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VanderWater& VanDerWaterVAN DEWATER AND VAN DEWATER, LLP COUNSELORS AT LAW ,lohn B. Van De Water (1892-1968) Robert B. Van DeWater (1921-1990) .lames G Nelson Gerard .I. C'omatos..lr. Ronald C. Blass..lr. Kyle W. Barnett Cynthia S. Rosenzweig 8i CIVIC CENTER PLAZA, SUITE 101 P.O. BOX 112 POUGHKEEPSIE, NEW YORK 12601 (84~) 4j2-900 Pax(84i)452-1848 Noel deCordova Jr. (Retired) Edward vK Quuiin,ham..Ir. ,lohn K- Gift~~rd Janis M. Gomez Anderson Counsel Rebecca A. Valk Audrey Friedrichsen Scott Anna E. Remet Jonathan M. Ream WEBSITE ADDRESS: www.vandewaterlaw.com GENERAL E-MAIL ADDRESS: info a vat~dewaterlaw.com November 11, 2011 VIA HAND DELIVERY Ms. Susan Dao, Planning Board Secretary Town of Wappinger Planning Board 20 Middlebush Road Wappingers Falls, NY 12590 Re: Request for Proposals for Attorney Services for Town of Wappinger Planning Board Dear Ms. Dao: Enclosed please find an original and nine (9) copies of our firm's proposal for legal representation of the Town of Wappinger Planning Board. Thank you. Very truly yours, VAN DEWATER & VAT DEWATER, LLP By. RCB:nlbg Enclosure BLASS, JR. S:\WPDOCS\V&V General\Wappinger Planning Board RFP Response\TRANSMITTAL LETTER. dot VAN DEWATER & VAN DEWATER, LLP NOVEMBER 11, 2011 PROPOSAL FOR LEGAL REPRESENTATION OF TOWN OF WAPPINGER PLANNING BOARD i~r- VAN DEWATER AND VAN DEWATER, LLP COUNSELORS AT LAW .Iohn B. Van DeWater (1892-1968) Robert B. Van DeWater (1921-1990) .lames G Nelson Gerard .I. Comatos, .l r. Ronald C Blass, .I r. Kyle W. Barnett Cynthia S. Rosenzweig Rebecca A. Valk Audrey Priedrichsen Scott Anna E Remet .lonadian M. Ream 85 CIVIC CENTER PLAZA, Slll"fE 101 P.O. BOX 112 POUGHKEEPSIE, NEW YORK 12601 (845)452-1900 Fax (845)452-5848 WEBSITE ADDRESS: www.vandewaterlaw.com GENERAL E-MAIL ADDRESS: into irwat~dewaterlaw.com November 11, 2011 Ms. Susan Dao, Planning Board Secretary Town of Wappinger Planning Board 20 Middlebush Road Wappingers Falls, NY 12590 Noel deCordova..Ir. (Reared) Edward vK Cunningham, Jr. ,Iohn K. Gifford .lapis M. Gomez Anderson Counsel Re: Request for Proposals for Attorney Services for Town of Wappinger Planning Board Dear Ms. Dao: We respond to the RFP for legal representation of the Town of Wappinger Planning Board. Van DeWater & Van DeWater has existed since 1914. It consists of 11 attorneys at this time. Most of them regularly provide guidance to local municipalities and public officials, including planning boards. Van DeWater & Van DeWater provides a full range of services to municipalities, including general counseling, land use issues, litigation, defense of tax review proceedings, municipal finance, legislative drafting, and legal administration of public works. In land use matters, Van DeWater & Van DeWater balances the playing field for its municipal clients matched against highly motivated land developer teams. Susan Dao November 11, 2011 Page 2 ------------------- ~r+' Our firm was a part of the legal team which handled the seminal SEQRA decision by the state's highest court in Merson v. McNally. There, the Court of Appeals identified rules for the proper scope of "impact mitigation negotiation" between a planning board and an applicant in order to develop, where possible, a sound project while being careful not to circumvent SEQRA procedures. That case was nominated by a lead SEQRA commentator, in 2000, as one of the six most important SEQRA decisions of the prior decade. Attached is the New York Law Journal column where this observation was made. Interestingly, Van DeWater & Van DeWater handled one of the other six most important SEQRA cases, WEOK Broadcasting Corp. v Planning Board of Lloyd, also noted in that column. The firm was on the winning side in both significant land use decisions. The firm has handled complex land use matters for the private sector as well, including the siting and SEQRA review of the Frank Gehry designed Fisher Center for the Performing Arts at Bard College in Red Hook. What distinguishes Van DeWater & Van DeWater is the longevity and continuity of the firm's representation of its municipal clients, for instance: (a) Town of LaGrange since the 1930's. (b) Town of Fishkill since 1964. (c) Town of Washington since about 1973. (d) Town of Poughkeepsie commencing in 1977, and continuing in various capacities thereafter, including planning board representation since 2007. (e) Town of Kent Planning Board since 2001. (f) Town of Marlborough Planning Board since 2001. (g) Town of Pleasant Valley Planning Board, for about 20 years. We have devised creative solutions for municipalities in public-private partnership ventures, particularly in the area of infrastructure development. We are keenly aware of options for passing on administrative costs to the private sector wherever possible. we have drafted model legislation, for instance, allowing municipalities to place tax liens on property to recover unreimbursed legal and engineering review costs ~,,.. incurred by a planning board. Susan Dao November 11, 2011 Page 3 ------------------- ~r' We are pleased to respond to the Request for Proposal. By virtue of experience and skill, we can meet the legal representation needs of the Wappinger Planning Board. When represented by Van Dewater & Van Dewater in the area of land use, zoning and planning, our clients have available to them a team of attorneys who are experienced and skilled, working under the guidance of a senior partner who will be fully accessible to the Board and on whose desk the buck will stop. The members of the Van Dewater & Van Dewater team are as follows: James E. Nelson, Esci., Partner Mr. Nelson is a 35 year member of the firm. He has extensive experience in the areas of land use, zoning, environmental and municipal law, including regulatory and media law issues by ~'' virtue of representation of the Dutchess County Resource Recovery Agency, Gannett Corporation (Poughkeepsie Journal) and Ottaway Newspapers (Times Herald Record). He currently serves as Town Attorney to the Town of Poughkeepsie. He represents the Town of Pleasant Valley Planning Board, and its Zoning Board of Appeals. Ronald C. Blass, Jr., Esq., Partner Mr. Blass is a 30-year member of the firm. He serves as the partner at Van Dewater & Van Dewater in charge of the decades- long representation of the Towns of LaGrange and Fishkill. He manages the firm's representation of the Town of Marlborough and the Town of Kent in Putnam County. This experience involves regular attendance at meetings of the boards of these municipalities, including all meetings of the planning boards of the Town of Kent and the Town of Marlborough. If the firm is retained, Mr. Blass is available to be the partner in charge of representing the Wappinger Planning Board by Van Dewater & Van Dewater. Susan Dao November 11, 2011 Page 4 ------------------- Rebecca A. Valk, Esq., Associate Ms. Valk is a 2003 graduate of St. John's University School of Law. She has been an associate with Van DeWater & Van DeWater, LLP since 2003 and practices principally in the areas of municipal law, zoning and planning, environmental law and real estate. Ms. Valk currently covers the Planning Boards in the Town of Lagrange and the Town of Washington. She covers the Zoning Boards of Appeal in Poughkeepsie, LaGrange, Millbrook and Washington. Audrey L. Friedrichsen Scott, Esq., Associate Ms. Scott is a 2004 graduate of Pace Law School, where she earned a certificate in environmental law. She has been an associate with Van DeWater & Van DeWater, LLP since December of 2007, and also practices principally in the areas of municipal law, zoning and planning, environmental law and real estate. ~""' She has experience in representing developers of commercial and residential projects before planning and zoning boards. Ms. Scott currently represents the Town of Fishkill Planning Board and Zoning Board of Appeals and the Town of Poughkeepsie Planning Board. Proposed Work Program At Van DeWater & Van DeWater, we meet our clients' expectation that their consultants provide all necessary services in a competent and in a