERGILIS,STENGER,ROBERTS
FAX NO. 8452982842 P. 07/1..0
residences, except as Oey relate to the discharge, threatened discharge or
regulation of those elfmcnts, wastes, materials, substances or compounds
identified or regulate4. as hazardous or toxic materials as set forth in the
above subparagraph (4); provided that the ECP justice may accept such
cases in the event the' he or she determines in his or her discretion that the
action involves exceptional or unique issues of environmental law or the
resolution of the action could potentially result in significant
environmental impacts;
(iv) determination of corn jensation under Article 5 of the Eminent Domain
and Procedure Law;
(v) criminal enforcement and other criminal proceedings;
(vi) matters arising undethe Occupational Safety and Health Act; or
(vii) all matters to be tried
GENERAL RULES
A. Appearances by Counsel with Knowledge and Authority
Counsel who appear in the ECP must be familiar with the case in
regard to which they appear end tally authorized to enter into agreements, both
substantive and procedural, rn behalf of their clients. Attorneys appearing of
counsel to the attorney of record, and parties appearing pro se, shall be held to the
same requirement. Failure to comply with this rule may be regarded as a default
and dealt with appropriately, It is important that counsel be on time for all
scheduled appearances.
B. Settlements and Di 'continuances
If an action is settled, discontinued or otherwise disposed of,
counsel shall immediately in brm the court by submission of a copy of the
stipulation or a letter directei to the Clerk of the ECP. Filing a stipulation of
discontinuance with the CouPty Clerk shall not be sufficient.
C. Papes by FAX 1 r.
The ECP dos not accept papers of any sort by fax unless
indicated otherwise by the Curt in advance in a particular case. Copies of letters
confirming an adjournmenta motion or a conference may be sent to the Court
at its chambers. However, th original dell correspondence must be mailed to the
Clerk of the ECP.
MOTION PRACTICE
The Court will enterNn motions on submission on each day when Court
25 PM VERG I L IS, STENGER, ROBERTS
FAX NO. 8452982842 P. 08/10
is in session. There shall be to motion calendar called by the Court. There shall
be no oral arguments heard motions and no appearances shall be required
unless the Court otherwise d rects. Questions or problems concerning the motion
calendar should be addressee to the Clerk of the ECP.
Filing of Palters
Except with the cxpross permission of the Court, all motion papers
submitted to the Court, incluJing Orders to Show Cause, must be typewritten and
all exhibits must be labeled with tab markings and entirely legible. Motion papers
and all correspondence mustindicate the index number assigned to the action.
Counsel shall simultaneous) submit with their motion a disc version saved in
Wordperfect 8.0 or translatal le into same of the affidavits, affirmations and
memoranda submitted with the motion papers. Courtesy copies should not be
submitted.
R eauests for Temporary Restrain ng Orders
When an order to showy cause is to be presented to the Court which seeks a
temporary restraining order, ;ounsel for the moving party must first communicate
by telephone or fax transmis ion with counsel for all adverse parties and with any
unrepresented adverse partie , to advise such counsel or parties that a request for
a temporary restraining orde shall be made to this Court and that such counsel or
parties have the right to be h .ard on the application. A conference on the request
for a temporary restraining order shall be conducted by the Court at 2:00 p.m. on
the first day that the Court is in session following the day on which the order to
show cause is presented. Fol owing the conference, either by way of a bench
decision or a written decisiol , the Court shall render its determination only on the
request for a temporary restraining order. No request for a temporary restraining
order shall be considered wi►'iout a conference unless the moving party
demonstrates to the Court th t the conducting of such a conference will clearly
cause the moving party irreparable injury. In such instance, however, notice must
still be given to any nzuniciN1 party.
•
otio�/Petition Return Date
The moving party nt^y select a motion/petition return date which shall be
set forth in the notice of mot on/petition. Motions/petitions may be made
returnable at 9:30 a.m. on ary day of the week on which the Court is in session. In
those instances in which a tition/pctition is brought by order to show cause, the
motion/petition return date s be determined by the Court.
Motion Adjournments
Upon the consent of ll attorneys, the Court will routinely grant an
adjournment of a motion. T e attorney seeking the adjournment must obtain the
consent of opposing counsel and notify the Clerk of the ECP of the requested
adjourned date at least 48 he ,trs before the return date. The Court will then assign
an adjourned date for the anion. In assigning that date, the Court shall give
.JAI( 25-2008 FRI 12:25 PM VERG I L I S, STENGER ROBERTS . FAX NO, 8452982842 P. 09/10 .
consideration to any date.agr ;ed upon by all counsel.
All non-consensual requests to adjourn the return date ofa motion require
Court approval, which shall 'be directed to the Clerk of the ECP at least 48 hours
before the return date. Prior :o seeking permission from the Court, the requesting
counsel must first attempt to 3btain consent from all other counsel in the action.
Length of Papers
Unless otherwise per flitted by the Court for good cause, briefs shall not
exceed 70 pages and reply br efs shall not exceed 30 pages. Affidavits and
affirmations shall not exceed 25 pages each. Papers submitted to the Court in
violation of this rule may no, be considered by the Court without notice to the
submitting party in advance of the decision on the motion.
• Filing of Papers for Adjourned Motions
if the Court, upon its )wn motion, adjourns the return date, no additional
papers will be allowed to be submitted beyond the service dates for the original
motion return date, except la} leave of the Court.
Papers Required on Particular MI flops
1. On any motion seeking summary judgment, dismissal of a
complaint/petition, cross-clattn or counterclaim, or the striking of a pleading,
copies of all pleadings filed s of the date of the motion must be provided to the
Court by the moving party. The failure to comply with this requirement shall
result in the denial of the mo ion unless the pleadings are provided to the Court by
another party.
2. On any motion see•:ing leave to renew or reargue a prior motion, copies
of all papers submitted on the prior motion must be provided to the Court by the
moving party. The failure to &comply with this requirement shall result in the
denial of the motion unless fee papers on the prior motion are provided to the
Court by another party.
3_ When an order to snow cause is presented to the Court which seeks a
temporary restraining order 4 r a preliminary injunction, copier of the summons
and complaint or petition co• imencing the underlying action must be provided to
the Court by the moving path. No order to show cause seeking such relief will be
considered by the Court ifthr moving party fails to comply with this requirement.
ReplyPaners -
Counsel shall not setforth factual claims or legal arguments in reply
papers which were not set forth in the papers initiating the motion.
Sur -Reply and Post -Submission P tilers
Counsel are reminder. that the CPLR does not provide for sur-reply
papers, however denominate-1. Nor is the presentation of papers or letters to the
5-200.8 FRI 12:25 PM VERGILIS,STENGER ROBERTS
FAX NO. 8452982842 P. 10/1.0
.Court after submission of a n otion permitted. Absent express permission in
advance, such materials will )e filed with the County Clerk unread. Opposing
counsel who receives a copy of materials submitted in violation of this rule
should not respond in kind.
Motion Decisions and Orders
1. By Written Decisioryof the Court: In most instances, a written Decision
and Order will be issued foil wing the submission of the motion. This Decision
and Order, with supporting papers, will be filed in the Westchester County
ClerkOs Office by the Court. A copy of the Decision and Order shall be sent to
counsel who have submitted x self addressed envelope with first class postage
affixed, after filing.
EX PARTE
The ECP sits "ex part" at all times for matters assigned to it. All ex parts
matters are filed with the Calendar Office. The Clerk of the Supreme Court
will review an ex parte appli ation on an expedited basis to determine whether it
is a ECP matter. All ex party applications will be forwarded to the ECP, unless
- the ECP Judge is not availab e. Under these circumstances, the regular IAS Duty
Judge will act in his place. !!lowing review and action, if any, by the regular
IAS Duty Judge, the case wi be returned to the ECP.
CONFERENCES
It is envisioned that 4elirninary, discovery and pretrial conferences will
not be required for the mattes selected for the ECP. However, the purpose of this
Court is to help litigants resc ve their disputes in a fair and equitable manner.
Should the attorneys have nd of the C'ourt's services at any time, a conference
with all parties present in pc on or by telephone can be arranged through the
Court's staff. Attorneys are !minded, however, that ex parte communications to
the Court are prohibited by t,e CPLR and the Code of Professional Conduct.
.ilAin A. VERGILIS+
KENNFTHM STENGER
Al BERT P ROB E R Ts
..iromAs R. DAVIS
LOUIS J. V1C3LOTTI
!(7)AN F. GARRE11."
KE V1NT MeDERMOTT
ANGEL I. FALCON
.11'.1"FlIONY M. DEFA7K)***
JAMLS P. 110RAN""
PAUL J FIAGGFRTY
ADmirrED're PRACTICE
IN NY 8: FLA.
ADM rITED TO PRACTICF,
IN NY ez CONN
' • ADM l'ITED C) ['RAC ICk
IN NY & N:
‘7ERGILIS„ STENGER, ROBERTS & LLP
ATTORNEYS AND COUNSELORS AT LAW
1136 ROUTE, 9
WAPPINGERS FALLS, NEW YORK 12590
(845) 298-201)))
FAX (845) 298-2842
Sender's e-mail address: ilmran'irsrp.c rin
Via Facsimile, E-mail & First Class Mail
Keane & Beane, P.C.
445 Hamilton Avenue
White Plains, New York 10601
Attention: Richard L. O'Rourke, Esq.
January 24, 2008
RE: Cranberry Hills, LLC v. Town of Wappinger
Article 78 proceeding
Supreme Court, Westchester County Index No. 306/2008
VSRD File No. 24059.0002
Dear Mr. O'Rourke:
()UNSV.I.
KARI:N MacNISI I
LEciAi AssisTANTS
AMY E DECARLO
MARIA I. JONES
CLOSING COOifl)INATOP:
SUSAN E., ('API INE
P(..ThGlIKEEPSIE OFFICF
276 MAIN MALL
POUGHKEEPSIE, NY 12601
(845) 452-1046
NEW1305G11 OFFICE,
299 N. PLANK ROAD, SUITE 106
1\ill'..NBURGIT NY 12550
(845) 567-3783
This letter will confirm that I was authorized,. effective January 14, 2008, to accept
service of the above referenced Article 78 proceeding on behalf of the Chairman of the Planning
Board of the Town of Wappinger in his official capacity. As per conversations with both me and
James Horan of my office, the return date of the Article 78 proceeding scheduled before Lester
B. Adler, J.S.C. on February 13, 2008 in the .Environmental Claims Part shall be adjourned and
the Defendants shall waive the defense of lack of personal service upon all Defendants.
Theparties have agreed that the Town shall serve its answering papers upon the Plaintiff
so that they are received in your office on or before February 22, 2008. Plaintiff shall serve its
reply papers upon the Town so that they are received in our office on or before March 1.0, 2008.
The return date of the special proceedi.ngshall be adjourned until March 11, 2008. It is our
understanding the rules of the Environmental Claims Part provide that there is no oral argument
unless directed by the Court.
Pursuant to CPLR 7804(e)„ the Town is obligated to file "a certified transcript of the
record of the proceedings under consideration" with its answer. In view of the enormity of the
record in this application, I suggest that the parties should stipulate which documents constitute
the record for the matter, i.e. plats and plans, letters, etc., that would be necessary for the Coitrt's
review. I would think that the Court would appreciate a digest of the important parts of the
record rather than a truckload of irrelevant material.
iitl.,L(S',2008-0 1 .14 ,,,,,dtmorArn:nt
Vergilis, Stenger Roberts & Davis, LLP January 24, 2008
Letter to Richard L. O'Rourke Cranberry Hills, LLC v. Town of Wappinger
Attached please find a copy of the letter to the Court which conveys the details noted
above. If you have any questions please contact me or James Horan.
Very truly yours,
VERGILIS, STENGER, ROBERTS & DAVIS, LLP
< r-1
`ALBERT P. ROBERTS
APR/so
Encl.
cc: Town Board File
GERALD A. VERGILIS*
KENNETH M. STENGER
ALBERT P. ROBERTS
THOMAS R. DAVIS
LOUIS.I. VIGLOTTI
JOAN F. GARRETT**
KEVIN T. McDERMOTT
ANGEL 1. FALCON
ANTHONY M. DEFAZIO***
JA&MES P. HORAN***
PAUL J. HAGGERTY
* ADMITTED TO PRACTICE
IN NY & FLA.
ADMITTED TO PRACTICE
IN NY & CONN,
*** ADMITTED TO PRACTICE
IN NY & NJ
VERGILIS, STENGER, ROBERTS & DAVIS, LLP
ATTORNEYS AND COUNSELORS AT LAW
1136 ROUTE 9
WAPPINGERS FALLS, NEW YORK 12590
(845) 298-2000
FAX (845) 298-2842
Sender's e-mail address: jhoran@vsrp.com
Clerk of the Environmental Claims Part
Richard J. Daronco Courthouse
111 Dr. Martin Luther King, Jr. Boulevard
White Plains, New York 10601
January 24, 2008
Re: Cranberry Hills, LLC v. Town of Wappinger, et al
Article 78 proceeding
Supreme Court, Westchester County Index No. 306/2008
Application for Adjournment on Consent
VSRD File No. 24059.0002
Dear Sir or Madam:
OF COUNSEL:
KAREN MacN1SH
LEGAL ASSISTANTS:
AMY E. DECARLO
MARIA L. JONES
CLOSING COORDINATOR:
SUSAN E. CAFFINE
POUGHKEEPSIE OFFICE
276 MAN MALL
POUGHKEEPSIE_ NY 12601
(845) 452-1046
NEWBURGH OFFICE
299 N. PLANK ROAD, SUITE 106
NEWBURGH, NY 12550
(845) 567-3783
I am the attorney for the Defendants, the Town of Wappinger et al, in the above noted
matter. I have spoken with Richard L. O'Rourke, Esq., attorney for the Plaintiff, and both parties
have consented to adjourn the return date of the Article 78 proceeding scheduled before Lester B.
Adler, J.S.C. in the Environmental Claims Part from February 13, 2008 to March 11, 2008, or at
such other time that the Court deems appropriate.
The parties have agreed that the Town shall serve its answering papers upon the Plaintiff
so that they are received by Plaintiff's attorneys on or before February 22, 2008. Plaintiff shall
serve its reply papers upon the Town so that they are received in our office on or before March
10, 2008. It is our understanding the rules of the Environmental Claims Part provide that there is
no oral argument unless directed by the Court.
I have been authorized by the Town to accept service on behalf of the Chairman of the
Planning Board in his official capacity, and it is stipulated and agreed to by and between the
parties that the Defendants shall waive the defense of lack of proper service upon all Defendants.
0:1Wappinger\Litiaation\Cranberry Hi0s.LLC12008-01-24 Letter to Clerk of Env Part re Adjournment on i onsenLduc
Vergilis, Stenger Roberts & Davis, LLP
Please contact the undersigned if the adjourned date is agreeable to the Court or if you
have any questions. Thank you for your cooperation and attention.
Very truly yours,
VERGILIS, STENGER, ROBERTS & DAVIS, LLP
`SAT DD'DTD DARE T'
L'1LLLlt1 1 1 '.YJ_P Jk'. t L)
APR/so
Encl.
cc: Richard L. O'Rourke, Esq.
Town Board File
ENVIRONMENTAL CLAIMS PART
Hon. Francis A. Nicolai
11th Floor Chambers, Telephone: (914) 995-4100
Motion CIerk: Marion Madaffari,
Room 808, Telephone (914) 995-3818
1. ENVIRONMENTAL CLAIMS PART ASSIGNMENT PROCEDURES
Actions or proceedings raising substantial environmental issues, as set forth
herein, shall be assigned in the first instance by the Chief Clerk to the Environmental
Claims Part (ECP) upon the filing of an RJI together with a one page letter stating why
assignment to the ECP would be appropriate. The letter shall set forth the name of the
matter, its index number and a statement indicating the nature of the action and the
specific basis why the adjudication in the ECP would be appropriate. The letter must be
served upon all parties.
The determination of whether a matter is to be assigned to the ECP or to an IAS
Justice is an administrative matter. Within 10 days of service of the RJI, counsel or any
unrepresented party may seek to review this determination by submitting to the
Administrative Judge a one page letter, including the criteria set forth above, on notice to
all adverse counsel and unrepresented parties. The determination of the Administrative
Judge or his designee with respect to this review is final and subject to no further review
or appeal. Nothing, however, shall prevent the Administrative Judge or his designee
from later transferring an appropriate case from the ECP to an TAS part.
Assignment to the ECP shall by-pass the DCM Preliminary Conference Part and
proceed on an expedited track.
2. CRITERIA FOR SELECTION TO ENVIRONMENTAL CLAIMS PART
The ECP may hear and determine disputes and controversies where the
predominant claims involve the adjudication of potential impacts to the environment,
including but not limited to, potential impacts to the land, air, water, traffic and
transportation, minerals, natural resources, forest management, flora, fauna, noise,
patterns of population concentrations, distribution or growth, existing community
neighborhood character and human health.
A) Actions or Proceedings in which the principal claims involve the following
may be Retained in the Environmental Claims Part:
(i) determinations made under, among other environmental laws, the State
Environmental Quality Review Act, State Environmental Conservation
Law, Urban Renewal Law, Eminent Domain and Procedure Law, New
York State Historic Preservation Act, Costal Erosion Law, and the
relevant governing and implementing rules and licenses based on
environmental criteria;
(ii) . determinations made by a local Legislative body. Planning Board, and
Wetland Board or Commission, including, the approval or denial of
zoning, subdivision, wetland, site plan and excavation permits, regulatory
interpretations, and other land disturbance and other permits and licenses
based on environmental criteria;
(iii) determinations of local Zoning Boards of Appeals;
(iv) regulatory taking and other constitutional claims challenging land use and
other environmentally related laws, regulations, ordinances and
determinations;
(v) determinations made under the New York City Watershed Rules and
Regulations, the New York City Water Supply and Sources, and the New
York State Department of Health Regulations pertaining to the protection
of the water supply; or
(vi) actions involving the remediation, civil enforcement and/or cost allocation
or recovery relating to the discharge, threatened discharge' or regulation of
those elements, wastes, materials, substances or compounds identified or
regulated as hazardous or toxic under local, state or federal law, pursuant
to, without limitation, New York State common law, the New York State
Navigation Law, Industrial Hazardous Waste Management Act, Inactive
Hazardous Waste Disposal Sites, Resource Conservation and Recovery
Act, Comprehensive Environmental Response Compensation and Liability
Act, Clean Water Act, Lead Based Paint Hazardous Reduction Act,
National Emission Standard or Asbestos, New York State Department of
Labor Industrial Code Rule 56, Insecticide, Fungicide and Rodenticide
Act, and all other laws regulations, legal requirements, and statutes, as
may be amended or enacted from time to time, relating to the regulation of
hazardous and toxic substances and the protection of the environment;
2) The following Actions and Proceedings may be Excluded from the
Environmental Claims Part:
(i) challenges to the granting or denial of area variances involving
single-family, two-family or three family residences;
(ii) challenges involving easement disputes by or among single-family, two
family or three family residences;
(iii) any of the aforementioned core environmental cases involving disputes or
controversies by or among single-family, two-family or three family
residences, except as they relate to the discharge, threatened discharge or
regulation of those elements, wastes, materials, substances or compounds
identified or regulated as hazardous or toxic materials as set forth in the
above subparagraph (vi); provided that the ECP justice may accept such
cases in the event that he or she determines in his or her discretion that the
action involves exceptional or unique issues of environmental law or the
resolution of the action could potentially result in significant
environmental impacts;
(iv) determination of compensation under Article 5 of the Eminent Domain
and Procedure Law;
(v) criminal enforcement and other criminal proceedings;
(vi) matters arising under the Occupational Safety and Health Act; or
(vii) all matters to be tried.
3. GENERAL RULES
A. Appearances by Counsel with Knowledge and Authority
Counsel who appear in the ECP must be familiar with the case in
regard to which they appear and fully authorized to enter into agreements, both
substantive and procedural, on behalf of their clients. Attorneys appearing of
counsel to the attorney of record, and parties appearing pro se, shall be held to the
same requirement. Failure to comply with this rule may be regarded as a default
and dealt with appropriately. It is important that counsel be on time for all
scheduled appearances.
B. Settlements and Discontinuances
If an action is settled, discontinued or otherwise disposed of,
counsel shall immediately inform the court by submission of a copy of the
stipulation or a letter directed to the Clerk of the ECP. Filing a stipulation of
discontinuance with the County CIerk shall not be sufficient.
C. Papers by FAX
The ECP does not accept papers of any sort by fax unless
indicated otherwise by the Court in advance in a particular case. Copies of letters
confirming an adjournment of a motion or a conference may be sent to the Court
at its chambers. However, the original of all correspondence must be mailed to the
Clerk of the ECP.
4. MOTION PRACTICE
The Court will entertain motions on submission on each day when Court
is in session. There shall be no notion calendar called by the Court. There shall
be no oral arguments heard on motions and no appearances shall be required
unless the Court otherwise directs. Questions or problems concerning the motion
calendar should be addressed to the Clerk of the ECP.
A. Filing of Papers
Except with the express permission of the Court, all motion papers
submitted to the Court, including Orders to Show Cause, must be typewritten and
all exhibits must be labeled with tab markings and entirely legible. Motion papers
and all correspondence must indicate the index number assigned to the action.
Counsel shall simultaneously submit with their motion a disc version saved in
Wordperfect 8.0 or translatable into sane of the affidavits, affirmations and
memoranda submitted with the motion papers. Courtesy copies should not be
submitted.
B. Requests for Temporary Restraining Orders
When an order to show cause is to be presented to the Court which seeks a
temporary restraining order, counsel for the moving party must first communicate
by telephone or fax transmission with counsel for all adverse parties and with any
unrepresented adverse parties, to advise such counsel or parties that a request for
a temporary restraining order shall be made to this Court and that such counsel or
parties have the right.to be heard on the application. A conference on the request
for a temporary restraining order shall be conducted by the Court at 2:00 p.m. on
the first day that the Court is in session following the day on which the order to
show cause is presented. Following the conference, either by way of a bench
decision or a written decision, the Court shall render its determination only on the
request for a temporary restraining order. No request for a temporary restraining
order shall be considered without a conference unless the moving party
demonstrates to the Court that the conducting of such a conference will clearly
cause the moving party irreparable injury. In such instance, however, notice must
still be given to any municipal party.
3. Motion/Petition Return Date
The moving party may select a motion/petition return date which shall be
set forth in the notice of motion/petition. Motions/petitions may be made
returnable at 9:30 a.m. on any day of the week on which the Court is in session. In
those instances in which a motion/petition is brought by order to show cause, the
motion/petition return date shall be determined by the Court.
D. Motion Adjournments
Upon the consent of all attorneys, the Court will routinely grant an
adjournment of a motion. The attorney seeking the adjournment must obtain the
consent of opposing counsel and notify the Clerk of the ECP of the requested
adjourned date at least 48 hours before the return date. The Court will then assign
an adjourned date for the motion. In assigning that date, the Court shall give
consideration to any date agreed upon by all counsel.
All non-consensual requests to adjourn the return date of a motion require
Court approval, which shall be directed to the Clerk of the ECP at least 48 hours
before the return date. Prior to seeking permission from the Court, the requesting
counsel must first attempt to obtain consent from all other counsel in the action.
E. Length of Papers
Unless otherwise permitted by the Court for good cause, briefs shall not
exceed 70 pages and reply briefs shall not exceed 30 pages. Affidavits and
affirmations shall not exceed 25 pages each. Papers submitted to the Court in
violation of this rule may not be considered by the Court without notice to the
submitting party in advance of the decision on the motion.
F. Filing of Papers for Adjourned Motions
. If the Court, upon its own motion, adjourns the return date, no additional
papers will be allowed to be submitted beyond the service dates for the original
motion return date, except by leave of the Court.
G. Papers Required on Particular Motions
1. On any motion seeking summary judgment, dismissal of a
complaint/petition, cross -claim or counterclaim, or the striking of a pleading,
copies of all pleadings filed as of the date of the motion must be provided to the
Court by the moving party. The failure to comply with this requirement shall
result in the denial of the motion unless the pleadings are provided to the Court by
another party.
2. On any motion seeking leave to renew or reargue a prior motion, copies
of all papers submitted on the prior motion must be provided to the Court by the
moving party. The failure to comply with this requirement shall result in the
denial of the motion unless the papers on the prior motion are provided to the
Court by another party.
3. When an order to show cause is presented to the Court which seeks a
temporary restraining order or a preliminary injunction, copies of the summons
and complaint or petition commencing the underlying action must be provided to
the Court by the moving party. No order to show cause seeking such relief will be
considered by the Court if the moving party fails to comply with this requirement.
H. Reply Papers
Counsel shall not set forth factual claims or legal arguments in reply
papers which were not set forth in the papers initiating the motion.
I. Sur -Reply and Post -Submission Papers
Counsel are reminded that the CPLR does not provide for sur-reply
papers, however denominated. Nor is the presentation of papers or Ietters to the
Court after submission of a motion permitted. Absent express permission in
advance, such materials will be filed with the County CIerk unread. Opposing
counsel who receives a copy of materials submitted in violation of this rule
should not respond in kind_
J. Motion Decisions and Orders
1. By Written Decision of the Court: In most instances, a written Decision
and Order will be issued following the submission of the motion. This Decision
and Order, with supporting papers, will be filed in the Westchester County
- C1erkOs Office by the Court. A copy of the Decision and Order shall be sent to
coun.sei who have submitted a self addressed envelope with first class postage
affixed, after filing.
5. EX PARTE
The ECP sits "ex parte" at all times for matters assigned to it. All ex parte
matters are filed with the Civil Calendar Office. The Clerk of the Supreme Court
will review an ex parte application on an expedited basis to determine whether it
is a ECP matter. All ex parte applications will be forwarded to the ECP, unless
the ECP Judge is not available. Under these circumstances, the regular IAS Duty
Judge will act in his place. Following review and action, if any, by the regular
I_AS Duty Judge, the case will be returned to the ECP.
6. CONFERENCES
It is envisioned that preliminary, discovery and pretrial conferences will
not be required for the matters selected for the ECP. However, the purpose of this
Court is to help litigants resolve their disputes in a fair and equitable manner.
Should the attorneys have need of the Court's services at any time, a conference
with all parties present in person or by telephone can be arranged through the
Court's staff. Attorneys are reminded, however, that ex parte communications to
the Court are prohibited by the CPLR and the Code of Professional Conduct.
GERALD A. VERGILIS
KENNETH M. STENGER
ALBERT P. ROBERTS
IRA A. PERGAMENT
ANTONIA T. LUCIA
JOAN F. GARRETT**
THOMAS R. DAVIS
CHRIS MULARADELIS
.A.DmrrrED TO PRACTICE
EN NY & FLA.
”ADMITTED TO PRACTICE
IN NY & CONN.
February 24, 1997
VERGILIS, STENGER, ROBERTS & PERGAMENT
AFIORNEYS AND COUNSELORS AT LAW
1611 ROUTE 9
WAPPINGERS FALLS, NEW YORK 12590
(914) 298-2000
FAX (914) 298-2842
Hon. Constance O. Smith, Supervisor
Town of Wappinger
20 Middlebush Road
Post Office Box 324
Wappingers Falls, New York 12590
Re: Cranberry Hills
Our File No: 12951.0042
Dear Connie:
LEGAL ASSISTANTS:
DALE O'DONNELL
AMY E. WOODARD
POUGHKEEPSIE OFFICE
276 MAIN MALL
POUGHKEEPSIE, NY 12601
(914) 452-1046
ADDRESS REPLY TO: ) POUGHKEEPSIE
) wAPpING 'EPS
This letter will confirm that a meeting will take place in your office at Town Hall on Thursday,
February 27, 1997, between you, Harold L. Mangold, Esq., his engineer, Jay Paggi, and myself
in order to discuss and to attempt to resolve the above referenced matter.
If you have any questions, please do not hesitate to call.
Very truly yours,
VERGILIS, STENGER, ROBERTS & PERGAMENT
'ALERT P. R BERTS
APR/jwm
cc: Joseph E. Paggi, Jr., P.E.
Harold L. Mangold, Esq.
)
TOWN OF WAPPINGER
CONSTANCE O. SMITH
SUPERVISOR
TELEPHONE: (914) 297-2744
FAX: (914) 297-4558
December 27, 1996
Mr. Alfred J. Liverzani
84 Business Park Drive
Armonk, New York 10504
Dear Mr. Liverzani:
SUPERVISOR'S OFFICE
20 MIDDLEBUSH ROAD
P.O. BOX 324
WAPPINGERS FALLS, NY 12590-0324
As per our phone conversation this morning, 1 am
confirming the numbers I gave you.
The estimate for eight weeks of research work by the
Town's professionals is as follows:
* $35,000.00
* $25,000.00
* $ 7,500.00
Engineer-----Paggi & Martin
Planner ------Frederick P. Clark Assoc
Attorney-----Vergilis, Stenger,
Roberts & Pergament
$67,500.00 TOTAL
As agreed to at our December 12, 1996 meeting, this is
an escrow estimate for eight weeks work. After four weeks,
the escrow account will be reviewed and you will be advised
as to where. you stand with escrow.
The Town will wait to hear from you as to your decision
whether we should proceed with the research or not.
If I can be of further assistance, please do not
hesitate to call.
Sincerely,
Azcid7
Constance O. Smith
Supervisor
COS:dlv
cc: Mr. L. Henkind
;2/ (6)/(,
PAGGI & MARTIN
Consulting Engineers & Land Surveyors
54-56 Main Street
Poughkeepsie, New York 12601
914-471-7898
914-471-0905 (FAX)
December 12, 1996
Town Board
Town of Wappinger
P.O. Box 324
Wappingers Falls, New York 12590
Attention: Constance O. Smith, Supervisor
IVE
DEC 1 6. 1996
SUPERVISORSOFFICE
TOWNOFWAPPINGER
Reference: Cranberry Hills
Dear Supervisor Smith & Board Members:
On December 12, 1996, I attended a meeting at the Town Hall regarding
the Cranberry Hills Subdivision.
Apparently, there is a group that is a Contract Vendee to purchase the
property, and is gathering information regarding any outstanding items of
work that will need to be done prior starting construction.
As the Board knows, this subdivision goes back approximately twenty
years and was finally approved thirteen years ago. Obviously, this time
period predates all of us, and my level of familiarity with the project is
next to nothing.
The buyer has asked the Town to furnish them with a laundry list of
required improvements. To accomplish this work it will take a significant
amount of time in both finding the approved documents and reviewing
them.
At that point in time, I would like to submit a report to the Town with my
findings on the approved documents. I say this because there has been
some obvious changes in design standards since the late 70's when the
project was designed, and I would like to bring the Board in focus as to
what the approved documents actually reflect.
With that in mind, the Developer asked us to furnish him with an escrow
account number that could be anticipated to compensate for this review
time. I analyzed two months worth of work to accomplish the above task
and have determined an escrow account in the amount of $35,000.00
should be maintained for our offices review.
The ease at which we find the documents and the amount of time that
we spend formulating a status report will dictate what the final amount of
hours required will be to complete the tasks.
Joseph E. Paggi, Jr., P.E. Ernst Martin, Jr., PE, L.S.
prrnred on recycled paper
Constance O. Smith 2 - December 12, 1996
RE: Cranberry Hills
At that end of one month, I will write a status report for the Town so
they may advise the Developer the progress of the report.
If there are any questions, please do not hesitate to contact this office.
Very truly yours,
Joseph
—
Joseph E. Paggi, Jr., P.E.
JEP:law
cc: Planning Board
Don Close
Albert P. Roberts, Esq.
Ann Buckley
GERALD A. VERGILIS*
KENNETH M. STENGER
ALBERT P. ROBERTS
IRA A. PERGAMENT
ANTONIA T. LUCIA
JOAN F. GARRETT**
THOMAS R. DAVIS
CHRIS MULARADELIS
•ADMITLED TO PRACTICE
IN NY & FLA.
ADMITTED TO PRACTICE
IN NY & CONN.
VERGILIS, STENGER, ROBERTS & PERGAMENT
ATTORNEYS AND COUNSELORS AT LAW
1611 ROUTE 9
WAPPINGERS FALLS, NEW YORK 12590
(914) 298-2000
FAX (914) 298-2842
December 20, 1996
* VIA FACSIMILE AND REGULAR MAIL *
Town Board, Town of Wappinger
20 Middlebush Road
Post Office Box 324
Wappingers Falls, New York 12590
Attn: Hon. Constance O. Smith, Supervisor
Re: Cranberry Hills Subdivision
Our File No: 12951.0043
Dear Connie:
LEGAL ASSISTANTS:
DALE O'DONNELL
AMY E. WOODARD
POUGHKEEPSIE OFFICE
276 MAIN MALL
POUGHKEEPSIE, NY 12601
(914) 452-1046
ADDRESS REPLY TO: ) POUGHKEEPSIE
) WAPPINGERS
8:30NicicNA4 0' NM 01
301*1.0 RHOSIA 8-3d 11 S
966t 0 '(.! (1
My estimate for legal fees in connection with the review of the Cranberry Hills Subdivision for
the next two months is estimated to be between S6,000.00 and $7,500.00. The amount of work
needed may be more or less depending on the work required to implement the Resolution of
Subdivision Approval. Unfortunately, we won't know what is required until the Town's records
are thoroughly reviewed.