timely fashion. The firm, in consultation with the Planning Board, will designate one attorney to be on point to insure efficiency and continuity. In addition, we will be able to swiftly integrate the team members into the Planning Board's two-meeting per month schedule. We will work with the Secretary to the Planning Board to set up a method to obtain, prior to public meetings, the applications and other materials submitted to the Planning Board in order that the Planning Board and, the applicants (to the degree authorized), may be apprised of issues "~,,. in advance. We will be in communication with other Planning Board consultants with regard to their reviews of applications. Post meeting, we will quickly follow up with any legal issues Susan Dao November 11, 2011 Page 5 ------------------- raised by the Planning Board's review and discussion of applications. All members of the team may be easily reached by phone or e-mail. We will provide legal coverage for all regular and special Planning Board meetings, and will be available for any site visits, off-line meetings with applicants and their consultants and other events as necessary. There will be one attorney on point for continuity and efficiency, but in the event of a scheduling conflict or other unavailability of a lead attorney, the fact that there are four attorneys on the Van DeWater team insures that an experienced representative will always be available. The depth of practical experience and skill of our planning board attorneys allows for us, in fairness to the private sector applicants, to control costs and to keep consulting fee pass-throughs within a reasonable range. References Town of Marlborough Planning Board Joseph Porco, Chairman Town of Marlborough 1650 Route 9W, P. 0. Box 305 Milton, NY 12547 795-5243 Secretary: Kathi Natland KNatland@MarlboroughNY.US Town of Pleasant Valley Planning Board Rebecca Seaman, Chairwoman Town of Pleasant Valley 1554 Main Street Pleasant Valley, NY 12569 635-8395 Secretary: Laurie Fricchione lfricchione@pleasantvalley-ny.gov Town of Poughkeepsie Planning Board John Weisman, Chairman Town of Poughkeepsie One Overocker Road Poughkeepsie, NY 12603 ``\.• 485-3658 Secretary: Diane Benigno DBenigno@townofpoughkeepsie-ny.gov Susan Dao November 11, 2011 Page 6 ------------------- Town of Fishkill Planning Board Thomas J. Knips, Chairman Town of Fishkill 807 Route 52 Fishkill, NY 12524 831-7800 Ext. 3328 Secretary: Debbie Davis ddavis@fishkill-ny.gov Town of Kent Planning Board Russell Fleming, Chairman Town of Kent 25 Sybil's Crossing Kent Lakes, NY 10512 225-7802 Secretary: Vera Patterson planning@townofkentny.gov Town of LaGrange Planning Board Alan Bell, Chairman Town of LaGrange 120 Stringham Road LaGrangeville, NY 12540 452-2046 Secretary: Eileen Mang emang@lagrangeny.org Thank you for the opportunity to submit this proposal. As requested, our cost proposal is submitted under separate cover. Please do not hesitate to contact the undersigned if you have any questions or require further information. Very truly yours, VAN DEWATER & VAN D ATER, LLP By. RONALD C. BL SS, JR. RCB:nlbg Enclosure S:\WPDOCS\V&V General\Wappinger Planning Board RFP Response\11.11.11 Wappinger Planning Board RFP Letter.dot VAN DEWATER AND VAN D~:WATER, LLP COUNSELORS AT LAW ~r~' Iolui B. Van De Water (1892-1968) Robert B. Van DeWater (1921-1990) .lames E. Nelson Gerard .I. Comatos, .Ir. Ronald C. Blass. ,ir. Kyle W. Barnett Cynthia S. Rosenzweig Rebecca A. Valk Audrey Friedrichsen Scott Anna E. Remet .lonathan M. Ream 85 CIVIC CEN"I"ER PLAZA, SUITE 101 P.O. BOX 112 POUGHKEEPSIE, NEW YORK 12601 (845) 452-5900 Fax (845)452-5848 WEBSITE ADDRESS: www.vandewaterlaw.com GENERAL E-MAIL ADDRESS: info a>vatidewaterlaw.com November 11, 2011 Ms. Susan Dao, Planning Board Secretary Town of Wappinger Planning Board 20 Middlebush Road Wappingers Falls, NY 12590 Noel deCordova. Jr. (Retirod) Edward vK Cunnin,ham, .I r. john k- Gifftxd .lapis M. Gomez Andarson Counsal Re: Request for Proposals for Attorney Services for Town of Wappinger Planning Board Cost Proposal Dear Ms. Rao: Please accept this cost proposal to supplement our response to RFP of the Town of Wappinger Planning Board. The rate for each attorney (listed below) will be $165/hour. • James E. Nelson, Esq., Partner • Ronald C. Blass, Jr., Esq., Partner • Rebecca A Valk, Esq., Associate • Audrey L. Friedrichsen Scott, Esq., Associate These rates are inclusive of all secretarial, clerical and administrative services and all local telephone, postage and other customary overhead expenses. It is anticipated that the Planning Board maintains an escrow-based pass through of its legal fees to the applicants. Consequently, we are prepared to keep a separate billing account for each application. Susan Dao November 11, 2011 Page 2 ------------------- ~r- We offer up to three (3) hours per month of unbilled time toward general legal representation of the Planning Board on administrative matters not covered by applicant escrows. Very truly yours, VAN DEWATER & VAN/D~WATER, LLP bV' By: RCB:nlbg C. BRASS, JR. S:\WPDOCS\V&V General\Wappinger Planning Board RFP Response\11.1.11 Letter with Hourly rates.dot Search - 1 Result - gerrard and SEQRA and merson and WEOK Page 1 of 7 TEN YEARS OF SEQRA LITIGATION: A STATISTICAL ANALYSIS; Environmental Law New York Law Journal March 24, 2000 Friday Copyright 2000 ALM Media Properties, LLC All Rights Reserved Further duplication without permission is prohibited ~~a ~. New York Law Journal March 24, 2000 Friday SECTION: Pg. 2, (col. 4) Vol. 223 LENGTH: 3043 words HEADLINE: TEN YEARS OF SEQRA LITIGATION: A STATISTICAL ANALYSIS; Environmental Law BYLINE: Michael B. Gerrard BODY: Environmental Law `,,,, For each of the last nine years,l this column has presented an analysis of the past year's decisions under the State Environmental Quality Review Act (SEQRA).2 In this tenth year, we now have a complete picture of all 635 SEQRA decisions of the decade 1990 - 1999.3 The accompanying table summarizes the results. One especially striking fact emerges: Defendants are nearly three times as likely to win a SEQRA lawsuit if an environmental impact statement (EIS) has been prepared for the challenged action than if there was no EIS. Plaintiffs prevailed in 10 per cent of the actions where there was an EIS, and 28 per cent where there was no EIS. There have been a few fluctuations in these numbers from one year to the next, but, by and large, the picture remained about the same throughout the decade. Most Important Decisions This review also provides an occasion to nominate the six most important SEQRA decisions of the decade. All are from the New York Court of Appeals. Six is not an especially round number, but all these seemed far more important than whatever would have been number seven. All six of these reveal their influence in the cases and other developments of 1999, which are also reviewed in today's column. Here, in descending order, is my list. It will be noted that in all of these, as well as all other Court of Appeals decisions of the decade, the governmental defendants won (with one minor exception where a town's behavior was indisputably over the line);4 otherwise environmental plaintiffs have not won a SEQRA case in the Court of Appeals since 1989.5 1. Akpan v. Koch6 (1990) -The state's high court began the decade with a theme that has resonated through almost all subsequent SEQRA decisions: deference to the administrative agency. In that challenge to an urban renewal project in Brooklyn, opponents presented https://www.lexis.com/research/retrieve?_m=a0520c08c10e558a480256df5el55bcf& br... 11/11/2011 Search - 1 Result - gerrard and SEQRA and merlon and WEOK Page 2 of 7 voluminous expert reports arguing that the EIS analysis was deeply flawed. The Court of Appeals would have none of it; the defendant City of New York had studied the issues and reached a reasoned conclusion, and it was not for the courts to second-guess the City's '~, judgments. This deference is the major reason why plaintiffs so seldom win cases where EISs have been prepared. One 1999 application of this principle is Sour Mountain Realty Inc. v. New York State Department of Environmental Conservation in which the Appellate Division, Third Department, upheld DEC's decision to require a supplemental EIS for a proposed mining project after it had been determined that a population of an endangered species, the timber rattlesnake, might be affected. DEC's judgment of the potential significance of the impacts was enough to overcome the applicant's protestations of irrelevance and delay. 