Very truly yours,
VERGILIS, STENGER, ROBERTS & PERGAMENT
ALBERT P. ROBERTS
APRijwm
cc: Joseph E. Paggi, Jr., P.E.
FREDE 1CK P. CLA K ASSOC1AT S, II C.
Planning/Development/Environment/Transportation
Rye, New York and Southport, Connecticut
350 Theodore Fremd Avenue
Rye, New York 10580
(914) 967-6540
December 20, 19'96
Town Board
Town of Wappinger
P.O. Box 324
Wappingers Falls, New York 12590
David J. Portman, AJCP
Howard 1. Reynolds, PF
David H. Stolman, ic
Michael A. Galante
Joanne P. Meder, AICP
Attention: Constance O. Smith, Supervisor
Regarding: Cranberry Hills Development - Review and Report
Dear Supervisor and Board Members:
RE BAILD
DEC,' 2
SUPERVISORSOFFICE
TOWNOFWAPPINGER
We have been asked to prepare an estimate of the anticipated costs associated with the
review and preparation of recommendations regarding the Cranberry Hills Development so
as to establish an appropriate escrow amount to cover the Town's expenses.
Our knowledge of this project is limited beyond its basic scale and scope. It is assumed that
our role in the review of the project would be to evaluate the procedural history and
requirements of the project based upon a review of the existing files and documentation.
A site inspection may also be required or appropriate as well for a more complete
understanding of the project. Obviously, the scope of this review will depend upon the
availability, accuracy and organization of the documentation.
For an anticipated (2) months of review work, an escrow deposit of $25,000 dollars
should be maintained to cover this review. After the first month of review, a more accurate
estimate for completion of the project and a summary of any preliminary findings will be
provided.
Our office will work closely with the Town Engineer, Town Attorney and other staff to
provide a thorough review while minimizing any overlapping review.
Please call if you have any questions.
Connecticut (203) 255-3100
FAX (914) 967-6615 Long Island • (516) 364-4544
FREDERICK P. CLARK ASSOCIATES, INC.
Planning/Development/Environment/Transportation
Constance O. Smith
Re: Cranberry Hills Review
December 20, 1996
Page 2
Very truly yours,
Daniel K. Wery, MCP
Senior Associate/Planning
cc: Planning Board
Albert P. Roberts, Esq.
Donald A. Close, Zoning Administrator
Ann Buckley, Comptroller
500\wap6-31.akw
CDEC--2Q-96 FRI 2H4 PM F. P. CLARK ASSOC, INC,
FAX NO,' 9149676615
P I
FREDERICK P. CLARK ASSOCIATES, INC.
Planning/Development/Environment/Transportalion
Rye, New York and Southport, Connecticut
350 Theodore Fremd Avenue
Rye, New York 10560
(914) 967-6540
December 20, 1996
Town Board
Town of VVappinger
P.O. Box 324
Wappingers Falls, NE
Attention:
Regarding:
ew York 12590
Constance O. Smith, Supervisor
Cranl2erry Hills Devel opine nt - Review and Report
David J, Portman, A/CP
Howard 1 Reynolds, PE
Davral H. Stolman. A ICP
Michael A Galante
Joanne P Meder, mcP
r DEC 2 n 1996.
U..PERVISORSOFFICE
Vinsi0E-WAPPIN(313
Dear Supervisor and Board Members:
We have been asked to prepare an estimate of the anticipated costs associated with the
review and preparation of recommendations regarding the Cranberry Hills Development so
as to establish an appropriate escrow amount to cover the Town's expenses.
Our knowledge of this project is limited beyond its basic scale and scope. it is assumed that
our role in the review of the project would be to evaluate the procedural history and
requirements of the project based upon a review of the existing files and documentation.
A site inspection may also be required or appropriate as well for a more complete
understanding of the project. Obviously, the scope of this review will depend upon the
availability, accuracy and organization of the documentation.
For an anticipated (2) months of review work, an escrow deposit of $25,000 dollars
should be maintained to cover this review. After the first month of review, a more accurate
estimate for completion of the project and a summary of any preliminary findings will be
provided.
Our office will work closely with the Town Engineer, Town Attorney and other staff to
provide a thorough review while minimizing any overlapping review.
Please call if you have any questions.
Connecticut • (203) 255-3100
FAX • (914) 967-6615 Long Island • (51.6) 364-4544
DEC-20-96 FRI 2:35 PM F, P. CLARK ASSOC, INC,
FAX NO. 9149676615 P 2
FREDERICK P. CLARK ASSOCIATES, INC.
Planning/Development/Environmentaranspo►tation
Constance O. Smith
Re: Cranberry Hills Review
December 20, 1996
Page 2
Very truly yours,
Daniel K. Wery, AICP
Senior Associate/Planning
cc: Planning Board
Albert P. Roberts, Esq.
Donald A. Close, Zoning Administrator
Ann Buckley, Comptroller
5001wrap6-131.dkw
TOWN -OF WAPPINGER
CONSTANCE O. SMITH
SuPEAvi908
TELEPHONE: (914) 297-2744
FAX: (914) 297-4558
The Following Fax Message Consists of
including Cover Sheet
SUPERVISOR'S OFFICE
20 MIDDLEBUSH ROAD
P.O. BOX 324
WAPPINGERS FALLS, NY 12590-0324
FAX TELEPHONE NUMBER: (914) 297-4558
DATE
pages
TO:
FROM:
REFERENCE: , cc, Aofivet_c7/6
IF YOU DO NOT RECEIVE ALL T:
1
SENDER:
PAGES, 'LEASE CONTA SENDR IMMEDIATELY.
BAN-30-199? 14.41
UERGILIS,STENGER et al P.02/09
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF DUTCHESS
In the Matter of the Application of
DWS NEW YORK HOLDINGS, INC.,
Petitioner,
For an Order pursuant to Article 78 of the
Civil Practice Law and Rules, to review an
assessment for special improvement districts
of the Wappinger Sewer Improvement Area #1
pursuant to Section 239 of the Town Law, the
Real Property Tax Law and other statutes,
- against -
COUNTY OF DUTCHESS, TOWN OF WAPPINGER,
THOMAS E. LOGAN, ASSESSOR OF THE TOWN OF
WAPPINGER, TOWN OF WAPPINGER TOWN BOARD,
and WAPPINGER SEWER IMPROVEMENT AREA #1,
Respondents.
Index Nos. 6505/1987
5734/1988
5484/1985
3075/1981
3074/1981
STIPULATION OF
In the Matter of the Application of SETTLEMENT
WVC REALTY CORP.,
Petitioner,
For an Order pursuant to Article 78 of the
Civil Practice Law and Rules, to review an
assessment for special improvement districts
of the Wappinger Sewer Improvement Area #1
pursuant to Section 239 of the Town Law, the
Real Property Tax Law and other statutes,
- against -
COUNTY OF DUTCHESS, TOWN OF WAPPINGER,
THOMAS E. LOGAN, ASSESSOR OF THE TOWN OF
WAPPINGER, TOWN OF WAPPINGER TOWN BOARD,
and WAFFINGER SEWER IMPROVEMENT AREA #1,
Respondents.
IAS Assigned Judge:
Hon. Joseph Jiudice
IT IS HEREBY STIPULATED, CONSENTED AND AGREED by and between
WALLACE AND MOORE • ATTORNEYS AT LAW - 299-3O1 nnAIN MALL • POUGHKEEPSIE. NEW YORK 12607
JAN-3@-1997 14:41 UERGILIS,STENGER et aI
P.O3/09
the parties hereto that the above -captioned matter be settled on the
following terms and conditions:
1. Cash Settlement_ The Town will pay Cranberry Hills
Associates the sum of $240,000.00 in four (4) annual installments of
$60,000.00, due on the 15th day of July, 1991, and the remaining three
installments of $60,000.00 each on April 15, 1992, April 15, 1993 and
April 15; 1994.
2. Benefit Assessments. The benefit assessment for each
taxable year of the 550 lots in the Subdivision will decrease from .8
to .3 units commencing in 1991, and will remain at .3 until sewer ser-
vice is made available to the entire Subdivision, at which time it will
increase to .8. When a Certificate of Occupancy is issued with respect
to a house on a lot, the benefit assessment will increase from .8 to
1.0.
3. Water Supply. (This paragraph assumes that the Town of
Wappinger has completed the acquisition of the Atlas Water Supply
Company.) The Town represents and warrants that: (i) The Town has
received permission from all governmental authorities having juris-
diction to withdraw from the Atlas aquifer, of up to 1,350 gallons of
water per minute; (ii) 400 gallons of water per minute will be reserved
for the use of the Cranberry Hills Subdivision; subject to the require-
ments of other users of the Atlas system as of the date of this Stipu-
lation of Settlement; and (iii) if it is determined to increase the
Central Wappinger Water Improvement Area's requirements on the Atlas
system beyond the existing 400 gallon per minute flow, the excess flow
WALLACE AND MOORE • ATTORNEYS AT L w • 292.301 MAIN MALL • POUO,HKEEME. NEvu YOFK 12901
`JAN-30-199? 14:42
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will be subject to the prior right of the Cranberry Mills Subdivision
to draw 400 gallons per minute from the Atlas system as set forth in
clause (ii) above. The Town shall not be required hereby to conduct
any studies, surveys, water quantity or hydraulic tests, or to do any
work in connection with the supply of water to the Cranberry Hills Sub-
division from the Atlas aquifer. The Town will cooperate with Cranberry
Hills Associates and its engineers in the conducting of such studies
and tests as are required to determine what improvements (if any) are
needed to the Atlas system in order to provide an adequate water supply
to the Subdivision. In such regard, the Town will give access to
records and information in its possession
and will give Cranberry Hills
Associates' engineers access to the Atlas system in order to conduct
such studies and tests.
4. Alteraate Water Supply. If the Town of Wappi.nger's
acquisition of Atlas does not occur:
Atlas, Cranberry Hills Associates and
(i) The Town will cooperate with
any water improvement area formed
to supply water to the Cranberry Hills Subdivision, in the filing of
applications with all governmental authorities having jurisdiction, to
enable Atlas to withdraw from the aquifer and deliver to the Cranberry
Hills Subdivision, sufficient potable water as contemplated by the
Subdivision approvals; (ii) the provisions of paragraph 3 (iii) will
be applicable; and (iii) if the acquisition of Atlas does not
September 1, 1991, then Cranberry Hills Associates shall have
unilateral right to reopen this Stipulation of Settlement and
stipulation entered in settlement of the litigation.
occur by
the
any
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5. Deeds. In the event that DNS New York Holdings, Inc.,
Cranberry Associates' predecessor in interest, has not already done so,
deeds for the two parcels of land described in paragraphs 10 A and B of
the Subdivision Resolution will be executed and delivered to the
Wappinger Central School District No. 1 and to the Town of Wappinger,
respectively, together with a $10,000.00 title insurance policy in
favor of the grantees. The Town Attorney will investigate whether or
not any additional land should be conveyed to the Town for recrea-
tional purposes prior to the construction of recreational facilities.
6. Confirmation of Subdivision. The Town acknowledges
that in furtherance of the Resolution of Final Subdivision Approval of
the Cranberry Hills Development passed by the Planning Board of the
Town of Wappinger on December 5, 1983: (i) the Subdivision Flat for
the Cranberry Hills Development was filed in the Office of the Clerk of
Dutchess County on January 18, 1985; (ii) part of the water distribu-
tion system. on Quaker Road, Longwood Lane and Princeton Place in the
Cranberry Hills Subdivision has been installed; (iii) real estate taxes
and benefit assessments for sewer have been levied and paid on the in-
dividual lots in the Cranberry Hills Subdivision: and (iv) pursuant to
the provisions of paragraph 5 hereof Cranberry Hills Associates will
convey property to the Town of Wappinger and to Wappinger Central.
School District No. 1 in the event its predecessor in interest has not
already done so. The Town and Cranberry Hills Associates, for them-
selves and their respective successors and assigns, reconfirm the
aforesaid Resolution of Final Subdivision Approval and agree to comply
WALLACE AND MOORE • ArrORNEYS AT LAW - 29g-301 MAN MALL • POUGNKEEPSIE. NEW YORK 12601
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available to allow the entire Subdivision to be
that development is not economically advisable.
Accordingly, the Town Board of the Town of Wappinger agrees that it
will take no action to impede the development of the Cranberry Hills
Subdivision as it is presently constituted,
with the conditions thereof except as same may have been modified by
the terms hereof. In the event that Cranberry Hills Associates, or its
successors, eleot not to proceed with the development of the Sub-
division, no affirmative obligation shall be incurred by Cranberry
Hills Associates hereunder.
7. Up Adverse Act rL. The Town acknowledges that develop
meat of the Cranberry Hills Subdivision has been impeded by the lack of
water and sewer service and that market conditions at the time water
and sewer service are
connected may be such
either by modifying zoning
ordinances, rules or regulations or in any other manner, even if
not commenced for up to
four (4) years after the time the sewage treatment facilities are
sufficiently upgraded to allow the entire Subdivision to connect to a
useable sewage treatment plant.
5. j. n, joal. The Town will use its best efforts to
obtain the right to pump between 30,000 and 50,000 gallons of sewage
Tri-Municipal as soon as the trunk line to the Wappinger Creek pump
station is built
construction of the Cranberry Hills project
prior to the completion of the Wappinger ex-
pansion of the Tri-Municipal Sewer Plant. The earlier that this can be
confirmed the better. The Town will also use its best efforts to
is
to
even
enable representatives of Cranberry
Hills Associates to participate
WALLACE AND MOORE ATTORNEYS AT i.AW • 299-30 7 MAIN MALL • POUGfiKFFP L irVt( vnor aan,
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in direct discussions with Tri.-Muncipal on this point. In any event,
the trunk line from Oakwood Knolls to the Wappinger Creek pump station
will be constructed in a manner that will allow the efficient trans-
mission of the 30,000 to 50,000 gallon per day flow. The Town will
keep Cranberry Hills Associates informed about negotiations with Tri-
Municipal and the timetable for the trunk line construction and the
plant expansion. If Tri-Municipal gives the Town the right to pump
sewage prior to the expansion, Cranberry Hills shall have the first
right to use such capacity. Cranberry Hills Associates will have six
(6) months from the time it receives written notice from the Town that
such capacity is being made available to exercise its right to claim
all or part of such capacity. The failure of Cranberry Hills Assoc-
iates to claim such sewage capacity shall not effect its rights to use
the Oakwood Knolls pump station when sufficient sewage treatment
capacity is available to service the entire Subdivision, nor shall the
benefit assessments of lots in Cranberry Hills be increased from .3 to
.8 units except for such lots as to which Cranberry Hills actually
obtains sewage capacity. Cranberry Hills acknowledges that the Town
cannot and will not commence construction of the trunk line to the
Wappinger Creek Pump Station until such time as the Department of Audit
and Control approves the sewer improvement area which will undertake
the construction of the trunk line.
9. Release of Claims and Lj bility. It is agreed by the
parties hereto that in consideration of the aforementioned sums to be
received by Cranberry Hills Associates and the other valuable consid-
WALLACE AND MOORE • ATTORNEYS AT LAW • 299.301 MAIN MALL • POUGHKEEP51E, New YORK 12601
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eration stated herein, that Cranberry Hills Associates releases and
discharges the Town of Wappinger, its officers, employees and agents,
from any and all causes of action and liability stated or referred to
in law suits commenced by Cranberry Hills Associates' predecessors in
interest, DWS New York Holdings, Inc. and WVC Realty Corp., in Dutchess
County Supreme Court bearing index numbers 8505/1987; 5734/1986;
5484/1985; 3075/1081; and 3074/1981. Cranberry Hills Associates also
releases the Town of Wappinger, its officers, employees and agents from
any and all such liability for review and/or refund of tax assessments
of the Wappinger Sewer Improvement Area it], for tax years and benefit
units up to the date of this instrument.
10. Assi8nment of Interest. Cranberry Hills Associates by
Cranberry L Associates Limited Partnership and Cranberry J Associates
Limited Partnership is the assignee of all interest in the lawsuits
commenced with respect to the sewer tax assessments which are the
subject of this Stipulation of Settlement.
11. Bold Harmless Clause. Cranberry Hills Associates by
Cranberry L Associates Limited Partnership and Cranberry 3 Associates
Limited Partnership will hold harmless the Town of Wappinger from any
claims made by any predecessors in interest of Cranberry Hills
Associates for any portion of the settlement proceeds that are the
subject of this Stipulation. In the event the Town of Wappinger is
subject to any claims for sewer assessments by any predecessors in
interest to Cranberry Hills Associates, Cranberry Hills Associates will
hold the said Town of Wappinger harmless from any claims which may be
WALLACE AND MOORE • ATTORNEYS AT LAW - 299-301 MAIN MALL • POUGHKEEPSIE NEW YORK 12601
,JAN-30-1997 14:44
UERGILIS,STENGER et al P.09/09
made. This warranty and hold harmless clause shall survive this
Stipulation of Settlement.
This Stipulation of Settlement will have the same enforce-
ability as if a final judgment had been rendered in this matter by this
Court setting forth the terms of paragraphs 1 through 11 herein.
Dated: June l y. , 1991
SO ORDERED
DATED:
Hon. Joseph Jiudice
Justice of the Supreme Court
By:
B
CRANBERRY HILLS ASSOCIATES,
Assignee of DWS New York
Holdings, c. and W Jealty
Corp.
Cranberry L Associates Limited
Partnership by Lewis Henkind
C.-nber Associates Limited
Partnership by Jack Saltz
T WN--��OF WAPPIINGER
By: r �gWI/ [l/ .,,
TOTAL P.
tiAN 17 90
SUPERC: %OFFICE
TO OFWAPPINGER
January 17, 1997
MEMO TO: Supervisor Constance 0. Smith
FROM: Mr. L. Henkind
RE: CRANBERRY
Under the Freedom of Information Law, I would like to
research the Town's file concerning Cranberry.
I agree to pay .25 per copy, if I feel it necessary to
make any copies.
Thank you.
te.,(0/c/4
GERALD A. VERGILIS*
KENNETH M. STENGER
ANTONIA T. LUCIA
ALBERT P. ROBERTS
JOAN F. GARRETT**
THOMAS R. DAVIS
ADM] 11 ID TO PRACTICE
IN NY & FLA.
ADMITTED TO PRACTICE
IN NY & CONN.
October 18, 1994
VERGILIS, STENGER, LUCIA & ROBERTS
ATTORNEYS AND COUNSELORS AT LAW
1611 ROUTE 9
WAPPINGERS FALLS, NEW YORK 12590
(914) 298-2000
FAX (914) 298-2842
Thomas Logan
Assessor - Town of Wappinger
20 Middlebush Road
PO Box 324
Wappingers Falls, New York 12590-0324
RE: CRANBERRY HILLS SUBDIVISION
Assignment of Benefit Units
Our File No. 5456.2726
Dear Tom:
Benefit units assigned to Cranberry Hills Subdivision should be as follows:
AL ASSISTANTS:
DALE O'DONNELL
AMY E. WOODARD
POUGHKEEPSIE OFFICE
276 MAIN MALL
POUGHKEEPSIE, NY 12601
(914) 452-1046
ADDRESS REPLY TO: ) POUGHKEEPSIE
WAPPINGERS
1. Sewer Improvement Area #1 - .3 per lot; and
2. Wappinger Sewer Transmission/Treatment Improvement #1 and
#2 - .8 per lot.
ECEIVED
OCT 1 9 1994
sUPERVISOR'S OFFICE
TOWN OF WAPPINGER
As you know, Cranberry Hills has made application to Supreme Court to reduce the Benefit
Assessments assigned for WST/TI #1 and #2 from .8 to .3. The Town has opposed that
application contending that the Settlement with respect to Sewer Improvement Area #1
authorizing a reduction in Benefit Units from .8 to .3 did not apply to WST/TI. The case
Page 2
Cranberry Hills Subdivision
October 18, 1994
was submitted last spring, however, we have yet to receive a decision from Judge Jiudice.
Until we hear to the contrary, the Benefit Assessments should be made as above set forth.
Very truly yours,
VERGILIS, STENGER, LUCIA & ROBERTS
ALBERT P. ROBERTS
APR/mem
cc: Constance O. Smith
Joseph E. Paggi, Jr.
GERA.LD A. VERGELIS*
KENNETH M. STENGER
ALBERT P. ROBERTS
IRA A. PERGAMENT
ANTONIA T. LUCIA
JOA.N F. GARRETT"
THOMAS R. DAVIS
ROD CIFERRI
,TED TO PRACT5C.E.
IN NY & FLA.
"ADM 1 e.D TO PRACTICE
[N NY & CONN.
VERGILIS, STENGER, ROBERTS & PERGAMENT
ATTORNEYS AND COUNSELORS AT LAW
1611 ROUTE 9
WAPPINGERS FALLS, NEW YORK 12590
(914) 298-2000
FAX (914) 2.98-2S-i:
February 1 , 1995
Serchuk & Zelermyer
81 Main Street
White Plains, New York 10601
Herbert Wallace
Attorney At Law
299-301 Main Mali
Poughkeepsie, New York 12601
RE: DWS HOLDING, INC. V. TOWN OF WAPPINGER et.al
(CRANBERRY HILLS SUBDIVISION)
Our File No. 5456.2726
Gentlemen:
LEGAL ASSISTANTS:
DALE O'DONNELL
AMY E. WOODARD
POUGHKEEPSIE OFFICE
276 MAN MALL
POUGHKEEPSIE. NY 12601
(914) 452-1046
ADDRESS REPL'I TO: , PCL G.IKEEPSIE
( ) WAPPINGERS
Enclosed herewith please find the Notice of Entry with reference to the above captioned
matter.
Very truly yours,
VERGILIS, S TENGER, ROBERTS & PERGAMENT
ALBERT P. ROBERTS
APR/mem
cc: Town Board
Joseph E. Paggi, Jr.
RECE1V D
FEB 1 4 1995
ELA/NET sNow
TOWN CLE1DEN
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF DUTCHESS
In the Matter of the Application o
DWS NEW YORK HOLDINGS, INC.
Petitioner,
For an Order pursuant to Article 78 of
the Civil Practice Law and Rules, to
review an assessment for special
improvement districts of the Wappinger
Sewer _ Improvement - Area #-1-- pursuant to
Section 239 of the Town Law, the Real.
Property Tax Law and other statutes,
-against-
COUNTY OF DUTCHESS, TOWN OF WAPPINGER,
THOMAS E. LOGAN, ASSESSOR OF THE TOWN
OF WAPPINGER, TOWN OF WAPPINGER TOWN
BOARD, AND WAPPINGER SEWER IMPROVEMENT
AREA #1,
Respondents
In the Matter of the Application of .
WVC REALTY CORP.,
Petitioner,
For an Order pursuant to Article 78 of
the Civil Practice Law and Rules, to
review an assessment for special
improvement districts of the Wappinger
Sewer Improvement Area #1 pursuant to
Section 239 of the Town Law, the Real
Property Tax Law and other statutes,
-against-
COUNTY OF DUTCHESS, TOWN OF WAPPINGER,
THOMAS E. LOGAN, ASSESSOR OF THE TOWN
OF WAPPINGER, TOWN OF WAPPINGER TOWN
BOARD, AND WAPPINGER SEWER IMPROVEMENT
ARIA #1,
Respondents.
J I U D I C E, J.
This petitioner has commenced
FILED
AND
ENTERED
J _122 5.1095 -19�.
DUTCHESS
COUNTY CI_,`=;';L
INDEX N 5-7-650544-9 8.7 -_.—
5734/1986
5485/1985
3075/1981
3074/1981
JAN 26 1995
RECEIVED
FEB 1 4 1995
ELAINE SNOWDEN
TOWN CLE"1RK
what purports to be a special
DWS v. COUNTY OF DUTCHESS -2--
proceeding to enforce a stipulation of settlement dated June 18,
1991 and so ordered by this Court on November 7, 1991.
The original proceedings were commenced in 1981 and sought to
reduce the number of benefit assessments imposed by the Town of
Wappinger against the individual lots within the Cranberry_ Hills
Subdivision for the Wappinger Sewer Improvement Area No. 1.
Inter alia, the stipulation settled the above referred to
proceedings by reducing the benefit assessments levied for the
Wappinger Sewer Improvement Area No. 1 from .8 benefit units per
lot to .3 benefit units. Additionally the stipulation recognized
the subdivision plat and required the Town to cooperate with the
petitioner and its professionals in bringing in water and sewer to
the site.
The instant proceeding, in effect, seeks to apply the terms of
the stipulation to other, unrelated, separate and distinct town
improvements, to wit, Wappinger Sewer Transmission/Treatment Area
and Wappinger-Cranberry Water Improvement Area, whose geographic
boundaries encompass the petitioner's subdivision.
Basically, it is the respondent's position that the
stipulation previously entered into is limited to a reduction in
benefit assessments solely for the Wappinger Sewer Improvement Area
No. 1 and that the stipulation is unambiguous in this regard. The
respondent, Town of Wappinger, has cross -moved to dismiss the
motion/petition.
The details giving rise to the prior as well as the instant
DWS v. COUNTY OF DUTCHESS -3-
litigation are in the record before the Court and need not be
repeated in detail. As above noted it is the respondent's position
that the stipulation in question, and in particular the reduction
in benefit assessments, do not apply to any other town
improvements
The record is clear that the Wappinger Sewer
Transmission/Treatment Area and Wappinger-Cranberry Water
Improvement Area were not authorized until 1991 some ten years
after the original litigation was commenced. Of equal significance
is the fact that at the time the stipulation was executed no
special assessments 1 ..d been levied for either the Wappinger Sewer
Transmission/Treatment Area or the, Wappinger-Cranberry Water
Improvement Area.
Basically, this Court is being asked to decide the issue as to
whether the stipulation settling the separate Article 78
proceedings, above referred to, can be applicable to other special
improvement areas authorized by the Town of Wappinger.
The record indicates that the only benefit assessments that
were assigned and levied at the time of the execution of the
stipulation were those for the Wappinger Sewer Improvement Area No.
1. A clear reading of this stipulation indicates that the term
"benefit assessments" refer only to that area.
Nowhere in the stipulation is the Wappinger Sewer
Transmission/Treatment Area and Wappinger-Cranberry Water
Improvement Area even mentioned. In this Court's opinion, if the
DWS v. COUNTY OF DUTCHESS -4-
stipulation was to effect any other improvement areas, then it
should have specifically identified them.
Once again having reviewed the facts in the prior lawsuits and
the clear language of the stipulation, the Court concludes that the
litigation which the stipulation settled clearly identified the
special assessments for the Wappingers Sewer Improvement Area No.
1 and no others. The Court further holds that the claims of the
petitioner have no merit based upon the definitive terms of the
stipulation of settlement which became the order of this Court.
In view of the foregoing, the Court makes no findings
regarding the statute of limitations issue raised by the
respondent.
The cross -motion is granted and the petition/motion is
dismissed.
This constitutes the decision and judgment of the Court.
Dated: January lei , 1994
:24-LA"
J. S. C.
TO: VERGILIS, STENGER, LUCIA & ROBERTS, Attys/Town of Wappinger
1611 Route 9, Wappingers Falls, NY 12590
SERCHUK & ZELERMYER, Attys/Cranberry Hills Associates
81 Main Street, White Plains, NY 10601
TOWN OF WAPPINGE
20 MIDDLEBUSH ROAD
P 0, BOX 324
WAPPINGERS FALLS, NY 12590-0324
October 6, 1994
Albert P. Roberts, Town Attorney
Vergilis, Stenger, Lucia & Roberts
1611 Route 9
Wappingers Falls, New York 12590
Dear Al,
ASE.LPGAN
ASSESSOR
EiVE
OCT 1994
TOWNSUPERVISORS OFFICE
OF WAPP1NGER
Please provide me with specific instructions pursuant to your opinion as
to the proper method of assigning benefit units to Cranberry Hills
subdivision for Wappinger Sewer Transmission/Treatment #1 & 1/2.
We have prepared all of the remaining Special District and Improvement Area
rolls as requested by the Town Board. As soon as we hear from you we will
prepare the Tri-Muni rolls.
Very truly yours,
Thomas E. Logan, Assessor
cc: Constance O. Smith, Supervisor
GERALD A. VERGILIS*
KENNETH M. STENGER
ANTONIA T. LUCIA
ALBERT P. ROBERTS
JOAN F. GARRETT**
CARMINE J. CAROLEI
• ADMITTED TO PRACTICE
IN NY & FLA.
•• ADMITTED TO PRACTICE
IN NY & CONN.
VERGILIS, STENGER, LUCIA & ROBERTS
ATTORNEYS AND COUNSELORS AT LAW
1611 ROUTE 9
WAPPINGERS FALLS, NEW YORK 12590
(914) 298-2000
FAX (914) 298-2842
January 31, 1994.
Hon. Joseph Jiudice
Al Frederick, Law Clerk.
10 Market St.
Poughkeepsie, NY 12601
C
JAN 1 8 1994
SUPERVISOR'S OFFCE
TOWN OF WAPPINGER
LEGAL ASSISTANTS:
DALE O'DONNELL
AMY E. WOODARD
POUGHKEEPSIE OFFICE
276 MAIN MALL
POUGHKEEPSIE, NY 12601
(914) 452-1046
ADDRESS REPLY TO: ( ) POUGHKESPS
( ) WAPPINGERS
RE: DWS NEW YORK HOLDINGS, INC. V. TOWN OF WAPPINGER ET.AL.
Index No. 3074/1981, 3075/1981, 3484/1985, 5734/1986
6505/1987 j
Dear Mr. Frederick:
Enclosed please find a Notice of Cross Motion with supporting
papers which is returnable January 31, 1994, with regard to the
above -referenced matter.
Under cover of this letter, service of the aforementioned papers
are being served upon Wallace & Moore, PO Box 1270, Poughkeepsie,
New York 12601 and Serchuk & Zelermyer, 81 Main Street, White
Plains, New York 10601.
I have enclosed a postcard for the date of entry of the enclosed
motion and an envelope for the return of the decision.
Thank you for your courtesies in this regard.
Very truly yours,
VERGILIS, STENGER, LUCIA & ROBERTS
ALBERT P. ROBERTS
APR/mem
cc: Herbert Wallace, Esq.
Steven. Coploff, Esq.
Hon. Constance O. Smith
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF DUTCHESS
DWS NEW YORK HOLDINGS, INC.
Petitioner,
For an Order pursuant to Article 78
of the Civil Practice Law and Rules,
to review an assessment for special
improvement districts of the Wappinger
Sewer Improvement Area #1 pursuant to
Section 239 of the Town Law, the Real
Property Tax Law and other statutes,
-against-
COUNTY OF DUTCHESS, TOWN OF WAPPINGER, THOMAS E. LOGAN, ASSESSOR
OF THE TOWN OF WAPPINGER, TOWN OF WAPPINGER TOWN BOARD, AND
WAPPINGER SEWER IMPROVEMENT AREA #1,
Respondents.
WVC REALTY CORP.,
Petitioner,
For an Order pursuant to Article 78 of
the Civil Practice Law and Rules, to
review an assessment for special
improvement districts of the Wappinger
Sewer Improvement Area #1 pursuant to
Section 239 of the Town Law, the Real
Property Tax Law and other statutes,
-against-
COUNTY OF DUTCHESS, TOWN OF WAPPINGER, THOMAS E. LOGAN, ASSESSOR
OF THE TOWN OF WAPPINGER, TOWN OF WAPPINGER TOWN BOARD, AND
WAPPINGER SEWER IMPROVEMENT AREA #1,
Respondents.
MEMORANDUM OF LAW
Respectfully submitted,
VERGILIS, STENGER, LUCIA & ROBERTS
Attorneys for Plaintiff
1611 Route 9
Wappingers Falls, NY 12590
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF DUTCHESS
X
In the Matter of the Application of Index Nos. 6505/1987
5734/1986
DWS NEW YORK HOLDINGS, INC. 5485/1985
3075/1981
Petitioner, 3074/1981
For an Order pursuant to Article 78 of
the Civil Practice Law and Rules, to
review an assessment for special
improvement districts of the Wappinger
Sewer Improvement Area #1 pursuant to
Section 239 of the Town Law, the Real
Property Tax Law and other statutes,
-against-
COUNTY OF DUTCHESS, TOWN OF WAPPINGER,
THOMAS E. LOGAN, ASSESSOR OF THE TOWN
OF WAPPINGER, TOWN OF WAPPINGER TOWN
BOARD, AND WAPPINGER SEWER IMPROVEMENT
AREA #1,
Respondents.