2. Society of the Plastics Industry Inc. v. County of Suffolk$ (1991) -This decision created the doctrine that, in order to have standing to bring a SEQRA case, a plaintiff must not only be affected by the challenged action -she must also be affected differently than the public at large. This doctrine has the potential to shield from review many classic environmental impacts (such as air and water pollution) that equally affect everyone nearby. It has no parallel in federal standing law or that of most states, and thus makes New York one of the most restrictive jurisdictions for environmental plaintiffs.9 Six 1999 SEQRA decisions held that plaintiffs lacked standing to sue.i~ In two important Appellate Division cases,ll lower court denials of standing were reversed, but the courts did not accept the invitations from plaintiffs and amici to revisit the special injury requirement of Society of Plastics, but rather found that the lower courts had been too restrictive in applying that requirement. I would have ranked this decision as number one, except that it arises less often than might be expected. The six 1999 decisions rejecting standing were just over the annual average (five) for the decade, and thus fewer cases are affected by questions over standing than by deference to administrative agencies. 3. Merlon v. McNally12 (1997) -This decision authorized, under some circumstances, a conditioned negative declaration for a Type I action (an action more likely than others to require an EIS), despite a DEC regulation that seems to prohibit such a declaration. More important than this technical holding, however, is the decision's signal that minor procedural irregularities will be forgiven, especially if the public has been given full opportunity to participate in the discussions. This is contrary to the strict compliance standard that predominated, at least rhetorically, before Merlon. One 1999 application of Merlon was Friends of the Wickers Creek Archeological Site v. Board of Trustees of Dobbs Ferry13 in which an EIS for a housing development was upheld despite various procedural errors. 4. Bonnie Briar Syndicate Inc. v. Town of Mamaroneck14 (1999) -This decision did not construe SEQRA but it highlighted the statute's extreme importance. It strengthened New York's inhospitability to takings challenges to land use and environmental restrictions. The Town had followed SEQRA and painstakingly documented the importance of preserving a large parcel as a golf course rather than allowing it to be developed for housing. The SEQRA studies were an essential basis for the Court's finding that the Town's restrictions were solidly grounded. Similarly, the Second Department last year in W.J.F. Realty v. Town of Southampton15 overturned a trial court's large taking award against a town that had restricted development in a portion of the town. https://www.lexis.com/research/retrieve? m=a0520c08c10e558a480256df5el55bcf&_br... 11/11/2011 Search - 1 Result - gerrard and SEQRA and merson and WEOK Page 3 of 7 5. WEOK Broadcasting Corp. v. Planning Board of Lloyd16 (1992) -This decision, concerning a radio tower near the Hudson River, established two key principles. First, aesthetics are a valid basis for municipal regulation; a project subject to discretionary review can, under the right circumstances, be rejected because it is ugly. (A 1999 application of this rule is Sprint Spectrum, L. P. v. Willoth.)17 Second, when SEQRA review finds the presence or absence of an impact, that finding is binding, at least on the lead agency. Thus several 1999 decisions found that a SEQRA negative declaration (a finding that the project's environmental impacts are so minor that no EIS is necessary) precludes a project denial on environmental grounds,18 though one unreported decision went the other way.19 6. Long Island Pine Barrens Society v. Town of Brookhaven20 (1992) -Here the Court found no necessity to conduct a cumulative impact assessment of more than 200 separate proposed projects in Suffolk County despite their common impact on the precious Long Island aquifer, because the projects did not emerge from a common plan or developer; for cumulative review to be required, the projects had to be related in origins or sponsorship, rather than only in impacts. There were no cumulative impact decisions in 1999 (though, as noted below, several decisions arose under the related doctrine of segmentation). However, the working group that DEC had created to resolve the problems created by Long Island Pine Barrens Society completed its report recommending a new definition of cumulative impact for SEQRA. That definition has not yet been adopted, however. The above six decisions form the backbone of today's SEQRA jurisprudence, which can largely be boiled down to this: the outcome of a SEQRA review will strongly influence the outcome of the underlying development controversy, and so long as the government studied and wrote up the relevant issues and at least came close to following the proper procedures, its decisions are unlikely to be overturned by the courts. CEQR Statistics A sons under SEQRA are decisions under City Environmental Quality Review (CEQR), the City of New York's regulations implementing SEQRA. In 1998 a statistical analysis was published of all CEQR cases decided between 1983 and 1997.21 Its author, Boris Serebro, found 41 CEQR decisions; of these, plaintiffs won nine, but only five on environmental grounds. Of these five, one turned on an issue that raged in the 1980s but has since been resolved - designation of the lead agency for CEQR review.22 Three concerned the applicability to CEQR to actions other than conventional construction projects -removal of lead paint from the Williamsburg Bridge,23 elimination of fire alarm boxes on City streets,24 and demolition of the Naumberg Bandshell in Central Park.25 The fifth was a landmark decision on secondary displacement.26 ULURP Statistics Thieview has also given me occasion to look at the statistics for cases arising under the Uniform Land Use Review Procedure (ULURP), New York City's consolidated procedure for reviewing a wide variety of land use and contracting matters.27 Many ULURP cases also involve CEQR and SEQRA, so there is considerable overlap among the decisions counted here. There are a total of 56 reported ULURP decisions. Of these, plaintiffs won seven, but in only four of these was ULURP decisive. All four of these turned on whether ULURP applied to a particular action, rather than on the adequacy of ULURP review. The first of these was also the first reported ULURP case ever - Ortho-O-Vision v. City of https://www.lexis.com/research/retrieve?_m=a0520c08c10e558a480256df5e155bcf& br... 11/11/2011 Search - 1 Result - gerrard and SEQRA and merson and WEOK Page 4 of 7 New York28 which held in 1979 that the City's decision on awarding a franchise for cable television in Queens should have gone through ULURP. In the second, Connor v. Cuomo29 a community residence for homeless mentally ill persons was found to be subject to ULURP; though it was nominally a State project, the State acquired the property from the City by a friendly condemnation. Third came Council of New York v. Giuliani30 finding that the sale of a hospital operated by the New York City Health and Hospitals Corporation to afor-profit entity was subject to ULURP. Finally, in Committee to Preserve Brighton Beach v. City Planning Commission31 the City was found to have failed to observe ULURP in deciding whether a proposed concession for a golf driving range at a Brooklyn park was a major concession. Most of the ULURP cases in which the defendants prevailed concerned one of two issues: whether ULURP applied to the action (15 decisions), and whether, for projects to which ULURP applied, the proper procedures were followed, especially in considering changes to the project since the ULURP certification (another 15 decisions). There were also four dismissals based on lack of ripeness and three based on lack of standing. Closely related to ULURP is the fair share provision of the City Charter, which requires consideration of whether certain communities are being overburdened with unwanted facilities. There have been eleven decisions under this provision, and only one victory for plaintiffs - Silver v. Koch32 which concerned the siting of a Department of Sanitation garage on two piers in the East River. 