In the Matter of the Application of
WVC REALTY CORP.,
Petitioner,
For an Order pursuant to Article 78 of
the Civil Practice Law and Rules, to
review an assessment for special
improvement districts of the Wappinger
Sewer Improvement Area #1 pursuant to'
Section 239 of the Town Law, the Real
Property Tax Law and other statutes,
-against-
COUNTY OF DUTCHESS, TOWN OF WAPPINGER,
THOMAS E. LOGAN, ASSESSOR OF THE TOWN
OF WAPPINGER, TOWN OF WAPPINGER TOWN
BOARD, AND WAPPINGER SEWER IMPROVEMENT
AREA ,#1,
Respondents.
RESPONDENT'S
MEMORANDUM OF LAW
IAS Assigned Judge:
Hon. Joseph Jiudice
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF DUTCHESS
DWS NEW YORK HOLDINGS, INC.
For an Order pursuant to Article 78
of the Civil Practice Law and Rules,
to review an assessment for special
improvement districts of the Wappinger
Sewer Improvement Area #1 pursuant to
Section 239 of the Town Law, the Real
Property Tax Law and other statutes,
-against-
Petitioner,
COUNTY OF DUTCHESS, TOWN OF WAPPINGER, THOMAS E. LOGAN, ASSESSOR
OF THE TOWN OF WAPPINGER, TOWN OF WAPPINGER TOWN BOARD, AND
WAPPINGER SEWER IMPROVEMENT AREA #1,
Respondents.
WVC REALTY CORP.,
Petitioner,
For an Order pursuant to Article 78 of
the Civil Practice Law and Rules, to
review an assessment for special
improvement districts of the Wappinger
Sewer Improvement Area #1 pursuant to
Section 239 of the Town Law, the Real
Property Tax Law and other statutes,
-against-
COUNTY OF DUTCHESS, TOWN OF WAPPINGER, THOMAS E. LOGAN, ASSESSOR
OF THE TOWN OF WAPPINGER, TOWN OF WAPPINGER TOWN BOARD, AND
WAPPINGER SEWER IMPROVEMENT AREA #1,
Respondents.
MEMORANDUM OF LAW
Respectfully submitted,
VERGILIS, STENGER, LUCIA & ROBERTS
Attorneys for Plaintiff
1611 Route 9
Wappingers Falls, NY 12590
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF DUTCHESS
In the Matter of the Application of Index Nos. 6505/1987
5734/1986
DWS NEW YORK HOLDINGS, INC. 5485/1985
3075/1981
Petitioner, 3074/1981
For an Order pursuant to Article 78 of
the Civil Practice Law and Rules, to
review an assessment for special
improvement districts of the Wappinger
Sewer Improvement Area #1 pursuant to
Section 239 of the Town Law, the Real
Property Tax Law and other statutes,
-against-
COUNTY OF DUTCHESS, TOWN OF WAPPINGER,
THOMAS E. LOGAN, ASSESSOR OF THE TOWN
OF WAPPINGER, TOWN OF WAPPINGER TOWN
BOARD, AND WAPPINGER SEWER IMPROVEMENT
AREA #1,
Respondents.
In the Matter of the Application of
WVC REALTY CORP.,
Petitioner,
X
For an Order pursuant to Article 78 of
the Civil Practice Law and Rules, to
review an assessment for special
improvement districts of the Wappinger
Sewer Improvement Area #1 pursuant to'
Section 239 of the Town Law, the Real
Property Tax Law and other statutes,
-against-
COUNTY OF DUTCHESS, TOWN OF WAPPINGER,
THOMAS E. LOGAN, ASSESSOR OF THE TOWN
OF WAPPINGER, TOWN OF WAPPINGER TOWN
BOARD, AND WAPPINGER SEWER IMPROVEMENT.
AREA #l,
Respondents.
RESPONDENT'S
MEMORANDUM OF LAW
IAS Assigned Judge:
Hon. Joseph Jiudice
STATEMENT OF FACTS
This Memorandum of Law is in response to a motion made by
Petitioner purportedly to enforce a Stipulation of Settlement
(Stipulation), dated June 18, 1991 and so ordered by this court
on November 7, 1991. It should be noted that the actual
Petitioner herein is Cranberry Hills Associates, and assignee of
the original Petitioner's above named.
The subject proceedings were commenced in calendar year 1981
and sought to reduce the number of benefit assessments imposed by
the Town of Wappinger against the individual lots within the
Cranberry Hills Subdivision for the Wappinger Sewer Improvement
Area No.l.
The Stipulation settled the above referenced proceedings by
reducing the benefit assessments levied for the Wappinger Sewer
Improvement Area No. 1 from .8 benefit units per lot to .3
benefit units. The Stipulation also reconfirmed the integrity of
the subdivision plat (paragraph 6) and required the Town to
cooperate with the Petitioner and its professionals in bringing
water (paragraph 3) and sewer (paragraph 8) to the site.
The instant Motion seeks to apply the terms of the
Settlement to other, unrelated, separate and distinct town
improvements (Wappinger-Cranberry) whose geographic boundaries
encompasses the Petitioner's subdivision. There is no reference
whatsoever in the Stipulation that the terms of the Stipulation,
particularly the reduction in benefit assessments, would apply to
any other Town, improvements.
It is Respondent's position that the Stipulation is limited
on its face to a reduction in benefit assessments solely for the
Wappinger Sewer Improvement Area No. 1; any doubt or ambiguity
was generated by Petitioner and not by the Town and that the
plain and ordinary meaning of the words in the Stipulation
clearly indicate that the Stipulation was limited to the
Wappinger Sewer Improvement Area No. 1. Most importantly, the
instant application is barred by the applicable Statue of
Limitations (Section 239 Town Law) and the Town could not bind
itself prospectively to future determinations of benefit
regarding unrelated Town improvements.
I. CHALLENGE TO THE NEW BENEFIT ASSESSMENT
LEVIES IS BARRED BY THE STATUTE OF LIMITATIONS.
By seeking to revive a Supreme Court Action that was long
ago settled and involved completely different issues, the
Petitioner is trying to circumvent the Statute of Limitations
imposed on challenges to benefit assessments under Town Law.
Such challenges must come from within 30 days from the date the
roll was affirmed by the Town Board:
"No action or proceeding shall be maintained to set
aside, vacate, cancel, annul, review, reduce or
otherwise test or effect the legality or validity of
any such assessment unless such action or proceedings
shall be commenced within 30 days after the final
assessment role shall have been affirmed." Town Law
Sec.239.
The language of the Statute needs no interpretation. The 30
days have passed. The 1992 roll was affirmed in November of
1991. (See Exhibit - 5). The 1993 roll was affirmed in November
of 1992. The challenge is time barred.
II. CONSTRUCTION OF STIPULATION
The attorneys of the Petitioner drafted the Stipulation.
"It is also well established law that where there
is an inconsistency in verbiage in an instrument
that the language shall be construed strongly
against the drawer of the instrument." Kalb v.
Chemical Bank New York Trust Company, 62 Misc.2d
458 ,309 N.Y.S. 2d 502,507 (N.Y. Civil Court
1969).
It is well established that a Stipulation must be read as a
whole, not as a series of excerpts, to determine its
meaning:
"When a Court analyzes a
Stipulation which has more than one
possible meaning, and where one or
more of the possible
interpretations will result in a
consequence which the proof might
not sustain and which seems unusual
in the circumstances of the case,
the Court should be careful not to
apply the broader interpretation
absent a clear manifestation of
intent." (Citations omitted) Kraker
v. Roll, 100 A.D.2d 424,474
N.Y.S.2d 527 at 536 (2d DEPT 1984).
By taking excerpts of a Stipulation which sought to settle
disputes regarding a particular benefit assessment, the
Petitioner seeks to nullify its obligation to pay its share of
future benefit assessments for unrelated projects not even in
existence or challenged at the time the above -captioned
proceedings were commenced. The WST/TI and Wappinger-Cranberry
Water Improvement were created for entirely different purposes
and encompassed entirely different geographical boundaries.
"[T]he language used in a contract must be interpreted
in the context of the whole agreement.
'A contract must be read as a whole in order
to determine its purpose and intent, and
...single clauses cannot be construed by
taking them out of their context and giving
them an interpretation apart from the
contract of which they are a part.' (Atwater
& Co. v. Panama R.R. Co.. 246 N.Y.519 [159
N.E.418];Becker v. Frasse & Co.. 255 N.Y. 10
[173 N.E. 905]). Words considered in
isolation may have many and diverse meanings.
In a written document the word obtains its
meaning from the sentence, the sentence from
the paragraph, and the latter from the whole
document, all based upon the situation and
circumstances existing at its creation."
Eicthth Ave. Coach Corp. v. City of New
York.286 N.Y. 84,88-89, 35 N.E.2d 907.
Accord. Rentways. Inc. v. O'Neill Milk & Cream Co.,
supra, 308 N.Y.342, at 347, 126 N.E.2d 271.
Zodiac Enterprises v. American Broadcasting, 81 A.D.2d 337,440
N.Y.S.2d 240 (1st Dept.1981),affd 56N.Y.2d 738,452 N.Y.S 2d
20.
By its own terms, the Stipulation specifically refers to the
Index Numbers of the prior action as well as releasing the Town
of Wappinger from liability for the benefit assessments that were
then an issue.
"It is agreed by the parties hereto that in
consideration that the aforementioned sums to be
received by Cranberry Hills Associates and the
other valuable consideration stated here, that
Cranberry Hills Associates releases and discharges
the Town of Wappinger, its officers, employees and
agents, from any and all causes of action and
liability stated or referred to in Law suits
commenced by Cranberry Hills Associates
predecessors in interest DWS New York Holdings,
Inc. and WVC Realty Corporation, in Dutchess
County Supreme Court, bearing Index Nos.
8505/1987; 5734/1988; 5485/1985; 3075/1981;
3074/1981. Cranberry Hills Associates also
releases the Town of Wappinger, its officers,
employees and agents, from any and all such
liability for review and/or refund of tax
assessments of the Wappinger Sewer Improvement
Area No. 1 for tax years and benefit units up to
the date of this instrument." Stipulation
paragraph 9.
It is neither the intent, as is shown by the Affidavits of
the Town Supervisor and Town Board Members, or the logical result
that such a Stipulation would allow the Petitioner to avoid
future liabilities. It was the Petitioner's position in the
previous law suits that it was assessed for a benefit they could
not receive. It now seeks to avoid responsibility for benefits
it can and will receive, and leave the other taxpayers in the
respective assessment areas to pay a disproportionate share.
Surely, the Town cannot obligate itself to provide public
services and benefits to Cranberry Hills Associates for free.
III. THE PETITIONER'S INSISTENCE ON
A PARTICULAR BENEFIT ASSESSMENT
RATE IS MEANINGLESS.
The "unit" assigned to a particular parcel of real estate to
levy a benefit assessment is a relative number, making the
insistence on a benefit unit by the Petitioner for its properties
meaningless.
A unit, as it is used here, is merely a multiplier used to
determine a proportionate share of the entire benefit assessment
levy to be raised that will be drawn from a particular parcel.
It has no meaning unless it is read in the context of the entire
benefit assessment scheme. Therefore, when the Petitioner
insists on a particular number of units being ascribed to a
parcel, and seeks to have a number given in the Stipulation of
Settlement permanently enshrined as the magic number for all
future purposes, they show the weakness of their argument. The
Town could very well adopt their argument and change the rates
used in the formula. However, the dollar assessment charged
Cranberry Associates would not change. This is further proof of
how the Stipulation of Settlement must be read in its entirety to
have meaning for either side.
Using a simple example, assume units were assigned and
determined as follows:
Assuming that the Town had to raise $100.00 from 10
different lots in the benefit area, the Town may assign different
units to each type of lot. For this example, we will assume that
the Town assigned 5 units to a parcel of undeveloped land, 10 to
developed residential land and 20 to developed commercial land.
Assuming, again, the 10 parcels are as follows:
3 Undeveloped,
3 Developed/Residential,
4 Developed/Commercial
The total number of units would be, therefore:
3 Undeveloped x 5
15
levy per lot = $4.00 Total undeveloped: $12.00
3 Developed/residential x 10 = 30
levy per lot = $8.00 Total residential: $24.00
4 Developed/Commercial x 20 = 80
levy per lot = $16.00 Total commercial: $64.00
The total number of new units would be, therefore, 125.
Accordingly, for each unit, to raise a total of $100.00, each
unit must be charged $.80 per unit. However, the Town could very
easily double the number of units assigned to each type of
parcel:(ie.10 Undeveloped,20 Developed/Residential, 40
Developed/Commercial) yet the tax levy on each would remain the
same:
3 Undeveloped x 10 = 30
levy per lot = $4.00 Total undeveloped = $12.00
3 Developed/residential x 20 = 60
levy per lot = $8.00 Total undeveloped = $24.00
4 Developed/commercial x 40 = 160
levy per lot = $16.00 Total undeveloped = $64.00
To raise $100.00, the assessment per unit would be $.40.
The actual benefit assessments levies, however, on each remains
the same despite the fact the number of units assigned to a
particular type of lot has changed.
Therefore, when the Petitioner claims that the number in the
Stipulation must be enforced as written, without the context of
what benefit assessment it is related to, the Petitioner seeks to
enforce terms with no real meaning. The Town could merely assign
new unit numbers to each type of lot in a relative manner so
that, even if the number for Cranberry's parcels remains the same
at .3, the levy it actually pays will increase or decrease in
proportion to the other parcels in the assessment area and the
amount of money to be raised.
Accordingly, the Stipulation in order to make any sense at
all, must be read to have meaning in the context of the Wappinger
Sewer Treatment Area No.1.
CONCLUSION
It is most respectfully submitted that the Petition is
barred by the Statute of Limitations. Additionally, the
Stipulation of Settlement outlined in the previous article is not
controlling in this matter as it must be read in its entirety and
in the context of the assessment then an issue in the litigation.
Accordingly, the Petition should be dismissed and the relief
requested therein denied.
Dated: Wappingers Falls, New York
January 14, 1994
Of Counsel:
Albert P. Roberts, Esq.
Thomas R Davis, Esq.
Respectfully submitted,
VERGILIS, STENGER, LUCIA & ROBERTS
1611 Route 9
Wappingers Falls, NY 12590
(914) 298-2000
GERALD A. VERGILIS*
KENNETH M. STENGER
ANTONIA T. LUCIA
ALBERT P. ROBERTS
JOAN F. GARRETT**
CARMINE I. CAROLEI
• ADMITTED TO PRACTICE
IN NY & FLA.
• ADMITTED TO PRACTICE
IN NY & CONN.
VERGILIS, STENGER, LUCIA & ROBERTS
ATTORNEYS AND COUNSELORS AT LAW
1611 ROUTE 9
WAPPINGERS FALLS, NEW YORK 12590
(914) 298-2000
FAX (914) 248-2842
January 17, 1994
Hon. Joseph Jiudice
Justice of the Supreme Court
Attn: Al Frederick, Confidential Law Secretary
10 Market St.
Poughkeepsie, NY 12601
AL ASSISTANTS:
DALE O'DONNELL
AMY E. WOODARD
POUGHKEEPSIE OFFICE
276 MAIN MALL
POUGHKEEPSIE, NY 12601
(914) 452-1046
ADDRESS REPLY TO: ( ) POUGHKEEPSIE
( ) WAPPINGERS
ECEIVE
JAN 191994
SUPERViSoRS OFF'CE
TOWN OF WAPPiNGER
RE: DWS NEW YORK HOLDINGS, INC. V. TOWN OF WAPPINGER ET.AL.
Index Nos. 3074/1981, 3075/1981, 3484/1985, 5734/1986
6505/1987
Dear Al:
Enclosed please find a Notice of Cross Motion with supporting
papers which is returnable January 31, 1994, with regard to the
above -referenced matter.
Service of the aforementioned papers was made upon Wallace & Moore,
PO Box 1270, Poughkeepsie, New York 12601 and Serchuk & Zelermyer,
81 Main Street, White Plains, New York 10601 on January 14, 1994.
I have enclosed a postcard for the date of entry of the decision on.
the enclosed motion and an envelope for the return of a copy of the
decision.
Subsequent to the service of the Cross -Motion, four typographical
errors were discovered - 2 on page 17, paragraph 58 & 60 of
Affidavit of Albert P. Roberts, 1 on page 3 of Memorandum of Law
and 1 on page 4 of Memorandum of Law. Revised copies of these
pages are being served under cover of this letter.
Thank you for your courtesies and attention in this regard.
Very truly yours,
VERGILIS, STENGER, LUCIA & ROBERTS
ALBERT P. ROBERTS
APR/mem
cc: Herbert Wallace, Esq.
Steven Coploff, Esq.