1999 Results Confining my review just to the past year's cases (as my prior columns have done), there were 61 decisions under SEQRA in 1999.33 Of these, 13 involved projects that had been subject to EISs; plaintiffs won one of these. There were 33 with no EISs; plaintiffs won nine of these. (In the rest of the cases, it was not apparent whether an EIS had been prepared, or for other reasons the decisions could not be categorized this way.) The only Court of Appeals decision concerning SEQRA in 1999 was Bonnie Briar, which was discussed above. Throughout the state, 170 draft EISs and 84 final EISs were prepared under SEQRA in 1999.34 The sole decision striking down an action after an EIS was Penfield Panorama Area Community, Inc. v. Town of Penfield Planning Board35 which concerned a cluster subdivision. The Planning Board approved the project but deferred to DEC and the county health department the consideration of the cleanup of hazardous waste that had been found under the site. The Appellate Division, Fourth Department, held that deferring resolution of the remediation was improper because it shields the remediation plan from public scrutiny, and thus the court [below] properly annulled the determination of the Planning Board. One hot topic for SEQRA litigation in 1999 was segmentation -the alleged separation of actions into two or more segments, so that full environmental review of the overall action is avoided. In three decisions, project approvals were annulled on segmentation grounds. In Scenic Hudson Inc. v. Town of Fishkill Town Board36 the Town issued a negative declaration and rezoned land from residential to planned industrial. Then the town declared that mining is a permitted use in a planned industrial area, and that asphalt processing is an accessory use. The Second Department ruled that the rezoning was an integral part of a mining proposal that would have obvious potential environmental impacts, which the town board should have considered these at time of rezoning. Similarly, in Citizens Concerned for the Harlem Valley Environment v. Town Board of Amenia37 segmentation was found in another rezoning that would allow mining. In Schulz v. https://www.lexis.com/research/retrieve? m=a0520c08c10e558a480256df5e155bcf& br... 11/11/2011 Search - 1 Result - gerrard and SEQRA and merson and WEOK Page 5 of 7 State of New York38 a sewer project had been split into two different parts. The court found that these were both part of one overall project, and should have been considered together. In two other decisions, however, no segmentation was found.39 A final notable decision of 1999 was Niagara Mohawk Power Corp. v. Green Island Power Authority40 which arose after the plaintiff agreed to sell 72 power plants. The Green Island Power Authority offered to buy one of them. When the plaintiff rejected the offer, Green Island started condemnation proceedings to acquire it via eminent domain, and issued a negative declaration under SEQRA. The court rejected this SEQRA determination, finding a need to analyze the environmental impacts of changing ownership, and in particular whether Green Island had the requisite technical expertise to run the plant. (1) Prior reviews appeared in the New York Law ]ournal on Mar. 29, 1991; Mar. 27, 1992; Mar. 26, 1993; Apr. 22, 1994; March 24, 1995; Mar. 22, 1996; Mar. 28, 1997; May 22, 1998; and Jan. 22, 1999. (2) N.Y. Envtl. Conserv. art. 8. (3) This count includes not only all reported decisions, but also numerous unreported decisions that the author has obtained. It is possible that there are additional unreported decisions that are unknown to the author. (4) Kahn v. Pasnik, 90 N.Y.2d 569, 664 N.Y.S.2d 584 (1997). (5) The last victory by pro-environmental plaintiffs was Village of Westbury v. Department of Transportation, 75 N.Y.2d 62, 550 N.Y.S.2d 604 (1989). (6) 75 N.Y.2d 561, 555 N.Y.S.2d 16 (1990). (7) 260 A.D.2d 920, 688 N.Y.S.2d 842 (3'd Dep't 1999), app. den. 93 N.Y.2d 815, 697 N.Y.S.2d 562 (1999). (8) 77 N.Y.2d 761, 570 N.Y.S.2d 778 (1991). (9) See Philip Weinberg, Are Standing Requirements Becoming a Great Barrier Reef Against Environmental Actions? 7 N.Y.U. Envt. L.]. 1 (1999). (10) Sunrise Development Inc. v. Town of Huntington, 62 F.Supp.2d 762 (E. D.N.Y. 1999); Boyle v. Town of Woodstock, 257 A.D.2d 702 (3d Dep't 1999); Gardner v. City of Yonkers, 694 N.Y.S.2d 465 (2d Dep't 1999); Benson v. City of Albany Planning Board, Index No. 5632-98 (Sup.Ct. Albany Co., January 20, 1999), aff'd, 696 N.Y.S.2d 913 (1999); Elias v. Town of Brookhaven, Index No. 23145-1992 (Sup.Ct. Suffolk Co., August 5, 1999); Pavilion Against the Tower v. Town of Pavilion, Index No. 47010 (Sup.Ct. Genesee Co., July 9, 1999). (11) Committee to Preserve Brighton Beach and Manhattan Beach Inc. v. Planning Comm'n of the City of New York, 695 N.Y.S.2d 7 (1st Dept 1999); Long Island Pine Barrens Society Inc. v. Town of Islip 690 N.Y.S.2d 95 (2d Dep't 1999). (12) 90 N.Y.2d 742, 665 N.Y.S.2d 605 (1997). (13) Index No. 17300/98 (Sup.Ct. Westchester Co., April 27, 1999). (14) 94 N.Y.2d 96, 699 N.Y.S.2d 721 (1999). (15) N.Y.L.J., June 2, 1999, 33:5 (2d Dep't 1999). https://www.lexis.com/research/retrieve?_m=a0520c08c10e558a480256df5e155bcf& br... 11/11/2011 Search - 1 Result - gerrard and SEQRA and merson and WEOK Page 6 of 7 (16) 79 N.Y.2d 373, 583 N.Y.S.2d 170 (1992). (17) 176 F.3d 630 (2d Cir. 1999). (18) Albany-Greene Sanitation Inc. v. Town of New Baltimore Zoning Board of Appeals, 692 N.Y.S.2d 831 (3d Dep't 1999), app. den. 94 N.Y.2d 752, 700 N.Y.S.2d 425 (1999); SCI Funeral Services of New York Inc. v. Planning Board of Town of Babylon, Index No. 27735/1998 (Sup.Ct. Suffolk Co., June 3, 1999). (19) Cellco Partnership v. Bellows, 692 N.Y.S.2d 203 (3d Dep't 1999). (20) 80 N.Y.2d 500, 591 N.Y.S.2d 982 (1992). (21) Boris Serebro, CEQR Litigation: Statistics, Trends, Analysis,New York Envt'I Lawyer, 30 (Spring 1998). (22) Coca-Cola Bottling Co. v. Board of Estimate of New York, 72 N.Y.2d 674, 536 N.Y.S.2d 33 (1988). (23) Williamsburg Around the Bridge Block Assn v. Giuliani, 223 A.D.2d 64, 644 N.Y.S.2d 252 (1st Dept 1996). (24) Powis v. Giuliani, 216 A.D.2d 107, 628 N.Y.S.2d 634 (1st Dept 1995). (25) London v. Art Comm'n of New York, 190 A.D.2d 557, 593 N.Y.S.2d 233 (1st Dept 1993), app. den. 82 N.Y.2d 652, 601 N.Y.S.2d 581 (1993). (26) Chinese Staff and Workers Assn v. City of New York, 68 N.Y.2d 359, 509 N.Y.S.2d 499 (1986). (27) This analysis of ULURP decisions was greatly aided by the research assistance of Sherell Evans, a student at Columbia Law School. (28) 101 Misc.2d 987, 422 N.Y.S.2d 781 (Sup. Ct. N.Y. Co. 1979). (29) 161 Misc.2d 889 614 N.Y.S.2d 1011 (Sup. Ct. Kings Co. 1994). (30) 231 A.D.2d 178, 662 N.Y.S.2d 216 (2d Dep't 1997), aff'd on other grounds, 93 N.Y.2d 60, 687 N.Y.S.2d 609 (1999). (31) 695 N.Y.S.2d 7 (1st Dept 1999). (32) 137 A.D.2d 467, 525 N.Y.S.2d 186 (1988), app. den. 73 N.Y.2d 702, 536 N.Y.S.2d 743 (1988). (33) All of these decisions will be included in the forthcoming 2000 supplement to Michael B. Gerrard, Daniel A. Ruzow and Philip Weinberg, Environmental Impact Review in New York (Matthew Bender & Co., two volumes). (34) These statistics were provided by Jack Nasca, DEC, in a telephone conversation of Mar. 14, 2000. (35) 253 A.D.2d 342, 688 N.Y.S.2d 848 (4th Dept 1999). (36) 258 A.D.2d 654, 685 N.Y.S.2d 777 (2d Dep't 1999). (37) 694 N.Y.S.2d 108 (2d Dep't 1999), app. den., 2000 N.Y. Lexis 47 (Jan. 11, 2000). https://www.lexis.com/research/retrieve? m=a0520c08c10e558a480256df5e155bcf& br... 11/11/2011 Search - 1 Result - gerrard and SEQRA and merson and WEOK Page 7 of 7 (38) Index No. 3255-96 (Sup.Ct. Albany Co., June 8, 1999). (39) Golden v. New York City Dept of Sanitation, Index No. 42723/98 (Sup.Ct. Kings Co., June 25, 1999); Scenic Hudson Inc. v. Town of Fishkill Town Board, 699 N.Y.S.2d 70 (2d Dept 1999). (40) 697 N.Y.S.2d 700 (3d Dep't 1999). LOAD-DATE: August 5, 2011 Source: Legal > States Legal - U.S. > New York > Search News > Legal News > $ New York Law ]ournal Terms: gerrard and SEQRA and merson and WEOK (Suggest Terms for My Search) View: Full Date/Time: Friday, November 11, 2011 - 11:36 AM EST In About LexisNexis I Privacy Policy ~ Terms & Conditions I Contact Us Copyright © 2011 LexisNexis, a division of Reed Elsevier Inc. All rights reserved. https://www.lexis.com/research/retrieve?_m=a0520c08c10e558a480256df5e155bcf& br... 11/11/2011 VAN DEWATER & VAN DEWATER, LLP NOVEMBER 11, 2011 PROPOSAL FOR LEGAL REPRESENTATION OF TOWN OF WAPPINGER PLANNING BOARD VAN DEWATER AND VAN DFWATER, LLP COUNSELORS AT LAW .lobo B. Van DeWater (1892-1968) Robert B. Van DeWater (1921-199(1) .lames E. Nelson Gerard .I. Comatos. Ir. Ronald C. Blass, .fr. Kyle W. Barnett Cynthia S. Rasenzwei2 Rebecca A. Valk Audrev Friedrichsen Scott Anna E. Rcmet Jonathan M. Ream R5 CIVIC' CENTER PLA7..A. SUITE 101 P.O. BOX 112 POUGHKEEPSIE, NEW YORK 12601 (845) 452-5900 Fax (845)452-5848 WEBSITE ADDRESS: www.vandewaterlaw.com GENERAL E-MAIL ADDRESS: info~uwandewaterlaw.com Noel deCordova. Jr. (Retired) Edward vK Cunningham. .I r. .lobo K. Giffi~rd .lapis M. Gomez Anderson Counsel November 11, 2011 Ms. Susan Dao, Planning Board Secretary Town of Wappinger Planning Board 20 Middlebush Road Wappingers Falls, NY 12590 Re: Request for Proposals for Attorney Services for Town of Wappinger Planning Board Dear Ms. Dao: We respond to the RFP for legal representation of the Town of Wappinger Planning Board. Van DeWater & Van DeWater has existed since 1914. It consists of 11 attorneys at this time. Most of them regularly provide guidance to local municipalities and public officials, including planning boards. Van DeWater & Van DeWater provides a full range of services to municipalities, including general counseling, land use issues, litigation, defense of tax review proceedings, municipal finance, legislative drafting, and legal administration of public works. In land use matters, Van DeWater & Van DeWater balances the playing field for its municipal clients matched against highly motivated land developer teams. Susan Dao November 11, 2011 Page 2 ------------------- Our firm was a part of the legal team which handled the seminal SEQRA decision by the state's highest court in Merson v. McNally. There, the Court of Appeals identified rules for the proper scope of "impact mitigation negotiation" between a planning board and an applicant in order to develop, where possible, a sound project while being careful not to circumvent SEQRA procedures. That case was nominated by a lead SEQRA commentator, in 2000, as one of the six most important SEQRA decisions of the prior decade. Attached is the New York Law Journal column where this observation was made. Interestingly, Van DeWater & Van DeWater handled one of the other six most important SEQRA cases, WEOK Broadcasting Corp v Planning Board of Lloyd, also noted in that column. The firm was on the winning side in both significant land use decisions. The firm has handled complex land use matters for the private sector as well, including the siting and SEQRA review of the Frank Gehry designed Fisher Center for the Performing Arts at Bard College in Red Hook. What distinguishes Van DeWater & Van DeWater is the longevity and continuity of the firm's representation of its municipal clients, for instance: (a) Town of LaGrange since the 1930's. (b) Town of Fishkill since 1964. (c) Town of Washington since about 1973. (d) Town of Poughkeepsie commencing in 1977, and continuing in various capacities thereafter, including planning board representation since 2007. (e) Town of Kent Planning Board since 2001. (f) Town of Marlborough Planning Board since 2001. (g) Town of Pleasant Valley Planning Board, for about 20 years. We have devised creative solutions for municipalities in public-private partnership ventures, particularly in the area of infrastructure development. We are keenly aware of options for passing on administrative costs to the private sector wherever possible. We have drafted model legislation, for instance, allowing municipalities to place tax liens on property to recover unreimbursed legal and engineering review costs incurred by a planning board. Susan Dao November 11, 2011 Page 3 ------------------- We are pleased to respond to the Request for Proposal. By virtue of experience and skill, we can meet the legal representation needs of the Wappinger Planning Board. When represented by Van Dewater & Van Dewater in the area of land use, zoning and planning, our clients have available to them a team of attorneys who are experienced and skilled, working under the guidance of a senior partner who will be fully accessible to the Board and on whose desk the buck will stop. The members of the Van Dewater & Van Dewater team are as follows: James E. Nelson, Esq., Partner Mr. Nelson is a 35 year member of the firm. He has extensive experience in the areas of land use, zoning, environmental and municipal law, including regulatory and media law issues by virtue of representation of the Dutchess County Resource Recovery Agency, Gannett Corporation (Poughkeepsie Journal) and Ottaway Newspapers (Times Herald Record). He currently serves as Town Attorney to the Town of Poughkeepsie. He represents the Town of Pleasant Valley Planning Board, and its Zoning Board of Appeals. Ronald C. Blass, Jr., Esq., Partner Mr. Blass is a 30-year member of the firm. He serves as the partner at Van Dewater & Van Dewater in charge of the decades- long representation of the Towns of LaGrange and Fishkill. He manages the firm's representation of the Town of Marlborough and the Town of Kent in Putnam County. This experience involves regular attendance at meetings of the boards of these municipalities, including all meetings of the planning boards of the Town of Kent and the Town of Marlborough. If the firm is retained, Mr. Blass is available to be the partner in charge of representing the Wappinger Planning Board by Van Dewater & Van Dewater. Susan Dao November 11, 2011 Page 4 ------------------- Rebecca A. Valk, Esq., Associate Ms. Valk is a 2003 graduate of St. John's University School of Law. She has been an associate with Van DeWater & Van DeWater, LLP since 2003 and practices principally in the areas of municipal law, zoning and planning, environmental law and real estate. Ms. Valk currently covers the Planning Boards in the Town of Lagrange and the Town of Washington. She covers the Zoning Boards of Appeal in Poughkeepsie, LaGrange, Millbrook and Washington. Audrey L. Friedrichsen Scott, Esq., Associate Ms. Scott is a 2004 graduate of Pace Law School, where she earned a certificate in environmental law. She has been an associate with Van DeWater & Van DeWater, LLP since December of 2007, and also practices principally in the areas of municipal law, zoning and planning, environmental law and real estate. She has experience in representing developers of commercial and residential projects before planning and zoning boards. Ms. Scott currently represents the Town of Fishkill Planning Board and Zoning Board of Appeals and the Town of Poughkeepsie Planning Board. Proposed Work Program At Van DeWater & Van DeWater, we meet our clients' expectation that their consultants provide all necessary services in a competent and in a timely fashion. The firm, in consultation with the Planning Board, will designate one attorney to be on point to insure efficiency and continuity. In addition, we will