Hon. Constance O. Smith
STATEMENT OF FACTS
This Memorandum of Law is in response to a motion made by
Petitioner purportedly to enforce a Stipulation of Settlement
(Stipulation), dated June 18, 1991 and so ordered by this court
on November 7, 1991. It should be noted that the actual
Petitioner herein is Cranberry Hills Associates, and assignee of
the original Petitioner's above named.
The subject proceedings were commenced in calendar year 1981
and sought to reduce the number of benefit assessments imposed by
the Town of Wappinger against the individual lots within the
Cranberry Hills Subdivision for the Wappinger Sewer Improvement
Area No.1.
The Stipulation settled the above referenced proceedings by
reducing the benefit assessments levied for the Wappinger Sewer
Improvement Area No. 1 from .8 benefit units per lot to .3
benefit units. The Stipulation also reconfirmed the integrity of
the subdivision plat (paragraph 6) and required the Town to
cooperate with the Petitioner and its professionals in bringing
water (paragraph 3) and sewer (paragraph 8) to the site.
The instant Motion seeks to apply the terms of the
Settlement to other, unrelated, separate and distinct town
improvements (Wappinger Sewer Transmission/Treatment Area and
Wappinger-Cranberry Water Improvement Area) whose geographic
boundaries encompasses the Petitioner's subdivision. There is no
reference whatsoever in the Stipulation that the terms of the
Stipulation, particularly the reduction in benefit assessments,
would apply to any other Town improvements.
It is Respondent's position that the Stipulation is limited
on its face to a reduction in benefit assessments solely for the
Wappinger Sewer Improvement Area No. 1; any doubt or ambiguity
was generated by Petitioner and not by the Town and that the
plain and ordinary meaning of the words in the Stipulation
clearly indicate that the Stipulation was limited to the
Wappinger Sewer Improvement Area No. 1. Most importantly, the
instant application is barred by the applicable Statute of
Limitations (Section 239 Town Law) and the Town could not bind
itself prospectively to future determinations of benefit
regarding unrelated Town improvements.
57. When an improvement is established (WST/TI and
Wappinger-Cranberry) pursuant to Article 12-C, the improvement is
to be financed pursuant to Article 15 of the Town Law (Town Law
Section 209-q, subd 9).
58. Article 15, Sect. 239 specifically prohibits any action
or proceeding "...to set aside, vacate, cancel, annul, review,
reduce or otherwise test or affect the legality or validity of
any such assessment unless such action or proceeding shall be
commenced within 30 days after the said final assessment -roll
shall have ben affirmed".
59. Section 239 of the Town Law requires that a separate
assessment roll for each improvement be established in each year.
The Section also provides for a very short 30 day Statute of
Limitations if a property owner objects to the adoption of the
benefit assessment roll.
60. The Town Board conducted public hearings on and adopted
the 1992 special benefit assessment rolls for Wappinger-Cranberry
and WST/TI on November 18, 1991, and the 1993 special benefit
assessment rolls on November 5, 1992. Certified copies of the
Resolution dated November 18, 1991 and November 5, 1992 of the
Town Board adopting the special benefit assessment rolls are
attached hereto collectively marked Exhibit - 5.
61. The Petitioner, not having objected to said assessment
roll and not having commenced its action within 30 days of the
adoption of the subject benefit assessment rolls, is prohibited
from maintaining this action as a matter of law.
GERALD A. VERGILIS*
KENNETH M. STENGER.
ANTONIA T. LUCIA
ALBERT P. ROBERTS
JOAN F. GARRETT**
CARMINE J. CAROLEI
• ADMITTED TO PRACTICE
IN NY & FLA.
•• ADMITTED TO PRACTICE
IN NY & CONN..
VERGILIS, STENGER, LUCIA & ROBERTS
ATTORNEYS AND COUNSELORS AT LAW
1611 ROUTE 9
WAPPINGERS FALLS, NEW YORK 12590
(914) 298-2000
FAX (914) 298-2842
December 30, 1993
Hon. Joseph Jiudice
Justice of the Supreme Court
Dutchess County Court House
10 Market Street
Poughkeepsie, NY 12601
LEGAL ASSISTANTS:
DALE O'DONNELL
AMY E. WOODARD
POUGHKEEPSIE OFFICE
276 MAIN MALL
POUGHKEEPSIE, NY 12601
(914) 452-1046
ADDRESS REPLY TO: ( ) POUGHKEEPSIE
( ) WAPPINGERS
EC IVE
DEC 3 1 19,93
suPFRVISORs CFFtCE
TOWN OF INAPPI IGE
RE: DWS NEW YORK HOLDINGS, INC. V. TOWN OF WAPPINGER ET.AL.
Index. No. 3074/1981 0,efiN6E .'�f
3075/1981 J
5484/1985
5734/1986
6505/1987
Our File No. 5456.2726
Attention: Al Frederick
Confidential Law Secretary
Dear Al,
I enclose herewith faxed copy of Stipulation on Consent
adjourning the return date to January 31, 1994.
I would like the opportunity to either orally argue this matter
and/or conference same. Please advise if we will be permitted to
do so on January 31, 1994.
Very truly yours,
VERGILIS, STENGER, LUCIA & ROBERTS
ALBERT P. ROBERTS
APR/mem
cc: Herbert Wallace
Steven Coploff
Hon. Constance C. Smith
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF DUTCHESS
X
In the Matter of the Application of Index Nos. 6505/1987
5734/1986
DWS NEW YORK HOLDINGS, INC. 5485/1985
3075/1981
Petitioner, 3074/1981
For an Order pursuant to Article 78 of
the Civil Practice Law and Rules, to
review an assessment for special
improvement districts of the Wappinger
Sewer Improvement Area #1 pursuant to
Section 239 of the Town Law, the Real
Property Tax Law and other statutes,
-against-
COUNTY OF DUTCHESS, TOWN OF WAPPINGER,
THOMAS E. LOGAN, ASSESSOR OF THE TOWN
OF WAPPINGER, TOWN OF WAPPINGER TOWN
BOARD, AND WAPPINGER SEWER IMPROVEMENT
AREA #1,
Respondents. STIPULATION
X
In the Matter of the Application of
WVC REALTY CORP.,
Petitioner,
For an Order pursuant to Article 78 of
the Civil Practice Law and Rules, to
reviewan assessment for special
improvement districts of the Wappinger
Sewer Improvement Area #1 pursuant to'
Section 239 of the Town Law, the Real
Property Tax Law and other statutes,
-against-
COUNTY OF DUTCHESS, TOWN OF WAPPINGER,
THOMAS E. LOGAN, ASSESSOR OF THE TOWN
OF WAPPINGER, TOWN OF WAPPINGER TOWN
BOARD, AND WAPPINGER SEWER IMPROVEMENT
AREA #1,
Respondents.
IAS Assigned Judge:
Hon. Joseph Jiudice
12-28-1993 04:41PM FROM
TO 2982842 P.03
IT IS HERESY STIPULATED by and between the attorneys for the
above named parties that the return date for the above referenced
Notion is hereby adjourned on consent from January 10, 1994 at
9:30am, to January 31, 1994 at 9:30am and; it is further
STIPULATED that Respondents answering papers obeli be
served on the attorneys for Petitioner, on or before January 17,
1994 with Petitioner's Reply served on or before January 31,
1994.
Dated: Wappingers Palls, New York
December 28, 1993
WALLACE AND MOORE
BY: a-�O /G f
Her Wa !/i/cace
SERCHUx . & ZELRR IYER
BY:
Steven A. Coplof
Attorneys for Cranberry
Hills Associates, Assignee
of Petitioners
VERGILTS, ST]FIN �`�es� / ROBERTS
BY:
'Albert P. Roberts
Attorney for Town of Wappingeer
TOTAL P.03
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF DUTCHESS
In the Matter of the Application of
Index Nos. 6505/1987
5734/1986
DWS NEW YORK HOLDINGS, INC. 5485/1985
3075/1981
Petitioner, 3074/1981
For an Order pursuant to Article 78 of
the Civil Practice Law and Rules, to
review an assessment for special
improvement districts of the Wappinger
Sewer Improvement Area #1 pursuant to
Section 239 of the Town Law, the Real
Property Tax Law and other statutes,
-against-
COUNTY OF DUTCHESS, TOWN OF WAPPINGER,
THOMAS E. LOGAN, ASSESSOR OF THE TOWN
OF WAPPINGER, TOWN OF WAPPINGER TOWN
BOARD, AND WAPPINGER SEWER IMPROVEMENT
AREA #1,
Respondents.
In the Matter of the Application of
WVC REALTY CORP.,
RESPONDENT'S
NOTICE OF CROSS
x MOTION
Petitioner,
For an Order pursuant to Article 78 of
the Civil Practice Law and Rules, to
review an assessment for special
improvement districts of the Wappinger
Sewer Improvement Area #1 pursuant to'
Section 239 of the Town Law, the Real
Property Tax Law and other statutes,
-against-
COUNTY OF DUTCHESS, TOWN OF WAPPINGER,
THOMAS E. LOGAN, ASSESSOR OF THE TOWN
OF WAPPINGER, TOWN OF WAPPINGER TOWN
BOARD, AND WAPPINGER SEWER IMPROVEMENT
AREA #1,
Respondents.
IAS Assigned Judge:
Hon. Joseph Jiudice
S I R S:
PLEASE TAKE NOTICE THAT, upon the Affidavit of Albert P.
Roberts, sworn to January 13, 1994, the Exhibits annexed thereto,
the Affidavit of Supervisor of Constance O. Smith, sworn to the
loth day of January, 1994, the Affidavit of Robert L. Valdati
and Joseph Incoronato sworn to January 10, 1994 and June A.
Visconti sworn to the 13th day of January, 1994, the accompanying
Respondent's Memorandum of Law dated January 13, 1994, and upon
all prior pleadings and proceedings had herein, the undersigned
will Cross -Move this Court before the Hon. Joseph Jiudice,
Justice of the Supreme Court at the Dutchess County Court House,
10 Market Street, Poughkeepsie, New York, on January 31, 1994 at
9:30 a.m., or as some thereafter as Counsel may be heard, for and
Order of this Court:
I.Dismissing the motion of Petitioner dated December 22,
1993 upon the grounds that:
1. The Petitioner's Motion is barred by the
applicable Statute of Limitations;
2. The Respondent, Town of Wappinger, has fully
complied with all the terms and conditions of the
Stipulation of Settlement dated June 18, 1991;
3. The Respondents, Town of Wappinger, has duly.
adopted the special benefit assessment rolls for
calendar years 1992 and 1993 as the same as applies
to Wappinger Sewer Transmission/Treatment
Improvement and Wappinger-Cranberry Water
Improvement;
AND
II. Awarding the. Respondent, Town of Wappinger such other
and further relief as to the Court may seem just and
proper in the circumstances, together with the costs and
disbursements of this action.
Dated: Wappingers Falls, New York,
January 14, 1994
sought a reduction of the benefit assessments for the Wappinger
Sewer Improvement Area No. 1 only. (In fact, the Wappinger Sewer
Transmission/Treatment Improvement and the Wappinger-Cranberry
Water Improvement were not even formed when the above captioned
actions were commenced.)
16. For reasons unknown, a series of post decision
negotiations continued with the Town and, apparently during these
negotiations, the subject premises were sold to Cranberry Hills
Associates, assignee of the original Petitioner.
17. In January, 1990, Deponent became attorney to the Town
of Wappinger. Deponent's predecessor counsel had advised that
while the above referenced Article 78 Proceedings were still
calendared before this Court, the matter would be adjourned
pending further negotiations. It was at this juncture, that
Deponent became involved directly in the settlement negotiations
with Cranberry Hills Associates.
18. Deponent further notes that Lewis Henkind is an
attorney; this is significant only because Mr. Henkind directly
involved himself in the settlement negotiations and the subject
Stipulation was actually based upon a proposal distributed from
Mr. Henkind's office.
IMPROVEMENT AREAS
WAPPINGER SEWER IMPROVEMENT AREA NO. 1
19. The Wappinger Town Board had heretofore established the
Wappinger Sewer Improvement Area No. 1. to refurbish and operate
the Oakwood Knolls Sewer Plant as well as construct, install, and
maintain sewer main and lateral trunk lines. The Town of
Wappinger levied benefit assessments for this Sewer Improvement
in accordance with a Resolution of the Town Board adopted on
September 8, 1975 (See Exhibit A attached to Plaintiff's Motion).
It was the levy of these benefit assessments that prompted the
commencement of the above -captioned Article 78 Proceedings
ultimately resulting in the Stipulation dated June 18, 1991.
20. No other town -wide Special Improvements or Special
Improvement Districts were named in the above captioned
proceedings nor mentioned in the Stipulation.
WAPPINGER SEWER TRANSMISS-ION/TREATMENT IMPROVEMENT
21. Wappinger Sewer Transmission/Treatment Improvement
(WST/TI) was formed by the Resolution of the Town Board on March
11, 1991. WST/TI was formed as the initial phase of a sewer
project that will ultimately provide sewer to approximately two-
thirds of the Town of Wappinger.
22. The WST/TI was authorized to expend not more than
$17,020,000.00 and was to construct approximately 3 miles of
sewer trunk line as well as a 1,000,000 gallon per day expansion
of the Tri-Municipal Sewer Plant located in the Town of
Poughkeepsie.
23. The WST/TI was formed pursuant to Article 12-C of the
Town Law and was subject to approval of the State Comptroller's
Office, Department of Audit and Control.
24. A Petition for approval to the Department of Audit and
Control was submitted on March 12, 1991. An Order of the State
Comptroller was issued April 12, 1991 authorizing the
Improvement. A copy of the Town Board's Public Interest Order
dated March 11, 1991 authorizing the Improvement, the Petition to
the State Comptroller and the Order of the Comptroller are
collectively attached hereto marked and designated Exhibit #2.
25. WST/TI is a completely separate and distinct Town
Improvement; the benefitted area (tax base) encompasses a much
larger geographic area than Wappinger Sewer Improvement Area
No.l. The formation of WST/TI was unrelated to Wappinger Sewer
Improvement Area No. 1.
26. The Cranberry Hills Subdivision is located within the
WST/TI. The sewer plant expansion and the sewer trunk lines are
presently under construction and it is anticipated that the
construction will be completed and finalized in calendar year
1996.
27. None of the parcels in WST/TI are able to use any of
the facilities presently being constructed until construction is
complete. This is a routine and expected occurrence for any
facility under construction by a Municipality.
28. All parcels of land within WST/TI were levied benefit
assessments in accordance with the benefit assessment Formula set
forth in Paragraph 10 of the Petition approved by the State.
Comptroller.
29. The benefit assessments were determined and levied
against the Cranberry Hills Subdivision for WST/TI in accordance
with Article 12-C and Article 15 of the. Town Law.
30. Any objections Petitioner had to the levy of these
benefit assessments should have been made within 30 days in
accordance with Article 15, Section 239 as hereafter discussed.
31. The Petitioner, having failed to object to the benefit
assessment roll, is precluded as a matter of law from challenging
these assessments at this late date.
32. It must be further emphasized that Petitioner's lots
have been levied benefit assessments uniformly with all other
property similarly situated.
33. The levy of the benefit assessments for WST/TI is
totally separate and distinct from the levy of benefit
assessments for Wappinger Sewer Improvement Area No.l.
WAPPINGER-CRANBERRY WATER IMPROVEMENT AREA
34. The Wappinger-Cranberry Water Improvement Area was
established pursuant Public Interest Order dated July 30, 1990.
A copy of said Public Interest Order is attached hereto made part
hereof marked and designated "Exhibit - 3".
35. Wappinger-Cranberry was formed in connection with the
purchase by the Town of Wappinger of the Atlas Water Company.
The Town Board had previously determined that the cost of
purchasing Atlas should be borne by the various areas in the Town
that would benefit by its purchase. The purchase of Atlas would
provide the Town with a major aquifer which would directly
benefit large areas of the Town including the Cranberry Hills
Subdivision (See "Exhibit - 3"). (In fact, the previous owners
of the Cranberry Hills Subdivision and the previous owners of
Atlas had entered into an agreement in which the Atlas Water
Company would supply potable water to the Cranberry Hills
Subdivision.) The purchase of Atlas by the Town provides the
subdivision with a municipally owned aquifer as the source of its
water supply.
36. The Town Board authorized the purchase of Atlas Water
Company at a maximum estimated cost not to exceed $525,000.00.