be able to swiftly integrate the team members into the Planning Board's two-meeting per month schedule. We will work with the Secretary to the Planning Board to set up a method to obtain, prior to public meetings, the applications and other materials submitted to the Planning Board in order that the Planning Board and, the applicants (to the degree authorized), may be apprised of issues in advance. We will be in communication with other Planning Board consultants with regard to their reviews of applications. Post meeting, we will quickly follow up with any legal issues Susan Dao November 11, 2011 Page 5 ------------------- raised by the Planning Board's review and discussion of applications. All members of the team may be easily reached by phone or e-mail. We will provide legal coverage for all regular and special Planning Board meetings, and will be available for any site visits, off-line meetings with applicants and their consultants and other events as necessary. There will be one attorney on point for continuity and efficiency, but in the event of a scheduling conflict or other unavailability of a lead attorney, the fact that there are four attorneys on the Van DeWater team insures that an experienced representative will always be available. The depth of practical experience and skill of our planning board attorneys allows for us, in fairness to the private sector applicants, to control costs and to keep consulting fee pass-throughs within a reasonable range. References Town of Marlborough Planning Board Joseph Porco, Chairman Town of Marlborough 1650 Route 9W, P. 0. Box 305 Milton, NY 12547 795-5243 Secretary: Kathi Natland KNatland@MarlboroughNY.US Town of Pleasant Valley Planning Board Rebecca Seaman, Chairwoman Town of Pleasant Valley 1554 Main Street Pleasant Valley, NY 12569 635-8395 Secretary: Laurie Fricchione lfricchione@pleasantvalley-ny.gov Town of Poughkeepsie Planning Board John Weisman, Chairman Town of Poughkeepsie One Overocker Road Poughkeepsie, NY 12603 'ice,, 485-3658 Secretary: Diane Benigno DBenigno@townofpoughkeepsie-ny.gov Susan Dao November 11, 2011 Page 6 ------------------- Town of Fishkill Planning Board Thomas J. Knips, Chairman Town of Fishkill 807 Route 52 Fishkill, NY 12524 831-7800 Ext. 3328 Secretary: Debbie Davis ddavis@fishkill-ny.gov Town of Kent Planning Board Russell Fleming, Chairman Town of Kent 25 Sybil's Crossing Kent Lakes, NY 10512 225-7802 Secretary: Vera Patterson planningc~townofkentny.gov Town of LaGrange Planning Board Alan Bell, Chairman Town of LaGrange 120 Stringham Road LaGrangeville, NY 12540 452-2046 Secretary: Eileen Mang emang@lagrangeny.org Thank you for the opportunity to submit this proposal. As requested, our cost proposal is submitted under separate cover. Please do not hesitate to contact the undersigned if you have any questions or require further information. Very truly yours, VAN DEWATER & VAN D~TATER, LLP By: RONALD C. BL~SS, JR. RCB:nlbg / Enclosure S:\WPDOCS\V&V General\Wappinger Planning Board RFP Response\11.11.11 Wappinger Planning Board RFP Letter dot VAN DEWATER AND VAN DH:WATER, LLP COUNSELORS A"I" LAW .lohn B. Van DeWatcr 1 1 892-1 968) Robert B. Van UcWater (1921-1990) lames E. Nelson Uer<ud .I Comahis, .Ir. Ronald C. Blass. .l r. Kyle W. Barnett C'vniiiln ;~. 1\\)ll:~lz\\-21r gi CIVIC CENTER PLAZA. SUITE 101 P.O. BOX I I Z POUGHKEEPSIE. NEW' YORK 12601 (84>)4~2-900 Fax (84i) 4i2-1848 Noel deCurdova..lr. (Retired) I-:dward vK Cunningham..lr. luhn K_ GitTord lapis M. Gomez ,lnderson Counsel Rebecca A. Valk Audrev Friedrichsen Scott Anna F. Remet .lonathvi M. Ream WEBSI"1'E ADDRESS: www.vandc~a•aterlaw.com GENERAL E-MAIL ADDRESS: intb(uwandcwaterlaw.com November 11, 2011 Ms. Susan Dao, Planning Board Secretary Town of Wappinger Planning Board 20 Middlebush Road Wappingers Falls, NY 12590 Re: Request for Proposals for Attorney Services for Town of Wappinger Planning Board Cost Proposal Dear Ms. Rao: Please accept this cost proposal to supplement our response to RFP of the Town of Wappinger Planning Board. The rate for each attorney (listed below) will be $165/hour. • James E. Nelson, Esq., Partner • Ronald C. Blass, Jr., Esq., Partner • Rebecca A Valk, Esq., Associate • Audrey L. Friedrichsen Scott, Esq., Associate These rates are inclusive of all secretarial, clerical and administrative services and all local telephone, postage and other customary overhead expenses. It is anticipated that the Planning Board maintains an escrow-based pass through of its legal fees to the applicants. Consequently, we are prepared to keep a separate billing account for each application. Susan Dao November 11, 2011 Page 2 ------------------- We offer up to three (3) hours per month of unbilled time toward general legal representation of the Planning Board on administrative matters not covered by applicant escrows. Very truly yours, VAN DEWATER & VAN/D~WATER, LLP By. RCB:nlbg C. BASS, JR. S:\WPDOCS\V&V General\Wappinger Planning Board RFP Response\ll.lf~.ll Letter with Hourly rates.dot Search - 1 Result - gerrard and SEQRA and merson and WEOK Page 1 of 7 TEN YEARS OF SEQRA LITIGATION: A STATISTICAL ANALYSIS; Environmental Law New York Law Journal March 24, 2000 Friday Copyright 2000 ALM Media Properties, LLC All Rights Reserved Further duplication without permission is prohibited New York Law Journal March 24, 2000 Friday SECTION: Pg. 2, (col. 4) Vol. 223 LENGTH: 3043 words HEADLINE: TEN YEARS OF SEQRA LITIGATION: A STATISTICAL ANALYSIS; Environmental Law BYLINE: Michael B. Gerrard BODY: Environmental Law ,,, For each of the last nine years,l this column has presented an analysis of the past year's decisions under the State Environmental Quality Review Act (SEQRA).2 In this tenth year, we now have a complete picture of all 635 SEQRA decisions of the decade 1990 - 1999.3 The accompanying table summarizes the results. One especially striking fact emerges: Defendants are nearly three times as likely to win a SEQRA lawsuit if an environmental impact statement (EIS) has been prepared for the challenged action than if there was no EIS. Plaintiffs prevailed in 10 per cent of the actions where there was an EIS, and 28 per cent where there was no EIS. There have been a few fluctuations in these numbers from one year to the next, but, by and large, the picture remained about the same throughout the decade. Most Important Decisions This review also provides an occasion to nominate the six most important SEQRA decisions of the decade. All are from the New York Court of Appeals. Six is not an especially round number, but all these seemed far more important than whatever would have been number seven. All six of these reveal their influence in the cases and other developments of 1999, which are also reviewed in today's column. Here, in descending order, is my list. It will be noted that in all of these, as well as all other Court of Appeals decisions of the decade, the governmental defendants won (with one minor exception where a town's behavior was indisputably over the line);4 otherwise environmental plaintiffs have not won a SEQRA case in the Court of Appeals since 1989.5 1. Akpan v. Koch6 (1990) -The state's high court began the decade with a theme that has resonated through almost all subsequent SEQRA decisions: deference to the administrative agency. In that challenge to an urban renewal project in Brooklyn, opponents presented https://www.lexis.com/research/retrieve?_m=a0520c08c10e558a480256df5e155bcf& br... 11/11/2011 Search - 1 Result - gerrard and SEQRA and merson and WEOK Page 2 of 7 voluminous expert reports arguing that the EIS analysis was deeply flawed. The Court of Appeals would have none of it; the defendant City of New York had studied the issues and reached a reasoned conclusion, and it was not for the courts to second-guess the City's ''~.-~ judgments. This deference is the major reason why plaintiffs so seldom win cases where EISs have been prepared. One 1999 application of this principle is Sour Mountain Realty Inc. v. New York State Department of Environmental Conservation in which the Appellate Division, Third Department, upheld DEC's decision to require a supplemental EIS for a proposed mining project after it had been determined that a population of an endangered species, the timber rattlesnake, might be affected. DEC's judgment of the potential significance of the impacts was enough to overcome the applicant's protestations of irrelevance and delay. 2. Society of the Plastics Industry Inc. v. County of Suffolk8 (1991) -This decision created the doctrine that, in order to have standing to bring a SEQRA case, a plaintiff must not only be affected by the challenged action -she must also be affected differently than the public at large. This doctrine has the potential to shield from review many classic environmental impacts (such as air and water pollution) that equally affect everyone nearby. It has no parallel in federal standing law or that of most states, and thus makes New York one of the most restrictive jurisdictions for environmental plaintiffs.9 Six 1999 SEQRA decisions held that plaintiffs lacked standing to sue.l~ In two important Appellate Division cases,ll lower court denials of standing were reversed, but the courts did not accept the invitations from plaintiffs and amici to revisit the special injury requirement of Society of Plastics, but rather found that the lower courts had been too restrictive in applying that requirement. I would have ranked this decision as number one, except that it arises less often than might be expected. The six 1999 decisions rejecting standing were just over the annual average (five) for the decade, and thus fewer cases are affected by questions over standing than by deference to administrative agencies. 3. Merson v. McNally12 (1997) -This decision authorized, under some circumstances, a conditioned negative declaration for a Type I action (an action more likely than others to require an EIS), despite a DEC regulation that seems to prohibit such a declaration. More important than this technical holding, however, is the decision's signal that minor procedural irregularities will be forgiven, especially if the public has been given full opportunity to participate in the discussions. This is contrary to the strict compliance standard that predominated, at least rhetorically, before Merson. One 1999 application of Merson was Friends of the Wickers Creek Archeological Site v. Board of Trustees of Dobbs Ferry13 in which an EIS for a housing development was upheld despite various procedural errors. 4. Bonnie Briar Syndicate Inc. v. Town of Mamaroneck14 (1999) -This decision did not construe SEQRA but it highlighted the statute's extreme importance. It strengthened New York's inhospitability to takings challenges to land use and environmental restrictions. The Town had followed SEQRA and painstakingly documented the importance of preserving a large parcel as a golf course rather than allowing it to be developed for housing. The SEQRA studies were an essential basis for the Court's finding that the Town's restrictions were solidly grounded. Similarly, the Second Department last year in W.).F. Realty v. Town of Southamptonl5 overturned a trial court's large taking award against a town that had restricted development in a portion of the town. https://www.lexis.com/research/retrieve?_m=a0520c08c10e558a480256df5e155bcf& br... 11/11/2011 Search - 1 Result - gerrard and SEQRA and merson and WEOK Page 3 of 7 5. WEOK Broadcasting Corp. v. Planning Board of Lloyd16 (1992) -This decision, concerning a radio tower near the Hudson River, established two key principles. First, aesthetics are a valid basis for municipal regulation; a project subject to discretionary review can, under the right circumstances, be rejected because it is ugly. (A 1999 application of this rule is Sprint Spectrum, L. P. v. Willoth.)17 Second, when SEQRA review finds the presence or absence of an impact, that finding is binding, at least on the lead agency. Thus several 1999 decisions found that a SEQRA negative declaration (a finding that the project's environmental impacts are so minor that no EIS is necessary) precludes a project denial on environmental grounds,18 though one unreported decision went the other way.19 6. Long Island Pine Barrens Society v. Town of Brookhaven20 (1992) -Here the Court found no necessity to conduct a cumulative impact assessment of more than 200 separate proposed projects in Suffolk County despite their common impact on the precious Long Island aquifer, because the projects did not emerge from a common plan or developer; for cumulative review to be required, the projects had to be related in origins or sponsorship, rather than only in impacts. There were no cumulative impact decisions in 1999 (though, as noted below, several decisions arose under the related doctrine of segmentation). However, the working group that DEC had created to resolve the problems created by Long Island Pine Barrens Society completed its report recommending a new definition of cumulative impact for SEQRA. That definition has not yet been adopted, however. The above six decisions form the backbone of today's SEQRA jurisprudence, which can largely be boiled down to this: the outcome of a SEQRA review will strongly influence the outcome of the underlying development controversy, and so long as the government studied and wrote up the relevant issues and at least came close to following the proper procedures, its decisions are unlikely to be overturned by the courts. CEQR Statistics A sons under SEQRA are decisions under City Environmental Quality Review (CEQR), the City of New York's regulations implementing SEQRA. In 1998 a statistical analysis was published of all CEQR cases decided between 1983 and 1997.21 Its author, Boris Serebro, found 41 CEQR decisions; of these, plaintiffs won nine, but only five on environmental grounds. Of these five, one turned on an issue that raged in the 1980s but has since been resolved - designation of the lead agency for CEQR review.22 Three concerned the applicability to CEQR to actions other than conventional construction projects -removal of lead paint from the Williamsburg Bridge,23 elimination of fire alarm boxes on City streets,24 and demolition of the Naumberg Bandshell in Central Park.25 The fifth was a landmark decision on secondary displacement.25 ULURP Statistics Thieview has also given me occasion to look at the statistics for cases arising under the Uniform Land Use Review Procedure (ULURP), New York City's consolidated procedure for reviewing a wide variety of land use and contracting matters.27 Many ULURP cases also involve CEQR and SEQRA, so there is considerable overlap among the decisions counted here. There are a total of 56 reported ULURP decisions. Of these, plaintiffs won seven, but in only four of these was ULURP decisive. All four of these turned on whether ULURP applied to a particular action, rather than on the adequacy of ULURP review. The first of these was also the first reported ULURP case ever - Ortho-O-Vision v. City of https://www.lexis.com/research/retrieve? m=a0520c08c10e558a480256df5el55bcf& br... 11/11/2011 Search - 1 Result - gerrard and SEQRA and merson and WEOK Page 4 of 7 New York28 which held in 1979 that the City's decision on awarding a franchise for cable television in Queens should have gone through ULURP. In the second, Connor v. Cuomo29 a community residence for homeless mentally ill persons was found to be subject to ULURP; though it was nominally a State project, the State acquired the property from the City by a friendly condemnation. Third came Council of New York v. Giuliani30 finding that the sale of a hospital operated by the New York City Health and Hospitals Corporation to afor-profit entity was subject to ULURP. Finally, in Committee to Preserve Brighton Beach v. City Planning Commission31 the City was found to have failed to observe ULURP in deciding whether a proposed concession for a golf driving range at a Brooklyn park was a major concession. Most of the ULURP cases in which the defendants prevailed concerned one of two issues: whether ULURP applied to the action (15 decisions), and whether, for projects to which ULURP applied, the proper procedures were followed, especially in considering changes to the project since the ULURP certification (another 15 decisions). There were also four dismissals based on lack of ripeness and three based on lack of standing. Closely related to ULURP is the fair share provision of the City Charter, which requires consideration of whether certain communities are being overburdened with unwanted facilities. There have been eleven decisions under this provision, and only one victory for plaintiffs - Silver v. Koch32 which concerned the siting of a Department of Sanitation garage on two piers in the East River. 