The cost of this purchase was to be allocated as follows:
Wappinger-Cranberry Water Improvement Area- $467,093.13
North Wappinger Water District - $49,557.41
Myers Corners No.2 Water Improvement Area- $8,349.46
TOTAL: $525.000.00
37. It is to be noted that the Wappinger-Cranberry Water
Improvement Area encompasses the area covered by the Wappinger
Water Improvement Area and the Cranberry Hills Water Improvement
Area, a geographic area entirely separate and distinct, and much
larger in size than Wappinger Sewer Improvement Area No.1.(i.e.-
an entirely different tax base).
38. The formation of the Wappinger-Cranberry Water
Improvement Area is totally unrelated to the Wappinger Sewer
Improvement Area No. 1.
39. The benefit assessments levied for Wappinger Cranberry
were made and determined in accordance with Article 12-C and
Article 15 of the Town Law.
STIPULATION OF SETTLEMENT
40. The Stipulation of Settlement dated June 18, 1991
speaks for itself. The title of the Stipulation specifically
identifies the several Article 78 Proceedings which were settled
by the Stipulation and no others.
41. Paragraph 9 entitled "Release of Claims and Liability"
and Paragraph 10 "Assignment of Interest" specifically states
that the Stipulation is limited to the "Sewer Tax Assessments"
named in the Article 78 Proceedings bearing Index No. 6505/1987,
5734/1986, 5485/1985, 3075/1981, 3074/1981 and. No other benefit
assessments are named, mentioned or identified as being part of
the Stipulation.
42. The Stipulation of Settlement does, however,
acknowledge the Town's proposed purchase of the Atlas Water
System. Indeed, the stipulation requires the Town to
"...cooperate with Cranberry Hills Associates and its engineers
in the conducting of such studies and tests as are required to
determine what improvements (if any) are needed to the Atlas
system in order to provide an adequate water supply to the
Subdivision" (paragraph 3 of Stipulation). Yet, the Stipulation
conspicuously makes no mention of the benefit assessments to be
levied in connection with the acquisition of Atlas.
43. Similarly, the Stipulation's references to "Tri-
Municipal" acknowledges the future construction of sewer trunk
lines and the possible permission to connect to the Tri-Municipal
facilities prior to the expansion of the Tri-Municipal sewer
treatment plant (Paragraph 8 of Stipulation). The Stipulation
further acknowledges that the Town could not even commence
construction of the new sewer trunk line or sewer plant expansion
until it was approved by the Department of Audit and Control.
44. The reference that the benefit assessments would not
be increased from .3 to .8 until the Subdivision obtained sewage
capacity was in reference to the assessments levied for the
Wappinger Sewer Improvement Area No.1 and not for the WST/TI
which was to be constructed. There simply can be no other
interpretation of the Stipulation.
45. Clearly the Petitioner cannot be located within the
boundaries of the Improvement Area and at the same time not pay
its fair share pursuant to the benefit assessment formula duly
approved by the Department of Audit and Control. It is obvious
that the benefit assessments referred to in Paragraph 8 of the
Stipulation are those solely limited to the Wappinger Sewer
Improvement Area No. 1.
BENEFIT ASSESSMENTS
46. A benefit assessment is nothing more than an allocation
of costs to pay for construction of a public improvement. Each
public improvement authorized by a Town Board is separate and
distinct from any other. To suggest that the Town Board could
commit itself and future Town Boards to a limit of .3 benefit
units for other unrelated public improvements covering different
geographic boundaries is simply ludicrous and is in no way
supported by the plain and ordinary language contained in the
Stipulation or by the statutory provisions of Article 12-C and
Article 15 of the Town Law.
47. The instant application clearly belies Petitioner's
failure to comprehend the Statutory requirements necessary for
the creation and authorization of a public improvement pursuant
to Article 12-C of the Town Law and the Statutory requirements to
levy assessments to finance the public improvements.
48. As indicated above, Wappinger Sewer Improvement Area
No. 1 (WST/TI), and Wappinger-Cranberry Water Improvement
(Wappinger-Cranberry) are separate and distinct public
improvements authorized independently of each other, each
providing a completely different public improvement and each with
a completely separate and distinct geographic boundary with a
correspondingly different tax base.
49. To apply the provisions of the Stipulation as a basis
for determining the benefit assessments for WST/TI and Wappinger-
Cranberry would penalize those property owners who are not
located in the geographic boundaries of the Wappinger Sewer
Improvement Area No.1; such property owners would, in effect, be
paying for a disproportionate share of the costs of construction
of the improvements provided by WST/TI and Wappinger-Cranberry -
a patently unfair result.
50. When a public improvement is authorized pursuant to
Article 12-C, the Town Board must make a determination of how the
costs of public financing are to be assessed against the
individual parcels contained within the improvement area. In the
case of a sewer improvementthe Town Board must allocate the
costs of financing on the basis of the benefit to each parcel.
51. A benefit assessment is nothing more than the Town
Board's determination of how the costs for construction of a
public improvement are to be allocated. A benefit unit is the
methodology used to levy the benefit assessments. However, the
methodology used to determine a benefit unit in one improvement
has absolutely no correlation to the methodology used to
determine a
the benefit
that a Town
benefit for
benefit unit in a separate public improvement because
accrued and the tax base are different. To suggest
Board could commit itself to future determination of
unrelated public improvements is simply ludicrous and
is in no supported by the plain and ordinary language
contained in the Stipulation or by the Statutory provisions of
Article 12-C and Article 15 of the Town Law.
52. The benefit assessments for both the WST/TI and
Wappinger-Cranberry Water Improvement Area were made in
accordance with Article 12-C and Article 15 of the Town Law.
53. The determination of benefit for each parcel of land
for each Improvement District or Improvement Area in each
instance is made by the Town Board (Section 209-q, see also
Opinion Letter Mitchell S. Morris, Associate Counsel, Office of
State Comptroller dated December 29, 1989, attached as Exhibit -
4) .
54. Indeed the very decision upon which the Petitioner
rests its claim for a refund, clearly defined the burden to be
established by a land owner when challenging a benefit
assessment:
"In evaluating whether a particular parcel is benefitted by
a public improvement, the test to be applied is not how
the land is presently being used, but whether the
improvement generally enhances the value of the property;
the burden of disproving that the value of the property has
been enhanced, which is a heavy one, must be borne by the
Petitioner (see e.g. Matter of City of New York [Juniper
Ave.1, 233 NY 387, 135 N.E. 825 Matter of City of New York
fPugsley Ave.]., 218 NY 234, 112 N.E. 918; Matter of Wright
v. Town Bd. of Town of Carlton.41 AD2d 290, 294-295, 342
N.Y.S.2d 577, affd 33 N.Y.2d 977; Matter of Town Bd. of
Town of Onondaga v County of Onondaga. 61 AD2d 1124,1v
denied 44 NY2d 644; Matter of Brewster - Mill Park
Realty v Town Bd. of Town of North Elba. 17 AD2d 467)."
A copy of said decision in attached hereto made part hereof
marked Exhibit - 1.
55. The Court went on to say:
"The determination by a Town Board with respect to the
amount of benefit conferred on properties by improvements
involves the exercise of the legislative power which will be
not be interfered with unless it is shown to be so arbitrary
or palpably unjust as to amount to a confiscation of
property (see Matter of Wright v Town Bd. of Town of
Carlton. 70 Misc 2d 1, 5, mod on other grounds 41 AD2d 290,
affd as mod 33 NY2d 977, supra; Gaynor v Marohn, 268 NY 417;
Valley Farms Co. v City of Yonkers, 193 App Div 433, affd
231 NY 558, affd sub nom. Valley Farms v County of
Westchester, 261 US 155)."
56. The determination of benefit assessments for WST/TI
and for the Wappinger-Cranberry Water Improvement were each
separate and distinct legislative determinations by the Town
Board having nothing whatsoever to do with the Stipulation of
Settlement on the above referenced Article 78 Proceedings.
57. When an improvement is established (WST/TI and
Wappinger-Cranberry) pursuant to Article 12-C, the improvement is
to be financed pursuant to Article 15 of the Town Law (Town Law
Section 209-q, subd 9).
58. Article 15, Sect. 239 specifically prohibits any action
on proceeding "...to set aside, vacate, cancel, annul, review,
reduce or otherwise test or affect the legality or validity of
any such assessment unless such action or proceeding shall be
commenced within 30 days after the said final assessment -roll
shall have ben affirmed".
59. Section 239 of the Town Law requires that a separate
assessment roll for each improvement be established in each year.
The Section also provides for a very short 30 day Statute of
Limitations if a property owner objects to the adoption of the
benefit assessment roll.
60. The Town Board conducted public hearings on and adopted
the 1992 special benefit assessment rolls for Wappinger-Cranberry
and WST/TI on November 18, 1991, and the 1993 special benefit
assessment roll on November 5, 1992. Certified copies of the
Resolution dated November 18, 1991 and November 5, 1992 of the
Town Board adopting the special benefit assessment rolls are
attached hereto collectively marked Exhibit - 5.
61. The Petitioner, not having objected to said assessment
roll and not having commenced its action within 30 days of the
adoption of the subject benefit assessment rolls, is prohibited
from maintaining this action as a matter of law.
WHEREFORE, Deponent respectfully requests that this Court
grant the relief requested in the Respondent's Notice of Cross
Motion, by dismissing the Motion of Petitioner:
1. By determining that the instant proceedings are barred
by the applicable Statute of Limitations;
2. By determining that the Respondent, Town of Wappinger,
has fully complied with all the terms and conditions
of the Stipulation of Settlement dated June 18, 1991;
3. By determining that the Respondent, Town of Wappinger,
has duly adopted the special benefit assessment rolls
for calendar years 1992 and 1993 as the same applies
to the Wappinger Sewer Transmission/Treatment
improvement and Wappinger-Cranberry Water Improvement;
AND
By awarding the Respondent, Town of Wappinger such other and
further relief as to the Court may seem just and proper in the
circumstances, together with the costs and disbursements of this
action.
ALBERT P. ROBERTS
Sworn to before me this
/47''-day of January, 1994.
OTARY PUBLIC
1i trim Nom NOISSMVIOO A 1
VENAL�i/V awmi� NI fmflYfio
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF DUTCHESS
X
In the Matter of the Application of Index Nos. 6505/1987
5734/1986
DWS NEW YORK HOLDINGS, INC. 5485/1985
3075/1981
Petitioner, 3074/1981
For an Order pursuant to Article 78 of
the Civil Practice Law and Rules, to
review an assessment for special
improvement districts of the Wappinger
Sewer Improvement Area #1 pursuant to
Section 239 of the Town Law, the Real
Property Tax Law and other statutes,
-against-
COUNTY OF DUTCHESS, TOWN OF WAPPINGER,
THOMAS E. LOGAN, ASSESSOR OF THE TOWN
OF WAPPINGER, TOWN OF WAPPINGER TOWN
BOARD, AND WAPPINGER SEWER IMPROVEMENT
AREA #1,
Respondents.
In the Matter of the Application of
WVC REALTY CORP.,
AFFIDAVIT OF SUPERVISOR
CONSTANCE 0. SMITH IN
SUPPORT OF CROSS MOTION
TO DISMISS
AND IN OPPOSITION OF
X PETITIONER'S MOTION TO
ENFORCE STITPULATION
Petitioner,
For an Order pursuant to Article 78 of
the Civil Practice Law and Rules, to
review an assessment for special
improvement districts of the Wappinger
Sewer Improvement Area #1 pursuant to'
Section 239 of the Town Law, the Real
Property Tax Law and other statutes,
-against-
COUNTY OF DUTCHESS, TOWN OF WAPPINGER,
THOMAS E. LOGAN, ASSESSOR OF THE TOWN
OF WAPPINGER, TOWN OF WAPPINGER TOWN
BOARD, AND WAPPINGER SEWER IMPROVEMENT
AREA #1,
Respondents.
IAS Assigned Judge:
Hon. Joseph Jiudice
1
STATE OF NEW YORK
) SS.:
COUNTY OF DUTCHESS
CONSTANCE O. SMITH being duly sworn, deposes and says:
1. Deponent is the duly elected Supervisor of the Town of
Wappinger and has held that position since January 1, 1990.
2. Deponent is fully familiar with the negotiations that
ultimately resulted in the Stipulation of Settlement dated June
18, 1991.
3. Deponent actively participated in numerous settlement
negotiations, both in person and on the telephone, with Lewis
Henkind and his attorney, Herbert Wallace.
4. The Town of Wappinger has unequivocally and completely
complied with every term, convenant and condition stated in the
Stipulation dated June 18, 1991.
5. The Stipulation of Settlement was limited to the
Article 78 Proceedings commenced against the Town of Wappinger
and bearing Index Nos. 3074/1981, 3075/1981, 5485/1985,
5734/1986, 6505/1987.
6. At no time was it ever understood by me, or any other
Town Board Member, that the Stipulation affected anything other
than the benefit assessments levied for the Wappinger Sewer
Improvement Area No.l.
7. A simple reading of the Stipulation of Settlement
clearly identifies the special assessments that were challenged
as those levied for the Wappiner Sewer Improvement Area No. 1 and
no other. Parenthetically, as an additional part of the
settlement proceedings, Mr. Henkind requested that the Town
assist it in obtaining an easement from an adjoining landowner
which would facilitate Petitioner's connection to the newly
established Wappinger Sewer Transmission/Treatment Improvement
(WST/TI), which is discussed in greater detail in the
accompanying affidavit of Albert P. Roberts. The Town has
acquired such easement.
8. The benefit assessments that the Town of Wappinger
levied for the Wappinger Sewer Transmission/Treatment Improvement
(WST/TI) and for the Wappinger Cranberry Water Improvement were
for totally unrelated projects and at no time were the same ever
discussed in connection with the subject settlement.
9. It is clear that the Petitioner's present application
is the result of its failure to understand the procedures
required by Article 12-C and Article 15 of the Town Law in the
formation of Special Improvements and the allocation of costs
based on benefit.
10. It is respectfully brought to the Court's attention
that at the specific request of Mr. Henkind, the Stipulation of
Settlement contained a reaffirmation of the subdivision approval
granted by the Town of Wappinger Planning Board on December 5,
1983.
11. The benefit assessments levied for Wappinger Sewer
Improvement Area #1 were levied in accordance with the
Stipulation of Settlement.
12. The benefit assessments levied against the Cranberry
Hills Subdivision for WST/TI were made in accordance with the
formula set forth in the Petition for approval submitted to the
Office of the New York State Comptroller, Department of Audit and
Control; the Petitioner has been levied the same benefit
assessments assessed to all properties in similar categories.
13. The benefit assessments levied for Wappinger-Cranberry
Water Improvement were levied in accordance with a formula
established by the Town Board and uniformly applied to all
property in the Improvement.
14. It is respectfully submitted that the Petitioner cannot
avoid the legal implications of a filed subdivision plat
containing 550 individual lots and request the Town to treat the
550 individual lots as one large parcel of vacant land for tax
purposes. Each of the individual parcels in the subdivision have
been assigned a separate tax grid number and are, otherwise,
separate parcels of land subject to Petitioner's construction of
improvements required by the Resolution of Subdivision Approval.
15. The benefit assessments for both WST/TI and the
Wappinger-Cranberry Improvement were levied in 1992 and 1993
after the Town complied with the provisions of Section 239 of the
Town Law by conducting a public hearing, after published notice,
prior to the establishment of the benefit assessment rolls.
16. The Petitioner, not having objected to the assessment
and not having commenced an action within 30 days of adoption of
the benefit assessment roll is precluded from bring the instant
application (Section 239 of Town Law).
WHEREFORE, Deponent respectfully requests that this Court
deny Petitioner's request for the relief set forth in its Notice
of Motion dated, December 22, 1993 and to further grant
Respondent's Cross -Motion to dismiss the proceedings.
Sworn
Gyt�LG!% e
CONSTANCE O. SMITH
before me this
10 day of January, 1994
Notary Public
ALBERT P. ROBERTS
PUBLIC. State of New York
k..,; iif7eci in Dutchess County c�C
,_.._.._ �� E i ems- Feb. 28,1S_...
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF DUTCHESS
X
In the Matter of the Application of Index Nos. 6505/1987
5734/1986
DWS NEW YORK HOLDINGS, INC. 5485/1985
3075/1981
Petitioner, 3074/1981
For an Order pursuant to Article 78 of
the Civil Practice Law and Rules, to
review an assessment for special
improvement districts of the Wappinger
Sewer Improvement Area #1 pursuant to
Section 239 of the Town Law, the Real
Property Tax Law and other statutes,
-against-
COUNTY OF DUTCHESS, TOWN OF WAPPINGER,
THOMAS E. LOGAN, ASSESSOR OF THE TOWN
OF WAPPINGER, TOWN OF WAPPINGER TOWN
BOARD, AND WAPPINGER SEWER IMPROVEMENT
AREA #1,
Respondents.