1999 Results Confining my review just to the past year's cases (as my prior columns have done), there were 61 decisions under SEQRA in 1999.33 Of these, 13 involved projects that had been subject to EISs; plaintiffs won one of these. There were 33 with no EISs; plaintiffs won nine of these. (In the rest of the cases, it was not apparent whether an EIS had been prepared, or for other reasons the decisions could not be categorized this way.) The only Court of Appeals decision concerning SEQRA in 1999 was Bonnie Briar, which was discussed above. Throughout the state, 170 draft EISs and 84 final EISs were prepared under SEQRA in 1999.34 The sole decision striking down an action after an EIS was Penfield Panorama Area Community, Inc. v. Town of Penfield Planning Board35 which concerned a cluster subdivision. The Planning Board approved the project but deferred to DEC and the county health department the consideration of the cleanup of hazardous waste that had been found under the site. The Appellate Division, Fourth Department, held that deferring resolution of the remediation was improper because it shields the remediation plan from public scrutiny, and thus the court [below] properly annulled the determination of the Planning Board. One hot topic for SEQRA litigation in 1999 was segmentation -the alleged separation of actions into two or more segments, so that full environmental review of the overall action is avoided. In three decisions, project approvals were annulled on segmentation grounds. In Scenic Hudson Inc. v. Town of Fishkill Town Board36 the Town issued a negative declaration and rezoned land from residential to planned industrial. Then the town declared that mining is a permitted use in a planned industrial area, and that asphalt processing is an accessory use. The Second Department ruled that the rezoning was an integral part of a mining proposal that would have obvious potential environmental impacts, which the town board should have considered these at time of rezoning. Similarly, in Citizens Concerned for the Harlem Valley Environment v. Town Board of Amenia37 segmentation was found in another rezoning that would allow mining. In Schulz v. https://www.lexis.com/research/retrieve?_m=a0520c08c10e558a480256df5e155bcf& br... 11/11/2011 Search - 1 Result - gerrard and SEQRA and merson and WEOK Page 5 of 7 State of New York38 a sewer project had been split into two different parts. The court found that these were both part of one overall project, and should have been considered together. In two other decisions, however, no segmentation was found.39 A final notable decision of 1999 was Niagara Mohawk Power Corp. v. Green Island Power Authority40 which arose after the plaintiff agreed to sell 72 power plants. The Green Island Power Authority offered to buy one of them. When the plaintiff rejected the offer, Green Island started condemnation proceedings to acquire it via eminent domain, and issued a negative declaration under SEQRA. The court rejected this SEQRA determination, finding a need to analyze the environmental impacts of changing ownership, and in particular whether Green Island had the requisite technical expertise to run the plant. (1) Prior reviews appeared in the New York Law Journal on Mar. 29, 1991; Mar. 27, 1992; Mar. 26, 1993; Apr. 22, 1994; March 24, 1995; Mar. 22, 1996; Mar. 28, 1997; May 22, 1998; and Jan. 22, 1999. (2) N.Y. Envtl. Conserv. art. 8. (3) This count includes not only all reported decisions, but also numerous unreported decisions that the author has obtained. It is possible that there are additional unreported decisions that are unknown to the author. (4) Kahn v. Pasnik, 90 N.Y.2d 569, 664 N.Y.S.2d 584 (1997). (5) The last victory by pro-environmental plaintiffs was Village of Westbury v. Department of Transportation, 75 N.Y.2d 62, 550 N.Y.S.2d 604 (1989). (6) 75 N.Y.2d 561, 555 N.Y.S.2d 16 (1990). (7) 260 A.D.2d 920, 688 N.Y.S.2d 842 (3'd Dep't 1999), app. den. 93 N.Y.2d 815, 697 N.Y.S.2d 562 (1999). (8) 77 N.Y.2d 761, 570 N.Y.S.2d 778 (1991). (9) See Philip Weinberg, Are Standing Requirements Becoming a Great Barrier Reef Against Environmental Actions? 7 N.Y.U. Envt. L.J. 1 (1999). (10) Sunrise Development Inc. v. Town of Huntington, 62 F.Supp.2d 762 (E. D.N.Y. 1999); Boyle v. Town of Woodstock, 257 A.D.2d 702 (3d Dep't 1999); Gardner v. City of Yonkers, 694 N.Y.S.2d 465 (2d Dep't 1999); Benson v. City of Albany Planning Board, Index No. 5632-98 (Sup.Ct. Albany Co., January 20, 1999), aff'd, 696 N.Y.S.2d 913 (1999); Elias v. Town of Brookhaven, Index No. 23145-1992 (Sup.Ct. Suffolk Co., August 5, 1999); Pavilion Against the Tower v. Town of Pavilion, Index No. 47010 (Sup.Ct. Genesee Co., July 9, 1999). (11) Committee to Preserve Brighton Beach and Manhattan Beach Inc. v. Planning Comm'n of the City of New York, 695 N.Y.S.2d 7 (1st Dept 1999); Long Island Pine Barrens Society Inc. v. Town of Islip 690 N.Y.5.2d 95 (2d Dep't 1999). (12) 90 N.Y.2d 742, 665 N.Y.5.2d 605 (1997). (13) Index No. 17300/98 (Sup.Ct. Westchester Co., April 27, 1999). (14) 94 N.Y.2d 96, 699 N.Y.S.2d 721 (1999). (15) N.Y.L.J., June 2, 1999, 33:5 (2d Dep't 1999). https://www.lexis.com/research/retrieve? m=a0520c08c10e558a480256df5e155bcf& br... 11/11/2011 Search - 1 Result - gerrard and SEQRA and merson and WEOK Page 6 of 7 (16) 79 N.Y.2d 373, 583 N.Y.S.2d 170 (1992). (17) 176 F.3d 630 (2d Cir. 1999). r- (18) Albany-Greene Sanitation Inc. v. Town of New Baltimore Zoning Board of Appeals, 692 N.Y.S.2d 831 (3d Dep't 1999), app. den. 94 N.Y.2d 752, 700 N.Y.S.2d 425 (1999); SCI Funeral Services of New York Inc. v. Planning Board of Town of Babylon, Index No. 27735/1998 (Sup.Ct. Suffolk Co., June 3, 1999). (19) Cellco Partnership v. Bellows, 692 N.Y.S.2d 203 (3d Dep't 1999). (20) 80 N.Y.2d 500, 591 N.Y.S.2d 982 (1992). (21) Boris Serebro, CEQR Litigation: Statistics, Trends, Analysis,New York Envt'I Lawyer, 30 (Spring 1998). (22) Coca-Cola Bottling Co. v. Board of Estimate of New York, 72 N.Y.2d 674, 536 N.Y.S.2d 33 (1988). (23) Williamsburg Around the Bridge Block Assn v. Giuliani, 223 A.D.2d 64, 644 N.Y.S.2d 252 (1st Dept 1996). (24) Powis v. Giuliani, 216 A.D.2d 107, 628 N.Y.S.2d 634 (1st Dept 1995). (25) London v. Art Comm'n of New York, 190 A.D.2d 557, 593 N.Y.S.2d 233 (1st Dept 1993), app. den. 82 N.Y.2d 652, 601 N.Y.S.2d 581 (1993). (26) Chinese Staff and Workers Assn v. City of New York, 68 N.Y.2d 359, 509 N.Y.S.2d 499 (1986). (27) This analysis of ULURP decisions was greatly aided by the research assistance of Sherell Evans, a student at Columbia Law School. (28) 101 Misc.2d 987, 422 N.Y.S.2d 781 (Sup. Ct. N.Y. Co. 1979). (29) 161 Misc.2d 889 614 N.Y.S.2d 1011 (Sup. Ct. Kings Co. 1994). (30) 231 A.D.2d 178, 662 N.Y.5.2d 216 (2d Dep't 1997), aff'd on other grounds, 93 N.Y.2d 60, 687 N.Y.S.2d 609 (1999). (31) 695 N.Y.S.2d 7 (1st Dept 1999). (32) 137 A.D.2d 467, 525 N.Y.S.2d 186 (1988), app. den. 73 N.Y.2d 702, 536 N.Y.S.2d 743 (1988). (33) All of these decisions will be included in the forthcoming 2000 supplement to Michael B. Gerrard, Daniel A. Ruzow and Philip Weinberg, Environmental Impact Review in New York (Matthew Bender & Co., two volumes). (34) These statistics were provided by Jack Nasca, DEC, in a telephone conversation of Mar. 14, 2000. (35) 253 A.D.2d 342, 688 N.Y.S.2d 848 (4th Dept 1999). (36) 258 A.D.2d 654, 685 N.Y.S.2d 777 (2d Dep't 1999). (37) 694 N.Y.S.2d 108 (2d Dep't 1999), app. den., 2000 N.Y. 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