In the Matter of the Application of
WVC REALTY CORP.,
Petitioner,
AFFIDAVIT OF TOWN BOARD
MEMBERS IN SUPPORT OF
CROSS MOTION
X TO DISMISS AND IN
OPPOSITION TO PETITIONER'S
MOTION TO ENFORCE
STIPULATION
For an Order pursuant to Article 78 of
the Civil Practice Law and Rules, to
review an assessment for special
improvement districts of the Wappinger
Sewer Improvement Area #1 pursuant to'
Section 239 of the Town Law, the Real
Property Tax Law and other statutes,
-against-
COUNTY OF DUTCHESS, TOWN OF WAPPINGER,
THOMAS E. LOGAN, ASSESSOR OF THE TOWN
OF WAPPINGER, TOWN OF WAPPINGER TOWN
BOARD, AND WAPPINGER SEWER IMPROVEMENT
AREA #1,
Respondents.
IAS Assigned Judge:
Hon. Joseph Jiudice
STATE OF NEW YORK
} SS.:
COUNTY OF DUTCHESS
JUNE A. VISCONTI, ROBERT L. VALDATI, AND JOSEPH INCORONATO,
each being duly sworn, depose and say:
1. The undersigned are presently members of the Town Board
of the Town of Wappinger and were also members of the Town Board
on June 18, 1991, when the above Stipulation was entered into by
Supervisor, Constance O. Smith.
2. The undersigned have each reviewed the Affidavit of
Constance O. Smith sworn to the loth day of January, 1994 and
fully confirm all the facts and recitations set forth therein.
3. The undersigned further confirm that they have read the
Stipulation of Settlement dated June 18, 1991, had read it prior
to authorizing Supervisor Constance O. Smith to sign same and
respectfully state that they understood the Stipulation of
Settlement to be limited to the Article 78 Proceedings referenced
in the above identified Dutchess County Index Nos. 6505/1987,
5734/1986, 5485/1985, 3075/1981, and 3074/1981. l
Sworn to before me this
loth day of Ja , + , 1994.
ROBERT L.�'VALDAkJ
'Notary Public
OSEPH INCORONATO
ALS] iLitlITT P. ROBERTSV
NOTARY PU3 .LC.. _:E i,_ is h York
Qualif! CGu at
Cy
�
T eD. 2a, 13.L
JUNE A. VISCONTI
Sworn to before me this 13th day
of January, 1994.
ALBERT P. ROBERTS
NOTARY PUBLIC; State of New York
Qualified in Outchess County
Commission Expires Feb. 28, 1941.
870
487 NEW YORK SUPPLEMENT, 2d SERIES
with the requirement that the ordinance be
placed within the minutes book. The delay
of a few days in actually affixing the map
to the book, through a copy of the publish-
ed ordinance, did not invalidate the enact-
ment of the ordinance (see Connal v.
Rhoades, 36 A.D.2d 641, 319 N.Y.S.2d 796;
see also Quick v. Town of Owego, 11
A.D.2d 285, 203 N.Y.S.2d 427, affd.. 8
N.Y.2d 1144, 209 N.Y.S.2d 828, 171 N.E.2d
903).
[2] The second reason urged by the
plaintiffs for finding that the ordinance
was invalidly enacted was that the village
was unable to produce an affidavit that the
ordinance was properly posted, as required
by Village Law § 95 (L.109, ch 64). It
would be almost impossible at this late date
for the village to prove that the ordinance
had indeed been posted back in 1937. We
find, however, that any defect in the man-
ner in which the ordinance might have been
posted was cured .by the enactment of
chapter 556 of the Laws of 1955. In this
curative statute, it is expressly provided
that no ordinance previously adopted pur-
suant to the applicable provisions of the
Village Law would be deemed invalid or
ineffective due to a defect in the posting or
publishing of the ordinance. This legisla-
tive enactment retroactively cured any de-
fect in the posting of the zoning ordinance
which might have existed at the time of its
enactment.
tinue in accordance with the grant of
such use of the Village of Old Westbury
and while so existing shall be deemed a
non -conforming use."
[3] The purpose of the New York State
constitutional provision was to ensure that
legislators, possibly ignorant of the provi-
sions of other statutes, do not affect public
or private interests to an extent not dis-
closed upon the face of the enactment, in a
manner which would not receive the sanc-
tion of the Legislature if fully understood
(see People ex rel. Everson v. Lorillard,
135 N.Y. 285, 31 N.E. 1011; People ex rel.
Board of Commrs. v. Banks, 67 N.Y. 568).
The reference in the 1949 amendment to
the Zoning Law of the Village of Old West-
bury did not violate the spirit of the consti-
tutional provision. It did not incorporate
by reference any substantive obligations or
requirements. It merely clarified those
portions of the zoned land which were
deemed a nonconforming use. There was
virtually no possibility that the enactors of
the zoning amendment were unaware of
the effect that the reference to the ordi-
nance of . the Village of Old Westbury
would have upon the ordinance of the de-
fendant village.
For the reasons stated above, the judg-
ment is reversed.
Finally, we see no merit in plaintiffs'
argument, not addressed by Special Term,
that an amendment to the building zone
ordinance, enacted in 1949, was invalid be-
cause it attempted to incorporate by refer-
ence parts of the building zoning ordinance
of the Incorporated Village of Old West-
bury, in violation of the New York State
Constitution (art. III, § 16). The 1949
amendment in question provided in rele-
vant part as follows:
"Section- 2. The use of any property,
described in Section 1 hereof, for a
planned business community center as
shall have been granted pursuant to the
provisions of the Village of Old West-
bury Building Zone Ordinance shall con-
110 A.D.2d 837
In the Matter of DWS NEW YORK
HOLDINGS, INC., Appellant,
v.
COUNTY OF DUTCHESS, et al.,
Respondents.
Supreme Court, Appellate Division,
Second Department.
April 22, 1985.
Property owner brought Article 78 pro-
ceeding to review determination of county
legislatu.
real pro':
upon a s'
number c
preme 0:
dismisses
owner a'.
pellate D
was enh
improver.
on that i
units allc
AffL
1. Muni(
Eva.
benefitec
mine rea.
be appli:
being us
erally en
of disprc
been enh
be borne
2. Munk
Tow;
seWer in::
proved I: -
resident:
ing valu€
3. Muni(
Bens
ment m
real prop
4. Muni(
Dete
spect to
propertie
cise of k
interfere
arbitrary
to a conf
5. Muni(
Prop
low assii,
available
calculatic
benefit a
have bee
At a Special meeting of the Town
Br,,^__d Of `nP Toi
Dutchess County, held at the Town
Hall, 20 Middlebush Road, in
Wappinger Falls, New York in said
Town, on the llth day of march ,
1991, at 7.00 o cl^ok p JH.,
Prevailing Time -
PRESENT:
CONSTANCE 0_ SMITH
.Supervisor
VICTOR L.:FANIIELE
Councilman
J0SEPH INCORONATO
Councilman
ROBERT VALDATI
Councilman
JITh E VISC0NTI
Councilman
In the Matter of
a Proposed SewerImprovement in the
.Town of Wappinger, Dutchess County '
New York, pursuant to Article 12-C '
of the Town Law to be known as
Wappinger Sewer Tra_n.smission_i
PUBLIC
INTEREST
RESOLUTION
WHEREAS, a map, plan and report, including an estiraat`e of
cost, have been duly prepared -In such manner and in such detail
as has h,Yetafcre been . determined by the Town Board of the Tow7.
cf Wapp finger, Dutchess County, New York, relati
to the
consr_uction aad installation of prot red e er irn rovernents in
said ToT.:J_ rto ser;Te a benefitted aiea in Said Town, to be known
_ 1 roveme2:1: Area; and
-.-
WHEREAS, said map, plan and report have been prepared by
Paggi and Martin of Poughkeepsie. New 'ork, ccametent engineers
duly licensed by the State of New York, and have teen filed in
the office: of the Town Clerk where they are available for
public inspection; and
WHEREAS, the improvements proposed for said Wappinger Sewer
Transmission/Treatment Improvement Area.: consist of the
construction of transmission facilities, to be used in
combination with existing sewer trunk lines, for the purpose of
delivering sewage within Phase One of the proposed mprove.ment
Area to the existing Tri-Municipal Pumping Station located in
the Village of Wappingers Falls for further transmissio4.
through existing and proposed facilities. to the Tri-Municipal
Wastewater Treatment Facility, and the construction of an
addition t ,z ne
?.val
for the •pur.pos.e of treating sewage generated, -initially, 'front
Wappinger Sewer Irnarovement Area Na. l and the Rockingham Farms
Sewer District with future expansion that i11`, u tixrately,
treat. sewage generated frontthe entire Wapp.r_ger Sewer
Transmission/Treatment Ir,p oveme z Area., as -ore fuli
is
WHEREAS,
EAS.,
Tmrxnt;r-3r+- *'-�aa
WaDt ifCTer
Sewer
"-- A ._ iher�_to,
depicted in the aforesaid nap, and
TraPsMis, _o ``reatm n t
as
WHEREAS, the maximum estimated cost proposed to be expended
for such improvements is 7 . , O2O , n 0 ; an
WHEREAS, the proposed method of financing for the aforesaid.
maximum estimated cost shall consist of the issuance, by the
Town of its serial bonds with a maximum maturity not in excess
of forty years; and
WHEREAS, it is proposed that the cost of the aforesaid
improvements shall be borne by the real; property in said
Wappinger Sewer Transmission/Treatment Improvement Area by
assessing, levying upon and collecting from the several lots
and parcels of land within such Improvement Area, which the
Town Board shall determine and specify to be especially
benefitted by the improvements, an amount sufficient to pay the
principal and interest on serial bonds and bondanticipation
notes issued in anti cirsaiion of th3 issuance ;f serial -heads,
as the same become due and payable, and
WHEREAS, the 'aforesaid irnpr;oveme_lz$ have been determined to
be a Type i Action pursuant to the regulations Of the New Pori:
State. Department of Environmental Corsetvation promulgated
purse a_lt to the State Environmental Quality Rey; ie Act, .the
envi r o nrr n
a1 c•_r e,cr cez • of w i .': have
determined; ned; an,-i
WHEREAS, the Town Board of the Town of WanDinger duly
adopted an Order on November 26, 1940- canninc' a ouolic hearing
upon said map, Dian and report and estimate of cost and the
_ 4 --
question of providing proposed sewer improvments to serve a
Transmission/Treatment
be known as ': a—po «°i` er sewer
Improver ent Area,
as more fully
described herein, such public hearing to be held on the 14th
day of January, 1991, at 7:30 o'clock P.M., Prevailing Time, at
the Town Hall, 20 Middlebush Road, Wappingers Falls, New York,
in said Town, at which time and place all persons interested in
the subject thereof could be heard concerning the same; and
WHEREAS, notice of .said public hearing was duly posted and
published as required by law; and
WHEREAS, said public hearing was duly held at the place and
at the time aforesaid and all persons interested in the subject
thereof were heard concerning the same; and
_WHEREAS, it is now desired • to authorize the improvement to
be kn. ,in as Wapp =nge titer ,-y a � c n; _ ; �-� T e a -r s� -
Area, subject to the approval of the State Comptroller; - MT,
THEREFORE, EE i
*�
RESOLVED,
ESOL , by the Town Bo T
Board. of - the own- of : Wappinger,.
Dutchess County, New York, as follows:
Section 1, It is hereby determined that it is in the F .hlic.
-interest
EQ •establ sft
Transmissior_/Trea ent Improvement Area and to make
improvements herinbefore a-'
sewer ' 7,,nrvemInnt
the
Sewer
sewer
hereby determined to be benefitted by said Wappinger Sewer
described as set forth in Appendix A annexed hereto and made a
part hereof.
Section 2, The improvements.. proposed for said. Wappinger
Sewer Transmission/Treatment Improvement Area shall consist of
the construction of transmission facilities, to be used: in
combination with existing sewer trunk lines, for the purpose of
delivering sewage within Phase One of the proposed Improvement
Area to the existing Tri-Municipal Pumping Station located in
the Village of Wappingers Falls
for further transmission
through existing and proposed facilities to the Tri-Municipal
Wastewater Treatment Facility, and the construction of an
addition to the Tri-Municipal Wastewater •Treatment Facility,
f o f th our-ca of
treating ie Tage generated
initialiv, fees
Wappinger Sewer Improvement Area No. 1 and the Rockingham Farms
er Di o:c4 with wuc4.re expa.*son that. will, ultimately,.
treat sewage generated from the entire Wappinger Sewer
Transmission/Treatment improvement. Area, as more fully
described. in
aforementioned
map, plan
and report, at a
Section 3 It ys r r dots-mtne'd- that the ..method
financing for the aforesaid `: maxi+11..m es`t,mated cost. 0a., l
consist of the issuance b77 tbe Tow o f 7 tS car-1 7 ti t re a 7� }h a
maximum maturity not in "excess of forty ` years, and
anticipation notes issued ire anticipation of saw :serial b nds.
bond'
the
-6-
Section 4. It is hereby further determined that the cost of
of aresai 71-provernen �.aI be .Tor;_
property
in said Wappinger Sewer Transmission/Treatment imnr.ovement Area
by assessing, levying upon and collecting from the several lots
and parcels of land within such, Improvement Area, which ,the.•
Town Board shall determine and specify to be especially
benefitted by the improvements, _an amount sufficient to pay the
principal and interest on serial bonds and bond anticipation
notes issued in anticipation of the issuance of serial bonds,"
as the same become due and payable.
Section 5, It is hereby further determined that all of the
cost of the aforesaid improvements shall be borne wholly by
property within the Wappinger Sewer Transmiss..on/Treatment
Improvement Area, and that no cost thereof shall be borne by
the entire
area of tbe. Te ri! c aside of an
Section 6. Pursuant to subdivision. 13(b) .of.
S e c.t i.on '2Os-q .
of the Tova Law, the Town zs terehy o tec.te and- ._azd: r.ea..,:>.
to file a certified copy of .this resolution
in. the Office of.
the State Department of Audit • and
togetherwith an app, cation for the approval of the State
described herin,:
such.
Control
in Albany, Neut. yore
- -_improveme1 as
o �� eicute� a..,d
•
-7—
verified by the Supervisor and to be completed in the form and
to contain such information as s`7ail bie prescribed by the State
Comotrol ler
Section 7:.Pursuant to subdivision 6(d) of Section 209—q of
the Town Law, the Town. Clerk is hereby directed and ordered to
cause a certified copy of this resolution to be duly recorded,
within ten days of the date of receipt of n.atification of the
approval of the State Comptroller, in the Office of the Clerk
of' the County of Dutchess, which when so recorded, shall be
presumptive evidence of the regularity of the proceedings and
action taken by the Town Board in relation tothe aforesaid
improvements..
Section 8. This resolution shall take effect immediately.
PROPOSED IMPROVEMENT AREA BOUNDARY MAP AND LOT DESCRIPTION
D1.,iTRICT BOUNDARY DESCRIPTION
PROPOSED WAPPINGER SEWER TRANSMISSION DISTRICT
Beginning at a point, said point being the southwesterly
corner of lands now or formerly Dutchess County, Liber 1531,
Page 536; thence running northeasterly along the lands now
or formerly Dutchess CountY, Libber 1531, Page 536, 940± feet
to the point, said point being the southwesterly corner of
lands now or formerly Ioppole, Libel- 1.437, Page 113; thence
running northwesterly and northeasterly. along Lands now or
formerly•Ioppole, Liber 1437, Page 113, 387± feet to a point
said point being the southwesterly corner of
Lands now
or
formerly Crane,. Liber 1788, Page.794; thence running
northeasterly and northwesterly along lands now or formerly
Crane, Liber 1788, Page 794, 1203t feet to a point, said
point being the southwesterly corner of lands now or
formerly O'Conner; Liber 1092, Page 659, 13.8t feet to a
point said point being tiie southeaster!y corner o' . lands row
or formerly Reimer, Liber 1243, Page 633`; thenceruzming
533, feet. ., a po_n` nct=L `�i C: a..so ce_ .g
on the easterly line of Osborne Hil17.Road; thence.,ru.nning in
a north es :e i yy ec Lion ,crossir_ said Osborne 'Hill _Road;.
thence runn_n!'
Csb,..Drne Hill . Road to a point., said point being on
westerly line of said Osborne 1.. i ad',;.- r d: 1 n a
,.� c2. L 1 :Y ood Cos_a=_..-2La s; h
running southwesterly along the ?ands of Fleetwood
Condominiums, , and: the westerly line of said Osborne ail'
1